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30
Common auction Conditions (3rd Edition august 2009 reproduced with the consent of the riCs).
The general conditions (including any extra general conditions) apply to the contract except to the
extent that they are varied by special conditions or by an addendum.
INTRODUCTION
The Common auction Conditions have been produced for real
estate auctions in England and wales to set a common standard
across the industry. They are in three sections:
1.
Glossary The glossary gives special meanings to
certain words used in both sets of conditions.
2.
Auction Conduct Conditions The auction Conduct
Conditions govern the relationship between the
auctioneer and anyone who has a catalogue, or who
attends or bids at the auction. They cannot be changed
without the auctioneer's agreement.
we recommend that these conditions are set out in a
two-part notice to bidders in the auction catalogue, part
one containing advisory material which auctioneers
can tailor to their needs and part two the auction
conduct conditions.
3.
Sale Conditions The sale Conditions govern the
agreement between each seller and buyer. They include
general conditions of sale and template forms of special
conditions of sale, tenancy and arrears schedules and a
sale memorandum.
Important notice
a prudent buyer will, before bidding for a lot at an auction:
· Take professional advice from a conveyancer and,
in appropriate cases, a chartered surveyor and an
accountant;
· read the conditions;
· inspect the lot;
· Carry out usual searches and make usual enquiries;
· Check the content of all available leases and other
documents relating to the lot;
· Check that what is said about the lot in the catalogue is
accurate;
· have finance available for the deposit and purchase
price;
· Check whether VaT registration and election is
advisable;
The conditions assume that the buyer has acted like a prudent
buyer. if you choose to buy a lot without taking these normal
precautions you do so at your own risk.
GLOSSARY
This glossary applies to the auction conduct conditions and the
sale conditions. wherever it makes sense:
· singular words can be read as plurals, and plurals as
singular words;
· a "person" includes a corporate body;
· words of one gender include the other genders;
· references to legislation are to that legislation as it may
have been modified or re-enacted by the date of the
auction or the contract date (as applicable); and
· where the following words printed in bold black type
appear in bold blue type they have the specified
meanings.
Actual completion date The date when completion takes
place or is treated as taking place for the purposes of
apportionment and calculating interest.
Addendum an amendment or addition to the conditions or
to the particulars or to both whether contained in a
supplement to the catalogue, a written notice from the
auctioneers or an oral announcement at the auction.
Agreed completion date subject to condition g9.3: (a) the
date specified in the special conditions; or (b) if no date
is specified, 20 business days after the contract date;
but if that date is not a business day the first subsequent
business day.
Approved financial institution any bank or building society
that has signed up to the Banking Code or Business
Banking Code or is otherwise acceptable to the
auctioneers.
Arrears arrears of rent and other sums due under the tenancies
and still outstanding on the actual completion date.
Arrears schedule The arrears schedule (if any) forming part of
the special conditions.
Auction The auction advertised in the catalogue.
Auction conduct conditions The conditions so headed,
including any extra auction conduct conditions.
Auctioneers The auctioneers at the auction.
Business day any day except (a) a saturday or a sunday; (b) a
bank holiday in England and wales; or (c) good Friday or
Christmas day.
Buyer The person who agrees to buy the lot or, if applicable,
that person's personal representatives: if two or more
are jointly the buyer their obligations can be enforced
against them jointly or against each of them separately.
Catalogue The catalogue to which the conditions refer
including any supplement to it.
Completion Unless otherwise agreed between seller and buyer
(or their conveyancers) the occasion when both seller
and buyer have complied with their obligations under the
contract and the balance of the price is unconditionally
received in the seller's conveyancer's client account.
Condition one of the auction conduct conditions or sales
conditions.
Contract The contract by which the seller agrees to sell and the
buyer agrees to buy the lot.
Contract date The date of the auction or, if the lot is not sold
at the auction: (a) the date of the sale memorandum
signed by both the seller and buyer; or (b) if contracts
are exchanged, the date of exchange. if exchange is not
effected in person or by an irrevocable agreement to
exchange made by telephone, fax or electronic mail the
date of exchange is the date on which both parts have
been signed and posted or otherwise placed beyond
normal retrieval.
Documents documents of title (including, if title is registered,
the entries on the register and the title plan) and other
documents listed or referred to in the special conditions
relating to the lot.
Financial charge a charge to secure a loan or other financial
indebtness (not including a rentcharge).
General conditions That part of the sale conditions so headed,
including any extra general conditions.
Interest rate if not specified in the special conditions, 4%
above the base rate from time to time of Barclays Bank
plc. (The interest rate will also apply to judgment debts,
if applicable.)
Lot Each separate property described in the catalogue or (as the
case may be) the property that the seller has agreed to
sell and the buyer to buy (including chattels, if any).
Old arrears Arrears due under any of the tenancies that are not
"new tenancies" as defined by the landlord and Tenant
(Covenants) act 1995.
Particulars The section of the catalogue that contains
descriptions of each lot (as varied by any addendum).
Practitioner an insolvency practitioner for the purposes of
the insolvency act 1986 (or, in relation to jurisdictions
outside the United kingdom, any similar official).
Price The price that the buyer agrees to pay for the lot.
Ready to complete ready, willing and able to complete: if
completion would enable the seller to discharge all
financial charges secured on the lot that have to be
discharged by completion, then those outstanding
financial charges do not prevent the seller from being
ready to complete.
Sale conditions The general conditions as varied by any
special conditions or addendum.
Sale memorandum The form so headed (whether or not set out
in the catalogue) in which the terms of the contract for
the sale of the lot are recorded.
Seller The person selling the lot. if two or more are jointly the
seller their obligations can be enforced against them
jointly or against each of them separately.
Special conditions Those of the sale conditions so headed that
relate to the lot.
Tenancies Tenancies, leases, licences to occupy and agreements
for lease and any documents varying or supplemental
to them.
Tenancy schedule The tenancy schedule (if any) forming part of
the special conditions.
Transfer Transfer includes a conveyance or assignment (and "to
transfer" includes "to convey" or "to assign").
TUPE The Transfer of Undertakings (Protection of Employment)
regulations 2006.
VAT Value added Tax or other tax of a similar nature.
VAT option an option to tax.
We (and us and our) The auctioneers.
You (and your) someone who has a copy of the catalogue or
who attends or bids at the auction, whether or not a
buyer.
AUCTION CONDUCT CONDITIONS
A1
Introduction
a1.1
words in bold blue type have special meanings, which
are defined in the glossary.
a1.2
The catalogue is issued only on the basis that you
accept these auction conduct conditions. They govern
our relationship with you and cannot be disapplied or
varied by the sale conditions (even by a condition
purporting to replace the whole of the Common auction
Conditions). They can be varied only if we agree.
A2
Our role
a2.1
as agents for each seller we have authority to:
· (a) prepare the catalogue from information supplied by
or on behalf of each seller;
· (b) offer each lot for sale;
· (c) sell each lot;
· (d) receive and hold deposits;
· (e) sign each sale memorandum; and
· (f) treat a contract as repudiated if the buyer fails to
sign a sale memorandum or pay a deposit as required
by these auction conduct conditions.
a2.2
our decision on the conduct of the auction is final.
a2.3
We may cancel the auction, or alter the order in which
lots are offered for sale. We may also combine or divide
lots. a lot may be sold or withdrawn from sale prior to
the auction.
a2.4
You acknowledge that to the extent permitted by law we
owe you no duty of care and you have no claim against
us for any loss.
A3
Bidding and reserve prices
a3.1
all bids are to be made in pounds sterling exclusive of
any applicable VaT.
a3.2
We may refuse to accept a bid. We do not have to
explain why.
a3.3
if there is a dispute over bidding we are entitled to
resolve it, and our decision is final.
a3.4
Unless stated otherwise each lot is subject to a reserve
price (which may be fixed just before the lot is offered for
sale). if no bid equals or exceeds that reserve price the
lot will be withdrawn from the auction.
a3.5
where there is a reserve price the seller may bid (or
ask us or another agent to bid on the seller's behalf)
up to the reserve price but may not make a bid equal
to or exceeding the reserve price. You accept that it is
possible that all bids up to the reserve price are bids
made by or on behalf of the seller.
a3.6
where a guide price (or range of prices) is given that
guide is the minimum price at which, or range of prices
within which, the seller might be prepared to sell at the
date of the guide price. But guide prices may change.
The last published guide price will normally be at or
above any reserve price, but not always as the seller
may fix the final reserve price just before bidding
commences.
A4
The particulars and other information
a4.1
We have taken reasonable care to prepare particulars
that correctly describe each lot. The particulars are
based on information supplied by or on behalf of the
seller. You need to check that the information in the
particulars is correct.
a4.2
if the special conditions do not contain a description
of the lot, or simply refer to the relevant lot number,
you take the risk that the description contained in
the particulars is incomplete or inaccurate, as the
particulars have not been prepared by a conveyancer
and are not intended to form part of a legal contract.
a4.3
The particulars and the sale conditions may change
prior to the auction and it is your responsibility to check
that you have the correct versions.
a4.4
if we provide information, or a copy of a document,
provided by others we do so only on the basis that we
are not responsible for the accuracy of that information
or document.
A5
The contract
a5.1
a successful bid is one we accept as such (normally on
the fall of the hammer). This condition a5 applies to you
if you make the successful bid for a lot.
a5.2
You are obliged to buy the lot on the terms of the
sale memorandum at the price you bid plus VAT (if
applicable).
a5.3
You must before leaving the auction:
· (a) provide all information we reasonably need from
you to enable us to complete the sale memorandum
(including proof of your identity if required by us);
· (b) sign the completed sale memorandum; and
· (c) pay the deposit.
a5.4
if you do not we may either:
· (a) as agent for the seller treat that failure as your
repudiation of the contract and offer the lot for sale
again: the seller may then have a claim against you for
breach of contract; or
· (b) sign the sale memorandum on your behalf.
a5.5
The deposit:
· (a) is to be held as stakeholder where VAT would be
chargeable on the deposit were it to be held as agent
for the seller, but otherwise is to be held as stated in
the sale conditions; and
· (b) must be paid in pounds sterling by cheque or by
bankers' draft made payable to us on an approved
financial institution. The extra auction conduct
conditions may state if we accept any other form of
payment.
a5.6
We may retain the sale memorandum signed by or on
behalf of the seller until the deposit has been received in
cleared funds.
a5.7
if the buyer does not comply with its obligations under
the contract then:
· (a) you are personally liable to buy the lot even if you
are acting as an agent; and
· (b) you must indemnify the seller in respect of any loss
the seller incurs as a result of the buyer's default.
a5.8
where the buyer is a company you warrant that the
buyer is properly constituted and able to buy the lot.
Common auction Conditions