Gazumped!

Previously published in May 2010, now re-written and updated. All advice and opinion on here is given in good faith and based on the Laws and code of practice from The Property Ombudsman Scheme that apply in England Wales, as we understand them.

Gazumping. What does it mean, what are the Laws against it and who is at fault?

The chances are that you have landed on this page after a search because you have just been gazumped or, someone you know has been and you/ they are angry, hurt, upset and want to sue the backside off someone. In short, you want payback! But who is at fault? The agent? The owner of the property? The other person who offered? All of them? You even?

So what is ‘Gazumping’. In simple terms it is when a seller, having previously accepted an offer subject to contract, from a buyer then goes on to accept another offer from a different buyer before contracts have been exchanged. Wikipedia has a rather short article on the subject here .

Why does it happen? Apart from the main reason (the way that we convey property in Britain allowing gazumping to happen); there are usually a number of reasons cited but, the principal ones are:

  • The original buyer upset the seller in some way, causing them to consider other offers (time delays, unreasonable demands, rude about the property; the list is almost endless)
  • The seller was simply greedy
  • The seller has a legal obligation to obtain the highest offer for the court (probate sales and repossessions for example)
  • The seller made it clear that other offers would be considered up-to exchange of contracts but this was ‘forgotten’ or not believed by the original buyers or; this information was not communicated to them effectively/ at all.
So whose ‘fault is it? It can be difficult to look at things dispassionately when all you want to do is rip someone’s throat out for having gazumped you but I hope the following helps you understand how it has happened and who to blame; if anyone.

Is it the estate agent? The first port of the blame call is usually the estate agent. It was him, after all, who encouraged or submitted the offending offer that caused you to be gazumped wasn’t it? In fact, except in exceptionally rare cases, it is never the agents fault.

Probably the main cause of the ire directed at agents on these occasions is that very few people understand an agents responsibilities in Law so it is worth stating them clearly here. The agent works for the seller and not the buyer. The agents duty in law is to achieve the best offer possible and to act on the sellers instructions; even when those instructions appear morally questionable (as long as those instructions are legal). An agent would be in a world of trouble in the courts if he disobeyed the legitimate instructions of his customer, the seller, no matter how morally bankrupt those instructions appear.

If an agent is actively trying to increase the selling price of a property or, is continuing to submit offers after an offer has been accepted, subject to contract (STC) then, that agent is doing what the owner is paying him to do and, equally important, what he is obliged to do in Law. Remember, when you come to sell, he is (or damn well should be) doing the same for you.

The Law of offers. In simple terms, if an agent receives an offer from anyone for a property he is marketing, he is obliged to pass it on ‘as soon as is reasonably practicable’ and to then confirm this in writing; usually on the same day, to both the seller and the buyer. This applies right up to the point of exchange of contracts and/ or even if the property has been ‘withdrawn from marketing’. The only time an agent is not required to pass on an offer is if he has written authority from the seller authorising no further offers to be put forward or, no offers below (or above) a certain level are to be submitted. It is this often little understood part of an agents legal obligations that can understandably cause great upset and anger.

The seller?  To make it clear, the only person who can gazump someone is the owner of a property; the seller (also known as ‘the vendor’ by some of us older estate agents).  The seller is the only person who has any authority to accept or reject an offer. An agent MUST pass on all offers (see above) but it is the owner who decides whether to change buyers and accept another offer.

In the sellers defence, as I said above in ‘why does it happen’, the original buyer may have caused the seller to lose patience or trust in the original buyers or, there may be other reasons why the seller has accepted another offer, subject to contract.

Taking a property off the market. A much misunderstood phrase, often, by agents themselves. When a property has a sale agreed, subject to contract, on it an agent must check whether the owner wishes to continue marketing. He must then inform the potential buyer if the seller is going to continue marketing in writing of this fact. This does NOT mean that the agent is released from his legal obligation to continue putting forward any offers he may receive after this point though. For example; Mr Corbyn views a property on Monday and makes an offer which is accepted; the owner instructing the agent to cease marketing. The agent immediately marks the property as SOLD stc on his boards in his window and on the internet as instructed. He then refuses to arrange viewings for Mr Cameron who rang in just afterwards to have a look around. However; Ms Sturgeon , who saw the property on the Saturday in the previous week but has been away, phones up on Tuesday and makes a higher offer. The agent is still legally obliged to tell the owner of the offer and it is then up to the owner whether he accepts or rejects the new offer. See my blog “Why can’t I keep my home marked as ‘for sale’?” on the subject here

IF the owner accepts the new offer, the agent is again required to inform the previous buyer of what has happened. The ‘gazumped’ buyer then, equally, has the right to make a better offer. And so the process continues. English conveyancing law…. Guaranteed to cause heartache and create problems. In short, an upsetting mess for everyone involved (although we at PDQ have a solution which helps to avoid and reduce problematic issues. See Best and Final Offers further down this page)

Subject to Contract (STC). This is a term I have referred to in this article a few times and I think it is worth offering a very brief explanation of why it is used and what it means. In English conveyancing Law, a property is always said to be sold, ‘Subject to Contract’ until contracts have been exchanged. What this means is that an offer to buy has been made at a price that is acceptable to the seller BUT, as the phrase implies; this price and the whole purchase itself is subject to an acceptable signed contract being offered and received (exchanged) by the two parties (the buyer and the seller). Up to exchange of contracts, both parties are free to pull out of the transaction, buy something else or, accept an offer from someone else.

BEST AND FINAL OFFERS – (PDQ’s preferred solution for dealing with multiple offers on a property)

WHAT HAPPENS IF OTHER PEOPLE OFFER ON THE PROPERTY I WANT? – Often the most attractive, well-located or keenly-priced properties will attract strong interest and offers from more than one person.

When this happens at PDQ, we usually advise our owners* to follow a procedure that we have found to produce the best and fairest results for our customers and buyers alike. We call this process best and final offers’.

  • If we are instructed to go to best and final offers by an owner, we will ask everyone who has made an offer or, indicated they may make an offer, to submit their ‘best and final’ offer to us at PDQ, along with details of any other property sale or finance that might be involved in any successful purchase. This offer is private between you, PDQ and the owner. No other potential buyer will know what you have offered nor will we tell you the level of other offers.
  • If you feel you have already made your best offer and don’t wish (or are unable) to make a better offer at this stage, we will inform our customer that the existing offer is your best and final offer.
  • Our customer will then be asked to make a decision having considered all of the offers on their individual merits.
  • Once we have spoken to the successful bidder, we will instruct solicitors and will inform the other bidders that they have not been successful.

* We will always offer the advice we believe is in our customers’ best interests which may differ from the ‘best and final offers’ solution and, of course, our customers are free to instruct us to follow other methods of deciding which they consider to be the best way to reach a satisfactory conclusion for them right up to the point of exchange of contracts.

I welcome feedback so please feel free to leave constructive criticisms or ask questions below. If you could also take a second to rate my blog and pass it on to others who you think may find it interesting that would be great. Thanks.

Chris Wood of PDQ Estates Ltd

Chris Wood

About Chris Wood: Chris is an estate agent with over 25 years of property experience. His business, PDQ Estates Ltd is based in Penzance and Helston, West Cornwall. He has worked with all sizes and types of businesses from single office independents to the management team and board of RBS and Tesco. A former President Elect of the NAEA and board member of NFoPP until he resigned in 2009, Chris has always championed the highest professional standards forestate agents in the UK. No stranger to the media, he has appeared on various programs including BBC, News 24, ITV, independent and BBC radio and is a regular contributor to trade journals, local and national Newspapers. Chris is on KloutLinkedIn Ecademy Facebook and Twitter Chris is a former Army reservist. In 2010 he mobilised for a tour of duty in Afghanistan with 1 Rifles as part of 3 Commando Brigade.

22 comments

  • Having agreed a sale with an agent, what if the vendor continues to market the property elsewhere, accepts a higher offer, issues a second contract and doesn’t inform either the agent or my solicitor?

    • Hi Peter
      For legal reasons, I can’t give specific advice and would strongly advise you speak to your local Trading Standards Officer in this case, as it may be that the solicitor
      may

      have acted unprofessionally. It is my understanding that conveyancers/ solicitors have a duty, under the Law, to inform other parties if a second contract has been issued. However, if the seller has engaged a second firm of solicitors as well as two agents, then it is possible one or both of the solicitors MAY be in the dark as well.

      Good luck 🙂
      Chris

    • Again, apologies for a very late response; it would seem that WordPress hasn’t been sending me updates to my posts.

      In answer to your question; my understanding of the Law is that the sellers solicitor should have provided immediate notification of a second contract being issued to ALL parties.

      The agent should also have informed you if they were aware of the existence of another offer (agents are not always kept in the loop by owners who are trying to pull a fast one and more than happy for an agent to take the fallout)

      Although I am very late in replying, it is not to late for you to put a complaint in to your local trading standards officer or the Law Society about the solicitor and/ or, The Property Ombudsman about the estate agent. However, I would advise that you contact each firm separately to discuss your grievance in the first instance.

  • Is the estate agent or anyone else under any obligation to tell a prospective new buyer (after the owner has accepted the offer of another buyer) what that offer was to enable the new buyer to outbid the original price?

    • Hi Victor and apologies for the very late reply. There is no obligation for the agent to disclose the level of the amount of an offer only of its existence.

      Interestingly, I had several conversations with Trading Standards and Data Protection about this same question about a year ago and neither of these two organisations was able to provide a definitive answer to the question “Is an agent breaking the law by disclosing the level of an offer to anyone else other than the seller and his/ her legal & financial advisors?”

      At my office, we take the view that all buyers offers are private between them and the seller unless we are instructed to tell other prospective buyers how much an offer is by the seller. We feel that this is fairer, helps prevent silly offers (E.g. “I’ll offer one more pound than them”) and helps us negotiate a better offer for our customer, the seller.

      Other agents take a different view.

  • My daughter made an offer which was accepted, and for months she was lead by the seller to think completion was imminent. On the signing day the seller didn’t show up, and now she has been told abruptly the sale is off. In the meanwhile she has received an offer on her own property and is within days of exchanging contracts.
    What is he legal position?

  • Whilst I am not a lawyer and cannot provide legal advice; I regret to say that my experience of far too many identical/ similar situations over my career suggests that, in England and Wales, your daughter has no legal comeback at all.

    Sadly we have to work with an appalling, archaic conveyancing system that provides little or no protection for either buyer or seller to the point of exchange of contract in England and Wales. Scotland has a different system but, in my opinion, is equally flawed in different ways.

  • Hello, I have been gazumped twice in the passed month.
    In the second occasion just days before the exchange (ie solicitor expenses already sustained as well as survey), I was willing to match the concurring offer but was still rejected on the grounds that the seller thought the other buyer would have been faster to exchange/complete. Is there no law protection for something like this? If I am willing to match the same offer + I am happy to put down a non refundable amount to guarantee that I will match the dates required, should I not have a “right of way” given I was there first and I have already sustained costs?

  • Hi Barbara
    I am genuinely sorry that this has happened to you and have dealt with hundreds of similar cases over the years, almost all of which have resulted in financial loss and emotional distress to one or more parties but; the fact remains the owner is quite within their rights and the Law to do this in England and Wales.

    The law needs changing (and the Scottish system is no better despite what some may say). I am currently trying to set up a quorum of industry experts to work with the government to review the system but, unless the government have a real determination to get involved, then it is unlikely to become successful. Good luck; I hope things work out for your next purchase. Chris

  • Hi, wonder if you can help? I have put an offer on a property that is in liquidation they had never refused the offer, then another client viewed the property and they are now asking both parties if this is our best offer. They gave a guide price which I was ready to accept but now feel that they are trying to instigate a gazumping competion are they allowed? Thanks Margaret.

    • Hi Margaret.
      In this case, the agent is actually doing their job properly. Remember, the agent has a legal obligation to obtain the best offer for the client and, in repossession cases, especially so. Ask if best and final means just that (I.e. that the owners will take the property off the market for a set time or until exchange). It is unlikely that they will but, you can ask.

      My advice in these cases is to make your best offer mean just that: your BEST offer. For example, if you feel the property is worth no more than £200,000 to you then offer that figure. If you offer less to save a little money and you lose it, you will forever be kicking yourself that you should have offered more. If your offer is acceptable, you know you paid the price you were happy to go to for it. That said, unless the owners agree to take the property off the market or, put in writing that they are refusing offers until a set date or, below a certain figure then; you are still within your rights to submit other offers right up to exchange of contracts under the current English Law. The agents MUST submit any offers to the owner as soon as is reasonably practicable and confirm this in writing. This usually means within the same working day. They do not have to confirm the offer to you but you can request confirmation in writing that the offer has been submitted. I hope this helps.
      Regards
      Chris
      You might be interested in my website and Facebook pages which offer more advice and tips http://www.pdq-estates.co.uk/ http://www.facebook.com/PDQproperty

  • Hi Malcolm
    The article isn’t intended as having a go at anyone and, if you are one of my customers*, it certainly isn’t intended to have a dig or cause offence. Gazumping, as I hope I make clear in my article, is a term that is used to describe an activity that many find unwelcome but, that many others also feel is perfectly justified and is quite legal.

    If you are selling or buying; making or accepting another offer is quite within your rights and, in certain circumstances, we, as agents may even advise that this is the best course to take (especially where we have reason to doubt a buyers ability to exchange contracts or, where buyers have been informed that the property will continue to be marketed due to a very low offer for example). As I say above, there are often very good reasons why higher offers are made and accepted after a sale has been agreed prior to an exchange of contracts. Each case is different.

    The article (and my Facebook and Newsletter comments) are here purely to try to illustrate that gazumping continues to go on, even in what many regard as a difficult market, and to take the heat out of such situations by explaining what the term actually means and how gazumping happens. It’s not an attempt to moralise or finger point at anyone. I hope this helps but, if you are still concerned, please feel free to contact me personally tomorrow on my Penzance office number 01736- 333216 I will be out on appointments first thing but unless other appointments are booked in, I will be available from around 11am. I hope this helps.
    Regards
    Chris

    *Unfortunately, whilst I can narrow down the possibilities to one of a relatively small number of customers involved in such a situation at the moment, I can’t tell from the single name you have posted under whether or not you are one of our customers. Additionally, as we have more than just one incidence of this at the moment in the office, it makes the job of identification for me particularly difficult and, for anyone else trying to identify who you are, almost impossible. Again, if you are buying or selling through us, please contact me directly on the number above. Thanks.

  • I was recommended this blog by my cousin. I am
    not sure whether this post is written by him as no one else know such
    detailed about my trouble. You are amazing! Thanks!

  • Thank you so much, I’m exceptionally up to date on my legislation as I work in civil family and criminal law. I’ve also bought and sold several properties so am quite knowledgable about conveyance plus I’ve an amazing conveyancer.
    However I’ve been trying to buy a house marketed at £395, offered £410, agent came back next day said vendor happy with my offer of £415, which I disputed, he spluttered and then said well that’s the price (clearly he made an error!) I increased the cash offer to £412,750 but advised I would need 24 hours to get the other. £2,250 together for a full CASH offer to the amount of £415. Next day advised I had the money and asked for all marketing to cease no further viewings or offers plus the sale must be expedited given I’d increased the cash offer. The following day (48hrs later) another couple viewed the property while we were there! I was measuring the pantry by lying on the floor (yes I know I forgot the bleedin tape measure!) I overheard the couple advise it was over their budget, derelict, too close to a stream and a danger to their two under five year old sons plus the bedrooms all led one into another and they loved it but could not move in plus they both work full time and the derelict 46 acres of woodland was just too much land to manage given it was a public bridle way and needed urgent attention as so many trees had fallen into mid sections of other trees and needed removing to ensure public safety.
    My husband and I already develope properties and manage forestry land so are rather well situated to undertaking this project but we had cash buyers who needed to move in by mid March this year. Our increased final offer of £415 in cash for expedited sale went in on 19th of February, we already had full land registry plans and searchs done.
    But were gazumped for less money by the other couple who, as mentioned I overheard as I was lying on the floor and they were outside, they genuinely had no knowledge of my presence!
    The selling agent was not the agent showing the property. He was confident the house wasn’t for them.
    The property is still advertised as being under offer on the agents site and all search engine sites. We ended up offering up to £440,000 which has not technically been accepted. The selling agent has never put any of our offers in writing as I’m used to and out of desperation we had to contact the owner as I’ve know idea if she even knew we were offering so much. It feels to me that the agent has offered the couple a mortgage product to get a kickback, but that’s just my hunch and I am grateful that your site reiterates the law as I understood it. It has heartened and reassured me that I was right to complain to his head office, email the seller and wait to see the outcome before taking this to the ombudsman as we lost our cash buyer. We now have another buyer but at a £37k drop in price!
    Thanks again
    Mel

  • Hi Chris,
    Tks for this article, very helpful indeed. We put in an offer on a house a week ago which got accepted, 2 days later another couple put in a higher offer so we had to up ours. We showed good intent, increased our offer which again got accepted. This wk we heard the same couple again offered higher and haven’t heard yet what the seller wants to do. Our stance very much is that we don’t want to play this game, however, as this is such a bonkers system it has crossed our mind that we could play a dirty game as well. What keeps us from increasing our offer now and right before completion change our minds and say we want to pay less? Now I’m not saying we’d do this but this system very much invites p’d offer buyers to do so. If a seller can’t keep to the agreement (twice!), why should we?
    Tks,
    K

    • Hi K
      There is nothing in Law to stop you making offers (higher or lower) right up to the point of exchange of contracts unless the owner states, in writing, that they will not accept any further offers or, any offers below a certain level. If that happens, the agent must act in accordance with his clients instructions.

      As you rightly say, the system allows for this which, in some ways, ensures that a property can achieve its true market value but, is nonetheless a thoroughly unpleasant process for almost everyone involved when it does occur.
      Good luck with your purchase and please share this blog with your friends if you have found it helpful.
      Regards
      Chris

  • Hi chris, very intresting article, and as house buyers we think we know what are doing but we get caught out in the cold, as there is no one looking after our intrest as buyers.

    My issue is this.

    We saw a flat on a monday morning at 11am, we loved the place and by the time we got in the car we had called the negoaitor and offered asking price for it, subject to a second viewing that day.

    We had a mortage in place, and a substanttial depoist. by 2pm we had a second offer and had confirmed our offer of asking. We also had been “qualified” as buyers by the estaate agents Mortage advisor, and had told them that utr personal FA is managing our mortage.

    They said our offer will not be passed on to the to buyer until tuesday when a third party was conming in for a third viewing. ( but we recived a confrimation of the offer in writing a week later)

    I called tuesday, and i was told that they estate agent was tryin to get hold of the vendor, but could not. I then ring on wednesday and get told that buyer has accpeted an offer from a fourth party who viewed the house on tuesday too.

    The vendor wanted to these buyers becasue they were “nice” as they met them during the viewing.

    I was a bit annoyed but, these things happen right, but i called back on thursday to find out a bit more on why we missed out on the property, as the estate agent did say that we were in the strongest position to buy. As we had a mortage in plac, no chain, a decent depoist.

    We also offered flexible terms on exchane and completion as we knoew they were in a chain, so we were doing our best to keep them sweet.

    What i was told cofused me a little, as well as the vendor liking the new buyer, the new buyer, but was not in a chain but was going to use estate agents mortage broker ad conveayncer!

    With this in mind as we wanted the property i upped the offer over asking. Now this is where we get confused – our higher offer wasapprently not accpeted as i got a call back withihn two hours telling me that the buyer was adamant he wanted the lower offer.

    now i am in the firm belif that my offer was not passed on to the vendor as i did not recive a confrimation letter of the offer. as i find it hard to belive that a seller would not accpet a higher offer and still go for a lower one.

    Now knowing what i know based your artilce, and learning that there is an actual law which governs selling house The Estate Agent Act, is there anything i can do to see if my offer was submitted to the seller? and if it wasn’t as the property is now in STC can i insist that my higher offer is put forward to the seller?

  • Hi
    I’m sorry to hear of your frustrations and I’m glad my article has been helpful.
    It’s not always the case that a seller will take the highest offer which can cause confusion and upset when it happens however; if you believe your offer was not put forward you should take this up with the agents office or regional manager/ the business owner. You could also find out the owners details using land registry information and write to them directly to re-submit your offer if you believe your offer was not put forward.
    The agent involved must also belong to an Ombudsman code scheme and a call to them will give you further guidance on how to proceed.
    Good luck
    Chris

  • This piece of writing is genuinely a pleasant one it helps new net people, who are wishing
    in favor of blogging.

  • Pingback: PDQproperty - One of "The best small estate agents in the UK" The TelegraphProperty advice, thoughts, tips and ideas from one of the UKs' best known local estate agentsInsight, views and News on property in West Cornwall and the UK property

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s