Q I would like to know what rights the underbidder has when the sale in which they were the second-highest bidder falls through. Is the underbidder automatically entitled to purchase the property at the highest bid they entered in the original sale process? Does the agent have the right to relist the property? What other rights, if any, does the underbidder have in such situations? Does this depend on the type of property being sold?
A This depends far less on the type of property and has far more to do with the circumstances of the vendor and why the property is being sold. In its simplest terms, a vendor engages a licenced agent to obtain for that vendor the most advantageous price in a given set of circumstances. That usually translates to the highest price in the shortest possible time frame. The vendor-agent relationship is a contractual arrangement which imposes certain obligations upon the agent for the duration of the marketing period.
This agreement, which must be in a specified format, sets out, among other items, the agreed asking price, the fact that all bids must be presented to the vendor and that the agent must follow the instructions of the vendor, and so on. There is no contractual relationship between a bidder on a property and the agent, or between the bidder and the vendor. Don’t forget that the fees of the agent are paid by the vendor. Legally, the bidder on a property is merely an interested party until his or her offer has been accepted, and even then the deal is not binding until contracts are exchanged.
Whether the property was offered for sale by auction or private treaty, the broad scenario is similar. The vendor had instructed his agent to deal with the highest bidder, and this deal subsequently fell through. As you were the underbidder, you might be entitled to feel that you should have first refusal at your highest bid, but this is not always the case. Only in very particular circumstances would an agent have a binding reserve price (the minimum price that a vendor is prepared to accept) in advance of a property going on the market, which might allow him to revert to you first. I doubt if this is the case in your situation.
All of this, of course, is on the presumption that all of the bidders were on an equal footing in terms of ability to pay once the price was agreed. A buyer making a lower cash offer may well be more attractive to a vendor than a buyer who needs to obtain a mortgage or even complete the sale of another property. And it’s at this point that the vendor’s circumstances dictate the next move.
If the vendor is under pressure to sell, the agent might well be instructed to revert to the underbidder and establish whether that underbidder will “stand on” at the bid. If the property was sold (or more correctly, sale-agreed) at the reserve price, and the vendor is not prepared to reduce that reserve price, the agent may well be instructed to find out if the underbidder is prepared to make an increased bid at that figure.
If there are several bidders, or if the vendor and agent feel the selling price might even be increased above the previously sale agreed price, the vendor might well take the view that all bets are off and instruct the agent to remarket the property from scratch. Indeed, the vendor may well change agency altogether.
Equally, the vendor cannot assume that the underbidder is bound to stand on at his or her highest bid. If the agent reverts to an underbidder, that underbidder might well decide to reduce the bid, on the basis of having been “bid up” to the previous offer.
In short, underbidders have no automatic entitlement or right to purchase a property at their highest (or indeed any) bid. You should expect, however, that as long as you are involved in the property you are kept up to date at all times and that communication with you is courteous, prompt, accurate and informative. While it may well seem unfair, the construct of contract law is there for the equal protection of buyers and sellers.
Until each is properly advised by their solicitors, neither party should enter into a binding contract. Buyers need protection in the event that there’s a problem with the property uncovered during a survey, or that they encounter a problem with their loan approval or life cover.
Vendors must also have protection in the event that their circumstances change so they cannot complete the transaction as originally intended. If a deal does fall through, they are quite entitled to remarket a property to ensure they are getting the best price reasonably obtainable.
Edward Carey is a chartered residential agency surveyor and a member of the Society of Chartered Surveyors Ireland; scsi.ie
To replaster, or not?
Q We're in the process of purchasing a house with a couple of small areas of rising damp. If we get a damp-proof course done, is it necessary to replaster? Signs of damp on the walls can be seen, but isn't very obvious and there is no sign of mould. The plaster does not seem to be badly damaged. Would replastering in this situation only be for aesthetic reasons?
A The age or condition of the property and the type of external wall construction has not been mentioned. Conventional masonry walling is assumed and rising damp is stated as the cause. Rising damp is caused by the upward flow of groundwater drawn from the soil underneath through the relatively porous fabric of the wall. Before you carry out any remedial work you should establish that the cause assumed is indeed correct and that there is no other source. This problem is often incorrectly diagnosed because it occurs at low level and people jump to conclusions.
Dampness in walls can come from elsewhere. Typical causes include leaks in the lower wall from penetrating rain or from plumbing appliances, such as baths, basins, radiators or damaged service pipes, or from condensation on cold patches. Because there is no evident mould growth in your property, it would seem condensation is an unlikely cause, unless the house was only recently built.
Modern houses have a horizontal wall damp-proof course (DPC), typically 150mm to 225mm above floor level. With concrete ground floors, the DPC should be joined to a plastic damp-proof membrane (DPM) underneath the floor. In your case, this might have been incorrectly laid or damaged during construction or afterwards by plumbing, central heating or electrical repairs. Dampness can occur from raising the level of paths or soil or external plinths bridging above the DPC level.
If it is rising damp, it would normally be characterised, over time, by efflorescence (white flaky substance) caused by nitratesfrom the soil and magnesium salts. This leaves deposits on walls and eventually leads to staining and a characteristic “tide mark” about 300mm above floor level.
The decision to replaster depends on the condition of the internal plaster. If affected by dampness and soluble salts, gypsum-based plasters are likely to detach from the background. An initial investigation could involve checking for a hollow sound (by tapping affected areas of the wall with your knuckles), which would indicate debonding and the need to replaster.
If the external rendering is sound and not affected by excessive salts, it might be just an aesthetic consideration. Sometimes, depending on the remedial measures undertaken, it may be advisable to delay replastering until the damp-proofing has had its curative effect.
It is advisable to consider engaging a competent professional before you carry out any remedial works, to ensure you are solving the problem.
Kevin Sheridan is a chartered building surveyor and member of the Society of Chartered Surveyors Ireland; scsi.ie
