Lakewood Ranch real estate lawyer Joseph Battaglia recently represented a corporate client which had purchased some machinery at an online auction. Unfortunately, upon taking delivery of the machinery it had purchased, the client very quickly realized that the property had not been described accurately. This resulted in the machinery not meeting the specific needs of the client, not to mention also significantly and materially impacting the value of the property.
Prior to retaining Battaglia Law the client was in contact with the auctioneer in an attempt to obtain a refund. Unfortunately, despite the client’s best efforts, the auctioneer refused to accept any responsibility and refused to refund the money. At one point, surprisingly, the auctioneer’s response to the client was:
We understand that you disagree with the description, however, we do not mechanically inspect items. The descriptions provide what we see and discover upon our inspection, which is why, we offer and strongly encourage potential buyers to inspect items before bidding and purchasing. Additionally, the items are auctioned “As Is/Where Is”.
To further assist you, we can relist the item and sell it on your behalf.
Following that response from the auctioneer, the client retained Battaglia Law to assist it with the matter. Despite what the auctioneer claimed, auctioneers may not represent an item to be one thing, and then deliver another, regardless of whether there is an “AS IS/WHERE IS” disclaimer. In fact, Florida Statutes 468.388(11)(b) states that:
No licensed auctioneer, apprentice, or auction business may disseminate or cause to be disseminated any advertisement or advertising which is false, deceptive, misleading, or untruthful. Any advertisement or advertising shall be deemed to be false, deceptive, misleading, or untruthful if it:
1. Contains misrepresentations of facts.
Further, while “As Is/Where Is” disclaimers do serve a purpose in a number of situations, they are usually limited to disclaiming certain implied warranties, namely merchantability, fitness for a particular purpose, and non-infringement. An “as is/where is” disclaimer would not entitle a seller or an auctioneer to describe property one way, and then sell something completely different. Stated more simply, an auctioneer cannot list a goat for sale “As Is/Where Is” and then deliver a chicken.
Upon being retained and researching the issue, Bradenton attorney Joseph Battaglia sent a demand letter, seeking rescission of the transaction based upon the misrepresentation. Attorney Battaglia demanded recovery of the machinery, and payment in the amount of the purchase price together with other incidental costs the client had incurred. Upon receipt of the demand letter, the adverse party promptly contacted Battaglia Law to advise that it agreed to meet the demands, and as a result, the machinery was recovered from the client’s property and tendered the six-figure amount that had been demanded.
This was certainly not a typical result, but it was an amazing result in this matter for this client. In the firm’s opinion, credit is also due to the adverse party for choosing to do the “right thing” once Battaglia Law’s demand letter was received and routed to the correct personnel.
If you have purchased property, whether personal property or real estate, and it is not as you described, contact Battaglia Law to review your matter and advise you of your options.
Finally, it should be noted that the “As Is” law in Florida as it relates to residential real property is nuanced from the “As Is” law as stated above. If you are interested in reading more about “AS IS” aspects of a residential real estate transaction, click here for a blog post that goes over a seller’s obligations in those situations.