The issue of gazumping is complex, even for people who work in the industry! We take a look at what it means when a property is ‘Under Offer’ and the problem of gazumping in Scotland.
Gazumping and Gazundering
Gazumping is accepting an offer from someone else after you have already accepted one from a first party. Most often it is accompanied by the estate agent going back to the first party who offered on the property and asking them to increase their offer. Buyers hate it, not surprisingly. Sellers probably aren’t quite so fussed (particularly if it means that they can get a higher price for their property). It is not illegal or against the law.
The opposite practice, where a buyer reduces their offer some time after their original offer has been accepted, but before the legal process to complete the sale has been finished, is called gazundering. This can only really work if the seller’s hands are tied as a result of having bought something else or because they don’t want the inconvenience of re-marketing and having to sell the property again. In other words, something has happened that means they are not in a position to go back to the buyer and tell them that the sale is not going ahead. Again, this is not illegal or against the law.
Gazumping is a systemic problem that is caused by various elements of our property buying and selling process, meaning that it is not possible, in most cases, to get from verbally accepted offer to concluded, legally-binding contract as quickly as everyone would like. Whilst the Law Society of Scotland has guidelines that are intended to prevent gazumping, it still happens.
Until there is a legally-binding contract, there is some form of agreement in principle on some of the terms of the contract and it is likely, but by no means certain that there will not be issues in the meantime. However, unless the system changes (things like e-conveyancing and the electronic agreement of conveyancing documents would undoubtedly help), gazumping and gazundering will remain a real problem.
How to Minimise the Chances of Being Gazumped
There is something that buyers can do to help avoid being gazumped. It won’t work in all cases, but it will often get around the number one reason for the property that you want to buy being sold to someone else: get your finance sorted before you submit your offer.
Submitting an offer and not having your finances sorted, then having to chase your lender for the next few weeks whilst the legal work can’t actually be completed, is going to increase the chances of gazumping. Trying to deal direct with a lender instead of going to an experienced, professional mortgage adviser who can tell you whether or not your prospective lender will follow up their Agreement in Principle (AIP) with an actual Mortgage Offer is likely to increase the chances that the seller looks to another buyer. Bear in mind that an experienced mortgage adviser should know whether a lender will lend on the specific type of property and whether you and your property meet this specific lender’s other lending criteria.
Although there are some things you can do to minimise the chances of gazumping happening, it is not illegal and is actually very much in an estate agent’s client’s interests on some occasions.
Example Gazumping Scenario
Acting as an estate agent or solicitor estate agent, our job is to take client instructions and act in the best interests of our clients.
Here’s a scenario that illustrates what could happen when a property is Under Offer:
- You are selling your property and paying an estate agent good money to get you the best result for that sale.
- A first potential buyer tells you that they would like to buy the property – you verbally accept this offer;
- The property is now classed as ‘Under Offer’;
- A second potential buyer comes along a week later and says, “I might be interested in buying your property.”
- Your estate agent tells the second potential buyer that you have accepted an offer from another buyer and that you aren’t interested in discussing any further offers.
- The lengthy and complicated legal process for the first sale breaks down.
- Understandably, you speak to your agent and ask whether they have any other potential buyers or enquiries.
If your agent told you that they had been speaking to a few potentially interested parties in the meantime but they had turned these potential buyers away, you might be a little bit upset.
And even if your sale to the first buyer was progressing smoothly, you might have wanted your agent to discuss a potential offer with the second potential buyer. If that buyer was prepared to offer £20,000 more than the first buyer, it would be up to you to decide whether £20,000 or your verbal commitment to the first buyer meant more to you in that moment.
However, a solicitor estate agent has to act in accordance with the Law Society of Scotland guidelines and you might be surprised to hear that solicitor estate agents can’t actually do what’s outlined immediately above.
Law Society of Scotland’s Guidelines on Gazumping and Gazundering
Although a solicitor acting as an estate agent has to act in the best interests of their clients it would seem that, in certain circumstances, there may be some exceptions. In other words, although a client might argue that their interests are best served by their appointed solicitor estate agent negotiating a second offer with a second buyer after they have verbally accepted a first offer, the Law Society guidelines simply state that a solicitor estate agent is not allowed to do this.
The Law Society of Scotland guidelines are widely misunderstood by the legal profession and are counter-intuitive to our clients. Having questioned the guidelines through the years, nothing has been done to bring the guidelines into line with the way that estate agency operates in practice.
Here is our interpretation of these guidelines:
- If a solicitor estate agent has indicated acceptance of an offer (whether verbally or in writing), they cannot enter into negotiations on another offer.
- A solicitor estate agent can take a second (presumably better) offer to their selling client, but they would then have to withdraw from acting for their client if that client wanted to enter into negotiations on, or to accept, that second offer.
- If a solicitor estate agent’s buying client wants to reduce the level of an offer that has already been accepted, the solicitor estate agent has to refuse to act for the client in submitting such an offer.
How Should Solicitor Estate Agents Proceed in Potential Gazumping Situations?
The majority of property sellers and buyers will be completely unaware of the existence of these guidelines and restrictions as to what a solicitor estate agent can and cannot do.
The Law Society of Scotland guidelines are for solicitors, not for their clients. In other words, property sellers and buyers can do whatever they want because they aren’t subject to these guidelines.
If a buyer wants to make an offer on a property that we have been marketing for a selling client, there is nothing we can do to stop this. If that happens, we have to take the offer to our client and, if our client wishes to discuss the offer or to enter into negotiations with that potential buyer, we have to withdraw from acting and advise them to find a new solicitor. However, we would take the following approach.
If a potential buyer asks if they can submit an offer on the property when that property is Under Offer, we would:
- Tell the potential buyer that our client has already accepted an offer on that property and that the property is currently Under Offer.
- Advise them that the legal process is already at an advanced stage, if this is indeed the case.
- Heavily ‘qualify’ the potential buyer’s offer: are they serious or just testing the water? The last thing we want is for our client to lose their existing, really good offer because their head is turned by a good price with other, less attractive or even unacceptable conditions.
- Tell the ‘new’ buyer that we can keep their details on file and, if the current offer falls through, we will get back to them.
If the second buyer still wants to submit an offer, we would have to advise them that we will take any offer that they submit to our client.
When we take that offer to our client, it will be important to outline the pros and cons of proceeding with negotiating this second offer, including the fact that they will now have to instruct another solicitor to conduct the negotiations and to complete the conveyancing work.
Law Society of Scotland guidelines aside, as a company we don’t want to see gazumping and gazundering happening. In most cases, gazumping and gazundering are not in our selling or buying clients’ interests and, most often, the original offer that was accepted is the stronger offer even when another one comes along.
However, what is also certain is that in some cases a better offer will come along and that a seller would absolutely want to be able to take that offer. In those circumstances, it seems unreasonable that solicitor estate agents must withdraw from acting for a client who has put their faith in them.
Need more information on gazumping? Call us on 0345 646 0208 (Option 1) to talk to one of our property experts or email [email protected].