Play up, Play up and Play the Game!

There is a fallacy amongst many in Scotland that we are immune to the art of gazumping and gazundering. Whilst it is something that fell off the radar after the turmoil of the property implosion, it has not gone away and those buying and selling property in Scotland would be wise to understand the rules that we as solicitors are bound by.

Have you been gazumped? If you have then you will certainly not forget it in a hurry. That feeling of elation when your solicitor phones you to say that your offer has been accepted to be replaced by expletive after expletive when your solicitor phones back two days later to say that some Charlie has turned up and trumped your offer. A phone call I have had to make thankfully only on a couple of occasions. And lets not forget his little known cousin – Gazundering where a canny buyer chips away at the price for no legitimate reason after an offer has been accepted.

Many think that it is an English problem and by in large it is. There seems to be an unwritten rule in the estate agency community in Scotland which has stopped it spreading over the border, whereas down south it would appear that your estate agent is acting as much for the seller as he is for the purchaser – any purchaser! In Scotland, the estate agents cling to the belief that your word is your bond and if you verbally accept an offer that is as good as signing a contract. Of course it is not and the savvy/unscrupulous/immoral amongst the great Scottish public know fine well that a deal is not done until missives are concluded. If you approach an estate agent after an offer has been accepted many an estate agent will tell you that he is duty bound to put your offer to the client and let them decide. So if estate agents allow this to happen why is gazumping/guzundering not as prevalent in Scotland?

I believe that this is down to the estate agency world realising that if we let down our guard and allow gazumping/gazundering to happen then the whole system will go to the dogs. The system is not perfect but it sure ain’t broke - some think that a straight auction as happens in Australia is the way to go but I am not convinced by this argument. I also believe that the Law Society rules that govern Solicitors have played a part in ensuring that we all "play up and play the game". Ultimately, if you are asked to increase an offer for a client that you have placed an offer for at a closing date, the Law Society says that you cannot continue to act for the client and he has to find another solicitor. The same applies if you act for a client who is successful with an unconditional offer and who then asks you to reduce the offer. Likewise if, as a solicitor, you act for a seller who decides to take a higher offer after deciding to accept an offer then you can no longer accept instructions from that client. He has to find another solicitor. In my experience when approached by a client in these circumstances the conversation usually leads to the client seeing sense and taking the original offer.

The system works and it is up to all of us invested in the system to uphold the rules so play up and play the game!