A Call For “Highest and Best” Does Not Create An Auction
FACTS: Broker A listed a property in the MLS. Broker A received eight offers. Broker A notified all eight buyers that the seller would like everyone’s highest and best offer.
Broker B has filed a complaint stating Broker A is conducting an auction.
ISSUE: Is a call for “highest and best” an auction?
ANSWER: No.
DISCUSSION:
“[T]he function of an auction is to permit the highest bidder to purchase the property offered for sale, and the choice of that highest bidder is therefore beyond the control of the seller.” Winfield Collection, Ltd. V. McCauley, 105 F.Supp.2d 746, 749 (E.D. Mich 2000).
Here, the Seller received eight bids to purchase the property and proceeded to request the best offer from each of the eight buyers. Therefore, seller had control of who would purchase the property and Broker A was not conducting an auction.