The traditional approach to selling estate or charity property has long been seen as the safest route. Daniel Marsden from Probate Auction looks at whether auctions or alternatives can sometimes provide better results
For as long as most practitioners can remember, the default approach to selling estate or charity property has been simple: obtain three estate agent valuations, offer the property on the open market, test the market, and, if necessary, consider an auction.
This formula is so familiar it is often taken for granted. Its origin lies in section 119 of the Charities Act, reassuring trustees and giving lawyers confidence that statutory duties are being discharged. Yet, it may also have become ritual – followed because it feels safe, not necessarily because it achieves the best outcome.
The weight of habit
Risk-aversion defines legal practice, especially in the statutory regime governing charitable property disposal. Section 119 obliges trustees to obtain prior written advice, with the surveyor’s report serving as the statutory hinge for decision-making.
In practice, these reports are conservative and the default recommendation is to put the property on the market through agents. Few surveyors propose auction first – not because it is unsuitable, but because deviation from convention feels professionally exposed.
Risk, or the perception of risk?
‘Testing the market’ is assumed to be low-risk, but evidence challenges this. Private treaty sales are slow; according to Twenty EA, the average open-market sale reached 200 days earlier this year – six and a half months of stress. Fall-through rates hover around 25–30% and, in 2024, 47% of residential sales failed before completion, often due to post-survey renegotiations or mortgage delays.
In the week of writing this article (September 2025), there are around 763,000 homes on the market, with only 16,200 net sales in the week before. The sales pipeline contains 512,000 homes, a quarter of which are expected to fail – over 5,100 transactions collapsed in just the previous week. In a buyer’s market, agents reduce prices, creating challenges for solicitors managing protracted transactions.
By contrast, auction is perceived as risky because it is rapid and public. Yet the legal certainty is more substantial: contracts are exchanged at the fall of the hammer and completion usually follows within weeks. Transactional failure is lower in auctions, whereas prolonged open-market exposure can erode asset values and unravel conditional offers.
The difficulty lies not in objective risk but in its perception. Professionals prefer established conventions, finding comfort in orthodoxy even when it yields suboptimal outcomes.
Section 119 and the limits of advice
Section 119 requires trustees to act on professional advice, aiming for the best terms reasonably obtainable. Many surveyor reports are defensive: what protects the adviser if challenged? Hence the standard recommendation to test the market. But if this ‘norm’ yields unsatisfactory results, does it truly fulfil statutory duty?
Perceived risk and professional practice
Testing the market sounds prudent, yet in practice, its suitability varies. For properties requiring substantial modernisation, or where speed and certainty are essential, it may be ill-suited.
Nothing in the Charities Act mandates three estate agent valuations or exclusive reliance on open-market sales. These are conventions, challengeable provided trustees act reasonably and on proper advice.
Where practice could evolve
Auction should not always be preferred, but trustees and surveyors should evaluate disposal routes on merit. Private treaty may sometimes be appropriate; in other cases, early, transparent auction may secure better value and certainty.
The Royal Institute of Chartered Surveyors’ Red Book recognises auction as a legitimate method, routinely used by local authorities and insolvency practitioners where speed and certainty matter. Private treaty remains conventional, but trustees must retain flexibility to adopt whichever method best serves statutory duties and the charity’s interests.
A question of culture
Adoption is limited not by law, but by culture. Lawyers advise conservatively, trustees avoid controversy and surveyors fear liability outside the bounds of orthodoxy. Auction is often a last resort, considered only after open-market attempts. However, if statutory duty is to obtain the best terms reasonably achievable, a culture treating one route as ‘safe’ in every case may itself fall short.
The way forward
This is a call for nuance, not revolution. Disposal should be governed by evidence and judgment. Section 119 reports should encourage critical assessment of strategies, weighing outcomes: speed, certainty, transparency and likely price.
Lawyers must shift their mindset: risk is not eliminated by ritual. Sometimes, the ‘safest’ option on paper is riskiest in practice. Trustees deserve advice that is not just conventional, but genuinely in their best interests.
Conclusion
‘Testing the market’ has become a mantra. It feels safe, familiar, unquestionable. But the law requires more than habit: trustees must achieve the best terms reasonably obtainable. Sometimes that means three estate agent valuations and open-market sales; sometimes it means another approach. The actual risk lies not in alternatives, but in unasked questions.
