A LEGAL DILEMMA???

[MAPSCA]

I am looking to purchase my first boat and duly contacted a Surveyor to give my choice a once over. The boat was 6 yrs old and I wasn't expecting any problems. The owner had previously winterised the engine and drive but returned it to running condition prior to the survey so that I could stay overnight and conduct the sea trial the day following the survey. Unfortunately the surveyor found very high readings on the deep hull readings and could not access the area to investigate or see how the water had found its way in to the hull or why it could not dry out (Boat had been on the hard for 4 months) I walked away and my deposit was returned. However I have since been contacted and told I am responsible for the cost of the de-winterisation as well. To me that is like selling a car and if the prospective purchase doesn't like it - charging him for the service you had done. Am I legally liable or are the brokerage and owner trying it on??? Please can anyone help. /forums/images/graemlins/confused.gif

 

[Clyde_Wanderer]

Unless you had some sort of agreement in which you agreed to pay for dewinterisation as part of the sail, I would say you would not be liable for any costs, as it is the sellers responsibility to get the boat ready for sale.
It sounds typical of brokerages, trying it on.

 

[MAPSCA]

Thanks for that - There was no such agreement. If I am legally liable then I don't have a problem I will pay up with pleasure - Its only £49 and initially I was going to pay, but it's the principle of the matter as much as anything.

 

[Anonymous]

Sorry, but I don't agree with you because there is custom and precedent here. In general all the costs of hauling out, survey, and putting the boat back where she was lying are down to the buyer, not the seller. That's the way it has always been, right or wrong, so don't blame the broker for simply following custom. You'll probably find that you accepted their terms along those lines just by turning up so I doubt you'll have a legal leg to stand on. Sorry.

Still, think yourself lucky that you did have a survey and that your cost was limited to the cost of survey and a de-winterise. Pretty trivial compared with what it might have been.

 

[bdsweeting]

I would agree with the costs of the haul out but would query the cost of de-winterizing.

If the seller wants to sell the boat then he should have the boat in it's entirety ready for sale.

If you take that route further - are you expected to pay for putting the mast and rigging up to check the sails etc, of course not.

If the engine wasn't ready or available to run then the boat should not have been placed on the market.

 

[Anonymous]

[ QUOTE ]
If the engine wasn't ready or available to run then the boat should not have been placed on the market.

[/ QUOTE ]Then it should also have been antifouled and in the water, following your argument.

It is customary for purchasers to make an offer and place a deposit 'as seen', and if a sea trial or engine survey is required, to pay all the costs of carrying out the survey and restoring the boat to the 'as found' condition if the sale doesn't go ahead. This is all standard stuff. The OP should be glad that he is not being held liable for the boat to be re-winterised - especially since the hull condition could have been determined without touching the engine!!

 

[MAPSCA]

I understand the traditional costs - but what I am saying is why? If someone wants to sell a boat then surely, other than craneage, then the owner should be responsible in ensuring that the boat is fit for the surveys that any prospective purchaser will have done??? You dont sell a car with the engine disconnected and expect the purchaser to pay for it to be put back together again!!

 

[1317]

Suggested reading, JP Morgan. "If you have to ask, how much it costs, you can't afford It". You say first boat, make it your last or order up a supply of cheques.

 

[Anonymous]

Like everything in life, there are costs if you want someone to carry out work. You are arguing that the custom should be changed and that the vendor should pay for these things. I suppose that's debatable - but that wasn't the question.

The OP asked what the custom is and said that he is happy to pay if that's the custom but he didn't want to be fleeced - and fair enough, it was a good and fair question.

The answer, though, is that it is the custom for the prospective purchaser to pay. End of story.

Should the custom be changed? No, I don't think so. The vendor cannot control the depth or cost of the survey that the purchaser wishes to carry out. The purchaser doesn't own the boat and has no rights in any of this unless granted by the vendor. For example, suppose the purchaser wants to carry out destructive testing on 10% of all rigging joints at his expense, but leaving the broken ones un-repaired, is that OK? Suppose he wants to scrape huge areas of antifoul back and then remove sections of the gelcoat or epoxy? Is that OK? As I said, the purchaser quite properly has no rights and depends on the permission of the vendor to carry out these tests. If the vendor refuses (which he might if the tests are potentially damaging) then either the purchaser pulls out, or agrees to whatever terms the vendor offers.

 

[fireball]

I'd look at it slightly differently ... if the engine was de-winterised at the request of the purchaser then perhaps a margin of re-winterising could be charged once the purchaser pulls out ...
I'd question what is actually meant by de-winterising and if it really needs to be re-winterised ... sounds like the boat didn't actually move - so I guess the engine not started as part of the survey ...
could just be a "money for old rope" situation....

 

[Richard10002]

[ QUOTE ]
I am looking to purchase my first boat and duly contacted a Surveyor to give my choice a once over.

[/ QUOTE ]

Looks like you made an offer subject to survey, which had been accepted, and I would guess you had signed a contract subject to survey and handed over the deposit.

Your surprise at being asked for the money suggests that nobody had stated that you would be liable and the paperwork didnt say anything about it either, or you didnt read the small print - if you didnt, you could read it now to see if it gives a clue.

presumably the broker/owner hasnt supported his request with any paperwork, or reference to any statements which might have been made.. you could ask him to do so.

Personally, as it is march, I would guess that the owner will be putting the boat back in the water sooner rather than later, so it would have been dewinterised whether you had come along or not, i.e. an expense he would have incurred irrespective of your requirements.

On custom and practice... if you have never bought a boat before, you cannot be expected to know the customs and practices of the process, and I cannot believe that the seller or broker would have incurred the costs, on your behalf, without establishing that you had agreed to be responsible for them, whether you had bought no boats previously, or 50. And to approach you for a measly £49 seems somewhat petty. As you say, it seems like a try on because you didnt buy.

Ask them to show you why they think the money is due. If you're satisfied, pay up. If not, leave them to it.

Just my 2 pennorth.

 

[jonic]

Hi Mapsca

Its important to remember here that you are buying secondhand used goods from a private individual.

The boats is as seen as is. The owner doesn't have to do anything prior to selling. It's a used item so buyer beware. luckily it seems you have had the protection of a contract that allows you to have a price agreed, the boat taken off the market on your behalf and your deposit protected by a third party whilst you have the opportunity to choose to have a professional investigate the unseen/unknown condition.

The same contract then allows you to walk away and have your deposit returned.

It's not like buying a secondhand car from a dealer. For a start a dealer is selling cars he has purchased himself and is now selling as items he owns and are for sale in the course of business. They are no longer owned by private individuals like the yacht is. If you buy a used car from a private individual you buy it as is with no protection.

If the secondhand yacht contract is an ABYA one you also have the following protection if the seller did not keep his part of the bargain.

"If the Vendor shall default in the execution of his part of this Contract the Purchaser shall without prejudice to any other right he may have hereunder be entitled to the return of his part payment. Unless such default by the Vendor shall have arisen from events over which the Vendor has no control the Vendor shall pay interest upon the amount of the part payment for the period during which he has held it at the rate of 4% per annum above Finance House Base Rate, together with compensation for any loss which the Purchaser may have sustained as a result of the Vendor's default."

But the contract can't be one sided in your favour, so the seller has the following protection which you agree to.

Inspection and/or survey and subsequent use of the vessel.The Purchaser may at a venue to be agreed, and at his own cost, haul, or place ashore or afloat and/or open up the Vessel and its machinery for the purpose of inspection and/or survey.

In the event of rescission by the Purchaser under the terms of this Agreement he shall, at his own expenses, reinstate the vessel to the condition and position in which he found it and shall pay all boatyard and Surveyor's charges for this work. The Vendor shall thereupon return or procure the return of the deposit to the Purchaser without deduction and without interest.

So if this is the kind of contract you entered into it would appear it has worked as intended for both parties.

1.You had an agreed price, the boat taken off the market in your favour, and the opportunity to rescind your obligation to buy with your deposit returned in full, after choosing (sensibly) to professionally survey the vessel for your own benefit.

2.The seller is not left paying the costs for your survey or whatever you chose to do for your inspection.

You are now not lumbered with a very expensive problem.

The seller is.

The broker will have spent his own time and money, preparing details and advertising the boat for sale, showing the boat to prospective buyers, and then the required days administering the contract from the point of your offer through to survey and will so far have earnt nothing. He is now out of pocket and has a duff boat on his books.

Yet two on this thread think he is "trying it on".

Amazing.


(of course the above only counts if you entered into the contract)

 

[fireball]

I don't know if you are referring to me there ... I would question a £49 charge for re-winterising an engine ... in March ... (it may be valid ... thats why I'd question it!) ..

 

[Richard10002]

[ QUOTE ]
If the secondhand yacht contract is an ABYA one you also have the following protection if the seller did not keep his part of the bargain.
................................................

But the contract can't be one sided in your favour, so the seller has the following protection which you agree to.

So if this is the kind of contract you entered into it would appear it has worked as intended for both parties.

You are now not lumbered with a very expensive problem.

The seller is.

The broker will have spent his own time and money, preparing details and advertising the boat for sale, showing the boat to prospective buyers, and then the required days administering the contract from the point of your offer through to survey and will so far have earnt nothing. He is now out of pocket and has a duff boat on his books.

Yet two on this thread think he is "trying it on".

Amazing.


(of course the above only counts if you entered into the contract)

[/ QUOTE ]

And therein lies the crux of the matter.

If I am one of those who you think thinks they are trying it on, I thought I had sat on both sides of the fence and suggested that if the paperwork, or prior statements, made it clear that it was due, then it is due, (in the absence of verbal agreements, this would be the contract).

If nothing, including the contract, has made it clear, and the seller or broker cant show/explain where it was made clear, it isnt due - hence a try on.

Not quite sure what is amazing about that.

 

[jonic]

No, not you fireball.

The op and clydewanderer who said "It sounds typical of brokerages, trying it on."

From what I can see it was a DE-winterisation at the request of the purchaser. You could argue that it is the purchaser "trying it on" because he now wants someone else to pay for his request now he doesn't want the boat.

(MAPSCA I don't think you are trying it on at all, but are just unsure of the contract terms, assuming you did have this type of contract)

 

[jonic]

No, not you either Richard. /forums/images/graemlins/smile.gif

 

[cliff]

Make that 3 posters who are of the opinion that the charge is someone "trying it on".

As a "buyer" I would expect to pay for the lift out and the survey only. Preparation of the boat/engine etc I expect to be down to the "seller" or the broker, assuming they actually want to sell the boat of course. I would not expect to pay to have the mast stepped nor "de-winterisation" of the engine nor connecting the batteries nor even having to charge the batteries.

I am curious though as to what is envolved in De-winterising" - In my case start the engine and "blow the cobwebs out" having already changed the oil and filters and anodes at the end of the previous season. (Batteries having been charged regularily over the "lay-up" period).
--------------------

"Artificial intelligence is no match for natural stupidity"
sailroom <span style="color:red">The place to auction your previously loved boatie bits</span>

 

[sarabande]

That's a rather facetious and facile comment. I don't know ANY organisation or individual who, when faced with a bill for more than a packet of smarties, does not ask what the cost will be.

Many people are boating within restricted budgets (you only have to look at a few posts on the red diesel issue to see that a small increase will give pause for thought) so please try to understand the offence which your "order up more cheques" jibe may cause.

 

[Anonymous]

[ QUOTE ]
I am curious though as to what is envolved in De-winterising

[/ QUOTE ]I know several people who pay others to do their engines. (De)winterising varies from oil + filters, remove impeller maybe replace with new at start of year, and store battery ashore. If the bill was £49 including VAT then less than an hour's labour was charged at prevailing rates. Assuming that the bill was straightforward (and I would always start with that assumption) then perhaps the battery had been stored in the workshop and had been replaced. Lots of yards offer 'winterising' services and lots of yachtsmen use them.

 

[boatmike]

Unless you agreed to pay for this beforehand I would write back and say you made no committment to cover this expense and ask them to witness any contract between you that made you liable for such costs. If you didn't sign any document of theirs beforehand (and you should always avoid this) you are almost certainly not liable to pay. If you did sign something read the fine print!