Broker acting with 'Power of Attorney'

[markc]

I was nearly on the other end of a deal like this earlier in the year on a Ferretti in the Med. I had made an offer on the boat but when I found out there was another interested party I stepped aside because I didn't want to get into an auction. A week later the broker called me and said that they had taken a deposit on the boat from the other party, but if I paid XXXXX then they would pull out of the agreement with the other party, who had already booked a survey. Obviously I told him to sod off, but this type of stuff is clearly quite widespread.

 

[Deleted User YDKXO]

I was nearly on the other end of a deal like this earlier in the year on a Ferretti in the Med. I had made an offer on the boat but when I found out there was another interested party I stepped aside because I didn't want to get into an auction. A week later the broker called me and said that they had taken a deposit on the boat from the other party, but if I paid XXXXX then they would pull out of the agreement with the other party, who had already booked a survey. Obviously I told him to sod off, but this type of stuff is clearly quite widespread.

Looking on the bright side and as an owner its good because it shows that the Med market is perking up. For the first time in many years I've had brokers walking up to my boat recently whilst I've been on it and asking whether I wanted to sell it

 

[Portofino]

“ me too “

I had one cold call ,while I,am sat on it and another msg / mail me from an Itama owners forum .

Well have to start some sort of therapy sessions for affected Med boat owners cold called by strangers wanting there boat

 

[Deleted User YDKXO]

Well have to start some sort of therapy sessions for affected Med boat owners cold called by strangers wanting there boat

As I say its great. For the first time in years, our boats might actually not be worth less this year than last year

 

[MapisM]

this type of stuff is clearly quite widespread.

Bingo.
I didn't mention this in my previous post because I didn't want to upset PYB ) ), but what I envisaged - and actually happened to yourself - indeed is rather the norm than the exception, among boat brokers... :ambivalence:

 

[MapisM]

As I say its great. For the first time in years, our boats might actually not be worth less this year than last year

Not sure I'd be so happy about that, in your boots.
The market rebound might be good news for boat owners who are only willing to get rid of their pride and joy, but not necessarily for those wishing to upgrade, 'cause the cost differential is bound to increase, AOTBE...

 

[Deleted User YDKXO]

Not sure I'd be so happy about that, in your boots.
The market rebound might be good news for boat owners who are only willing to get rid of their pride and joy, but not necessarily for those wishing to upgrade, 'cause the cost differential is bound to increase, AOTBE...

I'm fully aware of that but buying a new boat always starts with selling the old one!

 

[Whitelighter]

As I say its great. For the first time in years, our boats might actually not be worth less this year than last year

I'm starting to think mine might actually have appreciated

 

[benchmark]

Jokes aside, based on my limited experience with them,i find secondhand Boat brokers the worst type you can come across.
Even worse than second hand dodgy car dealers and boat mechanics.

Back to your case, if I was in your shoes I would thank God I got my money back and move on. Thats life...you win some and you miss some.

 

[superheat6k]

Bad luck.
The above is VERY wrong though and represents a big misunderstanding of contract law and property law both in U.K. and Spain. The boat does not become YOUR boat merely by paying for it, so taking it would be theft. Do remember to post pics on here of the insides of the Spanish jail!
There is no valid basis to assert a lien.
Mapism is correct above. You have to walk away with your expenses refunded. You haven't actually suffered a loss (in the sue-able financial sense) so you have nothing to sue for.

Ok John. I'll stick to air conditioning ! The laws of Thermodynamics are far simpler. LOL

 

[henryf]

I have seen a number of situations involving cars over the years.

When you hand over your car to a dealer for him to sell on your behalf you are giving it away. Once the dealer has taken a deposit you can't change your mind. More worryingly if the dealer gets paid but chooses not to pay you then it's bye bye motor car and good luck chasing the dealer. I know a lot of instances where this has happened but still folks hand over their car to any Tom Dick or Harry to sell thinking they are safe.

Having taken a deposit on a car we are bound to sell the car. We can't choose a better deal elsewhere. I know someone who got judgement against him for doing just this and the customer was awarded the cost of buying an equivalent car elsewhere, travel, insurance etc, etc. The reality was the dealer wasn't the most tracable chap on the planet and hadn't actually got a bean to his name. He just hitched up his caravan and moved on so the judgement couldn't be collected.

Henry

 

[Deleted User YDKXO]

Bad luck.
The above is VERY wrong though and represents a big misunderstanding of contract law and property law both in U.K. and Spain. The boat does not become YOUR boat merely by paying for it, so taking it would be theft. Do remember to post pics on here of the insides of the Spanish jail!
There is no valid basis to assert a lien.

Jfm can you explain that further please. I was always given to understand that the broker is acting as the seller's agent and therefore as soon as you have paid the broker in full for the boat, title passes to you. Or is this not correct? I must admit that I have never quite trusted this system and I have always tried to make sure that I am physically present at the boat on the day that the monies are transferred to complete the purchase and as soon as the broker confirms that my money has hit his bank account, I am demanding the bill of sale and the keys to the boat and moving the boat elsewhere if possible

So what is it that confirms that title has passed from seller to buyer?

 

[MapisM]

So what is it that confirms that title has passed from seller to buyer?

I believe that "it depends" is bound to be the answer, M.
With an IT registered boat, it's only after the seller (alone - the buyer doesn't even need to be present!) signs a witnessed and registered act for the sale of the boat to Mr.X, that Mr.X becomes the new owner.
Any pre-sale agreement, advance payment, or even payment in full, doesn't matter a toss.
A previous agreement, if well made, can give the buyer the right to go legal and try to enforce it, but good luck about that.
Regardless, for all intent and purposes, the buyer is never (and will never be) the new owner before the above official sale act will be finalized.

You are right to ask Jfm anyway, 'cause he surely knows much better than myself (and maybe than just about anyone else on planet Earth...) the rules for EN flagged boats, and possibly also others.
But in principle, I'd be shocked if he should tell us that money transfer alone grants the transfer of title - and not just for boats btw, but also for anything else.
In a sense, the money transfer is just one of many components, in any sale transaction.
It might be a necessary condition, if the contract says so (and indeed it normally does), but I can't think of any transaction where it's a sufficient condition - not even when you buy some food at the supermarket...

 

[jfm]

Mapism has it exactly correct above. Henryf's 3rd sentence above is incorrect - you can change your mind.

A contract is merely an enforceable promise to do things, in this case a few weeks later. Seller promises to hand over title; buyer promises to hand over money.

Payment of money is merely buyer fulfilling is side of the contract. It does not cause seller's side to be fulfilled. Seller can change his mind and retain title. He will be liable for buyer's losses due to breach of contract, but he will retain valid marketable title. (disappointed buyer could seek a court award for specific performance of the contract, but that would rarely be granted for a commodity like a car or a boat, and if seller sells to someone else in meantime then that will be a fruitless by buyer).

Transfer or title of an unregistered asset (a tiny boat, or a TV set, say) occurs by delivery - when seller hands over keys and says "she's yours". Transfer of title to a registered asset like land or a bigger boat occurs strictly when the registrar enters buyer's name on the register but in practice by delivery of BoS, which is a bit of paper that buyer knows registrar will accept as authority to enter buyer's name on register. The equivalent bit of paper for UK land is a TR1 - completion occurs when seller delivers to buyer the signed Tr1. Buyer knows he can then walk into land registry a week later and be entered in the register as title holder of the land (actually it is becoming a bit online these days, as with many registers, but the principle is the same)

I have not gone into the difference between legal title and equitable title, because it complicates things further and isn't relevant to this thread.

In Henryf's case, the seller can withdraw. He will have to return would-be buyer's deposit and will be liable to other losses, and he might be described in a pub as a man not good for his word etc, but in law he can withdraw and will not be in breach of any law if he decides to keep the car.

I'm being longwinded - Mapis had it exactly right.

This analysis of property law is true of most modern legal systems, although the equitable/legal distinction is not recognised in many civil law systems and is really a feature of Anglo-Saxon systems like UK (= the inventor), USA, Australasia law

 

[Deleted User YDKXO]

Thanks for clearing that up, jfm and Mapism. Looks like my natural instinct to grab the BoS and boat keys the minute my money lands in the broker's account is right then

 

[MapisM]

Yep, your instinct is definitely sound.
But just to expand/speculate a bit, if your boat would have been IT flagged (IIRC she wasn't, but just saying...) when you bought her, your instinct alone wouldn't have still been bullet proof.
In fact, once you paid, got the signed BoS and the keys (hence full possession of the boat), you might have reasonably thought to be her proud new owner.
And if my understanding of UK rules is correct, you might have thought to just replace the IT flag with a red duster and sail away, 'cause there's no mandatory registration in the UK.
But with an IT registered boat, actual ownership is only transferred upon registration of the sale act signed by the seller.
And you'd better have kept a copy of such act, together with the cancellation from IT registers that should have followed, because without these additional steps, formally SL would still be the owner of your boat, according to IT rules...

 

[Deleted User YDKXO]

But with an IT registered boat, actual ownership is only transferred upon registration of the sale act signed by the seller.
And you'd better have kept a copy of such act, together with the cancellation from IT registers that should have followed, because without these additional steps, formally SL would still be the owner of your boat, according to IT rules...

Actually, in my particular case, although SL had agreed with the previous owner to take my boat as a p/x against a new boat and hence in theory would own the boat, they actually asked me if I would object to the BoS being arranged between the previous owner, a Monaco resident, and myself. I suspect that they were selling me the boat at the p/x value they had offered the previous owner and were keen for a transaction showing zero profit not to go through their accounts. I agreed to that providing they drafted a separate agreement confirming that their warranties and other liabilities would still apply to the sale which they did (and as you know they very much kept their side of that agreement). Also the previous owner had had the foresight to register the boat in the UK under the name of a UK company. So basically I bought a UK owned and registered bought from a Monaco resident and re-registering it in my name was very easy. So no direct SL involvement and no IT registry involved
Actually this was one purchase where I was not waiting in the SL yard for the BoS and boat keys on completion because I trusted SL and the UK broker involved and, if you remember, my SWMBO had broken her leg a few weeks earlier

 

[petem]

I don't think that the OP or anyone should be afraid of the seller backing out just because you try and adjust the price once the survey and sea trial have been completed. Personally, like Mike, I would deal with an intermediary (I used Ward McKenzie) unless I was completely comfortable with the purchase (i.e. UK broker, UK seller, originals of all paperwork seen, etc).

In the end I reckoned that, for the boats I was interested in, buying one in the UK and shipping it to Spain was no more expensive than buying abroad. Buying in the UK reduced my perceived risk, resulted in a better condition boat than many that I'd seen and meant that I could do the shake down, fix and re-fit in the UK at my convenience.

Others that are less choosy, more knowledgeable than me, who have more time to look, have deeper pockets and more appetite for risk, may find the bargain boat that they're looking for in the Med. I'm certainly not claiming my way is the only way.

 

[henryf]

In Henryf's case, the seller can withdraw. He will have to return would-be buyer's deposit and will be liable to other losses, and he might be described in a pub as a man not good for his word etc, but in law he can withdraw and will not be in breach of any law if he decides to keep the car.

To correct a mistake in my original post the dealer who got judgement against him was hit for the difference in cost between his car and an equivalent vehicle elsewhere rather than the cost of a replacement car.

Henry

 

[MapisM]

Actually, in my particular case...

That's a rather interesting case, from an accounting standpoint.
If you purchased directly your boat from her first owner, then by definition SL had no involvement with that transaction (aside from having "handled" it, so to speak).
Otoh, you asked (correctly) SL to warrant the boat as if she were sold by themselves.
Which they agreed - and indeed honored their commitment in practice, replacing and repairing stuff whenever necessary, obviously at their own cost.

All well and good, if it weren't that in accounting terms what happened is that they accepted a potential liability, and actually incurred in some expenses afterwards, for a transaction they had nothing to see with.
And that is clearly against the most basic matching and accruals principle.
No big deal of course, and obviously a new fridge or whatever is still peanuts, for a boatbuilder like SL.
But I have a funny feeling that their sales dept didn't ask their CFO, before arranging this type of transaction...