Change of marina t&c re brokerage

[stuartwineberg]

Our marina chain has just told us it is delighted it is forcing berth holders to use them as sole sale brokers unless you are selling privately. I am not selling but is this legal?

 

[lustyd]

In what way do they intend to enforce it? They can't prevent access to your boat if you give someone a key and a fob. They definitely can't take a cut of the sale. They won't know you're selling unless you tell them.

 

[stuartwineberg]

Indeed, all very strange. They say they have contacted all third party brokers to let them know. All sounds very weird. Do Berthons enforce anything like this, they are a yard with their own broker. They are primarily an inland waterway company. I was pleased to note they offer to arrange river trials for a boat!

 

[Fr J Hackett]

They are trying to get around the challenges that have been made to marinas claiming a % of any sale within the marina. They have been successfully challenged on the basis of unfair contract in the SCC the basis being that they do not provide any service to justify such a clause.
In this case my view is that it is a restrictive practice and would be open to challenge. If you do this before selling they may well terminate or refuse to renew your berthing contract. If you go ahead and try to sell with a broker they may do the same once they know about it, if they only find out at the point of sale they can impede the sale and you will end up in dispute with them potentially loosing the sale and you may have to pay under duress an agreed fee then take them to the SCC.
I have been there and won my case or got a full settlement including substantial interest and expenses on the day of the hearing when they backed down.
If you are in the RYA contact their legal department they may offer advice but you may also need to talk to a contract lawyer as this is a new twist.

 

[stuartwineberg]

Just read Berthons conditions. They require joint brokerage if you use someone else and (and I know this aint allowed) claim a 1% commission if they aren’t the selling broker
for Clarity I am not selling and I have no dispute with my marina who I intend to stay with. Very few moodys are sold through brokerage, they go like hot cakes on the Moody owners site.

 

[Fr J Hackett]

Just read Berthons conditions. They require joint brokerage if you use someone else and (and I know this aint allowed) claim a 1% commission if they aren’t the selling broker

It could be successfully challenged and has been.

 

[Daydream believer]

Bradwell marina have the 1% brokerage charge, for sales made on their property, in their contract. When I challenged the manager ( the owners grandson), he claimed he knew nothing about the clause. He had no knowledge of it ever being applied. However, it is in there & it could be applied as owners have signed up to it- legal or not.

 

[Fr J Hackett]

Bradwell marina have the 1% brokerage charge, for sales made on their property, in their contract. When I challenged the manager ( the owners grandson), he claimed he knew nothing about the clause. He had no knowledge of it ever being applied. However, it is in there & it could be applied as owners have signed up to it- legal or not.

Signing what is an unfair contract doesn't mean you are bound by the contract terms.

 

[ChromeDome]

Luckily our marina doesn't give a damn about brokers, workers, 3rd party anything. As long as you follow their rules, conduct yourself accordingly(ish) and pay the fee, you can do as you like. Even offer a good one to the marina assistants after working hours

If needing an exception for something just talk to the office and they'll allow you to do what you need.

 

[lustyd]

, for sales made on their property

Usually the sale is made in the broker office since that's where their printer is. Problem solved.

 

[Fr J Hackett]

Usually the sale is made in the broker office since that's where their printer is. Problem solved.

The problem comes when the broker advertises it or puts his sign on the boat and / or later when it's lifted for survey. At some point the marina gets wind of the sale and tries to strong arm the seller by threatening to put a lien on the boat and thwarting the sale.
Ask me how I know about this.

 

[Daydream believer]

Ask me how I know about this.

Ok . I will fall for it.
How do you know?

 

[Fr J Hackett]

Ok . I will fall for it.
How do you know?

Because I took a marina to the SCC and they folded the day before the hearing paid me the 5% of the sale that I paid them under duress, my hotel expenses, interest at 9.3 % on the 5% plus other expenses. They had threatened to put a lien on the boat which would have thwarted an agreed sale and left me having to pay the purchasers costs plus crane hire.

 

[lustyd]

I think that's a very valid point. Whether they can or not is irrelevant, they can make the sale process very painful.

 

[Fr J Hackett]

I think that's a very valid point. Whether they can or not is irrelevant, they can make the sale process very painful.

But you can rub their noses in it and make them eat some humble pie. The route is not for the faint hearted and needs a fair bit of work in terms of qualifying the case under unfair contract, you simply cannot say it's an unfair contract, I have mentioned one point but there are others. I was perhaps fortunate in that I was reasonably experienced and comfortable with contract law and also had access to two barristers an two judges one of whom had sat in SCC when he was a recorder and he illustrated a good point, judges don't know all the law and don't like being lectured by a lay person on specific points of the law that they are shall we say ignorant on. When I first discussed the case with him and showed my reasoning it was obvious and he admitted it that he was not familiar with contract law and said if I had bought the case before him he would have ruled again me saying it was common sense that the term was in the contract that I had signed willingly, he was wrong! But there would be others sitting in a SCC with exactly the same opinion. In such a scenario you could appeal but it would be costly and at that point it would be wise to employ counsel, which I was prepared to do.
To my knowledge there have been two successful SCC decisions in favour of the boat owner unfortunately they don't in themselves create legal precedent but should carry weight if one referred to them in ones submission. In my case I understand the marina owners eventually consulted a lawyer and their professional association where the advice was to settle in case they lost the case which would have created publicity and the fact that I had discreetly made them aware that should the judgement go against me I would appeal and if successful that would create the legal precedent that is lacking.

 

[penfold]

Put a line through that clause in the berthing agreement, sign, date and return with fees.

 

[rotrax]

Like Fr J Hackett I had a SCC result from a timeshare exchange company.

They promised much in their contract and could not provide it when required.

I had an ex colleague who had just sat in for six months alongside the SCC Judge for part of his legal training. He gave me the information on how to proceed. This worked a treat and we saw them off, got our money back plus substantial expenses.

Not many citizens got a result from dodgy timeshare practice!

Stressful and time consuming though.

 

[lustyd]

But you can rub their noses in it and make them eat some humble pie.

You can, but if your sale fell through as a result it's a hollow victory. Being right and winning aren't always the same, although I'm entirely with you and would likely do the same just to make the point.

 

[Fr J Hackett]

You can, but if your sale fell through as a result it's a hollow victory. Being right and winning aren't always the same, although I'm entirely with you and would likely do the same just to make the point.

If you read the solution is and was to pay the marina levy under duress using that term which allows the sale to proceed then commence proceedings to recover it as the sale will have proceeded.

 

[Fr J Hackett]

Put a line through that clause in the berthing agreement, sign, date and return with fees.

That's a possible solution but they may see it and return your berthing contract fee and chuck you out of the marina.