Follow on: Marina contract stipulates 1% sales commission.

[NealB]

A couple of days ago, I posted about how we're thinking of moving our boat to a marina with a '1% sales commission clause' in the agreement.

I've now had a response from the RYA's Legal Department, as follows (yes, I asked them if I could quote them on here):


"With regard to your enquiry, the inclusion of a term that requires payment of 1% commission payable to the marina upon sale of your boat has been deemed an unfair contract term and should be deleted. This is based upon the principle that the marina are receiving payment without the need for any type of performance on its part. The situation would be different if, in fact, the marina was assisting in the sale of boat, akin to a broker.

Should the marina wish to pursue this point, you may want to refer them to the Office of Fair Trading which deals with unfair terms. Furthermore, the BMF has removed this term from its precedent contracts on the grounds that it is unenforceable".

 

[footsoldier]

Assuming that you now go ahead with trying to book a berth, it would be interesting to hear how the marina re-acts to your deleting the offending contract term.

 

[NealB]

Assuming that you now go ahead with trying to book a berth, it would be interesting to hear how the marina re-acts to your deleting the offending contract term.

Indeed......I will let you know.

 

[Jim@sea]

Following the RYA ruling perhaps you can name them.

 

[Georgio]

Interesting and good to hear this from the RYA.

Can you confirm which marina (MDL, Premier or other) is putting this in their standard contract terms?

I will be checking my contract in the spring.

 

[sailorman]

Interesting and good to hear this from the RYA.

Can you confirm which marina (MDL, Premier or other) is putting this in their standard contract terms?

I will be checking my contract in the spring.

they will belong to a trade body

[ Furthermore, the BMF has removed this term from its precedent contracts on the grounds that it is unenforceable".]

 

[NealB]

Georgio.....I've had a look at the terms of quite a few marinas over the last few days. Many still contain that clause.

 

[Georgio]

Ok thanks. Certinly one to check for.

 

[colhel]

if a marina had this in their contract, how could they enforce it? ie, boat sold, money paid, new owner, who do they chase, and how?

 

[sailorman]

if a marina had this in their contract, how could they enforce it? ie, boat sold, money paid, new owner, who do they chase, and how?

http://www.ybw.com/forums/showthread.php?t=319666&highlight=selling+a+boat+in+a+marina

 

[NealB]

if a marina had this in their contract, how could they enforce it? ie, boat sold, money paid, new owner, who do they chase, and how?

I guess they might say to their customer, the vendor, something like, "in accordance with the terms and conditions that you agreed to, please will you pay us the 1% fee that is now due to us. Our invoice is enclosed. Thank you for your prompt attention to this matter".

The vendor then either pays up or argues.

As I'm not a customer yet, I'd rather have it clarified upfront.

I don't like signing up to something that I know I'll later argue with.

 

[sailorman]

I guess they might say to their customer, the vendor, something like, "in accordance with the terms and conditions that you agreed to, please will you pay us the 1% fee that is now due to us. Our invoice is enclosed. Thank you for your prompt attention to this matter".

The vendor then either pays up or argues.

As I'm not a customer yet, I'd rather have it clarified upfront.

I don't like signing up to something that I know I'll later argue with.

read my link

 

[NealB]

read my link

Indeed....'twas not not only read, but also inwardedly absorbed the other day, thanks!

Lots of good info there.

 

[ianat182]

Not wishing to hijack this thread, but just to mention that when Mobile and Park Homes are sold the site owners, who do nothing at all in support of a sale of the property, claim a 10% 'commission' on the sale of each and every one on the site which gets sold. In a recent Review paper passed through Parliament(2008?) this was deemed as acceptable.
What sort of logic is this,and here we're talking of around £130K for a modest park home,so £13000for nothing!
I understand that Holiday caravan homes are charged up to 15% for the same non-service.


ianat182

 

[sailorman]

Indeed....'twas not not only read, but also inwardedly absorbed the other day, thanks!

Lots of good info there.

Yep Pete won

 

[NealB]

Not wishing to hijack this thread, but just to mention that when Mobile and Park Homes are sold the site owners, who do nothing at all in support of a sale of the property, claim a 10% 'commission' on the sale of each and every one on the site which gets sold. In a recent Review paper passed through Parliament(2008?) this was deemed as acceptable.
What sort of logic is this,and here we're talking of around £130K for a modest park home,so £13000for nothing!
I understand that Holiday caravan homes are charged up to 15% for the same non-service.


ianat182

Ian.... I haven't seen anything about a parliamentary review.

You might be interested in reading the judgement in the Office of Fair Trading V Foxton's case (a High Court ruling). Seems like agents have to do something to be able to claim commission.

 

[rotrax]

Ian.... I haven't seen anything about a parliamentary review.

You might be interested in reading the judgement in the Office of Fair Trading V Foxton's case (a High Court ruling). Seems like agents have to do something to be able to claim commission.

I had to handle the sale of a Park Home some years ago for an aged relative. The sale commission-IIRC- was only if the home remained on the site. If it was sold and taken away it was a different case. Park home operators must agree to supply the services to the new owner, vet them to some extent-the one I was involved in was for over 55's only.They can also refuse permission for an old tatty unit to remain on their site if it is offered for sale. It was a bloody nightmare, but it turned out OK in the end. just, as a previous poster said, money for old rope!

 

[oldfatgit]

Playing devil's advocate I can only see 3 justifications for having the charge. 1. The sale is advertised and completed on the basis that the boat comes with a mooring. If the price paid or the speed of sale improved because of that fact then the seller has benefited from the marina outside of the scope of my contract with him. 2. The marina has a waiting list for berths and by taking over the mooring the new owner has jumped the queue. 3. The marina wish to cover the risk that the new owner is an unknown quantity and possibly a bad payer.

I must admit that if I ran a marina I'd like to have a slice of the action particularly if my asset helped the sale go through and I have doubts about the new owner. After all I accepted the custom of the previous one, who at least had to ask to have a mooring. However, it would have to be a pretty big marina for there to be enough sales per year to justify enforcing the rule. In a small marina with an average of only one boat sold per year for, say, £40k then I'd be foolish to insist on it and loose more than £400 of good will.

 

[prv]

Playing devil's advocate I can only see 3 justifications for having the charge. 1. The sale is advertised and completed on the basis that the boat comes with a mooring. If the price paid or the speed of sale improved because of that fact then the seller has benefited from the marina outside of the scope of my contract with him. 2. The marina has a waiting list for berths and by taking over the mooring the new owner has jumped the queue. 3. The marina wish to cover the risk that the new owner is an unknown quantity and possibly a bad payer.

I think it's fairly unusual for a boat to come with a marina berth as part of the sale. Sellers will sometimes point out that the current marina has berths available which the new owner might like to rent, but that's not the same thing.

In any case, your 2 and 3 are to do with the buyer - if anybody should pay, which is not at all clear in the first place, then it's the new owner, not the seller.

I think the origin of the charge is fairly clear. It's a hangover from the days when a broker in his office in town couldn't be jumping on the train all the time to go and show buyers over boats personally. So he'd write to the yard for a local man to go and do the honours, and the yards naturally wanted to be compensated for this so added their commission to any sale. Nowadays the broker hops in his Nissan Navara and conducts the viewing in person, and marinas don't get involved.

Pete

 

[Otter]

The trouble with deleting the clause is what happens if the marina owner syas - OK then you can't have a berth? You then leave the clause in and maybe prejudice your case later? Better to ignore it perhaps knowing the marina can't enforce it.