Help please, totally stuck in a very bad place after a yacht sale, dispute! Help!

[norti_raskal]

I did not see the missing items but when the owners came to drop various bits and pieces off they noted that some of thew things were missing and also noted that things not on the inventory were missing.
The owners were more than honest, it is the broker that is giving me the most problems right now, plus the fatc that they are trying to make me feel at fault for some reasons is most annoying and very out of order.

 

[Tranona]

it seems to me that no one is really giving a damn and its me that is running around trying to get things sorted whilst getting annoyed about something that really should not be an issue.
I'm thick skinned and have the patience of a saint but im getting to the point of getting very angry indeed, this should not be happening and when people try to make me feel bad for their mistakes that really gets my goat.

No point in getting angry. Perhaps you should have inspected the inventory before handing over the money. There seems to be some disagreement as to what was or was not included in the inventory, so you need to be crystal clear exactly what is in your contract. No good trying to blame anybody and everybody. It is quite clear it is the seller's responsibility to deliver what he contracted to deliver - but you are equally responsible for the situation because you accepted title and paid for the boat, seemingly without checking it was all there.


The whole point of having a written contract with an inventory attached is to avoid disputes such as this.

Can't see why you think the seller is being "honest". He will have agreed the inventory that went with the contract. Talking about things that were not on the inventory and are missing is a red herring. If they were not on the inventory then you have not bought them - so they are not missing.

Stop getting angry. Sit down with the broker and the seller and sort it out.

 

[Poecheng]

much as Alan Ashore has said.

I have checked my contract with MS&P though whom I bought last year (without complaint - indeed I thought they were good).
It is a standard contract but it includes a schedule of the inventory and at clause 5 the ability to reject/notify of any problems both as to survey and defects in the inventory.
So the order of events should be
a) pay the deposit and sign the contract
b) check out what you are buying by survey and checking the inventory for deficiencies
c) either notify of problems/deficiencies or within 7 days of inspection it is deemed to be acceptance. If notice served then either back out or renegotiate
d) Acceptance
e) pay the balance to the broker
d) Completion.

So if there was inventory missing and no notice was served then the problem lies with the buyer as they have missed their chance to notify and have thereby accepted the boat etc Legalistic but true.
If the inventory was all present at the time of checking and all that stuff has gone missing since then er.... gets a bit sticky as the brokers are mere bailees of the boat (assuming it was with them at HPM and their sales area). I would have thought they would lock it up once the deposit was on it so casual theft cannot happen. However, risk does not pass until completion (paragraph 9 of the OP's likely agreement) so the risk remains with the seller.

 

[norti_raskal]

Tomorrow is another day, I'll get some sleep and try to get it all sorted tomorrow!

 

[Jim@sea]

If the money hasn't been handed over, then the sale is not complete and the boat still belongs to the seller - it is for them to resolve the missing items with the broker or for them to agree a price adjustment with you such that you accept the boat in its current condition.

I would suggest that the sale is complete. The new owner has taken possession. The fact that the Broker still has the money is irrelevant.
If you buy a car at Auction and pay for it on a Monday and you cant collect it for a few days its yours. The fact that the Auction wont pay the seller until Friday is how they conduct their business. (and earn interest on client funds)
Buying a boat off a Broker is the same thing, The moment you pay, its down to you, if its broken into and things stolen its your responsibility. In fact any duty of care a Broker has is to his client. His job (and responsibility) is finished the moment you pay.
I would contact a Chartered Loss Assessor with a view to making a claim against the Insurance Company. Let the Assessor decide if the items went missing after the buyer paid and if the items went missing before the buyer paid then the previous owners should make a claim on their insurance policy. Report the loss of the missing items to the Police and get a crime number.

 

[maby]

I would suggest that the sale is complete. The new owner has taken possession. The fact that the Broker still has the money is irrelevant.
If you buy a car at Auction and pay for it on a Monday and you cant collect it for a few days its yours. The fact that the Auction wont pay the seller until Friday is how they conduct their business. (and earn interest on client funds)
Buying a boat off a Broker is the same thing, The moment you pay, its down to you, if its broken into and things stolen its your responsibility. In fact any duty of care a Broker has is to his client. His job (and responsibility) is finished the moment you pay.
I would contact a Chartered Loss Assessor with a view to making a claim against the Insurance Company. Let the Assessor decide if the items went missing after the buyer paid and if the items went missing before the buyer paid then the previous owners should make a claim on their insurance policy. Report the loss of the missing items to the Police and get a crime number.

The sale may well be complete - my contention is that it is a signature on a piece of paper that completes it, not the act of handing money to the broker. We've been round this path a few times, buying both second hand and new boats - the money goes into the broker's escrow account which is a sort of financial no-mans-land - that could happen many days or even weeks before the sale completes (usually you don't let them have it long in advance because you will be losing interest on it). You will typically have paid a deposit early on in the process and that should be sitting in the escrow account. On the completion date, the buyer should be asked to sign the document accepting the boat and, at that point it becomes theirs and the broker/dealer is free to move the money out of the escrow account.

In the event of a dispute before the sale has completed, the broker should hold onto the money in the escrow account until it is settled. We had a purchase go south close to completion a few years ago and the broker looked at our complaint, inspected the boat and agreed with us, refunding the cash he was holding against the wishes of the seller.

 

[Rigger Mortice]

This is one of those posts in which the OP asks for help but doesn't answer the questions that are asked and seems reluctant to listen to the advice that is given. I hope he gets things sorted but it's not really possible to know exactly what has happened from the little we have been told.

 

[Lakesailor]

Correct. Posters seem to think we are mind readers. The vinyl seats thread is the same.
People need to stand back and imagine they don't know the situation, then give the detail that people would need to form an opinion.



The endless "Help, my out board motor won't go" threads are simliar. No details. People are more than willing to help, but it's like pulling teeth sometimes.

 

[Tranona]

The sale may well be complete - my contention is that it is a signature on a piece of paper that completes it, not the act of handing money to the broker. We've been round this path a few times, buying both second hand and new boats - the money goes into the broker's escrow account which is a sort of financial no-mans-land - that could happen many days or even weeks before the sale completes (usually you don't let them have it long in advance because you will be losing interest on it). You will typically have paid a deposit early on in the process and that should be sitting in the escrow account. On the completion date, the buyer should be asked to sign the document accepting the boat and, at that point it becomes theirs and the broker/dealer is free to move the money out of the escrow account.

In the event of a dispute before the sale has completed, the broker should hold onto the money in the escrow account until it is settled. We had a purchase go south close to completion a few years ago and the broker looked at our complaint, inspected the boat and agreed with us, refunding the cash he was holding against the wishes of the seller.

You are still getting it wrong. The contract (if it is a standard contract) is quite clear. The buyer takes title when he hands the money over. It is irrelevant whether it is to the seller or his agent. The money then belongs to seller and the broker (as trustee) cannot withold it.

What you are saying is true in relation to a deposit (as in your case) The broker returned it because the contract could not be completed - that is the boat failed to meet the conditions. In this case the terms of the contract were met in that the buyer satisfied himself through the survey and crucially accepted the boat by paying and taking title. His action is now against the seller for witholding goods that the buyer believes he has bought.

BTW it is not held in an escrow account but in a trust account, which is subtly different.

 

[Buck Turgidson]

You are still getting it wrong. The contract (if it is a standard contract) is quite clear. The buyer takes title when he hands the money over. It is irrelevant whether it is to the seller or his agent. The money then belongs to seller and the broker (as trustee) cannot withold it.

What you are saying is true in relation to a deposit (as in your case) The broker returned it because the contract could not be completed - that is the boat failed to meet the conditions. In this case the terms of the contract were met in that the buyer satisfied himself through the survey and crucially accepted the boat by paying and taking title. His action is now against the seller for witholding goods that the buyer believes he has bought.

BTW it is not held in an escrow account but in a trust account, which is subtly different.

The buyer has not received the stated inventory and therefore the sale is not complete regardless of who has the money. This is very basic contract law. Once the inventory is received in full the contract is closed. If that doesn't occur a new contract or amendment to the current contract may be proposed. At this stage if I was the buyer I would inform the Seller and his broker in writing, that unless the missing items (those on the inventory) are delivered in x days I will withdraw from the sale and expect all moneys returned within x days.

 

[Rigger Mortice]

Whilst OP has spoken about an inventory it is far from clear that it formed part of the contract. Some of the items he is listing as being missing he does not even claim to have been on the inventory; he is simply saying that he would have expected them to be there. If the "inventory" is nothing more than a list of sales particulars from the broker then it is irrelevant.
As the OP hasn't clarified what he is talking about we cannot help him.

 

[maby]

You are still getting it wrong. The contract (if it is a standard contract) is quite clear. The buyer takes title when he hands the money over. It is irrelevant whether it is to the seller or his agent. The money then belongs to seller and the broker (as trustee) cannot withold it.

What you are saying is true in relation to a deposit (as in your case) The broker returned it because the contract could not be completed - that is the boat failed to meet the conditions. In this case the terms of the contract were met in that the buyer satisfied himself through the survey and crucially accepted the boat by paying and taking title. His action is now against the seller for witholding goods that the buyer believes he has bought.

BTW it is not held in an escrow account but in a trust account, which is subtly different.

I'm surprised, but not in a position to disagree with you further in the case of a second hand boat. I was definitely told by two dealers that this is not the case for a new boat - in each case we paid the full sum a couple of days before the scheduled hand-over and I queried the insurance situation, wanting to make sure that I was covered at all times. the answer in both cases was that they were holding the money in their (trust) account, but the boat remained theirs (and on their risk) until I signed the paper accepting the boat. We went to the marina, inspected the boat and signed for it at which point it became ours.

 

[prv]

I'm surprised, but not in a position to disagree with you further in the case of a second hand boat. I was definitely told by two dealers that this is not the case for a new boat

But a new boat is a completely and utterly different situation, in that the dealer generally owns the boat. A broker doesn't.

Pete

 

[Tranona]

But a new boat is a completely and utterly different situation, in that the dealer generally owns the boat. A broker doesn't.

Pete

Exactly. In this case the transaction is direct with the dealer whereas in a used boat, the contract is with the seller who has appointed the broker as his agent. The broker has no financial interest in the boat and has no claim over the proceeds other than his commission.

 

[Tranona]

The buyer has not received the stated inventory and therefore the sale is not complete regardless of who has the money. This is very basic contract law. Once the inventory is received in full the contract is closed. If that doesn't occur a new contract or amendment to the current contract may be proposed. At this stage if I was the buyer I would inform the Seller and his broker in writing, that unless the missing items (those on the inventory) are delivered in x days I will withdraw from the sale and expect all moneys returned within x days.

That is correct. The buyer has a claim against the seller for non delivery. However the point that I was making is that the broker (as trustee) cannot withold the funds. If you read the OPs original posts you will see from his point of view it is more complicated because the seller claims that the broker is holding some of the goods, that some should not have been on the inventory anyway and yet more should have been included in the inventory but were not.

So, the suggestion is that he sits down with the seller and broker and sort out what should and should not have been there. The starting point is what is in the inventory attached to the contract - which of course the buyer should have checked before making the final payment, and not paid until he was satisfied it was all there. Until that happens nobody knows what exists and what doesn't, where it is and what the seller has to do to complete his side of the contract.

 

[maby]

But a new boat is a completely and utterly different situation, in that the dealer generally owns the boat. A broker doesn't.

Pete

Exactly. In this case the transaction is direct with the dealer whereas in a used boat, the contract is with the seller who has appointed the broker as his agent. The broker has no financial interest in the boat and has no claim over the proceeds other than his commission.

All that is certainly true - my only problem with Tranona's assertion is the idea that the sale is legally completed when the last pound is paid to the broker's account. When we bought a second hand boat some years ago, the broker accepted the money into her account, then arranged a time to meet us at the marina, get us to sign the bill of sale and then hand over the keys and other documentation. It was my belief that the legal ownership transferred with the signature of the bill of sale.

P.S. The broker had already got the signatures of the previous owners on the bill of sale.

 

[CreakyDecks]

It doesn't matter whether or not the seller is "a nice guy". If something is missing that was on the inventory then it is up the seller to find it and give it you. If he thinks the broker has lost it, stolen it or whatever, then that is between him and the broker and has nothing to do with you. Forget the few bits of old rope that weren't on the inventory anyway and concentrate on the high value items that were and which the seller has failed to supply.

 

[Lakesailor]

If the boat has been on the market for some while and has finally sold the owner should be more concerned that potentially high value items are missing.
If he had decided to take the boat off the market and carry on using it, he is down on some equipment.

So where is it?
If he doesn't seem perturbed that he has been robbed, then perhaps he knows where the stuff is.
Has he sold it to other yachties and forgotten to alter the inventory? Why not fess up if that is the case?

Whatever the real reason, it's not been divulged yet.

 

[KellysEye]

>The buyer has not received the stated inventory and therefore the sale is not complete regardless of who has the money. This is very basic contract law.

I still find the word 'missing' odd, how can something on a boat go missing, someone the owner presumably, has to take it off the boat which is theft from the inventory. As you said contract law comes into play but I think it's more serious. Alongside theft I also suspect that fraud has a place because the inventory was purposely misleading.

>BTW it is not held in an escrow account but in a trust account, which is subtly different.

My understanding is all money held by a broker, solicitor etc waiting for the contract to be signed is held in an escrow account, it always has been when I've bought a boat or house. The differences are:

Escrow Account
An escrow account is a bank account in which escrow funds are deposited by an escrow agent. An escrow agent is an independent and impartial third party who holds money, documents and other property for parties involved in a transaction pursuant to an escrow agreement. The escrow agent will only release money from an escrow account only pursuant to the terms and conditions of the escrow instructions. Escrow accounts are ubiquitous in real estate transactions.

Trust Account
A trust account is generally used for one of two purposes. It may be opened by a trustee to hold trust funds. Sometimes money is given to a third party to hold "in trust" without the existence of a formal trust. A common example is a retainer paid to a lawyer that has not been earned. Since the lawyer hasn't earned the money, he holds it in trust for the client until such time as it is either earned or returned to the client.

 

[Resolution]

>
I still find the word 'missing' odd, how can something on a boat go missing, someone the owner presumably, has to take it off the boat which is theft from the inventory. As you said contract law comes into play but I think it's more serious. Alongside theft I also suspect that fraud has a place because the inventory was purposely misleading.
.

Once again your comments are very wide of the mark. On what basis do you state that the inventory was purposely misleading? Unless you have some evidence for this accusation, perhaps you would be good enough to retract your comment about fraud.