Legal problems after selling my boat in Spain

[MikeA]

I'm wondering if anyone else has experienced issues after selling a boat in Spain?

Last year I sold my Sunseeker Carmargue through a broker based in Alicante. The whole experience has been stressful to say the least. Due to lockdowns etc., I had not used the boat for around 6-8 months at the point a buyer made an offer which I accepted. The purchaser had the boat surveyed and had a sea trial although refused to pay to have the boat lifted for the survey, due to cost. The survey pointed out various bits and pieces that required attention, a reduction in sale price was agreed and the purchase went ahead.

A day or two after the sale, the boat was moved to the yard and a problem arose en route, as far as I can make out, there was a problem with one of the exhausts which caused damage to the engine and resulted in a quote of €12K to repair the damage. Immediately the buyer involved a lawyer, who demanded I pay for the repairs or the boat would be handed back. After some negotiation it was agreed I would cover half the cost of the repairs. I still have no idea what happened, struggled to get any detail from the broker and just paid up. Wind forward 6 months and the broker contacted me to say they’d received documentation from a German lawyer demanding another €15k. It was the broker’s opinion that the buyer was just trying it on, they’d pointed out to the lawyer that he refused to pay for a full survey and that was that, as far as they were concerned. Yesterday I received the same documentation from the German lawyer.

Apparently the boat had been transported back to Germany at some point last year and the antifouling had been stripped right back to find an old repair to the hull that had been carried out ‘improperly’ according to an expert, and needed to be rectified at a cost of 10,500€ . On top of that, the buyer is claiming 1,844€ for the preparation of a report detailing the findings, 800€ for devaluation of the boat, 100€ a day for 12 days the boat was out of service, the lawyers costs of 1134€ to initiate the claim against me, giving a total claim of 15,565€.

From the expert report according to the lawyer; “it can be assumed you were aware of the damage to the hull of the motorboat and the improper repair and that you fraudulently concealed the damage as part of the sale to my client”. This is absolutely not true, it is a 24 year old boat which I had purchased in 2013. It’s had a lot of money spent on it, annual servicing, anti-fouling, anodes etc., plus upgrades to bow thruster, windlass, reupholstered etc. There is no way I would have botched a repair to the hull and hidden it, but I’ve no way of proving that of course. I took the boat from Mallorca to Roses in 2018, Roses down to Alicante in 2019, I wouldn’t have dreamt of doing that knowing I had a dodgy hull repair.

I’m now in the position of either paying up again and hoping that’s the end of it, or risking fighting it in a court in Alicante with the added risk of a hefty legal bill and no idea of the likely outcome.

If anyone knows of a reliable lawyer in the Alicante area with expertise in this field, I’d be grateful if you could let me know, any other comments appreciated too as I’m out of my depth here!

TIA
Mike

 

[andy59]

Sounds to me as if they are trying it on, if your purchase survey didn't pick it up then they will have a job proving you knew about it. Anyway does the sales contract say you are liable for any future problems ?. He was negligent in not having a survey as far as i can see but others may know better.

 

[petem]

I'd give (Sir) Ian Collett a call at Ward and McKenzie. He'll give you some down to earth / good advice.

This is their website ( Superyacht Consultancy | Ward & McKenzie (Yacht Consultants) Limited (ward-mckenzie.co.uk) ). It all looks very Superyachtish but they're happy to deal with owners of smaller boats.

 

[ashtead]

You don’t say which law applied to the sale contract but presumably Spanish law but you might by approaching a Uk shipping firm such as Clyde & co and see if they have expertise or a Spanish office. Many large law firms in UK have network firms in Spain. Clearly in any dispute like this you need as I’m sure you are aware to weigh up costs re risks and quantum plus uncertainties of court proceedings in foreign location. The first question I would want to know is whether in Spain your prospects of success are greater than 60% plus a detailed costing if matter went to trial. A decent firm might help show the claimant any attempt at litigating might be robustly defended. You might find there is some form of dispute resolution clause in your contract or arbitration clause BTW.

 

[petem]

You don’t say which law applied to the sale contract but presumably Spanish law but you might by approaching a Uk shipping firm such as Clyde & co and see if they have expertise or a Spanish office. Many large law firms in UK have network firms in Spain. Clearly in any dispute like this you need as I’m sure you are aware to weigh up costs re risks and quantum plus uncertainties of court proceedings in foreign location. The first question I would want to know is whether in Spain your prospects of success are greater than 60% plus a detailed costing if matter went to trial. A decent firm might help show the claimant any attempt at litigating might be robustly defended. You might find there is some form of dispute resolution clause in your contract or arbitration clause BTW.

Ward and McKenzie have an office in Spain, hence my recommendation.

 

[Mr Googler]

The survey you had done when you purchased goes a long way to proving you couldn’t have known. What does your sales agreement that you and the buyer signed say? That’s the starting point. Decent brokers will get signatures at the different stages including buyer acceptance of the vessel.

ive only sold via brokerage a couple of times but both contracts said (the seller shall agree to open up the vessel for inspection/survey etc….) If the buyer didn’t fully survey it….that’s their issue. I’m amazed you put half towards the engine issue. Wasn’t your boat at that point and they couldn’t have returned it.

Defo involve proper legal advice

 

[dpb]

Assuming you are British and reside here, what happens if you just ignore it..........? Can europeans chase us for this sort of thing?

 

[MRC]

We had the same years ago when selling a boat. Had a letter from German lawyers demanding payment for a somthing that wasn’t working after taking delivery and after a survey.
We did take advice from a lawyer and although a long time ago it was simple. There was no claim as it was a private sale and the boat was described.

If sold as a Sunseeker camargue with no description thats fine

if sold as Sunseeker camargue that’s had no previous damage to hull then there is a claim.
We were told it’s best to have as little wording in the adverts / contract as possible

 

[MikeA]

Thanks for the info and recommendations so far, very much appreciated.

A little more info, the contract is under Spanish Law and I can't see anything in the contract regarding any implied warranty or whatever. I will try Ward & McKenzie and Clyde & Co., on Monday and see where that leads.

As far as I am aware, the boat wasn't advertised, the broker had contacted me a few weeks previous to ask if I was interested in selling as he had someone looking for something similar (I took that with a pinch of salt), his timing was right, I'd been scanning various broker websites looking for something a little newer so thought it was worth trying to sell. Not that it makes any difference to the sale, but I priced the boat a good bit lower than other Carmargues on the market as I knew I was unlikely to use it any time soon and didn't wanting it sitting idle and incurring costs for too long.

MRC, can you remember if your sale was under Spanish Law? The reason I ask is after doing a little googling, I've found a couple of sites which mention that where a private seller sells a boat to a private buyer under Spanish law, the seller must warrant the boat for 6 months. That seems crazy, selling an old motorboat like mine would leave you open to huge potential costs in the case of an engine failing spectacularly. What's the point in getting a boat surveyed if it comes with a 6 month warranty? I'm hoping it's not as black and white as that.

from Nauticlegal.com
"In principle, unless agreed to the contrary, when the purchase is done in Spain, guarantees and obligations of the parties are governed by the Spanish law. In many cases, when is the transaction of large yachts, the parties use to submit the contract to the English law.

In the Spanish law, new boats are warranted for a period of two years for any lack on conformity. When is a second-hand boat, the warranty period depends on the nature of the parties (especially if the seller is an entrepreneur)

In the case of a sale between non-professionals, the seller must ensure the vessel for a period of 6 months for latent defects that may arise. Are hidden or latent defects this existing before the purchase and are not easily detected and, in case buyer would know them, would failed to perform the purchase or had paid a lower price.

In this case the buyer can apply to the resolution of the operation or reduction in the price paid."

I'm surprised the broker didn't mention this but have to accept I should have done a little more research if that is the case.

Thanks
Mike

 

[MikeA]

Assuming you are British and reside here, what happens if you just ignore it..........? Can europeans chase us for this sort of thing?

That had crossed my mind, I've no idea but would hate to face deportation the next time I flew to Spain! My gut feeling is that if I ignore it, the costs will only rise and a court will assume I have something to hide.

 

[MRC]

Ours was UK law / contract

 

[MRC]

Shame JFM is not about

 

[ashtead]

If you don’t do anything then I suspect the plaintiff will obtain judgement in default in Spain due to your lack of defence and then seek to enforce in Uk courts . Don’t ignore it even in Spain .