Marina rules and sales commision

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Bat21

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I understood that the practice of Marinas attempting to charge 1% +vat on boats which are sold whilst a berthing contract is in place had ceased and that the BMF had removed the clause from their guide clauses in 2012 as it was unenforceable.

Today I have received a berthing contract for 2017 which states:

"As per BMF policy a yard commission is payable to the company immediately upon the sale of any vessel in respect of which the company has a valid berthing contract, whether or not the vessel is sold within the marina" etc etc.

Have I missed a court case, or is this once again a BMF policy to try it on?
 
Bat21 said:
I understood that the practice of Marinas attempting to charge 1% +vat on boats which are sold whilst a berthing contract is in place had ceased and that the BMF had removed the clause from their guide clauses in 2012 as it was unenforceable.

Today I have received a berthing contract for 2017 which states:

"As per BMF policy a yard commission is payable to the company immediately upon the sale of any vessel in respect of which the company has a valid berthing contract, whether or not the vessel is sold within the marina" etc etc.

Have I missed a court case, or is this once again a BMF policy to try it on?
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There is a thread on here related to my initiating a small claims case against a marina for this on the basis that it constituted an unfair contract and was unenforcible. Eventually, 2 days before the court case the marina capitulated and settled in full with all my costs plus interest at 8.5% as in order to sell the boat I had to pay the marina under duress. There was a previous case that went to court and was found in favour of the seller but as there was no appeal to a higher court it is deemed as not setting a precedent.
There is more to pursuing the claim than just stating it's an unfair contract, you have to read the law in relation to "unfair contract" then build your case around that. Both sides are required to submit their case to each other and the court.
I could go on:rolleyes:

To pick up on your point re the BMF I do understand that as a result of the two actions that the BMF did advise its members to strike out the clause however not all marinas are members. You could strike out the clause in the contract yourself and get the marina to acknowledge that, whether they will or not is questionable.
 
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Hi Peter, thanks for your response, I was aware of the situation which came to the fore in 2012, and was pretty sure that the clause had been removed from my subsequent berthing contracts, that is why I was quite surprised to see it return and incorporate the wording " As per BMF Policy" which, to me is a rather strange opening to a contentious clause. I believe the legislation is now part of the consumer rights act 2015 which replaced the 1999 act, I am wondering if the BMF have found some sort of loophole in the 2015 legislation, or if indeed this clause is indeed part of their current advice to marinas. I am probably going to move on from this marina but if staying would insist on the clause being deleted as a matter of principle.
Cheers

Bob
 
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Bat21 said:
Hi Peter, thanks for your response, I was aware of the situation which came to the fore in 2012, and was pretty sure that the clause had been removed from my subsequent berthing contracts, that is why I was quite surprised to see it return and incorporate the wording " As per BMF Policy" which, to me is a rather strange opening to a contentious clause. I believe the legislation is now part of the consumer rights act 2015 which replaced the 1999 act, I am wondering if the BMF have found some sort of loophole in the 2015 legislation, or if indeed this clause is indeed part of their current advice to marinas. I am probably going to move on from this marina but if staying would insist on the clause being deleted as a matter of principle.
Cheers

Bob
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Have you spoken to the marina ? Perhaps the return of the condition is a mistake ?
 
Has anyone actually ever paid the percentage? I sold a boat in a marina, the marina manager claimed that a percentage was due, and the buyer and I wished him the best of British luck!
Attempted robbery upon the weak-minded, in my humble opinion!
 
Paddy Layback said:
Has anyone actually ever paid the percentage? I sold a boat in a marina, the marina manager claimed that a percentage was due, and the buyer and I wished him the best of British luck!
Attempted robbery upon the weak-minded, in my humble opinion!
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In my case the marina threatened to block the sale by putting a lien on the boat not allowing it to be removed from the marina, it had a lock. The arguments got quite aggressive at one point. So I paid and notified them by registered mail that I was doing it under duress and would be seeking recompense through the courts. Thats when the fun started, I think they thought that I would just let it go and be happy to sell my boat but they misjudged.
 
Bat21 said:
Hi Peter, thanks for your response, I was aware of the situation which came to the fore in 2012, and was pretty sure that the clause had been removed from my subsequent berthing contracts, that is why I was quite surprised to see it return and incorporate the wording " As per BMF Policy" which, to me is a rather strange opening to a contentious clause. I believe the legislation is now part of the consumer rights act 2015 which replaced the 1999 act, I am wondering if the BMF have found some sort of loophole in the 2015 legislation, or if indeed this clause is indeed part of their current advice to marinas. I am probably going to move on from this marina but if staying would insist on the clause being deleted as a matter of principle.
Cheers

Bob
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Without looking at the 2015 act I doubt very much that it would remove a principal of law that has stood the test of time and been the basis of many significant successful actions and contract disputes. My view is that marinas were advised to let the matter lie quiet for a while and I am pretty sure that when my marina took legal advice they were told that they stood a significant chance of loosing so let it go. Time has passed and they may feel like testing the water again.
A small claims court can be unpredictable in that if you present an over complicated case or even use a solicitor let alone a barrister to present the case you risk alienating the district judge. Also the claims are settled on the day and mistakes in interpreting law can be and are made. There is in principal no appeal but should the decision go against you on the grounds of a point of law you could potentially take it to a higher court.
 
petehb said:
In my case the marina threatened to block the sale by putting a lien on the boat not allowing it to be removed from the marina, it had a lock. The arguments got quite aggressive at one point. So I paid and notified them by registered mail that I was doing it under duress and would be seeking recompense through the courts. Thats when the fun started, I think they thought that I would just let it go and be happy to sell my boat but they misjudged.
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Those lock gates filled the buggers with false confidence ;)
 
steve yates said:
Lock gates cannot be of much use surely. Just piggy back with every boat that goes to leave until they give in :) Can't see them keeping all their berth holders in for a dispute like that!
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The lock was just part of it the real threat was to put a lien on the boat and disrupt the sale perhaps to the point where the sale was lost. Fortunately by that point I had done my homework and was fairly confident I had a sound case, the RYA legal dept was quite helpful. I think I may have given Jonic a few worrying moments though.
 
petehb said:
The lock was just part of it the real threat was to put a lien on the boat and disrupt the sale perhaps to the point where the sale was lost. Fortunately by that point I had done my homework and was fairly confident I had a sound case, the RYA legal dept was quite helpful. I think I may have given Jonic a few worrying moments though.
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No, I had total faith in you PHB!

Had another one last year, fortunately my client was a Lawyer. One (incredibly) strong letter finished it there and then. AFAIK most bodies take a very dim view and its is seen as unenforceable but no precedent has been set.
 
petehb said:
Without looking at the 2015 act I doubt very much that it would remove a principal of law that has stood the test of time and been the basis of many significant successful actions and contract disputes. My view is that marinas were advised to let the matter lie quiet for a while and I am pretty sure that when my marina took legal advice they were told that they stood a significant chance of loosing so let it go. Time has passed and they may feel like testing the water again.
A small claims court can be unpredictable in that if you present an over complicated case or even use a solicitor let alone a barrister to present the case you risk alienating the district judge. Also the claims are settled on the day and mistakes in interpreting law can be and are made. There is in principal no appeal but should the decision go against you on the grounds of a point of law you could potentially take it to a higher court.
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As I understood this point of law, if you had read the contract and saw the clause - it was not really unfair if you did not challenge it. Is that the case?
 
Chris_Robb said:
As I understood this point of law, if you had read the contract and saw the clause - it was not really unfair if you did not challenge it. Is that the case?
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No not at all thats the position the marina took. You have to look at the law there are several points which construe an unfair contract one of them from memory being that if they effectively offer no service in connection with the sale they cannot claim a fee for it but there are others and it's some time since I read up on it and I ditched the file shortly afterwards. The sale left a bad taste in my mouth and the purchasers used a surveyor to try to screw every last cent out of the sale after I had been helpful to them and left an enormous amount of kit on the boat.
 
I would simply line that out, sign it, and then sign the contract (if nothing else offends). Contracts are meant to be amended. It would be very interesting to see if they have the nerve to push back, knowing it is an unfair clause. Make them explain it.

They'll back down.
 
A contract us defined as
"an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. "

The marina offers no consideration in the case of a sale so no contract exists.

Unfair contract is slightly different and protects consumers from large organisations wording contracts to create a significant imbalance in benefits.
 
thinwater said:
.... They'll back down.
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Will they back down, how can you be so sure? Many marinas are owned by large organisations where local managers would not have the authority to do that, berthing can be limited in places and hence demand for spaces outstrips supply. They might very well offer a take it or leave it situation. Also, a lot of marinas offer a closed shop where you have to use the service providers at the marina, not your own. Some even restrict the volume of DIY work that can be done. It is true that many of these restrictive practises are now limited and a request to use non marina based contractors is supported when the contractor presents their insurance certificate. The clauses still exist though.

I will be signing such a contract next week or next month, depending on the progress of some work at another yard, the marina has both the commission clause and the outside contractor clause.
 
Quiddle said:
A contract us defined as
"an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. "

The marina offers no consideration in the case of a sale so no contract exists.

Unfair contract is slightly different and protects consumers from large organisations wording contracts to create a significant imbalance in benefits.
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Unfair contract is just a term is it not? Regardless, it will not be solely for consumers vs large organisations, but will apply equally to any contract between two parties, no?
 
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