RCD

[Noboat1]

Sorry to join and go straight into a question but hopefully when I’m a boat owner again I’ll have a little more to contribute!

Having read all the RCD threads I can find, I wonder if someone can give me some definitive advice - as Trading Standards couldn’t.

Scenario: A man builds his own boat in Canada (to professional plans) and sails it over to the UK in 2013. For personal reasons he has to leave the boat and go back to Canada. Berthing fees build up at the marina and agreement is made to abandon the boat in lieu of these fees. The marina now offer the boat for sale in the UK.

The marina isn’t interested in RCD and are selling it at market value. Add likely costs of RCD to this and it all gets very expensive.

My questions.
1. If I buy the boat ‘as is’ and not make it RCD compliant myself, is it the marina as “the first to sell or put into use” that are liable for any future non-compliance issues, and not me?

2. If the above is correct, am I right in saying there’s no legal recourse against the boat either, so I can happily sail for evermore without worrying someone’s going to impound it?

Any guidance/information would be very much appreciated.

Many thanks

 

[macd]

My understanding is that it's prohibited to put into use or put on the EEA market a leisure craft which is not RCD-certified.
There are certain exemptions from this, one of which is for home-built boats, subject to certain conditions. However, I think in the absence of the builder/paper trail, the marina may struggle to demonstrate that these conditions have been met. There's also the issue of VAT, of course.

Perhaps tell them you'd be prepared to take these thorny issues off their hands for a small consideration on their part...

 

[superheat6k]

My understanding is there is no before date on RCD requirement for boats imported from outside the EEA. The home built rule requires 5 years ownership. When I was boat hunting recently I looked into US boats to import, and this ruled out purchase of any US boat as the cost to obtain compliance could not be assessed, even boats built way before RCD (1998 I think).

The RCD states it is illegal to place the boat on the market, so that is the marina selling it, plus the mention of VAT on import needs to be clarified.

That the marina selling it are ignorant of the law is their problem, but if you buy it without both RCD and VAT it becomes your problem.

You say they are also not interested in anything but market value. Presently the boat has no market value as it is illegal to sell it unless the seller addresses these issues. I would explain this to them.

If you do buy it and take the risk of getting caught, which would be low, the problem could re-emerge when you come to sell. This is why I recently went through the rather difficult and indeed costly exercise of paying the VAT on my boat which I imported from Jersey. The VAT was part of the purchase cost, and this was reflected in my offer price (NB not in the vendor's asking price).

Had I not paid the VAT would I have got caught, very unlikely as long as I didn't visit France, or became a forger !

However, plenty of other boats for sale.

 

[ShinyShoe]

The VAT issue I suspect is easy enough to handle. The Marina is presumably VAT registered so can issue a VAT invoice. They need to speak to their accountants to understand if they need to charge VAT (and if they can recoup the VAT from the overdue marina fees in return etc). You just need the invoice to be clear if you were charged VAT and if not why not. You make it clear that your offer is inclusive of any taxes including VAT.

The RCD - it is the Marina who is breaking the law by placing the craft onto the market not you. But you will get LOTS of problems when you come to sell if you can't show why the boat is exempt. Not clear if you are breaking the law too at that point - its first sale in the EU that matters I think. If I was the Marina I'd be lifting her out and putting her in a corner for the 5years and then using that exemption. The RYA documents don't mention built in EU. I'd still want some documentation of the build etc. Suspect that is far easier than trying to get RCD compliance for a boat you didn't build!

 

[npf1]

I'm pretty sure the 'offender' is the first person to put the boat 'in use' in the EEA.

The guy from canada would not have put it 'in use' until the boat had been in the EEA for 18 months. So he may well be the 'offender', but highly unlikely to be prosecuted as no one gives a monkey, as well as being futile to do so.

I can't imagine the marina ownership has any bearing on the boat's RCD status as they have not used it. What are they saying the status is?

I also think it's unlikely you'll be able to get a crystal clear definitive statement from anywhere without paying a lot of money in legal fees. And, even then, there may still be shades of grey.

IMHO, you''d not taking huge risks if buying it except that it'll be exceptionally difficult to sell it in europe when you want to rxit.

 

[npf1]

ShinyToe - it's many years since i read the legislation, but i'm almost certain the wording was 'in use' rather than 'on the market'

 

[macd]

ShinyToe - it's many years since i read the legislation, but i'm almost certain the wording was 'in use' rather than 'on the market'

'Fraid not. From RYA guidance notes:
[leisure vessels] "may only be placed on the EEA market or put into service within the EEA if they meet the essential safety requirements set out in the Recreational Craft Directive – 2003/44/EC."

Full text here: https://www.rya.org.uk/SiteCollecti...ents/RCD Documents/1 RCD Compliance Guide.pdf

 

[Tranona]

Good advice so far.

First you have to check that the boat is legally in the EU at all. The Canadian owner should have applied for temporary importation to legally use it in the EU. After 18 months he could either apply for an extension or take the boat out and re-enter.

If he did neither of these things then the boat needs to be formally imported before it is sold or used any further. He is responsible for this, although if he is selling in practice it is often the buyer who pays for all this, but they are not legally responsible.

The marina can do this on his behalf as his agent which means payment of the VAT direct to HMRC based on its value at the time of import. If they are selling it then the sale price could be used as the value so no more VAT would be due.

RCD is a separate issue and the current owner (or his agent) is responsible for getting a CE mark. The simplest way is to get it in Cat D which avoids most of the expense associated with higher categories, but of course this will have an impact on the subsequent value. However, would guess that the value is pretty low anyway - who wants an old home built Canadian boat?

Not surprising you cannot get sense out of Trading Standards as this is not the sort of thing that comes up often. in principle they do have the powers to impound goods that do not have a CE mark, and indeed take them off the market. They frequently do this with consumer goods - often there is a news item around Christmas of dodgy toys being seized, but whether they would get involved with a dodgy boat is another matter.

Not paying the VAT is a criminal offence and much more likely to come to light, particularly as the marina is VAT registered. iN this case the debt does potentially follow the boat. Not getting a CE mark is also a criminal offence, but it seems unclear whether the liability follows the boat.

The simplest way of avoiding the complicated issues is to buy the boat direct from the current owner (assuming he still has legal title), pay the VAT and certify the boat in Cat D. At least you will have clear title and evidence of VAT payment and future buyers may not be bothered about the RCD category. The marina will of course want to ensure the proceeds of the sale go to them.

 

[npf1]

'Fraid not. From RYA guidance notes:
[leisure vessels] "may only be placed on the EEA market or put into service within the EEA if they meet the essential safety requirements set out in the Recreational Craft Directive – 2003/44/EC."

Full text here: https://www.rya.org.uk/SiteCollecti...ents/RCD Documents/1 RCD Compliance Guide.pdf

Ah yes, the legislation states "The products covered by this Directive that are placed on the Union market or put into service should comply with the relevant legislation ...". I would have thought in this case, the 'put into service' came first.

 

[macd]

Ah yes, the legislation states "The products covered by this Directive that are placed on the Union market or put into service should comply with the relevant legislation ...". I would have thought in this case, the 'put into service' came first.

Surely a temporary import from outside the EEA (such as the vessel in question when it first entered) is not 'put into service' within the meaning of the legislation -- otherwise it would have to comply with RCD, which it does not. If sold within the EEA, however, it loses its temporary import status, and thus must satisfy RCD rules.

 

[npf1]

Hence the 18 month comment in my orig post

 

[Tranona]

Hence the 18 month comment in my orig post

But that only applies if the owner is a non EU resident. As soon as it changes hands that temporary importation is no longer valid. That is explicitly stated in VAT Notice no8

 

[npf1]

My point was that at 18 months and one day, the canadian guy became the importer if he still owned it at that date.

 

[Tranona]

My point was that at 18 months and one day, the canadian guy became the importer if he still owned it at that date.

Yes - or he could apply for an extension or the boat could be put into bond pending a sale. However he is still the importer if he wants to sell in the EU. suspect he has done none of this and seems to have just walked away.

 

[TheCharteringClasses]

My understanding is there is no before date on RCD requirement for boats imported from outside the EEA.

The relevant legislation is here, it gets updated fairly frequently as far as legislation goes: http://www.legislation.gov.uk/uksi/2004/1464/contents/made

Note section 5:-

Products placed on the market before 1st January 2005

5. These Regulations do not apply to any product which is placed on the market before 1st January 2005.

Doesn't apply in this case of course...

Sections 16, 19 and 20 seem to suggest that any action would involve forcing the marina to make the product conform, possibly under threat of prison even.

The legislation is in essence consumer protection legislation as such as a consumer you are typically the victim of the offences rather than the perpetrator. Just as a parent is a victim of the seller of a non-CE teddy bear that falls to pieces in their child's mouth. Probably too late now, but maybe you should be feigning total ignorance to allow you to emphasise your victimhood should it be necessary.

Obviously a VAT registered entity selling to a private individual has to include VAT in the selling price, there's not even a way for them to exclude it.

 

[TheCharteringClasses]

Yes - or he could apply for an extension or the boat could be put into bond pending a sale. However he is still the importer if he wants to sell in the EU. suspect he has done none of this and seems to have just walked away.

I think the marina becomes the importer though, as they were the ones who changed it from an abandoned Canadian boat to a UK boat.
Is there's any difference between their buying it as it was in the UK and if they had bought it in Canada in that respect?

 

[Boo2]

...The marina isn’t interested in RCD and are selling it at market value. Add likely costs of RCD to this and it all gets very expensive...

My understanding is that trading standards have no authority to do anything about it after 12 months have elapsed, but whether this timer runs from date of import, or date they are advised of the issue or some other date I have no idea. So in the UK you may not face any issues, the same may not apply in other European countries though so beware if you ever intend to take the boat abroad even for a visit.

You don't define what the marina mean by "market value" ? If they have not taken RCD, VAT status etc into account in their price then you need to just walk away. AIUI, to get the boat retrospectively qualified under the RCD as an individual might cost you anything up to £10k, more if the engine is not qualified to meet Euro emissions standards. If the marina are selling the boat through their business then I believe they should supply it with a VAT receipt/invoice so you should be in the clear there, just make sure you understand whether the negotiated price includes or excludes VAT.

I would not be looking to pay more than 1/2 the price that other people would be asking for the same boat without RCD issues - the marina are not in a good negotiating position as it costs them money to store the boat and they need to pay off the original owners' debt which is also costing them money every day it exists.

So if you like the boat, put in a low offer and keep us posted as to how it pans out...

Good luck,

Boo2

 

[macd]

Boo2: but isn't the salient point that the marina is prohibited from putting the vessel on the market unless it is RCD certified or demonstrably exempt? It's immaterial what the price is, or how (morally) justified they might be in wanting to recover unpaid fees, much less how much hassle it might in future be to have it certified. They are in the sorry position of having an asset which is effectively of no value to them.

 

[Boo2]

Boo2: but isn't the salient point that the marina is prohibited from putting the vessel on the market unless it is RCD certified or demonstrably exempt? It's immaterial what the price is, or how (morally) justified they might be in wanting to recover unpaid fees, much less how much hassle it might in future be to have it certified. They are in the sorry position of having an asset which is effectively of no value to them.

Well, the boat's value is what someone will pay for it ? If someone can buy it at a price that will pay for private RCD qualification as well as giving them a bargain then they are able to value it at that price. I agree with Tranona though that self-built boats sell for very much less than AWBs and self-built Canadian illegal imports sell for very much less than that, taking into account RCD compliance. As you say the marina is not in a good negotiating position and the OP should be very careful not to overpay.

Worth finding out what the fees owed by the owner to the marina amount to and maybe make an offer based on that rather than some guess at market price ?

Boo2

 

[macd]

Well, the boat's value is what someone will pay for it ? If someone can buy it at a price that will pay for private RCD qualification ...

One of us must be missing something. If it is illegal to put it on the market, i.e. offer it for sale, how will they find your 'someone' to pay anything for it? On the other hand the OP might be prepared to offer them a small sum for its scrap value...and then conveniently forget to scrap it.