Fr J Hackett
Well-Known Member
Last year I decided to retire from sailing (at least for a couple of years) and sell the boat. I chose a well known, respected, independent broker who was very competitive.
Early on it was pointed out to me by my broker that the berthing contract I had with the marina had a number of clauses in it relating to the sale of boats within the marina two of which had financial consequences. They required that they be given equal opportunity to represent the boat at their or their brokers terms. They demanded a 1% commission on the sale of the boat in addition. At this point there was no sale yet in prospect but a number of viewing either in the pipe line or immanent, I took the view that the clauses were in breach of "The Unfair Contracts Act" and contravened anti competition and restrictive practice law as such were unenforceable and informed the broker to carry on and we would address the issue as and when they arose. I was reasonably confident in that I am not unfamiliar with contract law and was aware of a recent sale through the same broker and marina where neither of the clauses was acted on albeit a larger boat was then berthed by the seller in the marina.
Things progressed reasonably quickly and the broker secured a buyer within my specified price range and the question of survey arose we briefly discussed moving the boat to a different marina for the survey and sale but this was quickly discounted, it would have been disingenuous, expensive, may have put the buyer off, could have raised questions of title at the time of sale and at that point no demands had been made. The lift and survey went ahead with the buyer paying the marina direct immediately after which the marina contacted the broker demanding the 1% of sale price commission. He informed the quite rightly that he had no authority to pay the commission and that they would have to contact the owner. Shortly afterwards the maria manager contacted me with the same demand I refused to pay citing my beliefs re unfair contract which he failed to accept or understand their followed a ping pong of telephone conversations over a couple of days when he finally realised that I was going to stand my ground and he said he would have to pass the matter on to his director. The same ground was gone over with him and an impass ensued with the broker getting nervous about whether the sale could be completed. At this point I had begun to put substance to my claims:
I knew that the OFT had passed comment on this practice in the past and considered it questionable. I contacted them and explained the position they reaffirmed their earlier position adding that they thought it paralleled the "Foxtons" case which they had won on appeal. They suggested that I contact my Trading Standards Dept.
I was fortunate enough to have as friends a retired circuit judge, a currently active district judge, knew both professionally and socially a number of solicitors and a barrister that I knew professionally that dealt in contract law plus a good friend who is a senior VP and contract negotiator with a very large multi national company. The only one who edged his bets was the district judge, however without saying what he said my retired friend was high confident that should the case ever get to crown court it would succeed.
I was also an individual member of the RYA and their legal dept gave me information that a similar case had been decided in favour of the boat owner in 2006 in the small claims court.
Trading Standards confirmed to me that they agreed with my interpretation.
All of this I conveyed to the marina director piecemeal and at each point he simply refused to accept and stuck to his position. Trading Standards had written to the marina informing them that they were in breach of the Unfair Contracts Act but to no avail.
We arrived at the point where the sale had to go ahead or fail with finical consequences if I failed to complete and the marina had threatened to put a lien on the vessel and had effectively and illegally impounded it. To overcome this and enable the sale I informed the marina that under duress I would pay to achieve release of the vessel this I did by BACS and the sale proceeded the next day. I am sure the marina felt that they had won at this point. On informing the Trading Standards of the situation they wrote to the marina advising them to refund the monies but were ignored. At that point I initiated proceedings through the small claims court. They issued a defence " It was in the contract, he signed, he must pay" yet again failing to understand the concept of unfair contract. Several months past with me trying to get the hearing held locally to myself but failing and then having to postpone because of my recent operation and inability to travel. The hearing was scheduled for 5th July. Two weeks ago I was contacted by the marina offering to pay me 50% on the grounds of arbitration, my response was that I had indicated that I was willing to attend an arbitration hearing out of court but that would be in an effort for an independent to convince one of us that we were wrong and achieve settlement that way. Niether of us could be 50% right
so I declined. Yesterday I was contacted by the marina to ask what it would take not to go to court my terms were full settlement including interest at 8% plus court fees, they accepted and withdrew from the case. Today they paid the full amount into my account and I have accordingly cancelled the case.
There must be a number of people that have been caught by this antiquated charge. It has it's origins many years ago in the days when yards used to show brokers clients over boats when the broker was unable to attend, often rowing people out to boats and closing them up afterwards. In my case the marina offered no service nor was any sought. Following the 2006 case which was on the south coast the BMF advised it's members not to rely on the clause and to remove it from their contracts when they could as a consequence it is virtually eliminated on the south coast but still seems to have a foothold on the east coast and in particular some of the independent marinas. Their are specific points of the act that such clauses are in breach of and should anyone be contemplating a similar course of action to myself I would be only to happy to give further details of my case.
Early on it was pointed out to me by my broker that the berthing contract I had with the marina had a number of clauses in it relating to the sale of boats within the marina two of which had financial consequences. They required that they be given equal opportunity to represent the boat at their or their brokers terms. They demanded a 1% commission on the sale of the boat in addition. At this point there was no sale yet in prospect but a number of viewing either in the pipe line or immanent, I took the view that the clauses were in breach of "The Unfair Contracts Act" and contravened anti competition and restrictive practice law as such were unenforceable and informed the broker to carry on and we would address the issue as and when they arose. I was reasonably confident in that I am not unfamiliar with contract law and was aware of a recent sale through the same broker and marina where neither of the clauses was acted on albeit a larger boat was then berthed by the seller in the marina.
Things progressed reasonably quickly and the broker secured a buyer within my specified price range and the question of survey arose we briefly discussed moving the boat to a different marina for the survey and sale but this was quickly discounted, it would have been disingenuous, expensive, may have put the buyer off, could have raised questions of title at the time of sale and at that point no demands had been made. The lift and survey went ahead with the buyer paying the marina direct immediately after which the marina contacted the broker demanding the 1% of sale price commission. He informed the quite rightly that he had no authority to pay the commission and that they would have to contact the owner. Shortly afterwards the maria manager contacted me with the same demand I refused to pay citing my beliefs re unfair contract which he failed to accept or understand their followed a ping pong of telephone conversations over a couple of days when he finally realised that I was going to stand my ground and he said he would have to pass the matter on to his director. The same ground was gone over with him and an impass ensued with the broker getting nervous about whether the sale could be completed. At this point I had begun to put substance to my claims:
I knew that the OFT had passed comment on this practice in the past and considered it questionable. I contacted them and explained the position they reaffirmed their earlier position adding that they thought it paralleled the "Foxtons" case which they had won on appeal. They suggested that I contact my Trading Standards Dept.
I was fortunate enough to have as friends a retired circuit judge, a currently active district judge, knew both professionally and socially a number of solicitors and a barrister that I knew professionally that dealt in contract law plus a good friend who is a senior VP and contract negotiator with a very large multi national company. The only one who edged his bets was the district judge, however without saying what he said my retired friend was high confident that should the case ever get to crown court it would succeed.
I was also an individual member of the RYA and their legal dept gave me information that a similar case had been decided in favour of the boat owner in 2006 in the small claims court.
Trading Standards confirmed to me that they agreed with my interpretation.
All of this I conveyed to the marina director piecemeal and at each point he simply refused to accept and stuck to his position. Trading Standards had written to the marina informing them that they were in breach of the Unfair Contracts Act but to no avail.
We arrived at the point where the sale had to go ahead or fail with finical consequences if I failed to complete and the marina had threatened to put a lien on the vessel and had effectively and illegally impounded it. To overcome this and enable the sale I informed the marina that under duress I would pay to achieve release of the vessel this I did by BACS and the sale proceeded the next day. I am sure the marina felt that they had won at this point. On informing the Trading Standards of the situation they wrote to the marina advising them to refund the monies but were ignored. At that point I initiated proceedings through the small claims court. They issued a defence " It was in the contract, he signed, he must pay" yet again failing to understand the concept of unfair contract. Several months past with me trying to get the hearing held locally to myself but failing and then having to postpone because of my recent operation and inability to travel. The hearing was scheduled for 5th July. Two weeks ago I was contacted by the marina offering to pay me 50% on the grounds of arbitration, my response was that I had indicated that I was willing to attend an arbitration hearing out of court but that would be in an effort for an independent to convince one of us that we were wrong and achieve settlement that way. Niether of us could be 50% right
so I declined. Yesterday I was contacted by the marina to ask what it would take not to go to court my terms were full settlement including interest at 8% plus court fees, they accepted and withdrew from the case. Today they paid the full amount into my account and I have accordingly cancelled the case.There must be a number of people that have been caught by this antiquated charge. It has it's origins many years ago in the days when yards used to show brokers clients over boats when the broker was unable to attend, often rowing people out to boats and closing them up afterwards. In my case the marina offered no service nor was any sought. Following the 2006 case which was on the south coast the BMF advised it's members not to rely on the clause and to remove it from their contracts when they could as a consequence it is virtually eliminated on the south coast but still seems to have a foothold on the east coast and in particular some of the independent marinas. Their are specific points of the act that such clauses are in breach of and should anyone be contemplating a similar course of action to myself I would be only to happy to give further details of my case.
but perhaps 1% on a dinghy sale wouldn't warrant the hassle
