Selling a boat and a possible problem

[sarabande]

hmm, excellent tale of someone standing up to bullies.


Now that it has been established the surcharge is illegal (based partly as I understand on Pete's use of previous case history) is it possible to go back to a marina and ask for the surcharge (paid in my case in 2010) to be repaid ?

 

[elioti]

As said, well done! I took on the local council over a land dispute, threatend me with £50,000 worth of costs if i lost, and costs to date £14,000 so i gave up due to it stressing me out , so they billed me and won due to me backing down! I learnt there is alot of corruption about. I tried but didnt win, maybe should have kept going, again good on you!

 

[ProDave]

All very well "winning" I suspect you won't be welcome back there if you buy another boat though.

 

[photodog]

All very well "winning" I suspect you won't be welcome back there if you buy another boat though.

Dont worry, we'll sneak him in.

 

[LittleSister]

Too slow - beaten to it!

 

[quimby]

No Christmas card for you this year, old chap!

 

[jonic]

Well done Pete

 

[BlueSkyNick]

It strikes me that you won by tenacity and being a pain in the arse (meant as a compliment!) so the marina gave in. If you had gone to court, you would probably have lost because the 1% commission is written into most marina contracts and been enforced thousands of times. There is nothing to say it is illegal.

 

[Tranona]

It strikes me that you won by tenacity and being a pain in the arse (meant as a compliment!) so the marina gave in. If you had gone to court, you would probably have lost because the 1% commission is written into most marina contracts and been enforced thousands of times. There is nothing to say it is illegal.

Suggest you read what Pete says in full. He won because he was able to show that the charge has been held to infringe the Unfair Contract Terms in a number of previous cases and has the support of Trading Standards. Not precedent because cases have not gone to a higher court, but enough to get a ruling in favour from a Small Claims Court if it had gone that far.

The fact that others (including presumably your employers) have managed to enforce the term only shows that people are not inclined to fight over what is often only a small amount - plus the fact that traditionally marina operators have been in a position of power that is difficult to challenge.

Hopefully Pete's case will get wide publicity.

 

[BlueSkyNick]

Not precedent because cases have not gone to a higher court, but enough to get a ruling in favour from a Small Claims Court if it had gone that far.

This is an assumption on your part - as it didn't actually go to court, it is not possible to say what the outcome would have been.

 

[oldbilbo]

I approve of the big 'little man'and his values. More power to your elbow, 'petehb'....

 

[FistralG]

This is an assumption on your part - as it didn't actually go to court, it is not possible to say what the outcome would have been.

I think the marina knew they were on a sticky wicket and decided to settle out of court to avoid setting the precedent that would prevent them continuing the underhand and potentially illegal practice.
Well done petehb for sticking to your guns and bringing it to the attention of a wider audience. Let's hope it gets more publicity and the practice gets stopped because more people know their rights.

 

[BrendanS]

It strikes me that you won by tenacity and being a pain in the arse (meant as a compliment!) so the marina gave in. If you had gone to court, you would probably have lost because the 1% commission is written into most marina contracts and been enforced thousands of times. There is nothing to say it is illegal.

Yes, but now public in the boating world, so now many other will challenge in the same way, and use same resources

 

[Tranona]

This is an assumption on your part - as it didn't actually go to court, it is not possible to say what the outcome would have been.

Not an unsupported assumption. There was a previous case where the marina lost, Trading Standards had advised the marina aginst the practice and the BMF has advised its members they cannot rely on that term, and to remove it from their T&Cs.

The marina clearly thought it could not win, having first tried a compromise to avoid going to court before accepting (possibly having taken advice) that it was likely to lose. Cynically the smart thing to do for the marina - better to pay off the few hundred than have a court judgement against it.

Guess those marinas who still want to enforce the term will hope that this case gets buried pretty quickly!

 

[BlueSkyNick]

Not an unsupported assumption. There was a previous case where the marina lost, Trading Standards had advised the marina aginst the practice and the BMF has advised its members they cannot rely on that term, and to remove it from their T&Cs.

The marina clearly thought it could not win, having first tried a compromise to avoid going to court before accepting (possibly having taken advice) that it was likely to lose. Cynically the smart thing to do for the marina - better to pay off the few hundred than have a court judgement against it.

Guess those marinas who still want to enforce the term will hope that this case gets buried pretty quickly!

To be totally honest, I dont have any professional involvement in this and am not empowered to give a company view. Nonetheless, I still have a personal opinion - I dont think it is as clear cut or straightforward as this thread seems to imply.

For example, there is a difference between the marina operator and the brokerage which is based there as a concessionaire. If the berth holder signed a contract, upon taking up a berth, which included conditions about selling the boat, it is not reasonable to argue about those conditions when they are applied to him.

I repeat, this is my personal viewpoint.

 

[jonic]

The basis of Pete's claim (and the one that did lose in a local court) is not that the term is there and was signed on acceptance of the berth, but that the term is unfair. i.e you can only have the berth if you pay us 1% for doing zilch if you sell the boat whilst she is here.

Trading standards do not see this as a reasonable term under the unfair contract terms act.

Most marinas no longer have the term.

As far as I am aware the BMF advise against it and ABYA do not approve of it.

 

[Fire99]

Well done for sticking to your 'guns' and principles

 

[Fr J Hackett]

Nick

There are specific areas of contract law and unfair contract that prohibit the assignment of clauses that one would not normally relate to a contract in this case selling a boat has nothing to do with renting a hole in the water and it is unfair to relate the two in a single contract. Further more to use a standard contract that does not give the person the ability to negotiate each clause again is unenforceable. There are other areas as well. If you are not familiar with the Foxtons case look it up, the OFT felt that it was pertinent.

 

[prv]

If you had gone to court, you would probably have lost because the 1% commission is written into most marina contracts

In the 19th century, contract law was absolute, and however bizarre or unfair the terms, if you signed them you were bound by them. A lot of tragic fiction used this kind of thing as a premise (along with weird and unenforceable conditions on wills).

In the modern era, this is not so. It remains to an extent in contracts between two businesses, as someone running a business is assumed to have the nous to understand what they're getting themselves into (or to pay someone to understand it for them) but for contracts between a business and a member of the public in a personal capacity, there is a lot of other law controlling what goes on. The main one of course is the Unfair Terms In Consumer Contracts Act (UTICCA).

The net result is that in 2012 a business cannot just write whatever it wants into a contract and expect to rely on it. Repeating that "it is in the contract, and you signed it", as the OP's marina seems to have done, is to misunderstand the situation.

Pete

 

[Lakesailor]

I did manage to get a lease rewritten excluding a particularly unusual term which was definitely not in our (or any subsequent lessee's) interest by suggesting it wouldn't stand up in court.
The landlord had always used it but was open to the suggestion that it wasn't a fair term.