Selling a boat and a possible problem

[Fr J Hackett]

I am pleased that this is generating some interest and discussion, but let me point out that whilst I was motivated financially I was strongly influenced by the unfairness of it and a desire to help future sellers and brokers that are having to deal with this problem those that know me will attest that I am no shrinking violet. Whilst the marina was a pain in the proverbial and obstinate they had a case and interest to uphold and I cannot blame them for trying, at no time did the argument descend into abuse or vitriol or personal attack and that is the reason that I have not publicly named the marina or gone into more specifics than was necessary to get the point across. However I hope that this will be the start of the demise of a totally unjust and unfair abuse of position and that people who have experienced this or are in the process of selling their boat will either use the information themselves or if they are unsure take some advice and peruse the matter, the more that do the sooner it will end.
As someone has said Yachting Monthly could do worse than open a discussion on the matter to highlight it further, I wait with bated breath

 

[Croak]

I read the OP and thought, " here we go again, another deluded fool with disaster story"

Just shows how wrong you can be.

I always thought it was a bit unfair but signed up anyway. We have always moved our boats out of the marina before selling them, for an easy life.

Well done petehb, I will print a copy of the OP and send it to our marina. (Our marina still has the clause)

 

[robertj]

Well done!!!!!!
Now to challenge anchoring charges in the same way?

 

[Greg2]

Not being alegal type, does this now count as legal precedent?

Well done, I've always thought it was a dodgy situation about brokers in marinas.

Nope, to set a precedent the case would need to reach a much higher court.

I read this post with great interest as I have always thought that such clauses are entirely unreasonable and I wasn't aware of the unreasonable contract issue. Well done to the OP for sticking to his guns.

 

[Fr J Hackett]

A couple of points have been raised in the thread and by PM :

The issue of sole brokerage rights, this seems even more common and is an issue for brokers perhaps, interestingly my marina did not press the matter. I have already said that it is likely to breach anti competition and restrictive practice laws, it may be said that it could be in breach of the vendors human rights, I would leave that for others to ponder on. If someone were to ignore this, the question is what action could the marina take and when? Providing no advertising was attached to the boat as I think they could restrict this they are only likely to find out at sale and could sue the vendor for the commission that they have be "denied" on the grounds of breach of contract or if they found out earlier either try to sue at that point or evict you from the marina again on the grounds of breach of contract. This is going to require a willing broker to support a willing vendor with the broker gambling his commission should they loose and the vendor being prepared to risk the action and possible early fight against eviction. This could easily reach crown court directly and set case law.The risks to the vendor are higher here but personally I would fight this.

Why did my marina settle out of court? was it because they couldn't be bothered or were to busy? I think not even if you think the sum a little under £1000 was not worth a couple of hours out of your day, don't forget the court was in the marinas town and the case would have taken less than an hour, why had they held fast for so long? It is because notice of the hearing had been given and written evidence was required to be submitted by each party to the court and each other in support of their case and in effect they had none and to go to court would have been a waste of time and would possibly have made the local press.

There is danger in going to county court before a district judge in that and I do not wish to be rude or denigrate them but they have a habit of trying to assume the mantle of Solomon and do not care for over legalistic arguments being put to them so the case would be better presented in distinctly lay terms with as little reference to points of law as possible leading them or allowing them to find the specific points, I admit I would have had some difficulty in that

I repeat again the more people that challenge these idiosyncrasies and thats being kind! the sooner we will see an end to them.

I leave you with two of my favourite quotes and you will see perhaps why I trod the path.

"I won't be wronged, I won't be insulted, and I won't be laid a hand on. I don't do these things to other people and I expect the same from them."

"Do not go gentle into that good night,
Old age should burn and rage at close of day;
Rage, rage against the dying of the light."

 

[rivonia]

You sir are a gentleman and a scholar. Very well done.

Peter

 

[Billjratt]

I wonder if the same situation could occur in a caravan park? They seem to have unfair and restrictive rules too.

 

[Danny_Labrador]

Admiration

I took Eon to court and won but it was nerve racking.

 

[ianat182]

Not to hijack this thread ,but as Billjrat has mentioned this situation occurs in residential Park Home and Holiday mobile home parks. There was a review of this situation in 2007-2008 Parliament where the Park site owners demand a 10%"commission" from the sellers of their park homes(15% Holiday homes) for which they do absolutely nothing, nor is the site improved using this 'Commission'; any owners removing their home from the site is done at their own expense. many of the owner/residents are over 50's/60s and this is a significant amount of money taken from many older residents leaving for care homes etc.
Park homes cost between £80 - 165K, Holiday homes say £35-45k, so this 'commission' is a significant amount of money for nothing, whilst the seller has to engage an Estate agent at about 2.5%. This was reckoned to be 'fair and reasonable' apparently according to reply from the local MP Mark Outen, when I raised the question via him to the Minister at the time.

 

[Fr J Hackett]

Not to hijack this thread ,but as Billjrat has mentioned this situation occurs in residential Park Home and Holiday mobile home parks. There was a review of this situation in 2007-2008 Parliament where the Park site owners demand a 10%"commission" from the sellers of their park homes(15% Holiday homes) for which they do absolutely nothing, nor is the site improved using this 'Commission'; any owners removing their home from the site is done at their own expense. many of the owner/residents are over 50's/60s and this is a significant amount of money taken from many older residents leaving for care homes etc.
Park homes cost between £80 - 165K, Holiday homes say £35-45k, so this 'commission' is a significant amount of money for nothing, whilst the seller has to engage an Estate agent at about 2.5%. This was reckoned to be 'fair and reasonable' apparently according to reply from the local MP Mark Outen, when I raised the question via him to the Minister at the time.

At that price I am surprised that no one has challenged it however it could not be done through the small claims court. It would certainly bear a bob or two on a decent legal opinion as opposed to that of an MP. Look at the Foxton case it may be big enough for the OFT to act on as well.

 

[wotayottie]

Why did my marina settle out of court? was it because they couldn't be bothered or were to busy? I think not even if you think the sum a little under £1000 was not worth a couple of hours out of your day, don't forget the court was in the marinas town and the case would have taken less than an hour, why had they held fast for so long?

It would be more than a couple of hours out of the marina management's day never mind their costs in hiring lawyers etc. When I was in business, I never allowed any dispute to get to court because of the aggro and disruption it would cause in the organisation I ran, so small claims like your £1000 were paid out whether right or wrong if arguments on the phone didnt prevail. Write off the money, get rid of the customer / supplier, and move on. OK that was a bit bigger organisation than a marina but I would be surprised if the same approach didnt apply.

Golden rule - never go anywhere near the law. Its expensive, time wasting, unpredictable and rarely fair. That said, for the individual the use of the small claims court is handy simply because most commercial organisations will back down long before you get there, right or wrong.

 

[Fr J Hackett]

It would be more than a couple of hours out of the marina management's day never mind their costs in hiring lawyers etc. When I was in business, I never allowed any dispute to get to court because of the aggro and disruption it would cause in the organisation I ran, so small claims like your £1000 were paid out whether right or wrong if arguments on the phone didnt prevail. Write off the money, get rid of the customer / supplier, and move on. OK that was a bit bigger organisation than a marina but I would be surprised if the same approach didnt apply.

Golden rule - never go anywhere near the law. Its expensive, time wasting, unpredictable and rarely fair. That said, for the individual the use of the small claims court is handy simply because most commercial organisations will back down long before you get there, right or wrong.

Using a Lawyer to represent you in a small claim court is almost guaranteed to bring failure see my earlier post about district judges (and I know one) They spent more than a few hours writing and phoning and the actual day in court would have been less than 1 Hr give an hour or so to drive there and a couple of quid for parking, it's not a lot of effort and marina directors are not over stretched or worked in my limited experience. They should have prepared their case and defence long ago and obviously didn't and as such deserved everything they got.
I think you miss the point of the post it's about standing up to overbearing and unfair demands from those in a monopolistic position. Not all boat owners have a hundred let alone a £1000 pounds to top up marina coffers.
In the context of your past business if you had to continually write of sums rather than get your business structure right I am not surprised that it was a previous one The motto should be get it right first time and learn from your mistakes

 

[Tranona]

Golden rule - never go anywhere near the law. Its expensive, time wasting, unpredictable and rarely fair. That said, for the individual the use of the small claims court is handy simply because most commercial organisations will back down long before you get there, right or wrong.

It is not always as simple as that. Often "small" issues get to an impasse because of incompetence on the part of the businessas in my case with Easyjet who used institutionalised delaying tactics to wear people down. The beauty of using the small claims track is that it brings the issue forcibly to their attention. The claimant has to show that he has used every avenue open to resolve the problem. The risk of the supplier losing then rises, as in this case, so the only sensible thing to do is settle as there is little to be gained for the individual firm in going to court, and everything to lose.

The only unsatisfactory thing in this case is that there is not a judgement that could be used as support for a future dispute of the same type. Pete's marina has not "lost" and nothing to stop them continuing to try and enforce the term on others.

 

[longjohnsilver]

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.

I don't know about it being illegal, it's certainly immoral.

Well done Peter!

I wonder how many people, when signing a marina contract, request the removal of this clause? And if they do request it, how many marinas agree to remove it? I can't imagine too many marinas in these difficult times refusing to take on a new (or continue with an existing) customer because of this.

 

[Fr J Hackett]

You raise an interesting point in as much as it's now out of the bag as it were and in theory should be open to negotiation and perhaps if an attempt were not made to do so a judge may look at it and say you knew of it and did not attempt to remove the clause. I think it is unlikely however and their other areas of defence The marinas still are in apposition of monopoly and it would be interesting to see their reaction to numbers of people requesting the removal of the clause, that in it's self may provide a route to defence if they refuse. However people may still have hobsons choice.

 

[RichardS]

The only time I was actually in the County Court on the small claims track was in the early 80's when I agreed to be witness for a guy whose car was damaged.

It was very informal, no wigs, just the judge, the two of us and a clerk sitting round a small table. The guy explained what had happened, I confirmed that I agreed, the other party didn't bother to turn up and that was it. £500 in 5 minutes!

Richard

 

[Lakesailor]

This was reckoned to be 'fair and reasonable' apparently according to reply from the local MP Mark Outen, when I raised the question via him to the Minister at the time.

An MP's opinion is worth sod all. A legal opinion a bit more. A judgement in court, much better.

 

[salinia]

First of all well done! I think what you achieved was a good result, and the marina made a good decision in self-preservation.

However, just to play Devil’s advocate…

When you refer to the marina as renting a hole in the water and providing no service in regards to the sale of your boat, could it not be argued by the marina that they have spent thousands of pounds in providing an idyllic setting for your boating pursuits and an ideal setting for the sale of such goods with all that a marina with its facilities can provide. Could it also be argued that a prospective purchaser would be more drawn to a vessel kept in an easily accessible location and be more likely to appreciate those surroundings that would help sell the package.

I don’t put it over very well but do you get my drift? Feel free to shoot me down in flames.

 

[sailorman]

First of all well done! I think what you achieved was a good result, and the marina made a good decision in self-preservation.

However, just to play Devil’s advocate…

When you refer to the marina as renting a hole in the water and providing no service in regards to the sale of your boat, could it not be argued by the marina that they have spent thousands of pounds in providing an idyllic setting for your boating pursuits and an ideal setting for the sale of such goods with all that a marina with its facilities can provide. Could it also be argued that a prospective purchaser would be more drawn to a vessel kept in an easily accessible location and be more likely to appreciate those surroundings that would help sell the package.

I don’t put it over very well but do you get my drift? Feel free to shoot me down in flames.

the OP had already paid through the nose for that service

 

[Fr J Hackett]

It provides, as do virtually all marinas, access to a pontoon to access the boat I was selling the boat not the marina or for that matter the remaining berth time. So no your argument does not hold water and the Foxtons case (real estate) draws on and refutes similar assertions.

Consider selling your car on a motorway service station or Tessco car park or for that matter (better analogy) a shared drive with your neighbour, are they entitled to 1% commission I think not.

PS You have never been to ******* I take it Idylic not.