Buyer beware!

[Alan de Enfield]

1 minute ago, Naartjie said:

IanD please correct me if I'm wrong

But if the Broker owns the boat then Consumer rights do apply.

 

Yes - very different rules apply, but very few brokers own the boats they are selling - Whilton is one of the biggest sellers of boats they own, but they often deny their ownership to avoid the legislation.

 

A boat I bought many many years ago which turned out to be a monster-turd was sold as a private sale - It had been advertised by the broker for many months but on receiving the paperwork the historical Bills odf Sale showed that it had been bought by the Marina Finance Director the day my payment was banked, and my sale was from him as the owner.

 

Despite a legal battle I lost.

[matty40s]

ABNB also now buy boats off people to sell.

7 minutes ago, alias said:

 

I believe that ABNB only sell boats on behalf of their current owners, they do not own the boats they sell. 

 

Edited June 15, 2023 by matty40s

[Alan de Enfield]

4 minutes ago, Alan de Enfield said:

 

Yes - very different rules apply, but very few brokers own the boats they are selling - Whilton is one of the biggest sellers of boats they own, but they often deny their ownership to avoid the legislation.

 

A boat I bought many many years ago which turned out to be a monster-turd was sold as a private sale - It had been advertised by the broker for many months but on receiving the paperwork the historical Bills odf Sale showed that it had been bought by the Marina Finance Director the day my payment was banked, and my sale was from him as the owner.

 

Despite a legal battle I lost.

 

Edit to add :

 

Brokers are legally required to announce / detail if they "are selling in the course of a business" (ie the business owns it)

 

Also worth being aware of the VAT situation - if the boat is commercially owned from new it could easily have had the VAT refunded on purchase, if now, a non-buisness (non VAT registered) person buys it for personal use then the purchase price will become subject to VAT.

 

Yes - even on a secondhamd boat.

[IanD]

18 minutes ago, Naartjie said:

IanD please correct me if I'm wrong

But if the Broker owns the boat then Consumer rights do apply.

 

Consumer rights are different for brand new goods -- assumed to be "perfect" and which must meet all points of the specification and description -- and secondhand goods which are not assumed to be "perfect" and may have minor faults, but must still be "as described".

 

If the seller/broker says that everything functions perfectly and they don't then you have rights to a full refund. But this pretty much never happens with secondhand boats, they're sold "subject to survey" -- and even then if the surveyor misses something, good luck with getting your money back.

 

The legal position is also different if you're buying from a company that owns something -- who is then responsible for the accuracy of the description -- and a broker who is selling something on behalf of the owner, and to a large extent relies on what the owner tells them together with whatever checks they can do. Your consumer rights buying from a private individual (directly or via a broker) are much reduced compared to buying from a company who owns the boat, that's just the way the law works.

Edited June 15, 2023 by IanD

[Tacet]

A deposit would hardly be a deposit if it were fully refundable for any or no reason.

[Naartjie - Duck Hatch]

26 minutes ago, Alan de Enfield said:

 

As that seems to be your 'bug-bear' lets take that at face value :

 

Customer / Buyer :

I do not accept that I need to pay a deposit, or that I have no right of return - MY consumer right is to enfore what terms I want.

 

Seller / Broker : You are fully at liberty to impose whateber conditions you wish, but the seller (as a private individual - remember the broker is not legally the seller) is just as entitled to say, I do not accept and therefore the boat is not available for YOU to buy.

 

T&Cs are VERY different if it is a business selling the boat, rather than a private individual (before you jump in and claim a broker is a business I suggest you do some reading up on the subject)

Alan if you don't mind me asking, are you a Broker 

[Alan de Enfield]

Just now, Naartjie said:

Alan if you don't mind me asking, are you a Broker 

 

No I don't mind at all.

[Barneyp]

39 minutes ago, Naartjie said:

 

Having read the whole thread I'm not sure what point the OP is trying to make.

 

The link is to a review left by someone who didn't like the terms and conditions of a business so decided to walk away, reading terms and conditions is a good idea, and everybody needs to make their own decisions. If you feel a company is operating illegally you could report them, or you could pay the deposit and if they won't refund it you could reclaim through the courts - the law will overule any t&c's which don't comply with it.

 

Why should a broker take a boat off the market unless they have good reason to believe the buyer is serious, by paying a deposit you are saying "I will buy this boat unless there is something significantly wrong with it".

 

The OP sounds frustrated that they are not having an easy time finding a boat to buy- that doesn't mean brokers are acting illegally or unethically, there is always a risk in buying something secondhand and the law can't protect you from that.

 

Buying direct from a business will give you more legal protection, but that is likely to be reflected in the price.

Edited June 15, 2023 by Barneyp

[Naartjie - Duck Hatch]

48 minutes ago, Alan de Enfield said:

 

As that seems to be your 'bug-bear' lets take that at face value :

 

Customer / Buyer :

I do not accept that I need to pay a deposit, or that I have no right of return - MY consumer right is to enfore what terms I want.

 

Seller / Broker : You are fully at liberty to impose whateber conditions you wish, but the seller (as a private individual - remember the broker is not legally the seller) is just as entitled to say, I do not accept and therefore the boat is not available for YOU to buy.

 

T&Cs are VERY different if it is a business selling the boat, rather than a private individual (before you jump in and claim a broker is a business I suggest you do some reading up on the subject)

Alan if you don't mind me asking are you involved with a Brokerage 

[Mike Tee]

ABNB ask for a £1000 non refundable deposit

[IanD]

2 minutes ago, Mike Tee said:

ABNB ask for a £1000 non refundable deposit

I assume if you do buy a boat this is credited against the cost?

 

It's basically a way to weed out timewasters and tirekickers, and pay the brokerage for staff time spent supporting you if you later walk away -- though £1000 seems a bit high for a brokerage, ABNB do seem to have a good reputation from what I've seen on here.

[Alan de Enfield]

13 minutes ago, Naartjie said:

Alan if you don't mind me asking are you involved with a Brokerage 

 

No I have no involvement with any brokerage on the inland waterways, or or on Lumpy water.

 

I am a private individual who has been boating for over 40 years, have bought 18 boats and sold 16 boats and have had several expensive 'run ins' with brokers, costing me £1000's in 'marine solicitors fees'.

 

Basically, after many hours of reading the laws, I have concluded that as they are simply a 'marriage broker' between seller and buyer they can (legally) have pretty much any conditions of sale that they want - even the RYA have stated that brokers are not required (by law) to reveal any faults on the boats unless they are specifically asked ie "Does the engine run" can be "we have no idea", or "yes" but asking something like "is the engine blowing off No4 piston", requires a truthful answer (as far as the broker knows).

 

This is why generally brokers will only use the description information provided by the seller - they will rarely 'survey' or even inspect the boat so they can honestly say "we don't know".

 

I have spent 100s of hours trying to find loop-holes in their T&Cs and so far failed.

 

 

Typical get out clauses from a Brokers T&Cs.

 

Naburn Leisure

The Company normally acts as Broker for the Vendor who unless otherwise stated is not selling in the course of Business. Whilst every care has been taken in the preparation of these particulars, the correctness is not guaranteed and they are intended as a guide only and do not constitute a part of any contract. A prospective buyer is strongly advised to check these particulars and where appropriate at his/her own expense to employ a Qualified Marine Surveyor to carry out a survey and/or have an engine/sea trial conducted, which if conducted by us will not imply any liability on our part. The vessel is offered subject to prior sale, price change or withdrawl without notice. This specification it's content and all photographs are copyright of Naburn Leisure Ltd.

 

 

Whilton Marina

Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.

 

Boatshed

The particulars detailed herein are intended to give a fair description of the vessel but their accuracy cannot be guaranteed, these particulars are not a part of any contract or offer and are supplied on the understanding that all negotiations shall be through Boatshed Brokerages, who are acting as brokers for the vendor. The vendor is not selling in the course of a business unless otherwise stated. The prospective purchaser is strongly recommended to check the particulars and where appropriate, at his own expense, to employ qualified agents to carry out surveys, structural and/or mechanical & electrical.

 

ABNB

PLEASE NOTE: This is sales information and not a survey report; providing content details only. The specification in these pages is based on ABNB's visit to the boat and on information given by the owner. This is to help you decide whether to investigate the boat further, be it by surveyor or otherwise. The information here is given in good faith but no description, statement, promise of work to be done, or suggestion for future use, constitutes an offer. If the craft leaves the UK, any necessary VAT paid status may not be available.

 

Aquavista

Please note: this is not a survey report and all pre-owned boats are sold without warranty.

The information provided is based on a superficial inspection carried out by us and information provided by the vendor. No guarantee is given or implied regarding the specification, but descriptions are given in good faith as could be ascertained at the time of inspection. Aquavista takes no responsibility for the accuracy of this information and recommend the use of a marine surveyor to establish the condition of the vessel.

 

Edited June 15, 2023 by Alan de Enfield

[Tony Brooks]

10 minutes ago, Mike Tee said:

ABNB ask for a £1000 non refundable deposit

 

It is the conditions that may be attached that make it reasonable or not. The seller pays the commission that should pay for the staff assisting in the sale. If there was no way to get the deposit back if the survey found some terrible faults, then saying no-refundable is sharp practice.

[Barneyp]

11 minutes ago, Mike Tee said:

ABNB ask for a £1000 non refundable deposit

They do also say:

 

"*In the unforeseen event that a SIGNIFICANT defect is discovered at survey which cannot be rectified to satisfy all parties (such as extensive
plate diminution), you may appeal in writing to ABNB for a refund."

 

Personally I'd prefer clearer information on their criteria for refunding e.g. if the work required is worth more than a set percentage of the sale price, and/or how they define "extensive plate diminution". But they are clear and up front with their T&C's so I'm not sure how they are breaking the law or being unethical.

 

It is important to remember the broker is working for the seller.

 

 

[IanD]

1 minute ago, Barneyp said:

They do also say:

 

"*In the unforeseen event that a SIGNIFICANT defect is discovered at survey which cannot be rectified to satisfy all parties (such as extensive
plate diminution), you may appeal in writing to ABNB for a refund."

 

Personally I'd prefer clearer information on their criteria for refunding e.g. if the work required is worth more than a set percentage of the sale price, and/or how they define "extensive plate diminution". But they are clear and up front with their T&C's so I'm not sure how they are breaking the law or being unethical.

 

It is important to remember the broker is working for the seller.

 

 

Just like estate agents -- they're not your friend, they're a business.

 

Nevertheless some brokers seem to be rated much more highly than others in terms of honesty and keeping customers informed, and ABNB is one of the ones often recommended which suggests others are worse... 😉

[alias]

22 minutes ago, Mike Tee said:

ABNB ask for a £1000 non refundable deposit

 

It seems I was wrong earlier, one of the links on their website that I posted earlier points to a document that said it was refundable (https://www.abnb.co.uk/images/mainpages/pdfs/Buying_Through_ABNB.pdf) while another link points to a recent document that says it is refundable only in limited circumstances: https://www.abnb.co.uk/images/mainpages/pdfs/Buying_Through_-_June23_compressed.pdf.  Looks like they've had a change in policy at some point.

[IanD]

3 minutes ago, alias said:

 

It seems I was wrong earlier, one of the links on their website that I posted earlier points to a document that said it was refundable (https://www.abnb.co.uk/images/mainpages/pdfs/Buying_Through_ABNB.pdf) while another link points to a recent document that says it is refundable only in limited circumstances: https://www.abnb.co.uk/images/mainpages/pdfs/Buying_Through_-_June23_compressed.pdf.  Looks like they've had a change in policy at some point.

They need to sort out their website then, they can't both be correct...

 

(the links from their main page only show the new version, the old one seems to be still there in the pdfs area but not linked to any more)

Edited June 15, 2023 by IanD

[Tacet]

Whilst it's not well worded, there is a distinction between "fully refundable" and "refundable in all circumstances"

[David Mack]

10 minutes ago, alias said:

 

It seems I was wrong earlier, one of the links on their website that I posted earlier points to a document that said it was refundable (https://www.abnb.co.uk/images/mainpages/pdfs/Buying_Through_ABNB.pdf) while another link points to a recent document that says it is refundable only in limited circumstances: https://www.abnb.co.uk/images/mainpages/pdfs/Buying_Through_-_June23_compressed.pdf.  Looks like they've had a change in policy at some point.

But just be aware that in law, neither of those documents on their website is legally binding, unless it is explicitly referenced in the sale agreement you sign. That agreement is likely to have a clause to the effect that it is the complete agreement, and nothing else said or put in writing forms part of the contract. 

[Mike Tee]

The £1000 is treated as part of the purchase price.

I always said I would never buy from a broker who had this policy, I think I have even said so previously on this forum - but ......... they had a boat I was really interested in having, so after an intensive look around, and we were on there ages, we bit the bullet and went for it. Although a £1000 non refundable deposit is a lot less than a 10% 'well we might refund it if you jump through ever diminishing holes' deposit.

We were not disappointed and ended up with 'Alice May'. (After a full survey).

[Naartjie - Duck Hatch]

 

 

1 hour ago, Alan de Enfield said:

 

As that seems to be your 'bug-bear' lets take that at face value :

 

1 hour ago, Alan de Enfield said:

 

Customer / Buyer :

I do not accept that I need to pay a deposit, or that I have no right of return - MY consumer right is to enfore what terms I want.

 

Seller / Broker : You are fully at liberty to impose whateber conditions you wish, but the seller (as a private individual - remember the broker is not legally the seller) is just as entitled to say, I do not accept and therefore the boat is not available for YOU to buy.

 

T&Cs are VERY different if it is a business selling the boat, rather than a private individual (before you jump in and claim a broker is a business I suggest you do some reading up on the subject)

Alan my apologies for the repeated questions. Purely finger problems on my part.

I would like to ask. Say as buyer I make an offer on a NB. But I set my own T&Cs. Is the broker bound to put my offer to the Seller.

[Alan de Enfield]

A couple of extracts of the RYA notes about Brokers (they represent Inland brokers as well as coastal)

 

THIS LEAFLET

These notes have been written to guide RYA members when using yacht brokers in the course of the sale and purchase of a boat:  a) as a broker’s client (when selling) b )  as a broker’s customer (when buying) and cover some of the questions most often raised with us by our members. We attempt to give a sufficient legal analysis to inform Sellers and Buyers in straightforward transactions. Full analysis of difficult legal issues is beyond the scope of this leaflet, however we will endeavour to help members who have specific queries that are not covered here.

 

Broker’s ‘Legal Liability To Disclose Information’

In the RYA’s view, there is no general legal obligation on either Seller or broker to disclose the existence of defects to a prospective Buyer, unless, of course, they are asked a specific question, which is why a survey is essential. Nevertheless the RYA, the BMF and the ABYA believe that it is good practice for a broker to fairly represent a boat being offered for sale and should therefore disclose any defects made know to them by the Seller. A standard disclaimer will be included in the brokers Agreement with the Seller, the purpose of which is to protect a broker against complaints by a Buyer that the broker’s published particulars of a boat are wrong, in circumstances where the broker has relied on the Seller’s information when writing those particulars.

 

General Advice on Sales Agreements For many years the standard form of Agreement for sale has been the ‘Agreement for the Sale and Purchase of a Secondhand Boat’. This form of Agreement, which seeks to fairly balance the interest of Buyer and Seller, reflects the well-established practice of buying boats ‘subject to survey’. An area that causes concern from time to time is the definition of ‘material defect’ and how to decide whether a defect is in fact material or not. It is well worth both parties taking some time to think about this issue before signing the Agreement, and perhaps trying to reach a joint definition. The broker will hold a deposit (commonly 10% of the purchase price) on the making of the Agreement, either as stakeholder or agent (see below). Should the Buyer withdraw, citing what the Seller considers inadequate evidence of defective condition, the Seller is in a strong position because, if the broker is holding the deposit as stakeholder, he has authority to retain the deposit until resolution of the dispute; if he is holding as agent he may well have already transferred the monies to the Seller. A Buyer may therefore wish to consider negotiating arrangements for having the boat surveyed without an obligation to purchase. Adequate arrangements should be made to protect the Seller against damage done during survey (including patch removal of protective coatings and unpaid haul-out costs). A prospective Buyer will need to organise survey arrangements carefully so as to minimise the time between incurring survey costs and making an unconditional offer to buy. A Buyer may well encounter resistance from Seller and broker to this procedure, and will need to assess carefully whether ‘other interested parties’ are in fact likely to materialise. The Buyer pays all survey and lift out fees. Both the ABYA, the BRBA and the BMF produce a Conditional and Unconditional Sale and Purchase of Secondhand Boat Agreement.

The broker should discuss the suitability of a particular form of Agreement with the Seller and advise on its terms. The broker should also provide a Buyer with a draft of the Agreement before inviting him to sign it. The Buyer may wish to contact the Legal Team at the RYA for advice on the Agreement or may wish to instruct a solicitor before signing the Agreement. When the Agreement has been made each party should retain their own identical copy of the signed Agreement and the Schedules to it. The easiest way to do this is to make up two identical copies, for each party to sign theirs and then exchange them. Policies for exchange of Agreements may vary from broker to broker. When the Parties receive their copy of the Agreement for the Sale and Purchase of a Secondhand Boat, they should read through the following notes, with the Agreement in front of them. These notes discuss the role of the broker within the terms of the standard Agreement.

 

 

9 minutes ago, Naartjie said:

 

 

 

Alan my apologies for the repeated questions. Purely finger problems on my part.

I would like to ask. Say as buyer I make an offer on a NB. But I set my own T&Cs. Is the broker bound to put my offer to the Seller.

 

Thats a good question, but my instict would say that as you are dealing with an intermediary, who has their own T&Cs, the answer could be "no".

On the other hand a broker who was (say) struggling to sell the boat and seeing an opportunity to get some commision may contact the seller and say "I have a potential buyer, who if you agree to his terms will buy the boat, what do you want me to do ?"

 

It may depend on what your T|&Cs are :

 

If you want to take it for a 6 month trial cruise without paying anything then I'd probably suggest it will not be considered.

 

If you were to say -"I do not want to pay a deposit, but simply by paying £1000 for a lift and survey I am showing a commitment to the boat" may get a better response.

 

But by not paying a deposit the boat is 'still on the market' you could pay for the survey, and the same afternoon I walk in hand over the cash and take the boat. You have no come-back.

I'd guess that the last dozen boats I have bought have been done with no deposit, no survey, just a look over the boat, hand over the cash and drive it away.

No chance of being Gazumped, no arguments, pay the money and get the keys.

Edited June 15, 2023 by Alan de Enfield

[IanD]

16 minutes ago, Naartjie said:

 

Alan my apologies for the repeated questions. Purely finger problems on my part.

I would like to ask. Say as buyer I make an offer on a NB. But I set my own T&Cs. Is the broker bound to put my offer to the Seller.

 

You can't set your own personal T&C and impose them on the broker, they're the ones with a contract (and a boat!) offering to do business with you so it's up to them to set the T&C.

 

If you don't agree to their T&C then they won't do business with you, there are plenty more fish in the sea*** so you have no power over them...

 

*** at least that's the position now in a buyer's market -- if they've had a boat hanging round for ages like a bad smell and you're the first fish to bite in months they might entertain a T&C change...

Edited June 15, 2023 by IanD

[Naartjie - Duck Hatch]

13 minutes ago, Alan de Enfield said:

A couple of extracts of the RYA notes about Brokers (they represent Inland brokers as well as coastal)

 

THIS LEAFLET

These notes have been written to guide RYA members when using yacht brokers in the course of the sale and purchase of a boat:  a) as a broker’s client (when selling) b )  as a broker’s customer (when buying) and cover some of the questions most often raised with us by our members. We attempt to give a sufficient legal analysis to inform Sellers and Buyers in straightforward transactions. Full analysis of difficult legal issues is beyond the scope of this leaflet, however we will endeavour to help members who have specific queries that are not covered here.

 

Broker’s ‘Legal Liability To Disclose Information’

In the RYA’s view, there is no general legal obligation on either Seller or broker to disclose the existence of defects to a prospective Buyer, unless, of course, they are asked a specific question, which is why a survey is essential. Nevertheless the RYA, the BMF and the ABYA believe that it is good practice for a broker to fairly represent a boat being offered for sale and should therefore disclose any defects made know to them by the Seller. A standard disclaimer will be included in the brokers Agreement with the Seller, the purpose of which is to protect a broker against complaints by a Buyer that the broker’s published particulars of a boat are wrong, in circumstances where the broker has relied on the Seller’s information when writing those particulars.

 

General Advice on Sales Agreements For many years the standard form of Agreement for sale has been the ‘Agreement for the Sale and Purchase of a Secondhand Boat’. This form of Agreement, which seeks to fairly balance the interest of Buyer and Seller, reflects the well-established practice of buying boats ‘subject to survey’. An area that causes concern from time to time is the definition of ‘material defect’ and how to decide whether a defect is in fact material or not. It is well worth both parties taking some time to think about this issue before signing the Agreement, and perhaps trying to reach a joint definition. The broker will hold a deposit (commonly 10% of the purchase price) on the making of the Agreement, either as stakeholder or agent (see below). Should the Buyer withdraw, citing what the Seller considers inadequate evidence of defective condition, the Seller is in a strong position because, if the broker is holding the deposit as stakeholder, he has authority to retain the deposit until resolution of the dispute; if he is holding as agent he may well have already transferred the monies to the Seller. A Buyer may therefore wish to consider negotiating arrangements for having the boat surveyed without an obligation to purchase. Adequate arrangements should be made to protect the Seller against damage done during survey (including patch removal of protective coatings and unpaid haul-out costs). A prospective Buyer will need to organise survey arrangements carefully so as to minimise the time between incurring survey costs and making an unconditional offer to buy. A Buyer may well encounter resistance from Seller and broker to this procedure, and will need to assess carefully whether ‘other interested parties’ are in fact likely to materialise. The Buyer pays all survey and lift out fees. Both the ABYA, the BRBA and the BMF produce a Conditional and Unconditional Sale and Purchase of Secondhand Boat Agreement.

The broker should discuss the suitability of a particular form of Agreement with the Seller and advise on its terms. The broker should also provide a Buyer with a draft of the Agreement before inviting him to sign it. The Buyer may wish to contact the Legal Team at the RYA for advice on the Agreement or may wish to instruct a solicitor before signing the Agreement. When the Agreement has been made each party should retain their own identical copy of the signed Agreement and the Schedules to it. The easiest way to do this is to make up two identical copies, for each party to sign theirs and then exchange them. Policies for exchange of Agreements may vary from broker to broker. When the Parties receive their copy of the Agreement for the Sale and Purchase of a Secondhand Boat, they should read through the following notes, with the Agreement in front of them. These notes discuss the role of the broker within the terms of the standard Agreement.

Very informative thank you

 

[Arthur Marshall]

Buying second hand stuff is always "buyer beware", whether its boats , cars, houses or trombones. Surveys can be informative, usually aren't, and surveyors can easily miss vital points and you have no comeback if they do. If you ask a seller or dealer to take a large, expensive thing taking up their space off the market while you dither for weeks deciding whether you want it ir not, they are losing money both on possible sales of that item, and of other ones they could stick in its place if you'd bought it.

That's what the deposit covers, with a bit included to encourage you to get a move on making your mind up.

The "you" above is generic - not aimed at anyone in particular!