Legal matters

[Chris Pink]

Some friends of mine have bought a boat. It's a year old, bought by the previous owner as a sailaway, sold on after bereavement.

 

The builder appears to be reputable. The issue is that there is no RCD paperwork at all. Now I can see why the previous owner hasn't completed RCD, there is a BSC, though no appliance record (which is a bit odd as there are definite BSS failures) but should there be RCD paperwork from the builders? I have suggested they ask the builder for a copy, is that the way to go?

 

What is the legal status of the boat if they want to sell it ?

 

A supplementary question; they have been told they can't fit a Morco 61 because it's a 'new boat'. My understanding is that it is fine for them to fit it although a gas safe plumber can't. Is this right?

Edited October 24, 2012 by Chris Pink

[Dr Bradley]

The builder should be able to provide a copy of the annex2 which is all the paper work that comes with a sailaway. The boatfitter then completes the RCD, without which it should not be sold within 5 years of completion. (I've no idea what completion of a sailaway mioght mean, my experience suggests it could be many years hence.) After 5 years it is not needed though will probably help with any sale.

[Drayke]

Some friends of mine have bought a boat. It's a year old, bought by the previous owner as a sailaway, sold on after bereavement.

 

The builder appears to be reputable. The issue is that there is no RCD paperwork at all. Now I can see why the previous owner hasn't completed RCD, there is a BSC, though no appliance record (which is a bit odd as there are definite BSS failures) but should there be RCD paperwork from the builders? I have suggested they ask the builder for a copy, is that the way to go?

 

What is the legal status of the boat if they want to sell it ?

 

A supplementary question; they have been told they can't fit a Morco 61 because it's a 'new boat'. My understanding is that it is fine for them to fit it although a gas safe plumber can't. Is this right?

 

Sailaways should come with an annex 3 not an RCD, the shell builder should supply this. The person that is the project manager for the fit out should arrange to have the finished boat RCD or wait five years after the boat is finished before putting it up for sale. Try checking with the British Marine Federation but you will need to be a member.

 

Regards Drayke

Edited October 24, 2012 by F DRAYKE

[Chris Pink]

If they get the Annexe 3 from the hull manufacturer (will this include a component for the engine / genset or is it purely hull certification?)

 

Passing lightly on from the previous owner shouldn't have sold the boat within 5 years, is it so that my friends, provided they keep the boat for 5 more years, only need ongoing BSC.

[ditchcrawler]

If they get the Annexe 3 from the hull manufacturer (will this include a component for the engine / genset or is it purely hull certification?)

 

Passing lightly on from the previous owner shouldn't have sold the boat within 5 years, is it so that my friends, provided they keep the boat for 5 more years, only need ongoing BSC.

I think you will find it is already illegally in the EU when it was put on the market without a RDC.

[Chris Pink]

I think you will find it is already illegally in the EU when it was put on the market without a RDC.

 

 

What are the implications or consequences of this?

[Dr Bradley]

Did the previous owner complete the fitting. If not I believe it can be sold on with the Annexe 3 (thought it was 2)as RCD cannot be completed until fitting out is finished. builders have to keep a copy, I think, for 7 years. Provided you can get the copy annex document, it is not illegal.

[Chris Pink]

That seems fairly clear, and easy to deal with, thanks.

 

The fitting is still very much 'work in progress'. Though I guess this begs the question - at what point is a fitout 'finished'?

[John V]

That seems fairly clear, and easy to deal with, thanks.

 

The fitting is still very much 'work in progress'. Though I guess this begs the question - at what point is a fitout 'finished'?

 

From personal experience ......NEVER.......

[pmms]

I would have thought it a question for the BMF or maybee the the RYA? Trading standards are the body responsible for enforcing this legislation, some counties TS are on the ball on the RCR and some not at all. I seem to remember Warwickshire being one of the best.

 

I remember (back when I was involved with sailaways) that the Annex 3 was issued by a builder when the boat passed on to the person who intended to complete the build, and detailed the standards to which it had been constructed so far. The annex 15 was issued (along with the owners manual) when the boat was "placed on the market". There was no definition of a "complete" boat. Nor was there a definition of when the 5 yr clock started for home completed non CE marked boats.

 

The annex 3 would be used to support the first years licence issue, after that a BSC (or an annex 15) would be required.

 

There should be an appliance record that went with the BSC , although these often get mislaid, sometimes on purpose!!

 

Paul M

[Chris Pink]

And there should be a HIN (hull identification number) somewhere?

[dor]

Interesting this. E.g. a boat "builder" buys a shell from the actual builder, and gets an Annexe 3. He then effectively does an incomplete build by making it into a sailaway, which could include lining, bulkheads, wiring etc. Yet he still sells it with only the annexe3.

 

My first thought was it was quite simple, the boat in question should have been supplied with the RCD completed. The broker or seller should have had this prepared. But now, thinking about it in view of the sailaway situation I'm not so sure.

 

As mentioned above, I would approach the BMF or failing that Trading Standards.

[Teadaemon]

The Craft Identification Number should be on the starboard side of the stern (and in at least one other concealed location inside the boat).

 

As I understand it, the situation is that somebody has bought a sailaway for completion that should have Annexe 3a documentation from the original builder. It has then been worked on, but sold on before completion. In that situation, I believe (but I am not an expert on the ins and outs of RCD compliance) that when it was sold on it should have had all documentation from the original builder, plus further annexe 3a documentation from the person selling it on, covering the work that they've done to the boat.

 

The exemption from the RCD for home builders selling more than 5 years after completion doesn't apply because more than one person has been involved in fitting out the boat and it's changed hands during the fitout process. This is a completely separate issue from whether it requires a BSS certificate or not. If the exemption did apply, then the five years would start when the vessel first goes on to the water.

 

The only way to solve the problem is to make sure that the boat complies fully with the RCD on completion, and has all appropriate paperwork. This may require post-construction assessment by a notified body, something that's going to cost a reasonable amount of money. As the people who sold the boat to Chris' friends are the ones who've committed an offense by selling a boat without the required certification (albeit probably inadvertently), then it may be worth going back to them and asking what they intend to do to rectify the situation, with the prospect of reporting them to Trading Standards if they don't want to sort things out.

[Albion]

Sorry for the slightly delayed reply but I was getting chapter and verse from a mate of mine who is very well versed in the RCD legislation, indeed he advises many bodies on it and helps correct/modify the proposed legislation before it goes before the EU Parliament. I copied Chris's enquiry verbatim and this is his reply:

 

There should (must) be RCD paperwork from the boat builder that sold it as a sailaway. That should consist of a certificate of compliance and an owner’s manual.

 

 

 

The owner that bought the sailaway should have issued a further certificate of compliance and updated owner’s manual for any work they did to finish the boat before it could be sold. The only way round this is if the boat was older than 5 years from when it was first put to use (not necessarily finished) then it would be considered to be a “boat built for own use”. However the boat is only 1 year old and therefore does not qualify.

 

 

 

Technically, they cannot sell it.

 

 

 

A “boat built for own use” must be completely built by the owner to comply. Buying a shell or sailaway does not comply as the owner has entered into a contact with a supplier. Therefore, there must be RCD compliance supplied from the supplier for the shell or sailaway. It is a moot point as to whether a boat completed from a shell or sailaway by an owner can be termed a “boat built for own use” for the work that the owner subsequently did.

 

 

 

The new RCD is going to make all this much more difficult. A “boat built for own use” will be a boat completely built by the owner. Any boat built from a shell or sailaway will require “post construction assessment” using a notified body and the owner supplying full technical data to the notified body.

 

 

 

This is the intention of the present RCD at this moment in time but it is badly worded and everybody is using this to their advantage. The new RCD will put a stop to it all.

 

Hope this helps,

Roger

[Chris Pink]

It's getting a bit complicated for my brain. but thanks for the authoritative replies.

 

so;

 

1. What are the problems with them doing nothing? Given that they intend this boat for their own use and probably for at least 5 years from the original sailaway (April this year i think)

 

other than that;

 

2. First step is to get Annex 3 from the builder.

 

3. The previous owner is dead (so safe from any comeback)

 

4. Really they should start RCD paperwork as of now with some retrospective part. They are currently doing major works, gas, plumbing, electrics so the RCD applies. Where is a handy DIY guide to the RCD - if such an animal exists.

 

5. I understand from the above that they no longer qualify as "boat built for own use" but if the builder provided (provides a copy of) the proper documentation, their fitout doesn't require further documentation ( see "moot" above_

 

I realise that 4 and 5 are contradictory

 

 

 

 

..

Edited October 25, 2012 by Chris Pink

[MtB]

A supplementary question; they have been told they can't fit a Morco 61 because it's a 'new boat'. My understanding is that it is fine for them to fit it although a gas safe plumber can't. Is this right?

 

As my answer in your other thread, a Morco CAN be fitted, it will just prevent compliance with RCD. To comply with RCD, the gas installation must comply with PD5483 2005 pt III, IIRC. PD5483 2005 pt III says open flue gas appliances may not be installed, or something to that effect.

 

The important question is whether the owners actually need it to comply with RCD, or if they give a damn. As they have already demonstrated, it is perfectly possibly for a boat without RCD compliance to be sold.

 

I also bought my last boat without RCD compliance, and sold it again also without compliance. I didn't care about the absence of RCD documentation when I bought it, nor did the person I sold it to. It wad the right boat for each of us at the time.

 

Mike

 

P.S. A Gas Safe plumber CAN fit it, I fitted mine for example. Only those who don't understand the regulations will refuse.

[Chris Pink]

Which is why it would be interesting to know the legal implications of doing nothing, speaking as someone who thinks an RCD is a particularly nasty disease

[MtB]

As I understand it, it is an offence under the Recreational Craft Directive, to 'bring to market' a boat built since 1998 without an RCD certificate, within five years of it's being finished.

 

This is from memory so don't rely on it!

 

Trading Standards will consider mounting a prosecution if they receive a complaint, so the buyer of an uncertificated craft could make a complaint and TS might prosecute the vendor. Not sure if this would help a hoodwinked buyer in any way. No other consequences that I am aware of.

 

Mike

[Teadaemon]

I am not a lawyer, but as far as I'm aware, from a legal perspective compliance with the RCD is a requirement of whoever first puts the boat on to the market within the EU. There is a complication in this case with the boat being bought (presumably legally) as a sailaway, but sold before completion. It may be that whoever completes the fitout will need to comply with the RCD when they put the boat on the market.

 

The worst case scenario is that when they come to sell the boat, the lack of RCD compliance comes to light, and Trading Standards get involved. Next worst is that because the boat isn't compliant with the RCD, when they come to sell the boat brokers won't want to deal with it and they may have trouble finding a buyer. Best case is that when they come to sell the boat nobody is particularly bothered.

 

Personally, whilst I'm not a huge fan of the RCD, I accept that it's not going away and needs to be dealt with. I can also see that from the perspective of most boatbuilders operating within the EU, having one harmonised set of standards to build to is a good thing (remember the UK was quite unusual in not having any compulsory standards for private pleasure vessels before the RCD was brought in).

[luctor et emergo]

So now that we have the RCD will we finally see the end of the large amount of sunken and/or burned out boat wrecks, litering the waterways, which were build before the RCD?

[carlt]

So now that we have the RCD will we finally see the end of the large amount of sunken and/or burned out boat wrecks, litering the waterways, which were build before the RCD?

No because it doesn't apply to old boats built before the regulations.

 

I'm rather surprised at your attitude though, considering you don't have the shiniest boat on the waterways...or were you being subtly ironic?

[bowten]

It's getting a bit complicated for my brain. but thanks for the authoritative replies.

 

so;

 

1. What are the problems with them doing nothing? Given that they intend this boat for their own use and probably for at least 5 years from the original sailaway (April this year i think)

 

other than that;

 

2. First step is to get Annex 3 from the builder.

 

3. The previous owner is dead (so safe from any comeback)

 

4. Really they should start RCD paperwork as of now with some retrospective part. They are currently doing major works, gas, plumbing, electrics so the RCD applies. Where is a handy DIY guide to the RCD - if such an animal exists.

 

5. I understand from the above that they no longer qualify as "boat built for own use" but if the builder provided (provides a copy of) the proper documentation, their fitout doesn't require further documentation ( see "moot" above_

 

I realise that 4 and 5 are contradictory

 

 

 

 

..

Statement 2.Yes get an Annexe 3 from the builders(hopefully the original buyer paid VAT and did not pay cash,if you know what I mean).Statement 4.As the previous owner is dead I think they would not have a problem just having the BSC to finish the work.If they do sell within the 5 years they would then need to have the RCD.The paperwork for the RCD is not too difficult.

[MtB]

The paperwork for the RCD is not too difficult.

 

It is IMPOSSIBLE if the hull builder point blank refuses to sign an Annex III declaration, as happened to me when I attempted to complete the RCD on mine.

 

There is no legal obligation for the builder to sign, and no motivation either once they have their money, as I found out.

 

And if they have gone bust/vanished, there is no chance of getting the Annex III signed.

[bowten]

Not impossible,find a surveyor/examiner who can with authority do the RCD paperwork and he can guide you through the process.I have had to do this twice.The RYA can also help with the boat identification number.

[Rob@BSSOffice]

Some friends of mine have bought a boat. It's a year old, bought by the previous owner as a sailaway, sold on after bereavement.

 

The builder appears to be reputable. The issue is that there is no RCD paperwork at all. Now I can see why the previous owner hasn't completed RCD, there is a BSC, though no appliance record (which is a bit odd as there are definite BSS failures) but should there be RCD paperwork from the builders? I have suggested they ask the builder for a copy, is that the way to go?

 

What is the legal status of the boat if they want to sell it ?

 

A supplementary question; they have been told they can't fit a Morco 61 because it's a 'new boat'. My understanding is that it is fine for them to fit it although a gas safe plumber can't. Is this right?

 

 

Hi Chris

 

Some of the responses hereabouts I feel may be incorrect guesses and assumptions - which to be fair may also summarise what I have said so far.

 

Thus, it is best that I refer you to the most authoritative resource to cover off your questions, which is the Hampshire Trading Standards website. It is wonderfully clear and concise. Hants Boat Buying Advice (RCD issues) clicky

 

Two phrases from this website stick out in my mind "A non-compliant boat never gains compliance just because it has been used for some time."

 

and "Ultimately, if the craft does not comply with the RCD, walk away!

Some bargains are not worth it!"

 

Regarding the Morco, the BSS does not regulate on matters concerning carbon monoxide risks on private craft (leisure or owner-occupier), but as inferred in your question, registered gas fitters may take a different view accounting for their what they feel are their own codes.

 

Also your friends may need to check whether installing a non-room-sealed appliance would impact on a RCD Declaration - ie would it meet ISO 10239 or PD5482:3?

 

I hope this help steers you towards some good information.

 

I hope it works out OK in the end

Cheers

Rob