Warranty claim - Legal advice required

[SK Motors 4]

I hope I don't get shot down for posting this on here but I genuinely need some advice regarding a car I've sold that's developed a fault. 

It was a Bmw M3 SMG that I took in px. I put it into my local Bmw specialist for inspection service and a general check over which identified a few problems that I had rectified costing some £600.

I sold it 7 weeks ago with 12 months mot. The buyer test drove it and was 100% happy with it and signed an invoice stating that no faults were present at the point of sale. I took a classic Mercedes from him in part exchange. 

He contacted me a few days ago saying that the SMG gearbox had developed a fault where it was sticking in gear and also selecting the wrong gear. He said this should throw a fault light on the dash which it wasn't so he removed the cluster to find the warning light had been covered over with black tape ! Something I wasn't aware of neither the BMW specialist. 

He accused me of doing this and said he wanted to return the car for a refund as the fault was present at the point of sale. I obviously denied doing this and refused to accept the car back for a refund as he'd had it for longer than 30 days and also I don't agree that any fault was present at the point of sale which is backed up by the invoice he signed.

I've been talking to him by email/text over the last few days and I've gone out of my way to help diagnose the fault as he wasn't prepared to take it anywhere as he wasn't happy driving it.

It's been diagnosed as a faulty gear position sensor which is £560 fitted in my local Bmw specialist. I was just in the process of emailing him some options when I get a long email from him stating he's contacted trading standards and as the fault must've been present at the point of sale ( he says trading standards say it's not on him to prove it was there but on me to prove it wasn't ) that he's giving me 7 days from today to collect the car (he's 3.5 hours away from me) and return it to him fully repaired otherwise he will start court proceedings against me.

Where do I stand with this ? I was going to offer to pay 50% of the cost before he sent that email.

Can I offer to buy the car back at a reduced amount for him owning it 7 weeks ? Another owner on V5 etc ?

He's quoted in the email that any car sold by a trader displaying a fault within 6 months from sale must've been faulty at the point of sale !

This is the first problem I've had in 5 years of trading from home so I'm not particularly familiar with the process.

I was happy to help him with the cost and everything seemed amicable until I received this threatening email.

Sorry for the long post but I'd appreciate your advice.

[Max Branning 149]

First of all why would he go through the trouble of removing the instrument cluster and then happen to find some black tape, sounds like hes using this as an excuse to say it was faulty at point of sale. I very much doubt he can prove any tape was covering the warning lights unless he has a mechanic to back this up.

Did you offer any sort of warranty with the car either your own or an insurance backed?

[SK Motors 4]

Thanks for the reply. 

I told him I used to provide Warrantywise warranties but as I didn't sell enough cars they closed my account. I told him I didn't offer a specific warranty as such and he was fine with that. 

I'm thinking it's best that I offer for him to return the car to me for a refund as I can see further trouble from him in the future even if I paid for the repair. 

Can I tell him he's liable for the cost of returning it to me and how do I negotiate a lower value for the car bearing in mind he's had it 7 weeks, done some 1500 miles in it and it has a fault that's going to cost at least £560 to repair?

[Mikey 19]

Did you sign up for the free Lawgistic's membership when you joined Car Dealer Magazine? It was one of the benefits!

Might be worth a phone call to them for some advice as this sort of issue is right up their street. I think you get one free phone call from memory?

I offer my own warranty which the booklets come from Lawgistic's, and have been written by an ex-trading standards officer. They're very good... you might be wise to look into them for the future. 

[andymc1973 199]

refund and move on

[Mat C 77]

Lawgistics all the way - I use their administered warranties and I cannot fault them.

Sounds a bit whiffy - black tape over the light etc.... but to be honest, for £560 why don't you just repair the fault and then send him on his way - take it on the chin and move on..

[SK Motors 4]

I was willing to contribute towards the repair and thought we were getting something sorted out until I received his email.

He was trying to take the car to some breakers in Sheffield who also repair cars, they quoted £700 plus vat but said it's rarely just one fault and the gearbox probably needs further work once it's out.

My local Bmw specialist who I trust quoted £560 parts labour and including vat and said this breakers in Sheffield don't know what they're talking about. 

Due to the nature of the car, it needs to go to someone who knows what they're doing with it.

He's suggested I get the car collected from him ( it would need to be trailered ) have it repaired and then returned to him at no cost to him but he's given me a 7 day deadline to do that before he starts court proceedings!

Can I offer to get it repaired at my local Bmw specialist if he incurs the cost of transporting it to me ?

 

[M.J 35]

What you'll find is even if you do come to some sort or agreement regarding repairs/collection/delivery when the car is returned to him he will be like a hawk listening and looking for any slight issue with car and you'll be dealing with him for the next 4 months. 

Refund is my advice.

[Mat C 77]

8 minutes ago, M.J said:

What you'll find is even if you do come to some sort or agreement regarding repairs/collection/delivery when the car is returned to him he will be like a hawk listening and looking for any slight issue with car and you'll be dealing with him for the next 4 months. 

Refund is my advice.

Actually on contemplation, i agree

[betginge 73]

Yes  agree with MJ,  if he is going to give issue after issue just take the bullet and refund. However don't let him walk over you, Take away 7 weeks wear and tear and the extra owner on the v5, remember its your legal right to do this.

 you may be able to get back some of the cost that way. I would have the car collected as it's not safe to drive the customer will claim which am sure a court would agree with.

The main question is how much you are allowed to deduct, anyone on here dealt with a refund under the new system, be interesting to hear voices on this ? as I just don't know 100% what you can class as reasonable costs. 

Could you argue that 7 weeks equivalent car hire cost be reasonable  plus a deduction for added owner ?? 

Or would you look at last months cap / glass price and deduct the difference, I doubt this would gain much. 

If you can get out the of this mess with £500 deducted it would be IMO be a good result in the long term.

 

 

[Mat C 77]

There's a daily rate you can use or £ per mile i'm sure I remember using this years ago when a customer tried to back a golf we sold him at Lexus.

Its on the gov website i'm sure

 

 

[betginge 73]

Only other issue Sk Will have is the swapper he took in , The guy will want his car back although am sure its gone by now. Not sure How you would address this one just have to give the part ex value back I guess.

 

SK  Did you make any money on the Swapper Merc, ?? be a bonus if you did lol

[SK Motors 4]

I actually still have the px Mercedes due to being consistently messed around by time wasters!

So if I kept the px and took the refund value at the total selling price minus £500 for 7 weeks wear and tear etc, would that seem a reasonable offer ? 

 

[Rory RSC 596]

'He is trying to take it to some breakers in Sheffield who also repair cars'. Quarry motors ? They do know what they are doing when it comes to BMW's I have had a couple of parts off them and a customer of mine had a fault with a BMW over that way and they sorted it out quickly and were actually quite good.

Sure they built a couple of 1 series coupes and chucked 4.0 V8s M3 engines in them also.

You have acted reasonably so far IMO with the checks carried out at point of sale and providing you have proof you are in a strong position. You may have missed the black tape over a gearbox light. It may have already been there. Arguments for both sides now its been removed.

The customer knows fault was not present, its developed in his own words and has been fine for XXX miles and 7 weeks. 

The main thing is getting it sorted  - If it were me I would be pretty relieved that I could make it go away for £560 as an E46 M3 SMG has the potential to throw up some serious bills. 

I would not really be wanting to offer a refund on it. Surely anyone that buys one of these cars knows what they are getting into they are an an expensive car if they go wrong.

What year is it? 

Remember in these situations its not personal its just business. 

 

 

[betginge 73]

SK to me that seems fair, but I am not sure if its legal, its justifying reasonable costs and am yet to see a clear way this is determined. 

Maybe look into Mat C's point about £per mile. Or speak to the legal eagles, they may charge for advice but trust me it's not worth getting tangled up with a screamer customer who is hell bent on taking you to court and back, Unless you think you have a good case.

The customer even under your proposition (if it was reasonable, you need to look into this) is still going to kick off about being £500 down etc, but at least if it can be justified then there is sod all he can do. You are legally entitled to them costs, the question is How much.

 

Let us know how you get on. 

I think we all need to starting getting Tough with these customers 

 

 

8 minutes ago, Rory RSC said:

'He is trying to take it to some breakers in Sheffield who also repair cars'. Quarry motors ? They do know what they are doing when it comes to BMW's I have had a couple of parts off them and a customer of mine had a fault with a BMW over that way and they sorted it out quickly and were actually quite good.

Sure they built a couple of 1 series coupes and chucked 4.0 V8s M3 engines in them also.

You have acted reasonably so far IMO with the checks carried out at point of sale and providing you have proof you are in a strong position. You may have missed the black tape over a gearbox light. It may have already been there. Arguments for both sides now its been removed.

The customer knows fault was not present, its developed in his own words and has been fine for XXX miles and 7 weeks. 

The main thing is getting it sorted  - If it were me I would be pretty relieved that I could make it go away for £560 as an E46 M3 SMG has the potential to throw up some serious bills. 

I would not really be wanting to offer a refund on it. Surely anyone that buys one of these cars knows what they are getting into they are an an expensive car if they go wrong.

What year is it? 

Remember in these situations its not personal its just business. 

 

 

Rory does make a good point, £560 to make this go away is not bad outcome, but the question is what the customer is going to be like going forward. You just don't know and sometimes you can suspect a customer is going to give you grief for 6 months on every creak and rattle. I have in the past turned down sales when you just know a customer will give you 6 months of migraines. 

politely say this car is not for you am afraid, shocks them every time.

SK make a decision on the best outcome, if you think he will disappear and never here from him again, then fix it. If he is going to nag you to an early grave then refund. 

[SK Motors 4]

It was Quarry Motors in Sheffield ! They quoted 6 hours labour minimum but my local Bmw specialist said 3 hours maximum and they've done quite a few of them.

I'm really torn which way to go, repair or refund. The £560 repair will be much higher than that by the time I've had the car transported to me and then back to the customer once it's been repaired.

I agree with the comment about people knowing what they're getting into when buying one of these cars. Unfortunately once someone like this guy reads the consumer rights act, they assume that I have to fork out for any faults within 6 months of selling the car !

 

[It's me 609]

hi

have a read here http://www.lawgistics.co.uk/read-news/877

i made a deduction in january for a 7 week car return customer accepted it then he got a call from local citizens advice asking how he got on,he hadnt even told me he had contacted them, he got back in touch by coming to my premises and demanding this deduction back i refused and he told me i was getting an lba,i contacted ca and told them my reduction was in line with usage and i wasnt willing to refund this deduction, they gave me a case number and advised i put in writing to customer my reasons for rejection with a recorded letter advising customer i was willing to go to small claims if necessary, i never heard from him again  

if it were my car im afraid i would refund /collect /send his clapped out swapper back to him /and make a deduction for fair use

thats just me of course,im not a lawyer

 

[betginge 73]

S & B How did you work out the deduction ? 

[SK Motors 4]

Before I make a decision on what to do, what do people think of me making an offer to contribute 50% of the costs of repair for the customer to get it repaired asap at his nearest Bmw specialist ?

 

[M.J 35]

7 hours ago, SK Motors said:

Before I make a decision on what to do, what do people think of me making an offer to contribute 50% of the costs of repair for the customer to get it repaired asap at his nearest Bmw specialist ?

 

By the sounds of his demands I'm pretty sure he's not going to accept that.

But if he does then that will be a good result for you, but as mentioned i don't think that will be the end of it. 

If it weren't a SMG M3 then I'd say pay for the repair and leave him with the car because that would probably be the end of it. But my experiences with SMG's is that the fault is never straight forward.

[justina3 518]

I fail to see how he can prove you put tape over the light, or you can prove he didnt i myself would call his bluff see you in court 

 

[Rory RSC 596]

I would not offer someone half the repair cost. 

[SK Motors 4]

Thanks for all the replies.

The BMW M3 is a convertible, 2003 with 79,000 miles. Sold for £10,000 minus the px I gave £1000 for.

Just spoke to Lawgistics who've gave me some advice. They said they'd potentially defend on the basis the guy has removed the instrument cluster and cannot prove whether the fault light was taped up or not. I can prove the fault wasn't present at point of sale and it's been 7/8 weeks until he's contacted me.

If I need to go further with Lawgistics I'd need to become a member.

I'm still really confused as to what's best to do. 

I'm still thinking refund but thinking he's not going to accept deduction for wear/tear etc.

[M.J 35]

Offer him a refund minus deductions, tell him this is not something you are legally obliged to do but as a gesture of good will you will do it on this occasion. 

If he says he wants a full refund plus collection, etc, etc tell him that his demands are unreasonable and not in line with the consumer rights act, you've tried your best so you have no choice but to now instruct your solicitor and suggest he does the same. 

[SK Motors 4]

Just wanted to put up the email I received from the customer to see what people make of it ?

Hi,

 

As you are aware, I have a fault with the SMG system on my car (BMW M3 E46 convertible) which I purchased from you on 24th September 2016. After I discovered the fault and did some investigating, I found that the warning light to highlight the issue had been taped up with black electrical tape to hide the fault - you are also aware of this.

 

I asked you for an opportunity to either provide me with a refund or repair the car to satisfactory condition to which you refused. Therefore, I have been in touch with trading standards and they have advised me of he following:

 

As with the sale of goods act, under the consumer rights act all products must be of satisfactory quality, fit for purpose and as described.

 

Satisfactory quality - goods shouldn't be damaged or faulty when you receive them.

 

Fit for purpose - The goods should be fit for the purpose they are supplied for

 

As described - The product must match the description given to you.

 

If I discover the fault within the first 6 months of purchasing the vehicle, then it is presumed that the fault was there at the time of purchase. It is up to the trader to prove that the fault wasn't present at the time of purchase, not up to myself to prove that it was present.

As I informed you of the fault after 30 days of purchasing the vehicle, I am not entitled to an immediate refund, however I am entitled to a free satisfactory repair. Should the attempt at repair not fix the issue, then at this point I am entitled to a replacement like for like or to return the goods for a full refund.

 

As the car is sat on my drive and I am barely able to drive it half a mile, the car isn't fit for purpose and it isn't of satisfactory quality as it is faulty.

 

You informed me that all lights were checked by xxxx xxxx BMW specialist as stated on the inspection service receipt. However this would normally only cover actual lights such as brakes, headlights, reverse lights etc. Unless diagnostics were run and a report is present to show that no faults are present at the time of sale, then this isn't sufficient for proving the fault wasn't present. You also stated that xxxx xxxx suggested he could have missed the warning light not lighting up on the instrument cluster.

 

Whether you were aware of the fault or not, as a trader, you have a responsibility to ensure goods that are being sold by yourself are either as stated above or any faults are made known to the consumer. I am giving you the opportunity to repair the vehicle by anyone of your choice (I would suggest xxxx xxxx) and to be in full working order or at least booked in with a specialist 7 days from todays date so by 22/11/2016. Failure to comply with this request will result in further legal action.

 

I hope to get this matter resolved with you with minimum dispute.

 

Thank You

 

 

So I should add that I only refused to refund/repair when the customer first contacted me by text message stating he had been deceived/mis-sold the car, was looking at a £5k repair so wanted me to pay for it or give a full refund for the car. I obviously argued the point that I hadn't deceived him and nor was he mis-sold the car. He signed the invoice stating he had test driven the vehicle and that it was free from any faults at the point of sale. Obviously it was free from fault for some 7 weeks after purchase. We were having amicable conversations through text message beyond the initial contact and I've kept copies of these.

 

So what do people think if I respond to his email by stating firstly that I can prove the fault wasn't present at the point of sale by the fact he'd signed an invoice saying so, it was fine on his 3 hour drive home and for the 7 week period before he contacted me. Also, the vehicle had an Inspection 1 service at the Bmw specialist which includes having the diagnostic system read. Any such fault with the SMG gearbox would've had a fault code stored and as there were no faults reported on the service then I believe that this is sufficient to prove the fault wasn't there. I'm not prepared to have the car repaired in the short timescale he's demanding as with the nature of the vehicle it could well need further investigative work and he's also stated that if he's not happy with the attempted repair then he's entitled to a "replacement like for like, or to return the goods for a full refund" ! He's also removed the instrument cluster without my consent, therefore I haven't had the opportunity to inspect these myself to see if the warning light was taped over or not. ( Having said that, how do I know if he's removed/refitted these correctly without damaging them ) ?

 

As a gesture of goodwill, and to get the issue resolved for the customer quickly, I require the vehicle to be returned to me ( my local bmw specialist has agreed to have it returned direct to them ) where it will be inspected before I issue a full refund for the vehicle minus £1000 part exchange value of his px and minus £500 for wear and tear ( aslong as no further issues are identified during the inspection ) as I'm entitled to do under the Consumer Rights Act 2015 Section 24 sub-section 8, with regards to sub-section 10a. ( I believe the £500 for wear and tear to be a fair amount )

 

If anyone can add anything or if you think I should change/remove something then please let me know ?