opnions sought please

[martinandlynn]

Hi Everyone, just thougt id put or predicament to you and see if anyone has any opinions or had similar experiences.
We recently purchased our first caravan fron a reputable dealer - i will name no names and will change terminology as the matter is ongoing for the moment. whilst pushing our 14 year old caravan on to the drive we had a very minor disagreement with a gatepost. The next day whilst preparing to undertake the popping out of the small ding i removed a section of trim inside the caravan and to my horror the timber underneath was completely rotten, it practically crumbled in my hand like an oxo cube! the timber i hasten to add was still wet. the next day i rang the dealer to let them know what i had found. They suggest we take the caravan to them for them to investigate. On arrival the dealer took a look at the problem and was quite obviously taken aback at the level of rot/damp. The best they could offer was to leave it with them and they would get it tinto their repair centre the next working day. On the whole they were not at all sympathetic and did not apologise OR made no mention of the fact that we had just driven 60 miles to return their faulty caravan. To our dismay the dealer turned around and told us that they wouldnt have damp tested a caravan over ten years of age as "all caravans over ten years old contain damp" we couldnt quite beleive our ears as under the scheme which we purchased the van, it should have been damp tested.
The purchase price was in excess of £4000 and as a result of this the caravan was sold under their platinum purchase scheme, which means that amongst other things the caravan comes with an hpi check, full clean , and fully serviced etc. On checking the points on this dealers service, one of them is a damp and lamination test. When we collected the caravan initially, we were handed amongst other things a pre purchase checklist, one of the checks was "check for damp. Check for signs of leaks" this HAD been ticked as being done. Whilst initially browsing the caravans (pre-purchase) we were told this particular caravan was in the platinum scheme which offered peace of mind. It was the Security of this scheme that influenced or decision to purchase this caravan.
We subsequently told the dealer that under the sale of goods act we were rejecting the caravan. The dealer insisted that he has the right under the SOG act to put the faults right, however it is my understanding that as the fault was present at time of sale then we are within our rights to reject the item on the grounds that we had been missold the item, As it was supposedly covered under this platinum scheme and we bought it in good faith. Prodeedings are underway to resolve the matter also trading standards have requested information so in the meantime im just wondering what people think and if anyone else has had any similar problems or experiences?

Thanks for looking.

 

[ProfJohnL]

Hello Martin and Lynn,

I am very sorry you have had this experience, and based solely on the information you have provided, then I offer the following observations and comments.

In all purchase situations, new or second hand, there is a fundamental requirement described as "buyer beware" It is the purchasers responsibility to ensure the goods being purchased are fit for purpose by making all relevant enquiries before purchase.

With new goods it is relatively simple by reviewing the specification. but with second-hand older goods, it is fairly certain that product will not be in 'as new condition' and so your enquiries should be more searching, so you must ask questions.

Now dealers are in a position of trust, and it is a reasonable expectation that you can believe what they say about a product, and especially so when there is an established quality scheme such as the platinum purchase scheme you refer to. BUT you have to be careful about the wording used, what do they actually guarantee?For example a scheme may say "awning check" which basically only means an awning is present, but it does not describe its condition or whether it fits the caravan it's being sold with.

So in your case, does the Platinum scheme actually say the caravan will have no rot present in the structure?

Whilst a damp problem if left untreated will invariable end up as a rot infestation, sometimes you may get rot without any obvious damp problem apparently causing it. So a damp test is not universally going to identify a rot problem or its extent.

It would be unrealistic to expect a dealer to offer such a copper bottomed guarantee on second hand goods, as to establish the fact would require the goods to be totally dismantled to ascertain the condition of every component, not a realistic or practical suggestion for caravans. So a reasonable judgement has to be made about the condition of a caravan in relation to its age. So with the possibility hidden faults, there has to be some latitude and good sense allowed.

However if you specifically asked if the caravan was rot free? or if that caravan had any faults, the dealer is required to be as honest as possible when describing a product either in literature or verbally. If they fail in that regard it is a trading standards offence.

Now what I have stated is not a total let out for the dealer. The Sale of goods Act is relevant. It requires goods to be free from material defects at the point of sale, and that applies equally to new and second hand goods. BUT if goods are described as having faults, they can be sold as any faults specifically identified are excluded from the legislative procedures. It assumes the buyer (remember buyer beware?) has read the list of faults and accepts them as part of the contract. The other side to this is, if a type of fault is not mentioned or excluded then it it is subject to SoGA. Beware though in many documents there is a term "E&OE" (errors and omissions excepted) which means that where there is genuine error or omission the seller may be able to avoid liability, The test would be what would a reasonable person expect.

Your rights to reject a product in SoGA are based on there being a fault with the product that was present at the point of sale. Now the rot has been discovered, its extend and condition leaves no doubt it was present at the time of sale, and if the caravan was "guaranteed rot free", then you do have grounds to expect a full refund - including reasonable expenses involved in returning the product to the dealer.

I think to be able to force a full refund from the dealer for the presence of this rot, you would have to be able to show the dealer was aware of the rot and deliberately tried to conceal it.

But if there was not a rot free guarantee then sadly different rules apply. The test is what would a reasonable person expect a caravan of that age to be like, I have to agree it would be unusual to find a caravan of 14 years to be total from damp and rot.

Sadly I think the dealer is broadly right in this instance about the right to repair. The dealer is honouring SoGA in offering to do so. To give you a coarse analogy It would be unreasonable reject a whole car just because a light bulb had blown.

I stress these are my own interpretations, and you must seek professional advice.

 

[hortimech]

Hi,
I think that this would come under misrepresentation, the dealer never told you that there was rot in the caravan (they may or may not have known about it), but they implied that it was of sound construction because it would be covered by their platinum scheme.
If they had told you about the rot, I am sure that you would not have bought the caravan, so as they misrepresented the condition of the caravan (knowingly or otherwise) I am sure that a court will agree with you and allow you to reject the caravan. You could try pointing out to the dealer that you intend taking this all the way, and can they afford the bad publicity?
This is just my opinion, what do I know, I am not a solicitor.

 

[Dustydog]

Hi Martin and Lynn
Sorry to hear of your troubles.
Prof John has cogently set out the SOGA so need to go over that ground again.
You say:-

Prodeedings are underway to resolve the matter also trading standards have requested information so in the meantime im just wondering what people think and if anyone else has had any similar problems or experiences? Thanks for looking.

Are you doing this through the Small Claims Court yourself or with the help of a solicitor?
Clearly misrepresentation has taken place in so far as you say the Platinum check list says no damp. That aside any Caravan Dealer knows full well a full damp test is a major part of the service. So arguably they have failed twice to discover damp.
If the damp is as bad as you say I am surprised you did not notice a musty smell?
By way of litigation am I correct in thinking you want a full refund?

How long had you owned the caravan before you discovered the rot?

Depending on the length of time you have owned the caravan I suspect the Judge may either grant you a full refund less the cost of repair to the damage you did or if you have had the caravan for say 6 months plus he may ask the dealer to carry out a full repair at nil cost to you .

Please tell us all the final outcome of your Proceedings. God luck.

 

[hortimech]

Hi prof, I found this:
Your consumer rights

When you buy an item from a trader (eg a shop or online shop) the law says the item must be:

of satisfactory quality – last for the time you would expect it to and be free of any defects
fit for purpose – fit for the use described and any specific use you made clear to the trader
as described – match the description on packaging or what the trader told you

If an item doesn’t meet any of these rights, it is faulty and you will usually have the right to a:

repair
replacement
refund
Here:
http://www.direct.gov.uk/en/Governmentcitizensandrights/Consumerrights/Yourconsumerrightswhenbuyinggoodsandservices/DG_182935

So,
of satisfactory quality, the sale fails on this because of the rot.
fit for purpose, same again.
as described, fails again, a 'Platinum purchase scheme' caravan would presumably be free from defects.

Also for a defect not to be taken into count, it would have to be pointed out to the purchaser before purchase.
So, as the sale seems to fail on just about everything, the OP would seem to be due his money back.
Again, check with a solicitor, as I know as much about the law as the Prof does

 

[ProfJohnL]

Hello Hortimech,

In matters of sale of goods, and especially second hand goods of considerable age, you cannot assume anything. Just because an issue is not mentioned, you cannot assume the issue is satisfactory - In an ideal world you should be able to, and in most cases it may turn out to be the case, but where there is considerable history of industry wide of atypical issues such as damp and rot, then you should be particularly careful.

A seller does not break the law if they do not volunteer information, hence the importance of "buyer beware" It is upto the buyer to satisfy themselves of the condition and suitability of the goods. A seller does break the law if they fail to answer accurately any question asked about the product. Its a subtle but important difference. Often in such exchanges its what's not said that's as important as what is.

Equally if you were to ask a seller a broad questions such as "does the product have any faults" and the seller answer's "apart from the scratch on the side none that I know of" then the dealer has given an answer that does not mean there are no other faults, only that he not aware of any. If you subsequently find a fault, you would have to prove the seller did know about it before he sold it. So it vitally important you quiz a seller about all aspects before you purchase, and if the answers are incomplete, then assume the worst, and either walk away or negotiate a much much lower price.

There is a further issue specifically related to traders and dealers. Such people have set themselves up and may be considered to be relatively expert in the field. Consequently as an expert they should have wider knowledge of issues and problems related to the product. It would therefore be reasonable to expect them to suspect certain types of typically age related issues, and to check for them. If they fail to carry out work that the industry would normally expect they may be liable for faulty workmanship.

 

[Dustydog]

Hi Hortimech
The OP has already issued and served Proceedings on the Dealer so technically the matter is subjudice.

 

[hortimech]

Hi Hortimech
The OP has already issued and served Proceedings on the Dealer so technically the matter is subjudice.

Nowhere in the OP does it say that court proceedings have started, but anyway. I was replying to the profs reply to my post.

 

[ProfJohnL]

I totally agree with the references you have provided, and I don't think I have contradicted any of them.

We have to be careful here though , with absolutely no disrespect intended to the OP we only have one side of the story, and with the best will in the world, we don't know exactly what the OP was told about the caravan and the contract he signed.

The devil is in the detail, and specific phrases used in docuements and verbal communications may not have been given to us verbatim and exact forms are important in such matters as I have alluded.

Whilst I wish the OP well with getting a satisfactory solution, I fear the result may not be what he seems to want. Its only fair to point out some of the potential pitafalls. SoGA is a powerful tool in consumer protection, but it also looks for fair solutions, it is not a way to gain an unfair advantage for either the buyer or the seller.

 

[Dustydog]

Hi Hortimech
The OP has already issued and served Proceedings on the Dealer so technically the matter is subjudice.

Nowhere in the OP does it say that court proceedings have started, but anyway. I was replying to the profs reply to my post.

The OP said Prodeedings are underway to resolve the matter also trading standards have requested information
See his original post

 

[Surfer]

According to Sale of Goods Act here are your get out clauses. I think you qualify for all of them;

Key Facts:
• Wherever goods are bought they must "conform to contract". This means they must be as described, fit for purpose and of satisfactory quality (i.e. not inherently faulty at the time of sale).
• Goods are of satisfactory quality if they reach the standard that a reasonable person would regard as satisfactory, taking into account the price and any description.
• Aspects of quality include fitness for purpose, freedom from minor defects, appearance and finish, durability and safety.
• It is the seller, not the manufacturer, who is responsible if goods do not conform to contract.
• If goods do not conform to contract at the time of sale, purchasers can request their money back "within a reasonable time". (This is not defined and will depend on circumstances)

 

[hortimech]

Hi Hortimech
The OP has already issued and served Proceedings on the Dealer so technically the matter is subjudice.

Nowhere in the OP does it say that court proceedings have started, but anyway. I was replying to the profs reply to my post.

The OP said Prodeedings are underway to resolve the matter also trading standards have requested information
See his original post

Yes, I did see the original post, all the line that you have highlighted says, is that proceedings are underway. This could mean anything, from 'I am argueing with the seller' to 'I have issued a county court summons'. I would presume the first as trading standards are still looking into it.

 

[Dustydog]

Does it really matter

Where I come from "Proceedings " is indicative that Litigation has commenced.
What is important is the impartial advice and thoughts we give to Martin.
As you can see The Prof has given a very good steer.

No doubt Martin will let us all know what he is doing and what the eventual outcome is.

 

[hortimech]

Does it really matter

Where I come from "Proceedings " is indicative that Litigation has commenced.
What is important is the impartial advice and thoughts we give to Martin.
As you can see The Prof has given a very good steer.

No doubt Martin will let us all know what he is doing and what the eventual outcome is.

Yes it does matter, you are asuming something that is not specified, and I do not agree that the prof gave a very good steer. What I read was a long diatribe which never really got to the point. The OP was asking for an opinion on what had happened, the prof tried to say that the purchaser had to look for faults before purchase, this is not really the case when buying from a dealer. If shortly after purchase, as the original poster found, a fault is found , it is taken that it was there at time of purchase and the purchaser can either have a replacement, repair or their money back.
And yes, I am sure we have not heard the last of this from Martin.

 

[ProfJohnL]

We do not have enough information to be able to draw any fully accurate conclusion either way which is why I could not give an unreserved agreement to the OP's take on the matter and I gave my reasons for my reticence.

 

[hortimech]

We do not have enough information to be able to draw any fully accurate conclusion either way which is why I could not give an unreserved agreement to the OP's take on the matter and I gave my reasons for my reticence.

Then why did you post that long winded post and not just say 'Sorry not enough information'. The OP was after an opinion not a lecture on the law from someone who is not a solictor.

 

[Damian]

OK, thats enough of the personal digging at each other.

The original poster has said proceedings are under way, that is enough to assume that the matter is in the hands of Legal Professionals and that is an end to the topic until the original poster comes back , if they do, to say what the outcome is.

 

[Sproket]

They have posted the same here asking for advice see post #20

 

[Parksy]

From the topic on Caravan Talk it appears that so far the OP has not yet decided whether or not to consult a solicitor and also a credit card company is involved so they may be willing to act on the buyers behalf.

 

[Dustydog]

Hi Martin & Lynn
Just a thought.
Do you have Caravan Insurance which may contain a Legal Expenses section?
If so you can seek counsel from them in pursuit of your claim against the Dealer and or the Credit Card Company.
The Financial Ombudsman Service is very good but can take more than six months to reach a resolution.
Best of luck.