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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Last month I bought two large mobile loo trailer units at

Customer Question

Last month I bought two large mobile loo trailer units at auction, - they were listed as "new" - but I have since realised that they are not roadworthy and that they are unsafe and dangerous.
They are not roadworthy, because law requires that a trailer of the weight of these should have an analogue fail safe braking system, one whereby you brake the towing vehicle and the momentum of the trailer compresses the towing hitch which applies the brakes via a cable system to the trailers wheels. The law also requires that a trailer of this weight should be fitted with a handbrake, which these trailers are not.
These trailers had a system deemed unroadworthy and illegal in the uk - whilst the tow hitch was labelled such that it could tow a weight of 3500kg, engineers who have since examined it have said that the hitch fitted is clearly inadequate.
The specification listing the size of the tanks fitted read that the fresh water tank is 500 litres, whilst it is actually under 400 litres and of an even smaller usable size. The waste tank which is fitted under the trailer lists a size of 500 litres and is actually much larger, - and is also unsafe and unroadworthy because it isn't baffled. This is another legal requirement as whilst under tow liquid (effluent) would be able to move freely within the tank, thus causing huge and uncontrolled movement of fluid particularly when braking, accelerating and turning.
I believe that because the trailer can be proven to be unroadworthy and dangerous I should be ablle to seek some recourse from the vendor; ideally returning the trailers and getting my money back.
In addition to paying for the trailers, approximately £28, 000 - I also paid vat on that sum, and a buyers premium of 20% + vat to the auctioneer.
Since purchasing the trailers I have tried in vain to make them fit for purpose, but the costs are very significant of doing so. £3, 800 + vat to make each trailer road legal and approximately £1,500 + vat to repalce the illegal waste tanks with baffled and legal tanks, - and so a total of just short of £13, 000 simply to bring them the state that they should have been at the point oof sale.
I would like to take action to recover the costs I have incurred to date as I believe that the vendor mis sold and misrepresented the goods sold, and that it was their duty to present goods for sale that were not dangerous and unroadworthy.
Submitted: 11 months ago.
Category: Law
Expert:  Ben Jones replied 11 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.Have you contacted the vendor over this?

Customer: replied 11 months ago.
No - the vendor is a trader - Fiesta Furniture in Peterborough and I dont want to compromise my situation by saying anything that I might later regret.I would rather that any approach was made through a legal channel so that I am taken seriously.The other thing that might be significant is that I was lead to believe that the provinance of the two trailers was a liquidator. I believe that actually they were commissioned by Fiesta Furniture in China. Would a liquidator be legally allowed to sell trailers that were neither safe nor road worthy?
Customer: replied 11 months ago.
Hi Ben - any chance you could let me know when you might be able to respond? I am about to go into a meeting?
Am I stuffed or do I have recourse on the basis of the goods being unsafe, dangerous and thus unfit for sale?
Thank you
Nick
Expert:  Ben Jones replied 11 months ago.

Hi Nick, sorry I was in a meeting myself by the time you had replied. I am just working on your query and should be able to reply shortly, we may continue this after your meeting if needed.

Customer: replied 11 months ago.
Thank you - my meeting not 'til 11.45 so happy to chat....
Thanks
N
Expert:  Ben Jones replied 11 months ago.

Generally, buying from an auction gives you the least amount of legal rights, when compared to buying from a dealer or privately. The main piece of legislation, the Consumer Rights Act, gives you the right to expect a used item, such as trailers, to be as described, of satisfactory quality and fit for purpose. However, auction houses are allowed to exclude these requirements if they put a notice on display in the catalogue or on the wall. So they could do this by saying the items are sold as seen. You would then have to ensure that you are satisfied with them and what was promised, because once you buy it you would not be able to challenge it. This means you should have satisfied yourself at time of purchase of their quality. So you need to check the auction house conditions of sale to see if they excluded the consumer laws or were advertised as sold as seen as that will determine your rights.

However, if these are unroadworthy, it could potentially amount to a criminal offence, something which is prosecuted by Trading Standards or Local Authorities. Whilst you can contact them to report this, before you do so you may wish to use the threat of this as a potential negotiating tool to try and persuade the seller to resolve this without having to face potential issues in that respect.

This is your basic legal position. I have more detailed advice for you in terms of the steps you should now follow in order to try and take this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46762
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 11 months ago.
I believe they are fundamentally unroadworthy for the reasons listed above, Would you be happy to draft a letter that I could send to Fiesta Furniture to initiate a dialogue? If so - and sorry - but at what cost? And what chance any success?Thank youNick
Expert:  Ben Jones replied 11 months ago.

Thank you. In the circumstances whilst you cannot force them to take the trailers back you an pursue them for compensation for the costs you may have to pay to resolve the issues, or for the value of the trailers themselves.

Whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.

2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. Before you consider starting legal action you may wish to consider sending a formal statutory demand. This is a legal request which asks the debtor to pay the outstanding debt within 21 days and failure to do so will allow you to bankrupt the debtor (if they are an individual ) or wind up the company (if they are a business). For the relevant forms to serve a statutory demand see here: https://www.gov.uk/statutory-demands/forms-to-issue-a-statutory-demand

4. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

In terms of writing a letter I could do that but as it would be a premium service it would be at an additional cost. I won't be able to do that until later today but if you are interested I can submit a propoal

Customer: replied 11 months ago.
Dear BenHerewith my letter. Please could you scan it and let me know if it says anything it shouldn't or doesnt say anything it should.The auctioneers terms clearly state that the sale of goods act doesnt apply, but in their terms they do say that
(the vendor) undertakes that the Goods placed into a Lot by the Auctioneer will be of satisfactory quality, fit for purpose and will be in accordance with any other relevant statutory obligations relating to the sale of the Goods......Herewith my letter:Dear SirsI write with reference to the two mobile toilet trailers that I purchased from you via William George Auctioneers last month for £28, 500 + vat.I seek reimbursement of all costs associated with their purchase on the grounds that neither trailer was roadworthy, and both were unsafe for use; which makes their sale a criminal offence.Under Clause 1 2 b) of William George’s terms and conditions, you undertook that the Goods placed into a Lot by the Auctioneer would be of satisfactory quality, fit for purpose and would be in accordance with any other relevant statutory obligations relating to the sale of the Goods.Under the Vehicle Certification Agency - Advice for companies manufacturing trailers - from 29th October 2012 new trailers need to be type approved to European Community Whole Vehicle Type Approval (ECWV-TA) standards. That these trailers did not go through this process is in itself enough for them to be deemed “in accordance with any other statutory obligations” and therefore “not fit for purpose”.I am advised that the costs of putting the trailers through ECWV- TA approval (if possible at all) would be considerably greater than the costs that I am seeking to recover, but if this matter were to go to court, it is a course of action that might be imposed on you.The immediate grounds upon which I am advised that the trailers are unroadworthy, unsafe, neither of satisfactory quality, nor fit for purpose are as follows:1) Inadequate A frame attachment and engineering requiring reconfiguration and
replacement
2) Inadequate, inappropriate and mislabelled towing hitch, requiring replacement
3) Inadequate and illegal braking system, requiring replacement
4) Absence of handbrake and breakaway cable facility, requiring installation.
5) Potentially unsafe unbaffled water storage tanks requiring replacement.In addition to the above, for the trailers to go through an individual vehicle approval the following would be required; inspection of lights, reflectors and their installation, towing coupling and its installation, statutory plate (showing gross (maximum) weight), and brakes. Tyres and towing coupling should be approved to European standards by the supplier and e-marked.I am writing to give you the opportunity to address this matter before I contact the Vehicle Certification Agency who will make an assessment of road worthiness, which I shall use in court and which may be referred to trading standards or the local authority for their consideration.At present my claim will be for full remuneration of all of the costs incurred in purchasing these units at auction.I reserve the right to also make a claim for the costs that I have incurred in the delivery and storage of these units since purchase, and the insurance of them.If I do not hear from you within the next ten days, I shall issue a letter before action, outlining my claim and at the same time instruct the VCA to undertake an assessment of fundamental roadworthiness.The letter before action will give a further opportunity to settle my claim within a ten day period, prior to the commencement of legal proceedings. (However, as the VCA will have already been instructed, there will be little opportunity to avoid the consequential proceedings that might be taken by trading standards or the local authority.) A statutory demand will follow, and if this too fails, legal proceedings will commence 21 days later.I would therefore urge you to address my claim prior to this point. If not I shall write again in 10 days time.Yours sincerelyNick Kendall
Customer: replied 11 months ago.
Sorry - one last point.The vendor runs an import export business bringing furniture in from China. These units came from China.
He listed them as being a liquidators disposal. I am pretty sure that he imported them himself.
Apart from being misleading at the point of sale, - could this be significant? And is the only way to find out to ask him under oath?
Thank you
Nick
Customer: replied 11 months ago.
Can he possibly just argue that I bought them sold as seen - however unroadworthy, non compliant and dangerous they might be? Can the auctioneer absolve himself of every aspect of the sales of goods act by just saying he isnt going to be a party to it?ThanksN
Expert:  Ben Jones replied 11 months ago.

Hi there, the letter is fine, I suggest you give them a specific date to reply, rather than 10 days from now as the stat point could be arbitrary, so give them an exact date. I would not be too concerned about the import issues because the matter here is their description and roadworthiness.

In terms of the SGA, if the goods are second hand, you attended the auction and you were informed that the SGA does not apply, and the auctioneer can show this was reasonable and you still bought the item, then you lose your rights under that legislation. However, the criminal liability of unraodworthiness does not get removed, unless you were specifically told that you are buying a vehicle that is not roadworthy. .

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