Motor Trader Issue - 2nd hand car not satisfactory

[FuuChamploo]

Hi all,

 

Apologies if this is not listed correctly. I was wondering if anybody would be able to help with where I stand with a dispute I'm having with a used car dealer.

 

I bought a 2^nd hand BMW 320i on 27^th October from a dealer, for £3,995. I expressed my concerns buying second-hand so the dealer gave me a 12-month warranty cover. Car has done 101K miles. I paid the full amount by bank transfer (oh how do I regret this decision). Important ‘detail’, said dealer is registered as a limited company.

 

30/10/2020 - I noticed a huge white cloud coming out of my exhaust as I pulled away from services. I didn’t think much of it.

30/11/2020 – First drive in 3 weeks. I got stuck in traffic and big puffs of smoke were coming out of my exhaust every time I pressed on the accelerator to move forward. So much so, the driver behind me came to say I had a problem with the car. I called my warranty company who sent me an assessment form and booked a diagnostic at a BMW specialist garage.

07/12/2020 – The garage in charge of the diagnostic called me and informed me the engine needed replacing (Engine burning oil, faults with valve lift. Suspect internal engine damage, suspect internal piston rings and valve stem issue plus worn eccentric shaft. Further strip down of the engine is required to confirm). Estimate total £9.015.

I informed the dealer I bought it from. He said he’s sorry to hear that and that he’ll talk to the warranty company to see if they can assist and that I should do the same.

08/12/2020 – I sent the assessment form and the garage’s estimate for the repair to the warranty company and copied the dealer I bought the car from. His reply:

Quote

As advised last night I recommend that you contact warranty company and fulfil their requirements of filling out the forms you have been asked to fill out and liaise with them with regards to the repair work unfortunately there is nothing I can do at this moment in time this is why we put the warranties in place in case we have such eventualities as this although I am upset that the car is not right I do Not hold any initial responsibility for this happening as when the vehicle left me it was perfectly fine I am not saying that you have caused the problem but this is also not an issue that I have caused or was aware of.

Bearing in mind his email was in response to me sending said forms to the Warranty company.

Reply from the Warranty company the same day:

Quote

Decline. There is no evidence of a sudden mechanical breakage and the engine is just worn. The plan on your vehicle will not cover components that are worn and at the end of their life and because of the vehicles age and mileage there is no wear and tear cover on this plan.

09/12/2020 - I informed the dealer I bought the car from of the warranty company decision. Here’s my email, which has not been replied to yet.

Quote

As expected, Warranty company declined the repair. Having been told days ago that the car's engine needed replacing, I am far from satisfied with my purchase and do not intend on paying for such repairs.

 This car should be of a satisfactory quality, fit for purpose and as described. I have been advised, based on the findings on the car so soon after purchase, that my rights have been breached.

I understand you might not have been aware of the issue but unfortunately, the car is indeed faulty. 

 We need to find a way to resolve this issue. At this stage, I would suggest getting the Valve Stem Seals replaced at (INDEPENDENT GARAGE) and hope it sorts the problem out. I would ask for DEALERS NAME to cover these costs. Alternatively, I would rather return the vehicle and get a refund, allowing you to investigate further and resell once sorted. 

10/12/2020 – I got the car seen by another BMW specialist who came to the same conclusion. The car needs an engine replacement. This one pointed out that this damage could not have been sudden and that faults shown on his test report were likely already present at the time of purchase.

 

I’m seeking assistance as I have a strong feeling this will need to go to Small Claims. I want to make sure I’m giving the dealer enough time to sort the issue but I do not want to give him opportunities to wiggle out of it.

 

The receipt for my car is handwritten, showing the dealer’s name (without the LTD bit) and director’s name. The limited company is active and has been registered since 2018 but I noticed a compulsory strike off 11 months ago for late accounts. That doesn’t fill me with confidence. Should I need to escalate this, do I go after the limited company and hope it doesn’t vanish or do I go after its director?

Edited December 10, 2020 by FuuChamploo

[BankFodder]

What is the name of the dealer? Or are you trying to protect them?

[FuuChamploo]

28 minutes ago, BankFodder said:

What is the name of the dealer? Or are you trying to protect them?

The dealer is called MJS Vehicle Solutions Ltd, based in Wolverhampton. 

[Hammy1962]

I've just got to go out but I'll reply mid-afternoon 'ish

 

H

[BankFodder]

Thank you for all of this information.

I have no doubt that that if you bring a claim against this garage that you will win. You have entered into a contract and within a very short time you have been deprived of the entire benefit of the contract and that means that the breach is so fundamental that you are entitled to treat the contract is terminated.
Additionally, the Consumer Rights Act provides that if a defect occurs within the first six months, you are entitled to reject the item after the seller has had an opportunity to carry out repair. Clearly that won't happen here.

If you bring a small claim against this company then your chances of success are much better than 95% – but as you already seem to appreciate, enforcement will be the difficulty.

I see that the receipt you received does not comply with company registration regulations so that could give you a way of suing the individual. You might want to sue the individual and also the company as co-defendants – but you are still left with the problem of enforcement.
How well established that the company seem to be? They don't have a website as far as I can make out. You have already suggested that they have had problems about a year ago.

As for the individual, you happen to know whether he owns any assets? You know his address?

And finally, I have to ask how far is this dealership away from your own residential address? Is it round the corner or is it hundreds of miles?

[BankFodder]

 

https://find-and-update.company-information.service.gov.uk/company/11615649

[FuuChamploo]

Thanks @BankFodder for looking into this with me, much appreciated. I believe I have a strong case indeed but enforcing it might be tricky as you pointed out.

 

I wasn't aware I could sue the individual and also the ltd company as co-defendants, I thought it was one or the other. That would probably be wise in that case. Indeed my receipt for this purchase is handwritten on a piece of A4 paper, with the individual's name, his company name (minus "LTD") and his business address. 

 

The company is located 30 miles away from me, not too far. I have been to his unit twice, once to view the car, once to pick it up. It looks like a rented unit, with no company branding and a small office. Nothing too official but nothing ringing alarm bells either. There were about half a dozen of cars in his unit, which were being valeted by another guy, I suppose an employee, family member or unofficial business partner. 

 

Indeed, they do not have a website. They only have a Gumtree Motors Pro page, which currently list 14 vehicles up for sale. Car photos are all taken at said Unit, I recognise the premises.

I'm not sure if the individual / dealer owns the vehicles or if he sells them on behalf of customers. 

 

https://showroom.ebaymotorspro.co.uk/MJS-Vehicle-Solutions

 

I found the individual's address on the Companies House' register and his business address is listed in the link above. 

[BankFodder]

You can check here https://www.trustonline.org.uk/ to try and find any judgements against them which if they are unsatisfied, might give you a clue as to the difficulties you face.

You ought to check the land registry web search to see if his address appears and whether he is the owner. If it turns out that he is actually the registered owner then at least you can fix on an asset if the company causes difficulty.

I think you face a difficult choice – but on the other hand I am fully confident that you will get a judgement. As already said, enforcing the judgement is a different matter. If you did get the judgement then I would transfer it up immediately to High Court Enforcement Officers which you can do because it's more than £600. The transfer-up will cost you about £66 and all of that is recoverable if there is a successful enforcement. Make sure that you go to a HCEO that operates a system where if the enforcement fails, you don't have to pick up the fee. You will have to double check their websites to make sure that that is the deal

[Hammy1962]

Hi Fuu. My technical analysis is I'm afraid not going to be very helpful. Unlike the High Pressure Fuel Pump failing, high mileage BMW Engines are well known for these type of failures. Both Petrol and Diesel. I know it's no help now but I wouldn't advise anyone to buy a high mileage BMW, even with a full Service History. Even for £4,000. They are just not reliable.

 

The Warranty, Guarantee, Insurance, whatever they call it is really a Mechanical Breakdown Insurance which covers most mechanical parts but only from sudden mechanical failure. For instance, the rotor snaps in the alternator without warning, a wheel bearing collapses or the wiper switch fails inside, that sort of thing. Almost always the company behind the warranty will try and use fair wear and tear as a reason not to honour a claim.

 

Sadly, I would suspect they are right in this case.

[BankFodder]

Of course is useful – and it sounds as if it is very informed.
However, in all of these stories, the test which are applied by contract law and also by the consumer rights act – are the "reasonable consumer test". In other words, no consumer is expected to have any particular level of expertise or to exercise any professional judgement.

The only test really is whether the condition of the car which cost £4000 and then within six weeks needed nearly £10,000 worth of work could be considered – in the eyes of that reasonable consumer – "satisfactory quality".

I don't think there's anything more to say

[123mj]

Good evening

 

 

 

This Makes for interesting reading and as always with any situation there are always two side , to which I shall now show the other side.

 

The fact that it has taken from the 30/10/2020 to the 07/12/2020 to bring up an issue with the Bmw when you had initial suspicion with the car on the 3rd is cause for concern, the fact there was a suspicion on that date and didn't think to make the dealer aware or at least give the dealer the chance to rectify the issue before continuing to drive it, is concerning to say the very least. The fact the car had been continued to drive after this definitely arose suspicion and almost definitely would have made any issues that were present even worse.

 

There has been no option given to the dealer to have the car back to rectify the issue, which should have been the first port of call to try and rectify so that the car was not driven after the initial cloud of smoke at the lights. 

 

There is no person in there right mind that would consider a £9-£10k repair feasible on a car that is that age and thats value is at £3995.00, it is completely unrealistic and I feel that the BMW specialist in question should be the ones that are being slandered on here as they are Cleary the ones having a laugh at the customers expense.

 

Further more the dealer hasn't been ignoring your emails , infact after the first email the director called the customer to ensure that the warranty company had been given the correct information about the car so that he could indeed help with making the claim go through if possible and that the warranty company were armed with the correct info. The customer was relaxed and had a polite tone which was precipitated. 

 

Following the telephone conversation with the customer the director then in utter shock at a £9-£10k unrealistic repair bill decided to call three of his trusted mechanics to get three separate quotes to see if the BMW specialist in question were indeed taking the advantage of the customer. None of which were above £1200.00 inclusive of vat, to completely replace the fault seals. This is somewhat different to the over inflated Quote a so called BMW specialist had previously given, they should be ashamed. They should be named so that no one else falls victim to their greed.

 

Also worth noting that telling a customer that the engine needs to be replaced for this apparent common issue on high milage Bmw's  when all that it would appear to need is replacement seals would understandably leave any customer in a state of worry , upset and fear of loosing lots of money , when this just isn't the case. Valve stem oil seals DO NOT COST £10K to rectify.

 

After speaking to the warranty company they confirmed they were awaiting the forms to be filled out so they could assess the repair and give a decision based upon it, as they hadn't yet received the email with 'said forms' the dealer was unable to assist further at this point. But by no means had the dealer forgotten about this.

 

 

 

What we are failing to see here is that the customer has also been doing research on this very common issue on the BMW engines and has since sent through a email to the dealer which shows that they have received a quote for £468.00 to resolve this issues without taking the whole engine apart using AGA Tools which I quote "may very well sort the problem out".

 

Please note that the dealer is also open to any external inspections on any of his cars prior to collection, be in on sale or return cars or the dealers own stock.  It is also worth noting the car was checked by the dealers trusted mechanic prior to delivery as all cars undergo a pre delivery inspection to safeguard the customer and the dealer. The customer also test drove the car for a good time and there was no smoke at all at the time of purchase. The customer was also followed by their partner home after collection where If any smoke had been detected the dealer would have been made aware. as it would have been very apparent.

 

 

The dealer who has happened to have had a day off work due to a family circumstance has returned to his emails only to find he has been slandered over this website and bought to his attention by a fellow dealer.

 

 

So in conclusion the dealer hasn't been given the option to even look at the car to help the customer or have his trusted mechanics diagnose the issue, something he would have been willing to do, that is unless someone (i.e another company had tried to diagnose the issue or infect made a small issue larger) The dealer has been slandered online prior to been given the choice to respond as he was out of work for 24 hours. The Price of the repair is actually £468.00 not £10k I feel that trying to sue a director or company over the figure is beyond ridiculous,  however the dealer will respond to the email whereby he was asked to pay this sum and put this issue to bed amicably. This will happen when the dealer returns to work.

 

 

Thankfully it was bought to the dealers attention. He can deal with this accordingly.

 

The dealer has never been in a position to walk away from a known issue, the worry for the dealer is that the car was driven after their was initial suspicion of a problem, the customer fails to mention that she has been on a round trip to France in the car and has potentially made any small issue into a larger one through excessive driving, The dealer cannot be held responsible for this, if he was aware of this on the date of the 3/10 the dealer would have had the car recovered and insisted that the car is not driven to ensure that no further damage could possibly occur.

This doesn't sound like a car that is unreliable to the dealer if the customer after having suspicions then takes her daughter to France and back in the car, the dealer most certailny wouldn't have advised this if there was any risk to the driver or passengers had he been made aware.

 

Hopefully the issue will be sorted Asap and the customer is also understanding that a dealer who is authorised by a warranty company has a business to run and is very keen to keep a good reputation within the Trade. 

 

 

 

 

 

 

Following another 

 

 

[BankFodder]

Thanks for this. I'm assuming that you are the dealer involved – and it is very nice to have the other side come to the forum and give their account. It's always very interesting and helps to give a more balanced view.

I hope that the OP will come back onto the site and respond to the comments that you've made and we will all have a clearer picture.

Your account is very involved – and it will take me some time to work through it and to understand. However, hopefully the OP will understand quite quickly and would be able to comment.

Thanks again

[BankFodder]

Well it would be very interesting to have a comment from @FuuChamploo in response to the very informative post given by the dealer above.

When we understand both sides we can then advise @FuuChamploo as to the best course of action

[FuuChamploo]

Following on from the comment above, I was hoping to have received a reply by now. That is not the case just yet, so a chasing email has been sent. I have no additional factual information to share on here at this time. Should the matter be resolved in a timely manner, I will of course make this thread aware. Nothing just yet. 

Edited December 14, 2020 by FuuChamploo

[BankFodder]

Thank you for this.

However, it probably would be helpful to you if you would respond to some of the points which have been made here by the dealer because if we understood more about the whole story then we would be better able to advise you about your position.

 

[BankFodder]

I've been having another look at the initial story to this thread.

Firstly, I hadn't noticed that there had been a quotation for the apparent repair of the defect of about £10,000. Had I noticed this, I would have pointed out immediately that that this sum would be unlikely to be recoverable and that the maximum damages recoverable would probably be the replacement value of the vehicle.
If this story does proceed to a court action – which is unlikely, then this would be the extent of the dealer's liability – plus any ancillary losses.

The dealer himself has pointed out that a £10,000 repair on a £4000 vehicle is completely disproportionate – and of course he is completely correct and a court would not have awarded £10,000. Also to add, as a matter of principle, even if the court had agreed to order the dealer to pay for the work of replacing the engine, this would only be done on the basis of an apportionment.
This means that you would not be entitled to buy an elderly vehicle and expect the dealer to pay for a brand-new engine. The dealer would only have been required to pay the portion of the engine which represented the remaining percentage of its useful life.

I'm not sure how old the car is, but let's say it is 10 years old. If the reasonable life expectancy of this type of vehicle was 15 years or about 150,000 miles, then you would have bought a vehicle with only about 1/3 of its useful life left and on the basis of apportionment, you would only been entitled to claim – as a maximum, the third of the value of the new engine – so according to your quotation, about £3300.

The dealer has made a lot of reasonable points here. Of course it would be prudent if you had reported your suspicions about the defect to the dealer at an early stage. However, we have to remember that the dealer is exercising the opinion of somebody who is in the profession and is highly experienced.
Although it would be prudent, I don't think that you could imply a duty on an ordinary consumer to exercise the same level of professional prudence.
 

What is rather concerning is that apparently there was a quote for work which was likely to solve the problem for about £468. We weren't told about this and it was brought up by the dealer himself.

Clearly, if that would solve the problem then that would be the most satisfactory route to take. 

Under the Consumer Rights Act, if a defect occurs after 30 days but within the first six months, then the garage should be given a single opportunity to repair and if that repair fails, then the garage would be required to refund the purchase price.
Of course it is worrying that nobody has said that this would definitely solve the problem. Only that it would be likely to solve the problem. That means that if this single repair failed then the customer would be entitled to return the car for a full refund.
When the dealer be prepared to take that risk? Of forking out £468 and then in the event of the defect continuing, having to refund the price of the car?
If the dealer were not prepared to take that risk then it seems to me that that says something about the proposed solution to the defect.

It seems to me that the story which was posted at the beginning of this thread does not contain all of the relevant details – and had we been given a more complete picture, then we would have understood the whole position a lot more clearly and given more precise advice.

On the other hand, I don't think that the dealer has helped himself.

Dealers of second hand motor cars routinely include a "warranty" as part of the deal.
This is not intended to be a comment on the motivation of the dealer – because we have no evidence – but I certainly expect that most dealers include this warranty in order to protect themselves from the expense of having to repair defects on second-hand vehicles – which is fair enough.

But I suspect that many dealers also include the warranty because they realise that most ordinary customers will lose sight of their statutory rights and that if the warranty will not help or if the warranty has expired, the customer then feels that they have no more remedies hand and that they won't give the dealer any further trouble in respect of the defect. This happens very often here.

As already suggested, I definitely don't want to point the finger at this dealer, but on the other hand the correspondence that we have seen above in the first post doesn't really make very good reading.

The dealer has not referred to his statutory obligations at all. In fact he has simply referred to the warranty and apparently has shown great goodwill in offering to try and deal with the warranty company directly on behalf of the customer. This looks very good on paper, but actually it's effect is to give the impression that the dealer is being completely cooperative and doing everything he can to help the customer. This style of cooperation with the warranty company can also be an effective way of neutralising any other angle on the part of a justifiably aggrieved customer.

This is disingenuous. I expect that this dealer is extremely experienced and is probably completely aware of the rights and duties under the Consumer Rights Act yet in the correspondence that has been produced above, there is absolutely no mention of the 2015 Act or that the dealer will meet his statutory responsibilities or even any discussion as to whether the statutory responsibilities apply in this case.
I also think that it is extremely significant that in his very welcome contribution to this thread – and his very detailed version of his side of the story, he has not made a single reference to the Consumer Rights Act or to his own statutory duties – and whether he believes that he does have statutory duties or that he doesn't have any statutory duties – and if so, why not.
This is a bit puzzling – although I sort of suspect that in car dealer circles, The Consumer Rights Act is the Act- which durst not speak its name.

Instead, the dealer attempts to rely completely on the warranty company, in effect passing responsibility to them – and even making it clear that he as a dealer does not hold any initial responsibility for the defect happening because "when the car left me it was perfectly fine".

Of course "when the car left me it was perfectly fine" is not a legal test for what is considered to be satisfactory quality in the expectation of a reasonable consumer. I'm pretty certain also that it's not even reckoned to be a test for what is considered to be satisfactory quality in the expectation of a reasonable professional car dealer.

In fact I'm struggling to imagine a scenario where somebody buys a second hand vehicle and immediately on the garage forecourt, it is not "perfectly fine" at the beginning.

 

Defects almost always materialise a little bit later. In fact the dealer here has admitted that he was unaware of it.

One has to ask – if even the dealer was unaware of the defect, then how could a reasonable consumer be aware of it?

 

I think the dealer's credibility is also affected by the fact that according to Companies House, his accounts are overdue and also that he is issuing receipts which appear to be personal or sole trader receipts and did not comply with the business requirements for limited liability company paperwork.

Personally I think that a much more credible and reassuring approach from the dealer would have been to send a message saying – not to worry, we are fully aware of our statutory rights and we appreciate that the car should be a satisfactory quality and remain that way for a reasonable period of time, all things considered. There is a Warranty and we going to try and invoke the warranty as it would be more efficient all round, but if for some reason rather the warranty company declines responsibility, then don't worry because as a responsible dealership with high consumer standards, we won't let you down. We will step up to the mark.

Unfortunately we've never seen this approach from any second-hand car dealer. Ever.

So at the end of the day I think it would have been fairer if the opening post had contained all of the information because it now seems that some of it was lacking.
On the other hand, I don't think that the dealer has done himself any favours.