California Seller's Obligation for Smog Certificate

[motoyoyo]

I recently bought a used BMW auto. Both seller and buyer are in California. According to the CA DMV the seller is "obligated" to provide a smog certificate for the vehicle that is valid within the past 90 days of the sale. My question is how is the seller obligated to provide this if the sale has been completed without addressing the smog certificate? There is no mention on the DMV site of how or if they actually enforce this "obligation".

Ok, here's what I am dealing with. I buy a used BMW that has a bootlegged cold air intake and ask the seller if he has the stock airbox parts so I can pass smog. He says yes and will ship them to me after the sale. Naturally after the sale he says it is too much trouble for him to find the parts and has no intention of providing them to me. There was no smog certificate provided at the time of the sale and I now have to get a smog check done for my new registration. Of course I don't expect to pass, but will the DMV in any way support my situation and ask the previous owner to provide the equipment or am I on my own as I suspect is the case. WTF would the DMV have such a rule like this for if there is no way to enforce it?

[widebody911]

You will not be able to register the car in your name w/o a smog cert.

You really should have had him do the smog cert. In essence, you're hosed, and will probably have to resort to legal means to resolve this.

[craigster59]

Been there. What Thom said...

[the]

Originally Posted by motoyoyo

My question is how is the seller obligated to provide this if the sale has been completed without addressing the smog certificate? There is no mention on the DMV site of how or if they actually enforce this "obligation".

The obligation is enforced by you before you pay him the money. Just like you wouldn't pay him before he gave you the pink slip, you shouldn't pay before he gives you the smog certificate. It's part of the deal.

If he doesn't agree to do it, you would have to sue him, to rescind the contract. You'd probably win, but unless there is something in the statute or your contract which gives you the right to recover attorney's fees, even if you win, you would not be able to recover your attorney's fees spent in winning. So a "win" could end up being a loss.

[Dan in Pasadena]

Yup, you're hosed. You get all your're gonna get BEFORE money changes hands and you drive away or you get nothing. Consider it a learning experience.

I have sold a number of cars here without providing a smog certificate. I disclose this to the buyer. If they want me to do it, I will but as soon as I can and I ask for more to do the running around. Again, they want the car or they don't.

I once sold my then 10 year old '89 Toyota Corolla to a guy with the same agreement and when he went to smog it was told it needed a new cat. He came back to me and I sympathized but I didn't pay anything. Why do you think people sell old used cars? Because they are perfect? Anyway, it turned out the smog place was trying to screw the guy for more $$ and it didn't really need a cat...but he/I didn't find that out until after some drama.

[motoyoyo]

Yeah that's what I figured. I guess I misunderstood the DMV regulations where they said the seller was "obligated" to provide the smog certificate. I knew this had to be unenforceable after I found out he wasn't going to send me the parts. What a worthless regulation to even have. Oh well, off to ebay...

OTOH...I have a car I need to sell that needs a new cat to the tune of $400. So, it would follow that I don't need to do anything about that either? Is this just a karma thing or is there actually anything enforceable here?

[Tobra]

technically, the car is still registered to him, so HE is responsible for what happens with the car, say the car took out a mercedes dealership, he is the guy holding the bag.

You are probably hosed. Never know, if the ghetto intake has whatever smog stuff goes to the stock one, say PCV venting to intake, you might just pass. A referee may be needed if you go this way. I say start shopping the BMW wrecking yards for an intake

[Porsche-O-Phile]

Seller is liable for providing the buyer with a smog-legal vehicle. That's the rule off the DMV's web site. I imagine if both parties agree in writing that the buyer will accept responsibility for this and the car is sold "for off road use only" or whatever, you could probably get around it (and I have, although I've also not had anyone fight me on it).

[Noah930]

Originally Posted by Tobra

technically, the car is still registered to him, so HE is responsible for what happens with the car, say the car took out a mercedes dealership, he is the guy holding the bag.

This is your leverage. Start racking up parking tickets--he's responsible. Start running red lights on camera--he's responsible. Crash the car, hit-and-run style--he's responsible (as long as you don't get caught). After all, the car will be forever registered in his name because you can't get it smogged and registered under yours (unless you're willing to suck it all up and pay for repairs out of pocket). I'm NOT IN ANY WAY advocating actually doing any of this type of stuff. But you can make him realize that all's not said and done, quite yet. The law says he's obligated. He can either help you, or you two can figure this out the hard way.

[hpservertech]

I would go for the getting lots of parking tickets and then sending each one to him in the mail....minus the return address. Run some red lights in the middle of the night too when there isn't any traffic.

Then again, you could always just get an address in NV and not have to worry about it right?

[the]

Originally Posted by Noah930

This is your leverage. Start racking up parking tickets--he's responsible. Start running red lights on camera--he's responsible. Crash the car, hit-and-run style--he's responsible (as long as you don't get caught). After all, the car will be forever registered in his name because you can't get it smogged and registered under yours (unless you're willing to suck it all up and pay for repairs out of pocket). I'm NOT IN ANY WAY advocating actually doing any of this type of stuff. But you can make him realize that all's not said and done, quite yet. The law says he's obligated. He can either help you, or you two can figure this out the hard way.

Originally Posted by hpservertech

I would go for the getting lots of parking tickets and then sending each one to him in the mail....minus the return address. Run some red lights in the middle of the night too when there isn't any traffic.

Then again, you could always just get an address in NV and not have to worry about it right?

Umm, you guys giving him this kind of advice DO realize that the seller can (and probably did) send a Release of Liability to the DMV, disclosing the sale to the buyer, identifying the buyer, and making the seller not liable any longer.

And, you also realize that the buyer is responsible for the car after purchasing the car, whether he registers it or not. And that he is by law required to register it within a certain time frame.

Just checking.

[hpservertech]

I dont know what it's like in CA, but in MO (before 07), the original owner was 100% responsible for the car until the new owner registered it/transfered the title. Now you have to send a letter to the DMV, but I know lots of people who are clueless about that requirement. My dad had sold a car many years ago. new owner never registered it. he was stuck with the personal property tax bill for a few years till he took it to court.

I think he was just trying to get rid of the car. most likely knew it wouldn't pass smog and is now selling the parts you need on Craigslist or Ebay. If there were any yards around here that I knew had bmw's I would see if I could find you the parts you needed, but there aren't.

[the]

Originally Posted by Wayne at Pelican Parts

I'm not a lawyer, but I believe that the law states that the sale is not legally binding if a smog certificate / smog check has not been performed on the car. If you go to court, you can nullify the sale and force the seller to buy back the car. I think the law is pretty clear on this, very little ambiguity - no smog certificate, the sale is invalid. Not sure how it works with "vehicle is for off road use only" type of things.

You can buy the parts elsewhere, and then sue him in small claims court. Or you can threaten him with a small claims lawsuit - the law is clearly on your side in this case. I think if you serve him with papers, he would find the parts really quickly.

-Wayne

yeah, I think that's right, like I said above.

Problem is, I don't think you can fit in small claims. I do not believe a small claims court generally can grant injunctive or specific performance types of remedies, like rescission of a contract. Small claims is only for small money judgments, I think.

If that is the case, you'd have to go to a normal court, which could be ok, too. But if you have to hire a lawyer, and you can't recover attys fees, you are in a no-win situation, given the amount of money at stake. Filing a small claims suit is ok, but initiating a regular civil lawsuit in your Superior Court begins a process that is very uncertain, can be difficult to get rid of, and can become very expensive, and can have unintended consequences.