Returning a Used Car/Buyer's Remorse Question
 

My BIL sold his Audi A4 last week (it's been 4 or 5 days, I believe). 2002 model year with 94K miles. Private party sale here in California. The buyer now wants to renegotiate the terms. Apparently an oil leak noted prior to the purchase is a bigger deal than the buyer believed.

MY BIL is not a car guy, and he's a pretty honest guy. Amongst other issues, during negotiations for the car, the two discussed this oil leak. My BIL admitted he didn't know why the car leaked oil, but that it did. I suppose this didn't deter the buyer, as they quickly negotiated a price, exchanged money, and signed over the title. Now that the buyer's had the car for a weekend (and presumably did a little research or took it to a mechanic), he has called my BIL back and wants to renegotiate or return the car.

Normally, I'd say no dice. Once completed, a deal is a deal. But, in talking with my BIL it seems that he did not smog the car pre-purchase (as the seller is required to do in CA). So maybe the deal is not legally complete. The car has never had problems passing smog in the past (even with this oil leak) so I'm guessing it should pass now as well.

What does the PPOT braintrust say?

Would knowing the price of the transaction make any difference? If it sold for a high price, would that make a difference in your answer compared to if it sold for bottom dollar?

I read edgemar's thread from a couple months back, but that didn't answer my questions for this situation.

I had a transaction like that last year. I bought a Jaguar from a private party who said the car didn't leak any oil. Sure enough, the garage and driveway were clean. I gave him a check, on a friday, and drove it home. When I looked at my garage floor the next day, it was full of spots of oil. I wouldn't have any of that. I took the car back, parked in his driveway and at the same time, in his garage where they had parked the car always. Full of spots. I told him I didn't want it, gave him the keys, walked away, and stopped payment on the check. That will teach him, next time don't lie. Now your smog problem might stop everything, I don't know Cal. laws etc. but your BIL did tell the buyer it leaked oil. I didn't know, he did, so I'd say sorry.

I think that it is all in what was honestly disclosed - if your BIL disclosed what he knew, I'd say it was a risk on the part of the buyer that the buyer knew going into the deal.

The buyer rolled the dice and it turned out to be a bit more serious than he thought - if there were no issue/a minor issue - would the buyer be coming back to offer your BIL more money?

I went through something like this a few years back with my wife's Kia- water pump was going bad, I knew the water pump was going bad and priced the car accordingly as well as mentioning it directly in the ad and disclosing it to anyone who came to see the car.

Someone buys it - I tell them take it directly to your mechanic and get it fixed. What do they do? Drive it for a month, seize the pump and blow the engine. They came back to me wanting their money back. I felt bad for them, but the issue was fully disclosed and the error was on them.

Typically as soon as the money exchanges hands the deal is done. "Buyer beware".

As uncomfortable as the situation is, with no PPI I don't see where the buyer has a complaint.

Me too. I see it as a "hail Mary" attempt at getting out of the deal.

My current Mazda came from a small car lot. After driving it home I found a huge puddle of oil under the car. The dealer ended up paying for half of the part and I did the labor. I was pleasantly surprised that he participated at all. I left a positive review of the dealer on a dealer rater web site.

I did sell a 4x4 Nissan truck to a young guy years ago. After paying for it, he backed out of my driveway, revved it up to about 5000 rpm and dumped the clutch, spinning the big off-road tires. His grandfather called me a week later to say that the transmission had gone out on the truck and asked if I'd help pay for the repairs. I might have considered it if not for the smoky burnout he performed on departure.

both the above are generally true, assuming there is no specific contract provision allowing unwinding of the deal

but... what is the penalty for not smog certifying the car?

sounds like Calif. has a law that may take precedence -- at a guees, your BIL might have to pay to get the car repaired to meet smaug

but he'd have to do that regardless of the oil issue, right?

your BIL needs to figure out the smaug thing so the dragon won't bite him in the azz

If your BIL got a decent price for the car would he consider sharing the cost of the repair just to avoid the headache?

Straight from the Ca.DMV website,
For Used Car Buyers Only
•A used car buyer may obtain a two–day sales Contract Cancellation Option Agreement.
Note: There is no “cooling off” period unless you obtain a Contract Cancellation Option Agreement.
Consumers who purchase a used car for less than $40,000 must be given an opportunity to purchase a two–day Contract Cancellation Option Agreement.


Exception: The Contract Cancellation Option Agreement does not apply to used cars priced at $40,000 or more, new cars, private party sales, motorcycles, off–road vehicles, recreational vehicles, or vehicles sold for business or commercial use (Does not include a pickup truck purchased for personal use).

No cool off in CA. He CAN take the BIL to court if he can prove non disclosure he can get damages up to the cost of the vehicle.

Bullschit. People selling used cars privately have no legal obligation whatsoever to even know the mechanical condition of the car, much less provide some "disclosure". They might have a moral obligation to tell what they know but most people don't know enough about cars, (or care), to know every issue an older car may have.

It is completely the responsibility of the buyer to examine the car, and get a PPI if they do not trust their own ability to assess a used car. All used car sales are, "as-is" in CA., (and most other states), unless otherwise stated in writing. The fact that the seller did not provide a smog certificate is a separate issue and could only be a legal issue if the car will not pass smog. It's not some magic bullet that cancels a transaction. The buyer accepted it w/o a smog. I do it all the time, (buy cars w/o smogs).

The guy could sue in small claims court for the cost o the repair, but he'd lose.

Bullschit back at ya.....if you can prove it small claims court and get an idiot for a judge it can cost you.

I once lent a p/u truck to a tenant....with the bring it full, you break, you fix you pay.

wanker hit every pothole in LA, flattened 2 tires, left it on top of the tank fills in a gas station. I had to pay to get it returned 100 miles. I evicted him and kept his deposit.

He sued, the judge found for the poor renter. Anything can happen in court.

You cannot break tennant/landlord housing laws because someone borrowed your truck and fk'ed it up. I'm not sure that you should be giving legal advice on the interweb there.

BS would be the part about "prove non-disclosure". There is no disclosure requirement on used car sales in CA. You made that up.

Geez, who pissedinyercheerios?

It was a warning not legal advice....anyone can sue for anything......what's it worth to avoid it?

No disclosure required on private party sales in CA. No cool off either, unless purchased from a dealer who solicited the transaction at the buyer's location.

Did the paperwork for the transaction state no smog certificate to be provided by the seller? If not, the seller is responsible for it, which should just mean he reimburses the buyer (if he asks). This can come back to bite your BIL if the buyer takes his sweet time and then the car does not pass smog. A smart buyer could make this issue a headache for your BIL.

How much of a discount does the buyer want? If it's cheap enough, he should consider giving back some money and getting an agreement on the smog.

I smell spam, joeltcyp...

Interesting scenerio for your BIL. I have no clue of the laws in the state where the transaction took place, but I've been on both sides of the fence - seller and buyer, private to dealer. If your BIL is ethical as a saint and has a good conscience, I would think the buyer owns it. Do they both have a hand signed, duplicate copies of 'sold as is and as shown'? Leave it for the court to decide.

Another smelly Audi transaction. Years back I purchased an Audi as a private buyer from a private seller but who also owned a so named considered 'reputable' high-line import repair shop. Was told it was his wife's car and where he took exceptional care of it, blah, blah. I'll skip the details, but my fresh purchase turned for the worse. Trans started to slip within a few days to a complete kaput. I PAID to have the trans rebuilt (elsewhere), quickly learned the odo was spun and with clever detective work I was able to score the never to release / disclose dealer service records (why is that dealers?)and it was a slam dunk case against the scumbag. If it wasn't for the discovery, I would have been S.O.L. This 'mister reputable' played the wife has cancer card, postponed and delayed court action. It only made it worse for him, dragged out awhile but he lost. I could have pushed and the law would have closed his biz and him possibly risking jail time. By the way, I did have a bill of sale where I signed as buyer 'as is and as shown'.

With that, the OP BIL needs to have a clear conscience and make sure he's properly disclosed any odometer issues... if any. Other than that, he's probably safe to say that seller is now the proud owner of a leaky Audi :D. If it was a dealer sale, thats another matter and may have specific time (ex. 72 hours) to null the deal.

Lastly, a final tactic for a buyer to get out of the transaction is to claim 'under the influence' during that time. Difficult to prove, but cases in that scenerio have favored the buyer. So don't share a beer with the buyer during the transaction.

No, anyone cannot "sue for anything". :rolleyes:

I know a little about this. And my Cheerios are just fine. Your advice is bad in this instance. :)

The bottom line is that the OP's BIL is in the clear 100% legally as well as ethically in the above described situation. The buyer could sue him in small claims court and lose the case as well as his filing fee. SCC is a HUGE money maker for the state due to the ignorance of people who believe that they can "sue for anything". In real court, cases that are frivolous or have no standing get thrown out before they get off the trailer, so to speak.

Thanks for the input, as always.

This was a private party sale. Done about 4 or 5 days ago, I think. So there's no buyer's remorse clause in CA. No insurance, warranty, guarantee, etc.

My BIL is an honest guy. But he's not a car guy, so like the average person, he'll see some oil spots under his car and not really know the significance/origin/etc. This was something clearly discussed in the pre-purchase discussions/negotiations.

BIL: "There are some oil leaks but I don't know where they're coming from."
Buyer: "That's OK. I had a Jetta with a similar problem and it wasn't a big deal."

So from a clear conscience perspective, there was no hiding of fact or anything else nefarious.

The only issue I could see would have been the not getting the car smogged beforehand. (In CA, it's the seller's obligation to obtain smog cert within 30 days prior to sale, IIRC.) Again, it wasn't done due to ignorance of the law--not because something was trying to be hidden. If the buyer wants my BIL to pony up for the smog test (about $60), I think that's fair. If the car doesn't pass smog, then the buyer should be able to either return the car or my BIL should be on the hook for adequate repairs. My question (as answered by speeder, at least) was whether or not the not-getting-it-smogged issue would be sufficient grounds to nullify the entire transaction.

Thanks. I'll point my BIL to this thread.

t was disclosed and buyer should've done research first- also car has been gone a week. Who knows what happened. Buyer's remorse is a bastard but sorry you are out of luck.

Well, maybe it's semantics, but court filing clerks don't generally look at the merits or substance of a complaint, they just make sure the forms and the filing fee are there and then take and stamp the complaint "filed," so, technically, you can pretty much sue (file suit) for anything.

Now, of course, there are ways to get crazy cases tossed out relatively quickly, so the "sue for anything" thing won't ultimately be successful, but I guess that's a different issue.

IMO in California, a private party seller should always hand over a smog certificate done within the proper time period (no more than 90 days before the sale?) to the buyer. To fully close the documentation and avoid this very issue/complication of a buyer looking for an "out."

I don't know if ultimately the lack of a seller-provided smog is enough to legally get the buyer off the hook (or whether the seller, post-sale, has some ability to re-take possession of the car to try to get it smogged) but it certainly complicates things.

A savvy buyer who wants out could have the car re-tuned, or take some smog equipment off (or maybe even just leave the gas cap off when he takes the car to be smogged, that would like be enough to fail it), and then return the car to the seller with the failed paperwork and say it didn't pass.

You've correctly identified the issue re the smog certificate. I don't know the answer, but if you find out the answer, let us know.

A quick google search found this on the CA DMV/BAR site, maybe it helps

Question: Who is responsible for obtaining a Smog Check when a vehicle is sold?

Answer: Section 24007 (b)(2) of the Vehicle Code states it is the responsibility of the seller to provide a valid smog certificate at the time of delivery of the vehicle.

Question: I just purchased a vehicle and the seller did not provide a Smog Check certificate. The vehicle needs repairs in order to pass. What should I do?

Answer: Go back to the seller, inform them about Vehicle Code section 24007 (b)(2), and try to work things out amicably. If that fails, you have the option to pay for the repairs and the Smog Check yourself, and then take the seller to court to recover your costs. Although the law clearly supports the buyer, collecting on a court judgment can be difficult. The amicable solution is usually best. If the seller is a state-licensed auto dealer, buyers have the additional option of filing a complaint with the DMV, which regulates new- and used-car dealers.

It does seem to suggest that the failure to provide a smog certificate isn't grounds to "unwind" the transaction, it's just grounds for a damage claim if the car doesn't pass smog. Although it doesn't specifically answer the question of whether the buyer can return the car to the seller instead (the question and answer arguably presume that the buyer wants to keep the car, and just wants to be reimbursed the costs of making it pass smog).

There isn't a connection between a oil leak and smog check, so there's no way he can try to give the car back via that technicality.

If you know a little, you know you are wrong. You can indeed sue over anything. May not win, but suit must be defended. As certain as you are about this, you'd think you'd be right.

If the car does not pass smog, seller makes it pass or deal is off. The buyer is otherwise out of luck.

OK, let me put it another way:

No attorney who is worth 2 schits is going to be involved in a lawsuit that has no merit and has no chance of prevailing based on the law. If you find one who is not worth 2 schits to take your case, I guaranty that you will pay the filing fee and all associated costs out of pocket and up front, and then you will lose that $$ completely when the case gets tossed before the opening kick-off. The schitbag attorney who took your case will probably charge you up front for any time he or she spends writing up the complaint @ $3-400 an hour.

So go ahead, follow the advice of someone typing drunk on an auto parts forum and "sue anyone for anything". Let us know how that goes. :rolleyes:

No, that is not true. Deal is not "off". Stick to fixing feet. :cool:

The sale is not dependent on passing smog unless that has been discussed in the negotiations. Failure to pass smog or failure of the seller to provide a smog certificate only affects registration of the vehicle. Yes, the BIL is on the hook for any expense to get the certification or repairs, but that's a different issue than completion of the sale. The sale is complete, period.

And yes, "anyone can sue for anything" is a semantic game. Court clerks do not proof read the complaints to see if they show cause--they are not allowed to make a ruling on the merits of a claim which is what they would, in effect, be doing. In Cal small claims, anyone with the fees can file, or even without the fees if they can show extreme "need." Will they prevail or even be heard by the court? That's the great unknown.

This is amusing...all over a 2002 A4.

I would tell the buyer to enjoy it and consider himself lucky; in about 15,000 miles it will need pressure fed chain tensioner seals, a timing belt, water pump and tensioner, rear Quattro diff seal, a rebuilt ABS module, control arm joints, brakes, radio display, center hub cap thingies with the Audi logo because the paint will be flaking off, a rear main seal...

And if he's doing any of that himself, he'll be removing the front bumper, draining the coolant, unplugging about 38 connectors...

Ya know, if we're being honest here.

You cannot sue for anything. Each state and federal jurisdiction has specific causes of action which give the court the jurisdiction to hear the case. Fail to pled a proper cause of action in a complaint and it will be kicked out on a demurrer. A demurrer asserts that, even if the plaintiff's facts are correct, the defendant should not have to answer them or proceed with the case.

Thus, while you can file any complaint, you must state a valid cause of action. If you do not, the complaint may be determined without merit, harassing or vindictive. If such is the finding, the person filing for anything may be civil punished through sanctions by having to pay the other sides costs and attorneys fees. Do this enough, and the court will preclude you from filing any complaint in the future without first seeking court approval.

The "sue for anything" banter is nothing more than rhetoric from big money defendants who seek legislative limitations on damages on any claim brought against them. Examples include medical malpractice claims, automobile accidents, and civil rights claims against governmental entities. Ever wonder why someone is messed up in a medical procedure or car accident or their civil rights have been violated and they receive little to no compensation? It's because the media and defense bar have successfully manipulated the legal system by getting the public opinion to believe one can sue for anything.

Thank you.

I agree with McLovin - the way to find out for certain would be to troll thru the statute, regs. and maybe even court cases - but it seems unlikely the transaction can be unwound.

speeder is correct as a practical matter, tho some fool could file a complaint over "anything" it will be tossed out quickly and then the Def. can collect damages (in most states), as pbs laid out above

A defendant who gets a complaint thrown out on a demurrer was still sued.

Again, you *can* sue anyone for anything. Literally. Heck, you don't even have to be a human. My dog could sue your shirt.

On the "sue for anything" deal, you can file a suit for almost anything and a perceived bad car transaction would be heard in SCC. I sure an attorney would not look at the case unless it was a guaranteed paid-for-time agreement. So everyone is right here in a sense.

Now, let me state my authority in this case. I bought my '88 Carrera from an attorney in CA and it would not pass smog. He knew his liability in the deal and drew up the papers for me to sign waiving his responsibility. Whether that would have stood up in court I have no idea. I replaced the cat and it passed easily even with bad valve guides. That was his intention and it was mine.

The point is the lawyer selling to me thought he could legally pass off the responsibility. So, like Denis, I have bought more than one car w/o obtaining a smog cert from the seller, i.e., having his signature on the paperwork. CA does not apparently care who pays for the smog cert, only that in order to process the registration that it be current. You can get one up to 90 days before the date of sale or get one after the date of sale. You just have to get one.

So, I agree, there is no connection between the oil leak and the lack of a smog cert. I also believe that if the buyer makes a claim that the seller misrepresented the leak, he will win damages. But he's going to need a witness that will substantiate that the buyer made a claim of a limiting the nature of the leak whereas, in fact, there was more to it like a cracked pan. As a "non car" guy, and having made no such claim, I think the seller is safe. But, as Joe Bob points out, anything can happen.

Not knowing much more about this, I'd give the buyer 200 bucks to go away with a signature as to that effect. That is just for overall goodwill.

Knowing how people are, the leak may still be minor but the buyer is now trying to squeeze some money. If you give him what he wants, he will go away. If he wants out of the deal altogether, that will be a bit tougher. For both parties.

Two words for you: "pro se"

In our jurisdiction we have seen an alarming increase in pro se litigants. Courts tend to bend over backwards to assist the poor darlings in having "access to justice." All this is to say that you don't need an attorney to sue somebody. Nowadays all you need is the Internet...

ps Your schitbag attorney needs to increase his hourly rate ;)

Both parties are fools for owning a 94k mile Audi.

A fool and his Audi are soon parted.