Showing boat after deposit has already been made

[Comodave]

A reputable broker and seller probably wouldn't continue to show the boat. But some brokers are less than reputable, evidently yours is one of the less reputable.

pete

I do not agree. What would make me mad, and did, is if the selling broker didn’t disclose that the boat had an accepted offer, seatrial and survey when I asked him if it was still for sale. I flew in and tried to make an offer and then he told me that the boat was essentially sold. But until the money changes hands they can still show it. Because it is still the sellers boat. But they should disclose that there is an accepted offer prior to showing it. Most people won’t want to bother looking at that point.

 

[salishpaddler]

She's fully loaded, down to the last pillow case, skillet and teaspoon. Gelcoat is flawless. Needs new bottom paint and as far as I know, nothing more than a good polish and wax. Yanmar 440s with fewer than 800 hours, electronic throttles. Sea trial and survey 11 August.

 

[bligh]

Excellent advice. Thanks.

Wait. Doesn't the buyers broker get paid when the sale goes through?

 

[salishpaddler]

Wait. Doesn't the buyers broker get paid when the sale goes through?

Split commission.

 

[bligh]

Split commission.

My point is ,financially speaking, it is best for the buyers broker that you buy the boat (as quickly as possible).

 

[salishpaddler]

My point is ,financially speaking, it is best for the buyers broker that you buy the boat (as quickly as possible).

Best for everyone!

 

[Swfla]

She's fully loaded, down to the last pillow case, skillet and teaspoon. Gelcoat is flawless. Needs new bottom paint and as far as I know, nothing more than a good polish and wax. Yanmar 440s with fewer than 800 hours, electronic throttles. Sea trial and survey 11 August.

That is really great news. Sounds like a real gem. Aug 11 is so far away!!!

 

[Pete Meisinger]

OOps, I guess that makes three times I made statements which are probably wrong. I now see both sides of the argument.

pete

 

[Olebird]

It's all about negotiating tactics guys. US nationals are not known for negotiating skills. (Not being critical of any particular deal or person) some brokers are better than others - unethical brokers don't seem to last very long- it's a close community and word gets around - fast.


As a seller I would insist the boat remained on the market and active until close. If I were the buyer, I would try to get it off the market as soon as I could.


SP, originally my antennae went up when you made a comment about changing the Terms of the deal. It sounded to me like you had a pretty good deal on the line. If the seller thought he could get a significantly better deal, he might look for any legal tactic to kill your deal and take a higher price etc. Didn't want to see you lose the deal over basically a non issue.


And yes, anything is negotiable, at any time - but if I were the seller, with a couple of higher backup offers in my pocket, if the guy who signed s lower priced P&S breached that deal in any way, I'd pocket the deposit, give very short notice to heal the breach and move on to the highest offer. Not unethical or illegal - just hardball.


SP, hope the deal goes thru without a hitch (probably will) enjoy the boat.

 

[salishpaddler]

As a seller I would insist the boat remained on the market and active until close. If I were the buyer, I would try to get it off the market as soon as I could.


SP, originally my antennae went up when you made a comment about changing the Terms of the deal. It sounded to me like you had a pretty good deal on the line. If the seller thought he could get a significantly better deal, he might look for any legal tactic to kill your deal and take a higher price etc. Didn't want to see you lose the deal over basically a non issue.


And yes, anything is negotiable, at any time - but if I were the seller, with a couple of higher backup offers in my pocket, if the guy who signed s lower priced P&S breached that deal in any way, I'd pocket the deposit, give very short notice to heal the breach and move on to the highest offer. Not unethical or illegal - just hardball.


SP, hope the deal goes thru without a hitch (probably will) enjoy the boat.

Yes, I've learned from my broker it's common and accepted practice to continue to advertise the vessel with the disclosure that it's under contract but not closed. When the time comes for me to sell it, he would do the same for me as my seller's broker, even if it's under a deposit.

So in that regard you're absolutely right. Non issue. But I did review the terms of the P&S Agreement and as the buyer I can walk away with no fault at any time up to the point when I sign the binding sales agreement, but if either party were to renege afterward it would become a legal issue for breach of contract. If I were to be the one to walk, I would forfeit my deposit at the very least. I anticipate none of that. Been looking for the right boat for too long and I'm running out of time. Aug 11 can't come soon enough but my surveyor isn't available until then.

These comments have been a valuable learning experience for me

I can say with certainty I wouldn't consider buying a boat like this without a broker in my corner to guide me through the process.

 

[Olebird]

At some point in my career, I attended a seminar by Dr. Chester Karrass on negotiating. Has been some of the most valuable training I ever took .. second only to basic physics. I thought so much of it, I put my kids & wife through it and all those who work with or for me in the latter stages of my career. The tools I took from Dr. Karrass's books and lectures served me especially well when on major civil & military projects over seas.

The best negotiators I ever ran into were the Arabs - one senior Arab statesman told me one night "you Americans think you are so smart, but we have been negotiating and trading for nearly 4000 years" - and he was very good at it.

I learned more from him than I ever thought possible.

A good read here: https://www.karrass.com/dr-chester-karrass.


Enjoy the boat ---- read the book --- then go negotiate a good rate on your next fuel buy .... you will save money!


Cheers

Larry

 

[bligh]

Best for everyone!

Not necessarily. If the boat doesn’t survey well your broker might try to convince you that the problems found are just minor issues and you shouldn’t worry about them (regardless of the potential magnitude of the issues). After all he only gets paid after you write the check

 

[bligh]

.


I'd pocket the deposit, give very short notice to heal the breach and move on to the highest offer. Not unethical or illegal - just hardball.
.

I have never heard of anyone pocketing a deposit before.

 

[Caphenning]

Yes, it’s common to keep showing the boat because far mor contracts fail than go through. Basically you are under no obligation to purchase the vessel until after survey and sea trial, and the reality is you can change your mind for whatever reason. So to show it at this point is completely normal. Normally though your contract offer will play out before another offer will come into play.

 

[ProMaritime]

The broker may have the right to show the boat to possible standby buyers should your deal fall through. But regardless of how tight your agreement (even if it were only verbal with witnesses) is the fact that you have paid and they have excepted a cash deposit puts you in the drivers seat.

 

[salishpaddler]

I'm using an old salt as my surveyor, this may be the last boat he surveys before retirement, in fact, his apprentice will also be onboard. He had surveyed a 34 Tollycraft for me previously and was meticulous. Eleven hours on the boat and 55 pages later, he pronounced it one one of the best of its model he had ever seen. He was surprised. I wasn't, because I knew the owner and he was the kind of person who was never satisfied with "good enough", it had to be "best available". Sea trial was equally satisfactory. But after all was said and done, it was the side walkways and the narrow beam that did me in. It was too tight a squeeze for me and the rocking even in the slip were more than I wanted to deal with. So I turned it down and gifted the survey and sea trial documentation to the owner, who had dropped the price for me as a friend. It was the least I could do, and with those documents in hand, he sold the boat weeks later for more than I would have paid.

I relate this because I believe my surveyor will be equally amazed at this vessel and will spend at least as much, if not more, time in it. The owner is the same type of person, obsessed with making it as perfect said possible. BUT, if my surveyor finds anything at all that's questionable, he won't hesitate to inform me, and my broker, knowing by now exactly what I want, will candidly present my options and objectively weigh the merits of each, and if it comes up wanting, I won't buy it. He knows my calendar, health wise and prospective ownership wise. The selling brokerage is very reputable and the brokers know one another.

My bank has examined the boat eyes-on and is waiting for the survey to determine the market appraisal. Based on that they've seen, they've already tentatively approved a LTV 80%, far greater than LTS 75% and actually funding more than my purchase price. It's a heavy discount to the most recent market valuation but it had been on the block for more than a year at a price reflective of the rebuild. I found it at the right time.

The market has grown lately and the inventory is diminishing, so if I don't buy it, it will likely be bought by another in short order. I think I'm in the best position possible as a buyer.

 

[Swfla]

Too bad the design of the boat was not to your liking. Passing up a Bristol yacht is tough. I admire your kindness and charity of passing along the survey. You make the world a better place to live in. Best wishes on the right boat this time.
BTW, there is a recent thread on shipping boats by freighter. About
$18k. Mazatlan to FL I believe. That opens up the market for you a bit.

 

[Marco Flamingo]

The only issue is one that is in every contract. If you make a counter-offer because of some deficiency in the survey, that nullifies the contract. Offer and a contingent acceptance (survey) is a contract at the contingent price. Offer, contingent acceptance, and a counter-offer because a "bad" survey is generally not a contract (depending on the possibility of fancy fine print in the contract).

Worst case example: The survey finds that the head empties into the bilge because of no holding tank and the surveyor says it will take $10k to correct. You reduce your offer by $10K (the counter-offer). There is no contract and the seller is free to go to the next buyer in line (if there is a next in line). For those who think that there are no unethical brokers, just ignore the possibility that the owner/broker is betting that the next survey won't find the issue. Or, if the next offer is 20K higher, when the issue is discovered by the subsequent buyer, a 10K reduction still nets the seller an additional $10K. Or the next survey might find it as only a $3K deficiency.

Analysing offer and acceptance online is a bit like asking what move to make in three dimensional chess. There are a lot of possibilities. One that I had was I asked the broker if there were any recent surveys. Nope. But I later learned that just before I made my offer the boat had been hauled, surveyed, and the buyer backed out. The broker apparently didn't see my request for recent surveys as a continuing request.

I didn't ask for a copy (which the broker might not have had), just whether one had been done or if the owner had a copy of his when he purchased. Nope. I only learned because I called the closest haul out and asked if the "XXX" had been hauled recently for a survey. Yes, and they had been asked for an estimate for the work. I asked for some time to self-inspect and found the same issue. Time to walk. I just saw that it is now back on the market claiming $26K in recent repairs.

So long story short, if the surveyor finds something and you want to make a counter-offer, it might be best to provide the broker and owner with a copy of the survey. They would then be aware of any deficiency and without some fraud (willful failure to disclose) can't really rely on a "buyer beware" attitude. Time to come clean and entertain your counter-offer.

Hopefully, none of this will come to pass. It will be the perfect boat (even when you discover that annoying little thing that the surveyor missed).

Mark

 

[Mark P]

Mr. Flamingo - not sure that asking the current owner to fix a toilet is a counter-offer "that nullifies the original contract" as you post above. The boat was offered (described in whatever forum the owner chose), as a boat with etc., etc.,. Every contract implies a covenant of good faith and fair dealing - in this case that the boat floats and is substantially as described, and will otherwise pass in the industry as a boat. A toilet that flushes into the bilge may well be illegal if not dangerous. If a survey were to find this, the owner does not have the option to get out of the contract because I, as the buyer, said "hey, pal, this toilet needs to be fixed, it costs $3K, are you going to fix it or lower the price?" The owner can say no, and tell me to take a leap off the swim platform, in which case, then I have the option to buy it "as-is" with the bilge dumping toilet. That should make for some interesting cruising....

 

[slowgoesit]

The only issue is one that is in every contract. If you make a counter-offer because of some deficiency in the survey, that nullifies the contract. Offer and a contingent acceptance (survey) is a contract at the contingent price. Offer, contingent acceptance, and a counter-offer because a "bad" survey is generally not a contract (depending on the possibility of fancy fine print in the contract).

Worst case example: The survey finds that the head empties into the bilge because of no holding tank and the surveyor says it will take $10k to correct. You reduce your offer by $10K (the counter-offer). There is no contract and the seller is free to go to the next buyer in line (if there is a next in line). For those who think that there are no unethical brokers, just ignore the possibility that the owner/broker is betting that the next survey won't find the issue. Or, if the next offer is 20K higher, when the issue is discovered by the subsequent buyer, a 10K reduction still nets the seller an additional $10K. Or the next survey might find it as only a $3K deficiency.

Analysing offer and acceptance online is a bit like asking what move to make in three dimensional chess. There are a lot of possibilities. One that I had was I asked the broker if there were any recent surveys. Nope. But I later learned that just before I made my offer the boat had been hauled, surveyed, and the buyer backed out. The broker apparently didn't see my request for recent surveys as a continuing request.

I didn't ask for a copy (which the broker might not have had), just whether one had been done or if the owner had a copy of his when he purchased. Nope. I only learned because I called the closest haul out and asked if the "XXX" had been hauled recently for a survey. Yes, and they had been asked for an estimate for the work. I asked for some time to self-inspect and found the same issue. Time to walk. I just saw that it is now back on the market claiming $26K in recent repairs.

So long story short, if the surveyor finds something and you want to make a counter-offer, it might be best to provide the broker and owner with a copy of the survey. They would then be aware of any deficiency and without some fraud (willful failure to disclose) can't really rely on a "buyer beware" attitude. Time to come clean and entertain your counter-offer.

Hopefully, none of this will come to pass. It will be the perfect boat (even when you discover that annoying little thing that the surveyor missed).

Mark

I was under the impression that Disclosure laws, such as in Housing and Real Estate didn't apply to boat selling/purchasing, and it WAS very much Buyer beware. Am I incorrect in that assumption? And if so, can you point to Federal or State law that states that?

Currently searching for our next boat!

 

[salishpaddler]

Too bad the design of the boat was not to your liking. Passing up a Bristol yacht is tough. I admire your kindness and charity of passing along the survey. You make the world a better place to live in. Best wishes on the right boat this time.
BTW, there is a recent thread on shipping boats by freighter. About
$18k. Mazatlan to FL I believe. That opens up the market for you a bit.

I have every confidence this is the boat I've been waiting for and at this point I have no reason to believe it's not in essentially Bristol condition as well. The interior woodwork is solid, not laminated, teak and it glistens. It has habitation, mechanical and electronic upgrades that simply weren't available at any price when new, and will keep it marketable for the length of time that I plan to have it. At 43 ft LOA with electronic throttles and shifters it's a perfect length for me as a single hand. One could have a medical procedure performed without fear of infection in the engine room with twin Yanmar 440s at 760 hours.

 

[Marco Flamingo]

If a survey were to find this, the owner does not have the option to get out of the contract because I, as the buyer, said "hey, pal, this toilet needs to be fixed, it costs $3K, are you going to fix it or lower the price?" The owner can say no, and tell me to take a leap off the swim platform, in which case, then I have the option to buy it "as-is" with the bilge dumping toilet. That should make for some interesting cruising....

But in your scenario, the owner did just reject the counter-offer to fix or lower and he gets out of the contract. He is free to find another buyer. My point was to make sure that the seller is aware of his duty to disclose to the next potential buyer. It reduces the temptation to try again with another buyer rather than accept the counter or lower.

I hope we're not making Salishpaddler nervous.

Slowgoesit,

Buyer beware has its limits in both statutory and common law. True, in real estate there is generally a form the seller fills out stating any known deficiencies (called Form 17 in WA). But there is a duty to disclose in other sales situations. If the owner knows that the head pumps into the bilge and he has been bailing it overboard with a bucket, he knows. Even if unaware, he should have known that the deficiency exists and that it is illegal. "Should have known" is generally enough. When a duty to disclose exists, as in this scenario, it would be a "seller beware" of a +$10K lawsuit plus attorney fees. "Broker beware" as well if a known deficiency. And probably even "surveyor beware" if the deficiency wasn't noted. If any have insurance that covers their conduct, their policy would likely payout before the first deposition. Not that insurance companies always roll over.

 

[STB]

My point was to make sure that the seller is aware of his duty to disclose to the next potential buyer.

We are talking about the United States here, right?

If you believe that, in any US jurisdiction, sellers of recreational vessels have any legal duty to disclose anything to potential buyers, can you please cite to the the specific basis in law? As far as I know, no such duty exists (.)

If a seller knowingly, or even unknwingly, makes false statements, I can imagine circumstances where laws are violated or torts are committed, but sins of ommision and commission are different things w.r.t. seller's duties w.r.t. this type of transaction, I think.

I don't like it. But, it is how I understand it.

 

[salishpaddler]

I have every confidence this is the boat I've been waiting for and at this point I have no reason to believe it's not in essentially Bristol condition as well. The interior woodwork is solid, not laminated, teak and it glistens. It has habitation, mechanical and electronic upgrades that simply weren't available at any price when new, and will keep it marketable for the length of time that I plan to have it. At 43 ft LOA with electronic throttles and shifters it's a perfect length for me as a single hand. One could have a medical procedure performed without fear of infection in the engine room with twin Yanmar 440s at 760 hours.

https://bananabeltboats.com/boats-f...ouble-cabin-1980---2006-anacortes-us-6807580/

 

[slowgoesit]

Slowgoesit,

Buyer beware has its limits in both statutory and common law. True, in real estate there is generally a form the seller fills out stating any known deficiencies (called Form 17 in WA). But there is a duty to disclose in other sales situations. If the owner knows that the head pumps into the bilge and he has been bailing it overboard with a bucket, he knows. Even if unaware, he should have known that the deficiency exists and that it is illegal. "Should have known" is generally enough. When a duty to disclose exists, as in this scenario, it would be a "seller beware" of a +$10K lawsuit plus attorney fees. "Broker beware" as well if a known deficiency. And probably even "surveyor beware" if the deficiency wasn't noted. If any have insurance that covers their conduct, their policy would likely payout before the first deposition. Not that insurance companies always roll over.

I appreciate your response, but what I got out of it is that there is no regulatory requirement for Seller to disclose flaws, but if the Buyer were to hire a lawyer, he MIGHT be able to build a case that allows him to recover damages from the Seller IF he can prove that the Seller knew and willfully withheld negative information about the boat . . . .

I'm may be misreading this, but it just sounds like unless a Buyer wants to enrich an attorney to the tune of many $$$$, it IS Buyer Beware.

Once again, can you quote a statutory, or regulatory REQUIREMENT for a Seller to disclose flaws?

 

[Marco Flamingo]

If you believe that, in any US jurisdiction, sellers of recreational vessels have any legal duty to disclose anything to potential buyers, can you please cite to the the specific basis in law? As far as I know, no such duty exists (.)

I've explained it as best as possible without writing a treatise on the subject. Here is a treatise for your enjoyment.

The statutory law would vary from state to state, but not by much. My experience is cancellation or rescission of the contract (which doesn't preclude still going after money damages and attorney fees).

My example of head pumping to the bilge might be too obvious, so I'll go with another example. Buyer #1 sees that there is a leak around the shaft.
Seller says the stuffing box needs repacking and he has the packing material onboard but never got around to fixing. A no-cost 1 hour project. Assume that is truly what the Seller believes.

Surveyor says he doesn't think that's the problem. Boat is hauled and the Surveyor says the stuffing box is fine. The problem is that the shaft tube has corroded apart. Yard also inspects and gives an estimate of 2 weeks and $20K. Seller refuses Buyer #1 counter to reduce price.

Buyer #2comes along. Seller says the stuffing box needs repacking and he has the material onboard but never got around to fixing. A no-cost 1 hour project.

Buyer #2 purchases without a survey, repacks stuffing box, doesn't fix so hauls the boat at the same yard. Yard manager says "Hey, we hauled this boat last month for a survey. Did you get the shaft tube fixed?"

You think Seller is going to skate? Not in any U.S. jurisdiction that I know of. Seller gets his boat back (rescission of contract) and a lawsuit to recover haul fees, survey fees, moorage fees and anything else spent because of the misrepresentation. Including attorney fees in most jurisdictions.

One might think that if the Seller just stays silent or says "I dunno to all questions" that he might get away with it. Maybe not willful misrepresentation, possibly negligent misrepresentation. A closer call, but unlikely to pass the smell test with judge and jury. This is especially true if the Seller was handed a copy of the survey and yard estimate. That was my original point. It makes the Seller think harder about Buyer #1 offer.

I bought my first cruising boat and retired early based on this legal theory, so I know that it exists. My client didn't pay me a penny, my fees were paid by the defendant. I named the boat after the client.

 

[Shrew]

But after all was said and done, it was the side walkways and the narrow beam that did me in. It was too tight a squeeze for me and the rocking even in the slip were more than I wanted to deal with. So I turned it down

I'm a bit confused why you went through the trouble of a P&S, Survey and Sea Trial only to turn down the boat for it's side decks and beam. These would seem to be attributes you could have assessed with a simple viewing of the boat.

 

[smitty477]

I've explained it as best as possible without writing a treatise on the subject. Here is a treatise for your enjoyment.

The statutory law would vary from state to state, but not by much. My experience is cancellation or rescission of the contract (which doesn't preclude still going after money damages and attorney fees).

My example of head pumping to the bilge might be too obvious, so I'll go with another example. Buyer #1 sees that there is a leak around the shaft.
Seller says the stuffing box needs repacking and he has the packing material onboard but never got around to fixing. A no-cost 1 hour project. Assume that is truly what the Seller believes.

Surveyor says he doesn't think that's the problem. Boat is hauled and the Surveyor says the stuffing box is fine. The problem is that the shaft tube has corroded apart. Yard also inspects and gives an estimate of 2 weeks and $20K. Seller refuses Buyer #1 counter to reduce price.

Buyer #2comes along. Seller says the stuffing box needs repacking and he has the material onboard but never got around to fixing. A no-cost 1 hour project.

Buyer #2 purchases without a survey, repacks stuffing box, doesn't fix so hauls the boat at the same yard. Yard manager says "Hey, we hauled this boat last month for a survey. Did you get the shaft tube fixed?"

You think Seller is going to skate? Not in any U.S. jurisdiction that I know of. Seller gets his boat back (rescission of contract) and a lawsuit to recover haul fees, survey fees, moorage fees and anything else spent because of the misrepresentation. Including attorney fees in most jurisdictions.

One might think that if the Seller just stays silent or says "I dunno to all questions" that he might get away with it. Maybe not willful misrepresentation, possibly negligent misrepresentation. A closer call, but unlikely to pass the smell test with judge and jury. This is especially true if the Seller was handed a copy of the survey and yard estimate. That was my original point. It makes the Seller think harder about Buyer #1 offer.

I bought my first cruising boat and retired early based on this legal theory, so I know that it exists. My client didn't pay me a penny, my fees were paid by the defendant. I named the boat after the client.

"One might think that if the Seller just stays silent or says "I dunno to all questions" that he might get away with it."

Your thoughts are that a seller is responsible for the understanding and accuracy of any and all results determined by a third party hired by a past potential buyer?

 

[Marco Flamingo]

Your thoughts are that a seller is responsible for the understanding and accuracy of any and all results determined by a third party hired by a past potential buyer?

Nope.

 

[smitty477]

Nope.

Well that certainly makes more sense.