You do not say in your post whether you bought the van with cash or using credit, say HP. The way you bought the van determines what legals you use to back your case against the dealer if it refuses to give you what you want. What is set out below is the legal route for dealing with these cases. Many a time you never need to get into legals. Anyway, here are your rights.....
Let's assume that you paid cash (maybe via a bank loan).
Under the Sale of Goods Act (SOGA) your caravan should be of satisfactory quality, sufficiently durable and free from any defects. Further it should be "as described". You comment that the dealer said "there was no need to worry as all the vans are checked for damp and they come with a warranty." If they were the actual words used then the Dealer did not say that it was free of damp, merely not to worry and you have a warranty. However, I don't think that this will be fatal to any legal claim.
Timing is important under the SOGA as that determines just what rights you have. As it is less than six months since the date of your purchase then, under s48B of the SOGA ( as amended by the Sale and Supply of Goods to Consumers Regulations 2002) you are entitled to demand a replacement or a repair.
If you elect to have the caravan repaired, then by virtue of section 48B of the SOGA (as amended) the dealer has to comply with two statutory obligations:-
- to undertake the repairs within a reasonable period of time, and
- without causing significant inconvenience to the you
If you elect to have a replacement, and remember the choice is yours, you cannot do so if that request is impossible to perform or disproportionate to the repair remedy. This is covered by section 48B (3) (a). It may be difficult, for example, to find a like for like, or similar, replacement so that repair is the proper option. However, if the Dealer says it will take until the back end of the year to get the repairs done then he has to provide a replacement caravan. So the onus is on the dealer to get on with the job.
Under section 48C of SOGA you can, as a last resort rescind the contract and the Dealer has to give you your money back. However, you can only rescind if it is impossible to repair or replace without significant inconvenience or such repair/replacement is disproportionate or at an additional cost to the dealer. So, rescinding the contract has difficulties, if the dealer sticks to the letter of the law.
You need to follow the step by step process under the Act. Ask for a repair or replacement and if they won't do it then you can ask for your money back. You can't go straight to asking for your money back. Many folk think that you can but the law sets out a different process.
Remember that, generally, once you have made your choice you are stuck with it. Once they start the repair work, you can’t then say that you have changed your mind and want a new van unless that repair is taking an unreasonable length of time.
In undertaking the repair the dealer has to use reasonable skill and care under the Supply of Goods and Services Act. If it just covers over the problem then that is a separate breach of contract and you can start all over again against the dealer. Get the dealer to specify just how it will undertake the work. However, don't agree that his proposal is acceptable otherwise if its of no benefit the dealer can argue that that is what you agreed to. Just a cautionary note.
If you bought the van using an HP arrangement, say via Black Horse, then the legal route is different.
If this an HP arrangement then you have not actually bought the van. The Dealer sold the van to the HP company and you are merely hiring it and paying the HP company for that hire. Once you have paid an agreed amount to the HP company ownership of the van will then transfer to you. Thus you do not have a contract with the dealer to which the rights under the Sale of Goods Act applies.
In the case of HP it would be down to the HP company to get the dealer to put the van right. s10 of the Sale of Goods (Implied Terms) Act 1973 states that in a Hire Purchase agreement there is an implied term that the goods supplied under the agreement are of satisfactory quality. Satisfactory quality includes a principle that the van must be free of even minor defects. Thus it should not be damp so the Hire Purchase company is in breach of contract.
You could reject the caravan, your HP agreement ends and the HP company take issue with the dealer to get their money back.
The rights to reject you get under the Sale of Goods Act are different in the case of Hire Purchase. Rather than having the benefit of statutory protection you have to rely on general contract law principles. Under HP the right to reject goods is only lost when the contract is affirmed, and this requires a positive decision by you to carry on with the contract after having gained knowledge of the defect.
You write to the HP company to advise it of the damp and mention that "it is clearly not of satisfactory quality". Remind the HP company of its obligations under the 1973 regs. You ask the HP company to talk to the dealer to get it to agree to undertake the repairs at the dealer's costs otherwise you will "not affirm the HP agreement, the caravan will be rejected and the credit agreement will then be deemed to be at an end necessitating a repayment of all monies paid under that agreement" Use those words. The HP company will lean on the dealer. Your dealer needs to keep their HP company happy.
Courts tend to side with hirers in these cases.
If you get no joy from the HP company then advise them that you will ask the Financial Ombudsman Service to investigate. I reckon that they will decide in your favour on the facts you have given in this thread. A resolution may take some time...be patient.
This advice has been given on the basis of the information the OP has supplied. If the facts are any different, or there is any additional information the advice may be different. Each case turns on its facts.
All the best
Phil
Topic: Damp Caravan From Dealer
