Seller didn't smog... I paid for car, but now "check engine" light came on.

[paulpannu]

What is the name of your state? California

1. I bought a car from a private party.
2. I paid her the money so she could pay off the loan and get the title over to me. She delivered the car to me the next day (that is, after she cashed my personal check and paid off her lien holder).
3. She said the car was already smogged, but it has been more than 90 days. She said she's busy and wants me to get it smogged, and will pay me for the smog afterwards. I don't believe that she will pay me a cent. I told her it is the seller's responsibility.
4. Also, the day after she dropped it off, the "check engine" light came on and now it shakes and drives horrible. I doubt that it will pass smog.
5. She dropped the title off at my door, but I have not signed it yet.

Can I "force" her to get it smogged and pay for the needed repairs?
Or even better, can I return the car and get my money back?

Thank you,

Paul Pannu

 

[seniorjudge]

"Can I "force" her to get it smogged and pay for the needed repairs?
Or even better, can I return the car and get my money back?"

No

and

No.

 

[paulpannu]

Is there anything that I can do? Do you have any advice?

-Paul

 

[rmet4nzkx]

Take it to a mechanic and find out what is wrong with YOUR vehicle and don't drive it and make the problem worse
Before you take it to the mechanic, be sure to check all your fluid levels.

 

[paulpannu]

Thanks for the response.

I see that there is a strong focus on this problem being mine now, and not the seller's.

Even though I haven't signed anything, it sounds like I'm stuck with the issue.

Can someone tell me at which point the vehicle (and potential problems, like smog) becomes mine?

Is it at the time when money exchanges hands? When the car is delivered? When the title is signed over?

-Paul

 

[seniorjudge]

Can someone tell me at which point the vehicle (and potential problems, like smog) becomes mine?

Yes, at your step one:

"1. I bought a car from a private party...."

 

[rmet4nzkx]

When they sold you the vehicle, they no doubt filed the DMV document showing they transferred the vehicle to you, you in turn have so many days in which to register YOUR vehicle. While they are required to smog the vehicle, you accepted the vehicle without that, and with the knowledge that it was required of the seller, thus you are estopped under Ca EC 623 by your own conduct re the sales contract from contradicting that in any future litigation.
What did your mechanic say about the condition of the vehicle before you bought it, when you had it inspected?

 

[paulpannu]

Okay... I got it. Again, thanks for the replies.

I just got off the phone with an attorney and here's what he said...

Because the seller presented the car in a smog passable condition, she is responsible that it pass smog. She may not have to pay for the smog itself, but if there are repairs involved, she may be obligated to pay for those. If she does not pay for the repairs, I can take her to court.

I asked the attorney about "caveat emptor" (i.e., buyer beware) in this case... he said it would not apply because of the smog aspect.

Any thoughts on this? Am I missing any details or loop holes that you can think about?

-Paul

 

[divgradcurl]

Paul,

your attorney was right, the other posters are wrong. From the CA DMV website:

"When a car is sold, who is responsible for the inspection?

The seller is required to provide the buyer with a valid smog inspection certification at the time of the sale or transfer. Smog certifications are good for 90 days from the date of issuance.

The inspection is not required on a transfer if a biennial smog certification was submitted to DMV within 90 days prior to the vehicle transfer date (a vehicle inspection report may be required for proof of certification).

Note: Starting January 1, 2005, smog certifications will not be required for transfers that occur for any motor vehicle that is four or less model years old. A smog transfer fee will be collected from the new owner. "

Can I "force" her to get it smogged and pay for the needed repairs?

Yes, as long as the "needed repairs are ones required to get the car to pass smog. You may have to sue her in court. If she is being not responsive, it might be easier for you to pay to have the car repaired and smogged, then pursue her for reimbursement -- otherwise the car will sit, unregistered, for who knows how long...

Or even better, can I return the car and get my money back?

No. Not having a smog check does not void the contract -- what if you were taking the car to another state? The smog requirements are registration requirements in CA, and are seperate from the purchase contract.

Caveat emptor applies for any and all other things that you find wrong with the car that you should have checked BEFORE plunking your money down -- but in CA, there is this narrow exception for repairs that need to be made in order for the car to pass smog.

thus you are estopped under Ca EC 623 by your own conduct re the sales contract from contradicting that in any future litigation

What does this have to do with anything?

 

[Michigan Lady]

Car Trouble-Food for Thought

Sounds like to me, "check engine" light is on because car is not ideling properly (you mentioned car is shaking). Have a mechanic check wires (if you have no knowledge of), may need new ones, and the distributor cap to see if it's cracked and allowing moisture to enter, also "computer" can be reset so the check engine light goes off, mechanic needs to do that. (I know this is a legal forum, but I do have a little backround in car mechanics and my son is a mechanic). Before I buy a USED car from ANYONE, I first take it to a mechanic to have them put it on a scope to test for trouble. If the seller will not allow that to be done, I pass!. Even though you incur the cost of a scope check, (usually less than $100.00) you're better safe than sorry, it can save alot of expense and headaches in the long run. I WOULD GET THAT DONE A.S.A.P.!, (that test might also determine if the darn thing will pass smog emissions, ask the mechanic). If you have no recourse to return the car, have to fix it to drive it, and if the person who sold you the car refuses to pay for the repair bill after you present them to him/her, (make sure you make her a copy, keep original for yourself, I would even ask her to pay for scope check), take your scope test (mechanic can print it) and a mechanics written report, if you can obtain one, and trot yourself to Small Claims court, (of course assuming what amount you're trying to recover and the jurisdiction of the court in the area you are), and sue her A.S.A.P. I believe "Judge Judy" is in California, perhaps she could help......

 

[rmet4nzkx]

Paul,

your attorney was right, the other posters are wrong. From the CA DMV website:

"When a car is sold, who is responsible for the inspection?

The seller is required to provide the buyer with a valid smog inspection certification at the time of the sale or transfer. Smog certifications are good for 90 days from the date of issuance.

The inspection is not required on a transfer if a biennial smog certification was submitted to DMV within 90 days prior to the vehicle transfer date (a vehicle inspection report may be required for proof of certification).

Note: Starting January 1, 2005, smog certifications will not be required for transfers that occur for any motor vehicle that is four or less model years old. A smog transfer fee will be collected from the new owner. "



Yes, as long as the "needed repairs are ones required to get the car to pass smog. You may have to sue her in court. If she is being not responsive, it might be easier for you to pay to have the car repaired and smogged, then pursue her for reimbursement -- otherwise the car will sit, unregistered, for who knows how long...



No. Not having a smog check does not void the contract -- what if you were taking the car to another state? The smog requirements are registration requirements in CA, and are seperate from the purchase contract.

Caveat emptor applies for any and all other things that you find wrong with the car that you should have checked BEFORE plunking your money down -- but in CA, there is this narrow exception for repairs that need to be made in order for the car to pass smog.



What does this have to do with anything?

#3 of OP's post has a lot to do with how all of this goes into play, by taking possession of the car confirms the agreement with the seller to get the car smoged and bill her. OP still gave them the money for the sale, did OP take the car to a mechanic before the sale? OP should not have given the seller the car or taken possession if they didn't agree, no doubt, things he forgot to tell the attorney.

Now have you taken the car to a mechanic and discovered the cause of the engine light coming on? Have you taken the car to be smoged?

 

[divgradcurl]

#3 of OP's post has a lot to do with how all of this goes into play, by taking possession of the car confirms the agreement with the seller to get the car smoged and bill her. OP still gave them the money for the sale, did OP take the car to a mechanic before the sale? OP should not have given the seller the car or taken possession if they didn't agree, no doubt, things he forgot to tell the attorney.

But none of this changes the facts that in CALIFORNIA the seller is ALWAYS responsible for getting the car smogged, and remains responsible even when the parties do things that would, in other states, give rise to "caveat emptor," or otherwise shift the responsibility of the smog check to the buyer.

 

[rmet4nzkx]

But none of this changes the facts that in CALIFORNIA the seller is ALWAYS responsible for getting the car smogged, and remains responsible even when the parties do things that would, in other states, give rise to "caveat emptor," or otherwise shift the responsibility of the smog check to the buyer.

However they came to a different agreement and are bound to that by ec 623, OP didn't get the car checked by a mechanic before paying for and taking possession of the car and knew it still had to be smoged, he waived that and should have gone and got the car smoged as agreed, instead, then came up with the excuse that the car didn't run well after he took possession, he didn't need to take possession of the vehicle at all since he knew it had not been smoged. Maybe OP was scamming the original owner? They have not come back to answer the questions.

 

[divgradcurl]

However they came to a different agreement and are bound to that by ec 623, OP didn't get the car checked by a mechanic before paying for and taking possession of the car and knew it still had to be smoged, he waived that

You are missing the point -- in CA, you CANNOT waive the seller's smog requirements, period. Sure, a buyer may agree to take the car as is, and smog it himself, but that does NOT relieve the seller of responsibility if the buyer then decides no to live up to his agreement.

From the CA bureau of automotive repairs website:

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

A: 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. There is no provision in the law to sell a vehicle "as is."

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

A: 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 Small Claims Court to recover your costs. Although the law clearly supports the buyer, collecting on a small claims judgment can be difficult, so 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."

What may be true in other states is not true in California, at least for smog certificates.

From smogtips.com:

"1. I am buying a vehicle, do I need a smog check?

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. There is no provision in the law to sell a vehicle "as is." Therefore the seller is always responsible for the smog certificate even if they mention the car is sold "as-is" because the law doesn't recognize the "as-is" policy. If you are buying a vehicle, make sure to ask the seller for a smog certificate. You will not be able to register your vehicle without it. A California smog certificiate is valid for 90 days. "

They have not come back to answer the questions.

That's because they got the CORRECT answer on the 28th... Further, any "questions" posed by the forum are irrelevant to this case.

 

[rmet4nzkx]

There are two issues, the DMV issue and a contract issue, OP made a contract to take and smog the car so that the owner could fullfil the DMV requirement, OP has not fulfilled his part of that contract. OP took possesion of the vehicle in order to smog the car so the transfer could be finalized, OP then reniged on his contract to smog the vehicle at the sellers expense, which is a separate issue from being the buyer. There is nothing in the law that prevents the seller from asking someone to take the car to be smoged for them so they can fullfil the DMV requirement, OP agreed to do that and then renigged saying that he didn't believe that they would pay for the repairs, possibly because the car was running ok prior to the transfer and something happened while OP had the car before they took it out to be smogged, it has nothing to do with "as is", more likely that the buyer damaged the car before it could be smoged and they are hoping to weasel out of it on a technicality.

Many years ago, I gave a car in good running condition to a needy person at church, they went to the local car wash and washed the engine off, couldn't start it, flooded it and blew the intake manifold off! who's fault was that, not mine? It took a lot of work before it could be smoged.