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-   -   Broker ethics question (http://www.sailnet.com/forums/boat-review-purchase-forum/30124-broker-ethics-question.html)

I33 03-10-2007 07:27 AM

Broker ethics question
 
I've never run into this before, have any of you?

I made an offer on a boat "subject to satisfactory survey." When I was arranging for the survey and proposed the name of a well-known accredited and thorough surveyor, the broker said "I won't work with him." This immediately raised a flag in my mind that maybe there is something about this boat he is trying to hide.

I believe that since I am paying for the survey the choice of surveyor is MINE.

sailingdog 03-10-2007 07:38 AM

Hmmm.. broker and ethics in the same sentence without a negative... sounds like a contradiction to me.

Actually, if the well-known and accredited surveyor is very competent and well respected in the region...a broker who won't work with him should raise some warning flags. As the buyer, you should have the choice of surveyor, and if the boat broker is unwilling to use the surveyor of your choice... I would do two things...

First, find out what reasons the broker has for refusing to work with the surveyor. He may have valid, if irrelevant reasons for doing so... maybe the guy was his sister's ex-husband and beat her like a mule every weekend... Before jumping to conclusions, it might be better to find out what is really going on.

If the reasons are professional... you will really want to find out what is going on and see what others say about the surveyor. Maybe the surveyor is the problem.... some brokers won't work with incompetent surveyors... sounds unusual, but still a possibility. The last possibility is that the broker is trying to hide something and knows the guy is too good and will catch whatever he is trying to hide.

Second, talk to the owner of the boat and tell them what is going on. It is probably a conflict of interest for the broker to not work with a prospective buyer's surveyor, especially if the surveyor is well known and respected. Of course, if the surveyor is generally regarded as incompetent... that's a totally different story.

If your due diligence says the surveyor is on the up-and-up, and the broker can't give you a good reason for the refusal... I would bail on the deal... and tell the owner exactly why you are bailing on the deal. It seems to me that a broker who interferes with the possible sale of a boat they are representing is not working in the best interests of the boat owner.

PBzeer 03-10-2007 07:38 AM

Yes Gil, you are paying for the survey, and the choice of the surveryor is yours. You might check with the surveyor and see what kind of dealings he has had with that broker and/or firm.

I33 03-10-2007 08:01 AM

Broker vs Surveyor
 
I have known this surveyor and have hired him on more than one occasion. I did due diligence before I selected him. I was told he was competent and thorough and my experience with him confirms that. I was told that *Buyers love him and brokers hate him*. I asked the broker why he did not like my man and he would not say except to say he would not work with him. I called the surveyor and he was well aware of the situation. Some of his survey clients walked away after he found defects in some of the broker's listings. This is probably the real reason for the rejection. In my mind it is unethical.

SD: I like the reply about broker and ethical in the same sentence being a contradiction. :-)
(Apologies to the few honest brokers out there)

I do plan to contact the owners and appraise them of the situation. This guy's actions could spike a potential sale, and I don't think the owners would appreciate that.

Sailormann 03-10-2007 09:10 AM

Broker has no grounds for his actions, even if there is a personal issue between him and the surveyor.

I'd talk to the owner, and if the broker starts to get too squirly I'd let the Yacht Brokers Association of America or Ontario Yacht Brokers Association (depending on where you are) know.

Did you check to see if the broker is a member of the regional governing association ?

Sailormon6 03-10-2007 09:59 AM

Quote:

Originally Posted by I33
I do plan to contact the owners and appraise them of the situation. This guy's actions could spike a potential sale, and I don't think the owners would appreciate that.

Gil, based on what the broker said, I don't see any factual basis for accusing him of being unethical. (He might be unethical, but you can't prove it.) If you talk to the seller, you should definitely not make a defamatory statement about the broker that you can't prove conclusively.

I doubt that anything good would be accomplished by discussing it with the owner, but there's a real risk of adverse consequences. For example, suppose the seller gets angry and fires the broker, and tells him he's firing him because you said he was unethical (even though you might not have actually said that). By paraphrasing what you said, the seller could very easily cause you to get sued by the broker for defamation. You can't control the way the seller reacts to the information that you provide him. You might ultimately prevail in the lawsuit (or not), but even if you win, you'll still have to spend thousands of dollars for attorney's fees and related court costs to defend yourself. The brokerage, on the other hand, might very well have an attorney on retainer, and the cost to the broker might be nominal. You might get some satisfaction out of blowing the whistle on the broker, and you might do the seller a favor in doing so, but is that worth the considerable risk to you in stirring up a hornet's nest?

I have a long standing policy to never deal with a skunk. If I have serious reservations about the trustworthiness of anyone involved in a deal, I'll walk away from the deal. Business transactions are risky enough without having to worry about whether someone is trying to hide something from you, or stab you in the back. If you're hearing a little voice that is telling you to be very careful in dealing with this broker, it's probably best to listen to your little voice.

Sailormann 03-10-2007 10:38 AM

You can walk away and not do anything because you are afraid that the brokerage is going to spend money suing you, and let a whole bunch of less knowledgeable folk get screwed by a potentially unethical broker, or you can the right thing.

Unless you are talking about a boat worth several hundred thousand dollars, the broker is not going to sue you. And if you are buying a boat worth several hundred thousand, then the broker is not going to sue you either, because the negative consequences of you telling all your friends about it is going to negate any possible gain. There are not a lot of people who buy expensive boats out there.

Grow a pair and do the right thing. If the broker has a lawyer on retainer, all that gets him is advice and the first letter free. After that he is shelling out hundreds an hour to try to prove that you said bad things about him to a client.

If you contact the client and tell the client that you have a surveyor that you prefer to use, and that the broker refuses to work with that surveyor, you are not defaming the broker...you are stating facts. That does not consitute a tort anywhere.

If the broker still decides to pursue the issue, unless you spend considerable time and money telling the boat-buying public things about him that are not actual facts, then the most he can TRY to do is go after you for is his actual loss...which might be ten percent of the selling price, but also might be nothing.

He has to be able prove that he would have sold the boat to someone else either before, or very shortly after you spoke to the client, and that because you spoke to the client, and because you told the client things that were slanderous, or outright lies, he was unable to sell the boat to the other party.

So unless the guy has another offer waiting right now, and unless you do something other than explain the situation to the owner, you are in the clear.

About time that people stop cowering because someone might try beating them into submission with a large bankbook.

camaraderie 03-10-2007 10:47 AM

I fail to see WHAT the issue is. You have a written contract with the owner. You have the right to your own surveyor. The boat broker does not have to work with anyone. He or the owner must simply make the boat available for survey as per the contract. Simply advise him in writing of your intent to have the boat surveyed on "X" date with a copy to the owner and ask him to advise you if there are any problems in having the boat available/ready for inspection on that date.

I am looking at a standard broker sales agreement as I write this and it simply says:
The buyer may have the yacht surveyed at his expense.....the seller agrees that the buyer or his agents may examine the yacht and inventory in a non-destructive manner...the seller may stipulate the boatyard he is willing to have the yacht hauled for survey. The seller agrees that ....delivery to the boatyard is at sellers sole risk and expense. The buyer agrees that the SURVEYOR SHALL BE EMPLOYED BY THE BUYER AND THE BROKERS ARE NOT RESPONSIBLE FOR.....blah,blahblah.

Furthermore...the seller's failure to deliver the yacht in accordance with the terms of the contract usually lets you use the arbitration clause of the contract.

I would put the pressure on the broker and do so in writing with a copy to the owner....and YES...I would be most concerned about the true condition of this boat. Maybe CardiacPaul can shed some additional light on this situation from a surveyors perspective. You might want to PM him.

capttb 03-10-2007 11:07 AM

Say What?
 
Cam is right on the money, don't know what would make a broker think he had the option of not "working" with your surveyor.

Valdare 03-10-2007 11:39 AM

I had an experience with my current boat where I knew the broker (bought two other boats from him) and their was a competent surveyor that they bared from the marina. This surveyor was also commonly employed by an major insurance company, so his "surveyor credentials" were not in question.
There was an offer on my present boat and the potential buyer forced the yard to let this surveyor perform the survey. When all was said and done, the surveyor did his "normal" thing and supposedly found many items that eventually killed the deal. When I made my offer I had a surveyor who was familiar with the boat and also the "other" surveyor. My broker shared with us the outcome of the previous inspection and the issues. My surveyor paid particular attention to them while he completed his survey. His familiarity with the boat model however allowed him to explain to me why the other surveyor was incorrect in his concerns. In the final analysis the boat was pronounced sound, I purchased it and have been happy for the past 5 years.

My surveyor hinted that the surveyor in question killed allot of very good deals through out the area. Some because he thought his job was to find as many things wrong with the boat as to impress his customer and offer areas of renegotiation (which is a half truism). Some areas he would voice concerns saying a "possible major problems" with little or no experience to back up his promise of doom. Further investigation seemed to prove that this surveyor was never happy with a boat over a certain age and under a certain price, therefore he was bared from the marina, and as my broker latter confesses it was to save the customer the cost of a survey that they new no matter the condition of the boat, the buyer would end up with more doubts then were necessary. My broker even offered to pay for a second survey for the potential buyer of my boat to prove the boats worthiness but by then there were so many questions the deal die. Thank goodness.

My advise is, if you trust the broker find out his concerns.. if you don't and you really want the boat your surveying plan on a second survey. therefore if the first does have issues you can confirm them.

Like others have said if you don't trust someone in the deal... probably better to walk away.

I think your broker was at least honest to say out right he would not deal with this surveyor. He could have just made it inconvenient and tried to steer you to another.

Good Luck


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