Who owns faulty goods after Section 75 claim

[DDhelp]

I would be grateful for advice on the following -

I am making a claim against First Direct Visa and a fitted kitchen supplier under section 75 for shoddy workmanship in fitting worktops, which is suported by the manufacturer of the work tops (they have emailed me their thoughts on images of the finished product).

The question is -if I am successful in my claim then who owns the worktops?

I ask this because the fitter threatened to come round and remove them on Christmas Eve as the company hadn't paid him. I am under the impression that they could claim them back but would have to restore the kitchen to its original state.

Thanks

[teaboy2]

Re: Who owns faulty goods after Section 75 claim

Ummm from the details you have given so far i assume your refering to section 75 consumer credit act 1974. Which would mean you have been reimbursed the cost of the kitchen by the credit company and the credit company is seeking refund from the supplier of the kitchen. The goods will still belong to the supplier as a result. But you are protected by warranty of contract and the sales of goods act 1979 i.e. if supplier fails to rectify the defects then they are in breach of contract warranty. Plus there will be the issue of damage done to your home, so if the workman does return to rip out the goods he would be committing criminal damage as he is ultimately responsible for the poor workmanship and is no doubt in breach of the contract to provide services to the supplier of the goods (if hes a self employed workman) If, hes an employee of the supplier then the supplier is ultimately responsible under contract to yourself.

Either way regardless of whether the workman is self employed or an employee of the supplier, the supplier is contractually bound to insure all defects are corrected. Not only that the workman would not have any rights to the goods whether self employed or an employee of the supplier either- So if he did remove then its not only criminal damage but also theft too, and if he removed them as an employee with the suppliers authorisation then not only is it criminal damage, but also a complete breach of contract for which the supplier is liable for both.

Have you actually spoke to the supplier of the kitchen (i.e. company you purchased it from)?

Was the workman employed by supplier or self employed or from a company contracted by the supplier to fit the kitchen?

[DDhelp]

Thanks for your response, Yes, I am referring to section 75 consumer credit act 1974 but have only just sent my letter to Visa with supporting evidence – photos, brochure images, and email from manufacturer confirming that the shoddy workmanship.

]I contacted the supplier by email and phone on Dec 18th (the day after installation, they came to the house to see for themselves the same day. Despite promising to resolve the situation they have done nothing and I have made calls and sent emails. The last promise was to arrange a meeting week commencing Jan 3rd but still nothing. I know that they have been in contact with the manufacturer last week and they were told that it is the worst installation that they have seen.

The fitter isn’t an employee but luckily they invoiced me for his time – therefore they are liable. You refer to warranty of contract and criminal damage, are these specific references in the sale of goods act?

Images from the installation are here http://photobucket.com/360kitchens

Thanks for your help

[teaboy2]

Re: Who owns faulty goods after Section 75 claim

HI DDhelp

So the Fitter invoiced you personally or the supplier invoiced you for the fitter?

THe Sales of goods act 1979 guarantees your rights under warranty of sales and services contract, which is basically what your purchase is, a contract to buy where the supplier supplies and installs (or arranges to installation of the goods). Heres a link to the full Act, have a read through it all and you will get a full understanding of your rights under such sales contracts - Sale of Goods Act 1979

The criminal damage i mentioned doesn't fall under the sales of goods act par se, though your right to warranty would mean they are NOT allowed to rip it out without replacing it to a satisfactory standard. Criminal damage i referred to would be the forceful removal of goods leaving you without a kitchen with the supplier still in breach of the sales contract.

You should inform the supplier that the fitter had threaten to rip out the kitchen if you did not pay him since he had not been paid by the supplier for fitting it. And the contract between the self employed fitter and the supplier is the only legal course of actin the self employed fitter can take, but his poor workmanship means the self employed fitter would himself be in breach of the contract he has to provide such service to the supplier, as such the supplier is entitled to withold payment to cover their costs.

If you hear anything more from the fitter, keep a record or time and date and what was stated, and on each occasion inform him his dispute is a contractual dispute between him and the supplier and is nothing to do with you. Also inform him if he carries out his threat to rip out the kitchen you will sue him for not only criminal damage, breaking and entering, but also tort of trespass, as you revoke any implied license he has to visit your porperty, and you will also sue him for breach of the protection from harassment act 1997 if he continues to communicate with you in a threatening or uncivilised manner.

P.s. looking at those pictures its clear the fitter is not a professional, the joints are shuddy, the ends of the worktop you can clearly see the form sealent used to attach the ends (though i thought the ends would be complete with the work top and not seperate and needing to be affixed during assembly) the units clearly do sit properly, i.e. cap between them and the floor, the cabint door joint is more or less the same as the rest, and the finish on the worktop is horrendous. Notices a lot of scratches to the work surfaces and panels too. As for the state of the door, well they should have fixed that, same for removal of all rubbish. Clearly the fitter was a rogue.

[teaboy2]

Re: Who owns faulty goods after Section 75 claim

Just a quick post to inform readers a small typo made by me in my post above "they are now allowed to rip it out" Has been corrected to correctly state "they are NOT allowed to rip it out" as per i had originally intented to state. Don't know why i hit the w key instead of the t key but have done it a number of times lately when spelling the same word.

Anyway sorry for any confusion there DDhelp, and thanks charitynjw for PMing to let me know.

[DDhelp]

Re: Who owns faulty goods after Section 75 claim

Thanks for your very helpful advice Teaboy2.

I am going down the section 75 route although bizarrely First Direct and Consumer Direct said that we should have got the supplier to remove the worktops straight away. I thought that we had to show that we had given the opportunity to rectify the issues (which we have done) but they haven't made any offer or suggestion other than allowing the fitter to remedy his mistakes!! I think not.

I thank my lucky stars that the supplier invoiced for fitting rather than having to deal direct with the fitter.

[teaboy2]

Re: Who owns faulty goods after Section 75 claim

I fail to see the point behind first direct and consumer directs statement that you should have got the supplier to remove the worktops straight away. As i fail to see how that would help unless the supplier had an immediate replacement to be put in place on the removed worktops. If anything, removing them would prejudice you as it would have left you without a kitchen and put you at a disadvantage. As then the supplier would have control over the situation meaning they could well decide to not fit replacement work tops for weeks possibly even months whilst the dispute is dealt with.

Since you have the worktops still installed, atleast you have something along the lines of what is known as a kitchen, and have more control over the supplier as to when they fit a replacement. Personally i would add to the preassure by invited trading standards round to view your kitchen.

[DDhelp]

Re: Who owns faulty goods after Section 75 claim

An update on this case for which I would be grateful for advice –
We wrote to First Direct Visa with a section 75 claim, including evidence and original invoice.
The bank are refusing to progress the claim as the invoice is in my name and not my wife’s name and it is her credit card. My wife is registered at the invoiced address (where the kitchen was installed) and the bank have this as her registered address. She is also on the electoral roll at this address.
Any thoughts on where to go with this? I have been onto the Financial Ombudsman but they think that this is a grey area and we might not have a claim – I am amazed at this.
Should we query how the card was authorised by the kitchen company then? As I gave them the visa details over the phone.
Any help – suggestions welcome.
Thanks

[charitynjw]

Re: Who owns faulty goods after Section 75 claim

You could try this

http://www.brookman.co.uk/news/39/1

Who has the legal right over jewellery purchased as a 'gift'?


(09 Apr 2011)

Henry Brookman provides the answer to a Financial Times’ `Wealth Question’ regarding who ultimately owns jewellery that has been purchased by a spouse for their partner.

A brief history

Dating back to before the 1870 Married Women’s Property Act, the presumption was that jewellery purchased by the husband had been lent to the wife "for the decoration of her person" and therefore was not hers to own. However, in more recent years, the Married Women’s Property Act was superseded by the legal presumption of advancement. This considered a purchase (for instance, from husband to wife) be the property of the wife unless the husband could provide sufficient evidence that the purchase was not a gift. For instance, simply saying that the purchase was for investment rather than as a permanent gift would not be considered sufficient evidence.

The presumption of advancement - extended to civil partnerships

In 2004 the presumption of advancement was extended to civil partners in the Civil Partnership Act. This meant that civil partners could also quite safely assume that jewellery purchased for them as a gift would remain their property if the relationship subsequently broke down. The partner who made the purchase would have to provide evidence dating back to the original purchase date to prove that the purchase was not a gift but was intended to remain their property.

New rules: The 2010 Equality Act

On 1st October 2010 the presumption of advancement was abolished by the Equality Act. Whilst purchases made prior to this date are not affected by the new rules, any purchases made as ’gifts’ after this date will be considered differently. Now, a judge will review all the evidence surrounding the purchase and typically, the assumption will be that the person who made the purchase will ultimately benefit from it. Therefore, unless the wife or partner who received the ’gift’ could in fact prove that a gift was intended, the husband could argue that the purchase had only been loaned. In particular, an item that is an heirloom from the husband’s family will now be easier to recover from the wife or partner.
It is also worth noting that these purchases will not be limited to jewellery. For instance, the husband’s name on the invoice for a new watch or his name as the registered keeper for his wife’s car could well be sufficient proof of ownership.

BUT PLEASE TAKE FURTHER LEGAL ADVICE ON THIS!!!

[CleverClogs]

Re: Who owns faulty goods after Section 75 claim

Just a quick post to inform readers a small typo made by me in my post above "they are now allowed to rip it out" Has been corrected to correctly state "they are NOT allowed to rip it out" as per i had originally intented to state. Don't know why i hit the w key instead of the t key but have done it a number of times lately when spelling the same word.

Did it leave you feeling a bit of a wit?

[mystery1]

Re: Who owns faulty goods after Section 75 claim

It's not a grey area at all. Your wife paid. The invoice is not relevant unless there are allegations of fraudulent use.

Get your wife to write back and state that she paid for this to be done in her own home and as such section 75 applies. Any more nonsense and she'll submit a court claim.

Used section 75 once and was refused as i had bought a lot of 10 items for £400 and they said £40 each not covered. I wrote back saying it was 1 lot not 10 individual lots which were dearer and they relented.

M1

PS who owns the goods depends on what refund or compensation is agreed. If they fix, or pay to fix, then the goods are yours.

[DDhelp]

Re: Who owns faulty goods after Section 75 claim

Thanks for all the feedback so far.

Update - we wrote to First Direct Visa to make a section 75 claim for a ful refund of £1,800. After a lot of messing about they have offered £1,300 as full and final offer which they will pay half of and the supplier will process a refund for the other half.
Am i mistaken in thinking that they should pay the whole lot themselves? i dread to think how long it would take fot eh supplier to pay us (if ever).

Also, they asked us for an independent report on the worktops but a surveyor costs approx £250 + VAT and we don't want to waste more money on this. If we end up at the Financial Ombudsman will we end up having to do this anyway?
Thanks

[bluebottle]

Re: Who owns faulty goods after Section 75 claim

Ask First Direct Visa what's preventing them from arranging for an independent report. If they want a report, they should pay for it. If they won't, speak to Consumer Direct on 0845 4040506 and check the current situation with them.

[DDhelp]

Re: Who owns faulty goods after Section 75 claim

They say that it's our responsibility to prove that the fitter didn't use reasonable care and skill not theirs

We have an email from the manufacturer saying that the photographic evidence suggests that the installation wasn't carried out correctly but First Direct won't accept that

[CleverClogs]

Re: Who owns faulty goods after Section 75 claim

So tell FD that, if you get a report done, you will require to be reimbursed for that as well, and that they have two weeks from their receipt of the letter (sent by Recorded Delivery) to accept your terms or you will sue them and the supplier, jointly and severally, for the cost of the worktop, the cost of the report, the cost of the claim and all other reasonable associated costs,