Results 1 to 9 of 9
  1. #1
    Join Date
    Aug 2020
    Posts
    10

    Default Liability Concerns for Dpoa Who Sold a Boat That Might Have a Lien on It

    I'm DPOA for my father (age upper 70s, slipping rapidly)

    He paid for a boat in 2015 (despite my advice not to), bill of sale went to me because I was able to insure it much cheaper than he would have and I registered it in my name.

    He was member of a marina where he rented a slip and a yard space for this boat. He only used it a few times, and then about 2017 he cancelled his slip, and then stopped paying membership/yard rental. Since then the boat has sat in the marina yard.

    18 months ago I foresee a problem coming with him not paying membership/yard rental and I don't want any part of it, so he "buys" the boat from me. I send the bill of sale to the county tax collector, but he never registers the boat.

    He says he keeps getting bills for membership and yard space, but ignores them. Says they sometimes come registered mail. Adamantly says he never got a notice of service for anything.

    Eventually he asks me to sell the boat. I list the boat, meet buyer at the marina, collect the cash and sign the bill of sale for dad as his DPOA, later give money to dad, done deal. I message a person on the BOD for the marina and tell them the boat is sold and therefore it should be out of their way soon (unless they can recruit a new member!). He says wait...your dad owes $1500 in back fees, and they won't let the boat leave. I tell them that's between them and dad, but probably not legal for them to keep the new owner from picking up his new boat.

    Three days ago I mail the bill of sale to the county tax collector so they know not to bill dad for more taxes.

    Today new owner goes to get boat. Marina managers have put a chain/lock around boat. They meet the new owner and tell him they have a lien against the boat. They show him something on their smart-phone, but he can't tell what it is. He then calls me. I tell him that IF there is indeed a lien against the boat that I will make him right (I will pay off the lien), but he wasn't given any documentation. I doubt there is an actual lien on the boat, and if they filed for one then I suspect they filed it after I told them that the boat was sold.

    Occurred in Kansas (yes, Kansas has some nice lakes).

    I know Kansas has Mechanics Liens, and from my google-research it looks like anyone can fill out the form for a mechanics lien and send it to the district court (District Court 27 in this case if it matters), but they have to serve the debtor via registered mail before it is a valid lien. Dad is adamant he never received such a notice (he is slipping, but I don't think he is slipping that much).

    I called the person at the marina today but no answer.

    Questions for the experts:
    1) What is my liability for selling a boat as a DPOA that may have had a lien against it? If it does have a lien I was unaware of it (I did know my dad owed the marina some money, but didn't/don't know how much). While we don't have Warren Buffet's pockets, we have an umbrella policy for a reason, and want to ensure our liability is as low as possible.

    2). Is there another type of lien that could have been filed? Dr. Google tells me that Kansas allows for liens on boats/etc for arrears for support enforcement, but I don't see any other type of lien specified in the laws. I assume one could get a lien on just about anything to enforce a judgement, but there clearly hasn't been any previous judgement here.

    3). What would happen if they filed a mechanics lien AFTER being notified that the boat was sold? I think it would be easily provable since the bill of sale was not only dated 6 days ago (Saturday), but I mailed the bill of sale to the county tax collector on 3 days ago (Tuesday).

    4). Anything ELSE I should worry about?

    My PLAN was to get the boat out of the marina yard so they don't have to deal with it (abandoned boats are a huge problem for this marina) and then offer them some cash money in exchange for cancelling his debt. But the way they have handled this has kind of irritated me so I am open to rethinking that strategy.

    Thank you, in advance, for any advice given.

  2. #2
    Join Date
    Oct 2006
    Posts
    16,392

    Default Re: Liability Concerns for Dpoa Who Sold a Boat That Might Have a Lien on It

    Quote Quoting Boats
    View Post
    I'm DPOA for my father (age upper 70s, slipping rapidly)

    He paid for a boat in 2015 (despite my advice not to), bill of sale went to me because I was able to insure it much cheaper than he would have and I registered it in my name.

    He was member of a marina where he rented a slip and a yard space for this boat. He only used it a few times, and then about 2017 he cancelled his slip, and then stopped paying membership/yard rental. Since then the boat has sat in the marina yard.

    18 months ago I foresee a problem coming with him not paying membership/yard rental and I don't want any part of it, so he "buys" the boat from me. I send the bill of sale to the county tax collector, but he never registers the boat.

    He says he keeps getting bills for membership and yard space, but ignores them. Says they sometimes come registered mail. Adamantly says he never got a notice of service for anything.

    Eventually he asks me to sell the boat. I list the boat, meet buyer at the marina, collect the cash and sign the bill of sale for dad as his DPOA, later give money to dad, done deal. I message a person on the BOD for the marina and tell them the boat is sold and therefore it should be out of their way soon (unless they can recruit a new member!). He says wait...your dad owes $1500 in back fees, and they won't let the boat leave. I tell them that's between them and dad, but probably not legal for them to keep the new owner from picking up his new boat.

    Three days ago I mail the bill of sale to the county tax collector so they know not to bill dad for more taxes.

    Today new owner goes to get boat. Marina managers have put a chain/lock around boat. They meet the new owner and tell him they have a lien against the boat. They show him something on their smart-phone, but he can't tell what it is. He then calls me. I tell him that IF there is indeed a lien against the boat that I will make him right (I will pay off the lien), but he wasn't given any documentation. I doubt there is an actual lien on the boat, and if they filed for one then I suspect they filed it after I told them that the boat was sold.

    Occurred in Kansas (yes, Kansas has some nice lakes).

    I know Kansas has Mechanics Liens, and from my google-research it looks like anyone can fill out the form for a mechanics lien and send it to the district court (District Court 27 in this case if it matters), but they have to serve the debtor via registered mail before it is a valid lien. Dad is adamant he never received such a notice (he is slipping, but I don't think he is slipping that much).

    I called the person at the marina today but no answer.

    Questions for the experts:
    1) What is my liability for selling a boat as a DPOA that may have had a lien against it? If it does have a lien I was unaware of it (I did know my dad owed the marina some money, but didn't/don't know how much). While we don't have Warren Buffet's pockets, we have an umbrella policy for a reason, and want to ensure our liability is as low as possible.

    2). Is there another type of lien that could have been filed? Dr. Google tells me that Kansas allows for liens on boats/etc for arrears for support enforcement, but I don't see any other type of lien specified in the laws. I assume one could get a lien on just about anything to enforce a judgement, but there clearly hasn't been any previous judgement here.

    3). What would happen if they filed a mechanics lien AFTER being notified that the boat was sold? I think it would be easily provable since the bill of sale was not only dated 6 days ago (Saturday), but I mailed the bill of sale to the county tax collector on 3 days ago (Tuesday).

    4). Anything ELSE I should worry about?

    My PLAN was to get the boat out of the marina yard so they don't have to deal with it (abandoned boats are a huge problem for this marina) and then offer them some cash money in exchange for cancelling his debt. But the way they have handled this has kind of irritated me so I am open to rethinking that strategy.

    Thank you, in advance, for any advice given.
    The Marina needs to prove that they have a valid lien on the boat. Not via a smart phone app, but via an actual hard copy.

  3. #3
    Join Date
    Mar 2013
    Posts
    18,177

    Default Re: Liability Concerns for Dpoa Who Sold a Boat That Might Have a Lien on It

    Quote Quoting Boats
    View Post

    He says he keeps getting bills for membership and yard space, but ignores them. Says they sometimes come registered mail. Adamantly says he never got a notice of service for anything.
    That's BS. Refusing and ignoring mail doesn't mean he wasn't properly served notice. That notices were sent by registered mail implies that the marina owner is likely to be able to prove proper notice if it got to court.

    Quote Quoting Boats
    View Post

    I know Kansas has Mechanics Liens,
    You can toss anything you've learned about Mechanics liens. They apply statutorily to the construction industry. Here's the statute that applies to the boat in the marina.

    https://law.justia.com/codes/kansas/...ection-58-247/

    Which, by the way, says "Notice shall not be required to be given to an owner or to a lienholder of record who has prior notice or actual knowledge that such fees could be charged or imposed or were in fact being charged or imposed."

    The question of notice is now irrelevant.

    Quote Quoting Boats
    View Post

    1) What is my liability for selling a boat as a DPOA that may have had a lien against it? If it does have a lien I was unaware of it (I did know my dad owed the marina some money, but didn't/don't know how much). While we don't have Warren Buffet's pockets, we have an umbrella policy for a reason, and want to ensure our liability is as low as possible.
    Your liability is 100%. As POA you had a fiduciary duty to handle your father's affairs properly. Any mistakes on your part and you become responsible.

    Whether you were aware of a lien or not is irrelevant. Notice goes to whoever has the contract with the marina (even an oral contract, though I suspect there is something on paper). With all the back and forth of the ownership I doubt that the contract with the marina was ever changed. You ought to read your umbrella policy. Probably doesn't cover this kind of thing.

    Quote Quoting Boats
    View Post

    2). Is there another type of lien that could have been filed?
    See link to statute provided above.

    Quote Quoting Boats
    View Post

    3). What would happen if they filed a mechanics lien AFTER being notified that the boat was sold?
    Nothing. It doesn't matter who owns the boat, only that the boat is there and the fees haven't been paid.

    Quote Quoting Boats
    View Post

    4). Anything ELSE I should worry about?
    1 - You obviously are in breach of contract with your buyer. Your sale includes an implied warranty that he is able to take possession of the boat that he paid for. He can't do that until the fees are paid and the boat is released by the marina. You either give him his money back or you pay the fees to the marina so he can get the boat. He can refuse the refund and hold you to the sale contract.

    2 - Even if you give the buyer his money back you still have to address the fees. Whether the marina is illegally holding the boat hostage is for a judge to decide. Do you want to spend the money on litigation and end up having to pay the fees anyway or would you rather get this over with? Up to you.

    3 - You can certainly offer a lump sum discounted cash settlement and see how that goes but I don't see where you have any leverage.

  4. #4
    Join Date
    Aug 2020
    Posts
    10

    Default Re: Liability Concerns for Dpoa Who Sold a Boat That Might Have a Lien on It

    I have posted two lengthy replies to this, both times I replied it said that the replies had to be reviewed by a moderator. At top of page I see that there are 5 posts here, but I only see my original post and then IIWorking and AdjustorJack's replies.

  5. #5
    Join Date
    Oct 2006
    Posts
    16,392

    Default Re: Liability Concerns for Dpoa Who Sold a Boat That Might Have a Lien on It

    Quote Quoting Boats
    View Post
    I have posted two lengthy replies to this, both times I replied it said that the replies had to be reviewed by a moderator. At top of page I see that there are 5 posts here, but I only see my original post and then IIWorking and AdjustorJack's replies.
    You had to have put something in your reply that requires moderation. Either too much identifying information or a link or bad language, or something else against the TOS. I cannot see any more posts than you can at this point either. Unfortunately the forum is not actively moderated right now, so you might want try to figure out what you posted, that is against the TOS, and repost without it.

  6. #6
    Join Date
    Aug 2020
    Posts
    10

    Default Re: Liability Concerns for Dpoa Who Sold a Boat That Might Have a Lien on It

    Weird. No links or foul language. I guess I will just try to partition it out.

    Quote Quoting adjusterjack
    View Post
    That's BS. Refusing and ignoring mail doesn't mean he wasn't properly served notice. That notices were sent by registered mail implies that the marina owner is likely to be able to prove proper notice if it got to court.
    If there was no notice of lien sent, then he wasn't properly served one.

    Quote Quoting adjusterjack
    View Post
    You can toss anything you've learned about Mechanics liens. They apply statutorily to the construction industry. Here's the statute that applies to the boat in the marina.

    Which, by the way, says "Notice shall not be required to be given to an owner or to a lienholder of record who has prior notice or actual knowledge that such fees could be charged or imposed or were in fact being charged or imposed."

    The question of notice is now irrelevant.
    Mechanics liens can also apply to vehicles, but has to be for work done ON vehicles. I read where it specifically stated even work done on parts of vehicles like tires can result in mechanics liens.

    However I concur it wouldn't apply here. I called the District Court yesterday morning and they confirmed no mechanics lien, and agreed that it wouldn't be appropriate for this case.

    Thank you for the link to 58-247. However I don't think this applies here. "Whenever any person, while lawfully in possession of a vehicle, renders any service or otherwise charges a fee for the protection, storage or safekeeping of such vehicle and....". Seems this is more geared toward tow companies to take lawful possession of a vehicle and put it in their impound yard, and then can put a lien against it after 30 days. The marina was never "lawfully in possession" of the boat.

    Quote Quoting adjusterjack
    View Post
    Whether you were aware of a lien or not is irrelevant. Notice goes to whoever has the contract with the marina (even an oral contract, though I suspect there is something on paper). With all the back and forth of the ownership I doubt that the contract with the marina was ever changed. You ought to read your umbrella policy. Probably doesn't cover this kind of thing.
    The marina never knew of any back and forth of ownership, the always listed the boat as dads, and it was his membership/slip/yard space, so I think this is irrelevant. And he was never served notice of a lien.

    Quote Quoting adjusterjack
    View Post
    Nothing. It doesn't matter who owns the boat, only that the boat is there and the fees haven't been paid.
    I disagree. If you can establish ownership of personal property then it is YOURS. In this case, the boat was dads, and that is a separate issue from his debt to the marina. As a landlord I cannot keep someone's personal property in their apartment simply because they are past due on the rent. Even after giving them lawful notice and evicting them, if they want to come back for their personal property I have to accommodate them. I even have to safely STORE their property for 30 days until I can dispose of it. Then, as a completely separate issue, I take them to small claims court for a judgement on the arrears, and THEN try to collect.

    Quote Quoting adjusterjack
    View Post
    1 - You obviously are in breach of contract with your buyer. Your sale includes an implied warranty that he is able to take possession of the boat that he paid for. He can't do that until the fees are paid and the boat is released by the marina. You either give him his money back or you pay the fees to the marina so he can get the boat. He can refuse the refund and hold you to the sale contract.
    I don't think that is obvious at all. I think I would be in breach of contract if the marina was LAWFULLY preventing him from taking possession of the boat (as in they have a lien). I don't think that was the case here.

    Quote Quoting adjusterjack
    View Post
    3 - You can certainly offer a lump sum discounted cash settlement and see how that goes but I don't see where you have any leverage.
    In this case I have quite a bit of leverage. The marina has a huge problem with abandoned boats sitting in the yard, and it apparently takes 3 years of no replies from the owners before they can have these boats declared abandoned and they take ownership (which means the can then scrap them which can be expensive). This boat has little value, would cost a lot to scrap, plus this interaction would reset the 3 year clock for abandonment.

    I really thought I was doing everyone a favor by selling it and getting it out of their yard!

    Update: Finally got in contact with the marina. There is NO lien on the boat, they claim that the new owner misunderstood what they said. Their legal counsel told them "they have some rights or claim to the boat" due to the arrears. I said thank you, I will tell the buyer that it is his boat.

    Then I negotiated dad's arrears down by 65%. They had continued to charge him slip fees and membership fees for a year that he never used. We agreed to pay for the yard space rental and mowing fees. Hopefully that is a win/win for everyone!

  7. #7
    Join Date
    Mar 2013
    Posts
    18,177

    Default Re: Liability Concerns for Dpoa Who Sold a Boat That Might Have a Lien on It

    Quote Quoting Boats
    View Post


    Update: Finally got in contact with the marina. There is NO lien on the boat, they claim that the new owner misunderstood what they said. Their legal counsel told them "they have some rights or claim to the boat" due to the arrears. I said thank you, I will tell the buyer that it is his boat.

    Then I negotiated dad's arrears down by 65%. They had continued to charge him slip fees and membership fees for a year that he never used. We agreed to pay for the yard space rental and mowing fees. Hopefully that is a win/win for everyone!
    I'm glad you got this resolved.

    1. Sponsored Links
       

Similar Threads

  1. Loan Agreements: Boat Buyer Defaulted on Loan and then Registered and Sold the Boat
    By Laferriere in forum Debts and Collections
    Replies: 5
    Last Post: 12-20-2012, 06:52 PM
  2. Breaking a Lease: Liability For Rent After Moving Over Safety Concerns
    By Connor.onorio in forum Landlord-Tenant Law
    Replies: 2
    Last Post: 03-10-2012, 10:38 AM
  3. Lien on a Boat
    By sgianni in forum Personal Property
    Replies: 1
    Last Post: 04-06-2011, 10:35 PM
  4. Private Sales: Agreed to Purchase a Boat by Email, but Seller Sold to Someone Else
    By moltra in forum Consumer Law
    Replies: 1
    Last Post: 02-20-2010, 10:01 AM
  5. Private Sales: Sold a Boat, Buyer Claims Problems And Wants A Refund
    By jgetz in forum Consumer Law
    Replies: 1
    Last Post: 07-26-2007, 02:34 PM
 
 
Sponsored Links

Legal Help, Information and Resources