Lemon Law Question?
When you first purchased or leased your motor vehicle from a car dealer, did it come with a warranty, such as a warranty booklet, or were promises made by the dealership? If the answer is yes, you have rights under the lemon laws. For example, you have the right to have the manufacturer or dealer repair the defects, so the vehicle operates as promised within a reasonable number of repair attempts. Also, under the California Song-Beverly Consumer Warranty Act, if the vehicle cannot be repaired to conform to the warranties, then the seller or manufacturer would be required by buy back a defective vehicle, pay off the outstanding loan or lease, and compensate for the consumer’s (or small business) attorney’s fees, costs and expenses.
Some people think about selling their vehicle to a private party or trading in at a dealership for another vehicle. Assuming that the dealer gives you a fair amount for the trade in, is the vehicle still upside down in the financing? If so, then to the owner must payoff the negative equity at the time of doing the trade in. If the dealer requires an positive down payment, additional funds will be required for that. Thus, selling or trading in a defective motor vehicle will usually mean having to pay a large amount to the dealership.
Wouldn’t it be nice to have your vehicle financing paid off and a check in your hand for the payments made, so that you can start afresh with another vehicle? If the evidence shows that the vehicle is defective, the defect(s) is/are material, and the repair attempts did not reasonably cure the concern, then a lemon law buy-back would likely be the end result. Of course, that result depends on the facts of each case and results will differ for different facts.
Every business day, in California, allegedly defective cars, trucks, pickups, motorcycles, SUVs and recreational vehicles are bought back from consumers and small businesses under Song-Beverly. Major vehicle manufacturers, such as Ford, Lincoln, Jaguar, Chrysler, Fiat, Dodge, Jeep, GM, Chevrolet, Buick, Nissan, VW, Mazda, Suzuki, Kia, Hyundai, Smart Car, Tesla, and Harley Davidson, are subject to the lemon law. In my view, those companies simply try to save money, by not buying back all their defective vehicles. Thus, only the filing of a lawsuit by an attorney in those instances gets their attention and a chance of an appropriate buyback, depending on the defect(s) and vehicle repair history.
Presumption at 18,000 miles or 18 months
The Song-Beverly Consumer Warranty Act includes Section 1793.22, known as the Tanner Consumer Protection Act. This shifts the burden of proof to the manufacturer that the new motor vehicle is defective. Review of the repair orders during the first 18 months or 18,000 miles (made after purchase) on the odometer will reveal if the subject vehicle should be presumed to be defective, under the Tanner Act.
Any of these three tests can satisfy the above presumption. One, the same concern must have been presented four or more times for repairs and the buyer notifies the manufacturer directly (such as by calling their customer service or sending a letter to the address in the owners manual) at least once. Two, the same concern has been presented two or more times for repairs, the buyer notifies the manufacturer directly at least once, and the condition is likely to cause death or serious bodily injury if driven. Three, the same concern has caused the vehicle to be out of service for more than 30 calendar days in total, unless extended for conditions beyond the manufacturer’s control.
Why are my repair orders necessary? The Song-Beverly Consumer Warranty Act requires the consumer present the vehicle to the manufacturer or its representatives in this state and give them a reasonable number of opportunities to cure the concerns raised. After that, if the defects that cannot be cured are found to substantially impair the vehicle’s use, value or safety to the consumer, then the vehicle is nonconforming and should be bought back by the manufacturer.
If properly prepared in accordance with regulations of repair shops in this state, then each repair order reflects the concerns made by the vehicle owner at that repair visit. Also, a repair order should reflect the findings by the dealer’s technician, any parts replaced, repairs rendered, any subsequent testing, and other relevant notations.
If you don’t have all repair orders for the concerns with the vehicle’s problems, a warranty history can often be obtained at any authorized dealership at no charge. It is preferable to have this in hand before a lawsuit is filed, to help prevent errors in case evaluation. In other words, it is better for both the client and the attorney to have all the information before deciding whether to file a lawsuit.
The repair history also shows the mileage of each repair attempt on the vehicle. This is very important when pursuing a violation of the manufacturer’s express warranty. Song-Beverly allows for an offset for mileage incurred before the defect was presented for repairs. To minimize this offset, the customer should present the vehicle for defects as soon as they are observed. Also, please read the dealer’s invoice and repair order to see that the concerns are properly noted.