By Adam D. Schmaelzle, Esq.
So there you are, driving along in your new car, when all of a sudden the engine stalls and you roll to a disheartening stop. You turn the key, but nothing happens, so you call a tow truck, and have the car towed back to the friendly neighborhood car dealer who sold it to you. The dealer assures you that the car is still under warranty, and there is nothing to worry about. He hands you the keys to a loaner car smothered in self-serving stickers and advertisements and tells you to come back in a week to pick up your sweet new ride. At the end of the week, you pick up your car and drive off, only to find yourself in the same situation not more than a week later. Oh no, you might be the proud new owner of a LEMON! Lucky for you, the Massachusetts consumer protection laws are on your side.
M.G.L. c. 90, §7;7N1/2 is there to help consumers if they find that they are a victim of a true lemon. A “True Lemon” is a vehicle with a defect that continues to haunt the purchaser after a reasonable amount of attempts by the dealer to fix the issue. You might be asking, well Adam, how many attempts is reasonable? The answer isn’t really clear, but generally if three or more attempts to cure a nonconformity have been made OR if your car has been on the fritz and being serviced for ANY issue for a total of fifteen or more business days, you should be afforded the protections of the lemon law. What protections are those? A full refund or a replacement. Isn’t that nice?
It works like this: After a reasonable number of attempts to fix an issue with your car have been made, the Manufacturer (not the dealer), must accept the return of a vehicle and either refund the purchase price or replace the vehicle. The nice part about this is that you get to choose. If you decided on the refund, you’d get credits for a trade in, incidental expenses such as sales tax, rental car costs, registration, towing expenses…. minus a “reasonable allowance for use” which equates to the miles on the vehicle prior to the acceptance, over 100,000. If you chose the replacement, you would still get those incidental expenses back including registration costs and sales tax, and you would get an identical vehicle from the manufacturer.
Once the manufacturer takes that car back, they will not be able to resell it. At that point, it has been officially blacklisted as a lemon.
Lets say you bring your lemon back to the manufacturer and demand a refund or a replacement, and they tell you to bug off? Massachusetts set up a state-certified arbitration process, which must be initiated within 18 months from the date you physically got the vehicle. During the process, an arbitrator will hold a hearing where the formal rules of evidence do not apply (which means you can completely disregard rule 401 and ramble on about anything you like…..kind of) and within 45 days, he will make a decision. If he/she rules in your favor, the manufacturer will have 21 days to make good on your request or suffer a pretty harsh monetary penalty to the tune of around $50,000.
What if you’ve gone beyond the 18 months and can no longer seek remedy through arbitration? It depends. If the dealer or manufacturer prevented the arbitration process, that is probably an unfair or deceptive business act, and would therefore would be covered under the protections of 93§A. If not, you can likely bring an action against the dealer, add the manufacturer as a co-defendant and sue for damages and/or equitable relief (specific performance/replace the vehicle).
What if the car you bought was used rather than new? Well, if you bought it from a dealer for more than $700 or from a private seller for any price, Massachusetts still has you covered. A used car dealer is required to provide a warranty, which will cover safety defects and reported defects. Meaning, if the dealer tried to hide some crazy defect, or is unable to fix a safety or use issue after a reasonable number of attempts, you can get your money back.
If you bought the car for less than $700, the lemon law will not apply to you. So be careful if you buy a car from a relative for $1.00 to save some loot on registration costs, your family reunion is going to be awkward.
You still have the standard protections for express and implied warranty issues (read all about it in Article 2 of the Uniform Commercial Code), but the state has also set up statutory warranty conditions that cover a used car with less than 40,000 miles for 90 days or 3750 miles, a car with more than 40,000 miles but less than 80,000 miles for 60 days or 2500 miles and a car with more than 80,000 miles but less than 125,000 miles for 30 days or 1250 miles. If a dealer is unwilling to repair or refund the price of the vehicle, you can run it through the arbitration process as well. If the car was purchased from a private seller, the buyer has 30 days to discover a defect, which the seller knew about but did not disclose. If the seller decides not to return the price of the car, you can bring an action against him/her for damages plus attorney’s fees and costs.
So there you have it. If you bought a lemon here in this great state, Massachusetts will be there waiting with a nice tall glass of consumer protection flavored lemonade. Prost!
If you have any questions, or feel as though I have made a mistake, Please feel free to contact me at 774-314-9124.
By Adam D. Schmaelzle, Esq.