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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 7402
Experience:  Research Attorney; Private Practice; Attorney Mentor; Mediator
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I sold my 2001 car on Craigslist for $2000. I was upfront in

Customer Question

I sold my 2001 car on Craigslist for $2000. I was upfront in ad about engine light being on. Buyer took for test drive and paid and took car. Title transfer paperwork was filled out and release of liability submitted to DMV. Smog check was not mentioned during transaction. Three days after transaction buyer is requesting refund because car won't pass smog check. He says title won't transfer because of smog check.Am I legally required to refund him? I feel car was sold as is and it is not my responsibility but am unfamiliar the legalities. Also I am in California.
Submitted: 8 months ago.
Category: Consumer Protection Law
Expert:  LegalGems replied 8 months ago.

Was a smog inspection recently done on the vehicle prior to sale?

Customer: replied 8 months ago.
It was not done. Feb car was registered but smog was not required. I was not aware that it needed to be smogged prior to selling and neither was buyer.
Customer: replied 8 months ago.
Posting did say light was on and I've learned that an engine light on will automatically fair the test
Expert:  LegalGems replied 8 months ago.

Thank you for your patience; I have reviewed the statutes and case law and unfortunately could not find any exemption to the statutory requirement for the smog certification; if the automobile is not exempt then the seller is responsible, so that if the car fails to pass the test, the seller is responsible for either repairing the vehicle so it passes, or for voiding the transaction. I am sorry I do not have better news but I do have a moral obligation to provide information as it is found. Here is that statute for your review:

4007. (a) (1) No dealer or person holding a retail seller's permit shall sell a new or used vehicle that is not in compliance with this code and departmental regulations adopted pursuant to this code, unless the vehicle is sold to another dealer, sold for the purpose of being legally wrecked or dismantled, or sold exclusively for off-highway use. (2) Paragraph (1) does not apply to any vehicle sold by either (A) a dismantler after being reported for dismantling pursuant to Section 11520 or (B) a salvage pool after obtaining a salvage certificate pursuant to Section 11515 or a nonrepairable vehicle certificate issued pursuant to Section 11515.2. (3) Notwithstanding paragraph (1), the equipment requirements of this division do not apply to the sale of a leased vehicle by a dealer to a lessee if the lessee is in possession of the vehicle immediately prior to the time of the sale and the vehicle is registered in this state. (b) (1) Except as provided in Section 24007.5, no person shall sell, or offer or deliver for sale, to the ultimate purchaser, or to any subsequent purchaser a new or used motor vehicle, as those terms are defined in Chapter 2 (commencing with Section 39010) of Part 1 of Division 26 of the Health and Safety Code, subject to Part 5 (commencing with Section 43000) of that Division 26 which is not in compliance with that part and the rules and regulations of the State Air Resources Board, unless the vehicle is sold to a dealer or sold for the purpose of being legally wrecked or dismantled. (2) Prior to or at the time of delivery for sale, the seller shall provide the purchaser a valid certificate of compliance or certificate of noncompliance, as appropriate, issued in accordance with Section 44015 of the Health and Safety Code. (3) Paragraph (2) does not apply to any vehicle whose transfer of ownership and registration is described in subdivision (d) of Section 4000.1. (4) Paragraphs (1) and (2) do not apply to any vehicle sold by either (A) a dismantler after being reported for dismantling pursuant to Section 11520 or (B) a salvage pool after obtaining a salvage certificate pursuant to Section 11515 or a nonrepairable vehicle certificate issued pursuant to Section 11515.2. (c) (1) With each application for initial registration of a new motor vehicle or transfer of registration of a motor vehicle subject to Part 5 (commencing with Section 43000) of Division 26 of the Health and Safety Code, a dealer, the purchaser, or his or her authorized representative, shall transmit to the Department of Motor Vehicles a valid certificate of compliance or noncompliance, as appropriate, issued in accordance with Section 44015 of the Health and Safety Code. (2) Notwithstanding paragraph (1) of this subdivision, with respect to new vehicles certified pursuant to Chapter 2 (commencing with Section 43100) of Part 5 of Division 26 of the Health and Safety Code, a dealer may transmit, in lieu of a certificate of compliance, a statement, in a form and containing information deemed necessary and appropriate by the Director of Motor Vehicles and the Executive Officer of the State Air Resources Board, to attest to the vehicle's compliance with that chapter. The statement shall be certified under penalty of perjury, and shall be signed by the dealer or the dealer's authorized representative. (3) Paragraph (1) does not apply to a transfer of ownership and registration under any of the circumstances described in subdivision (d) of Section 4000.1.

Customer: replied 8 months ago.
I appreciate your efforts but I am not sure about the answer. I believe I need to search further for answers because every other person I've spoken to says its buyers problem.
Expert:  LegalGems replied 8 months ago.

Unfortunately the law is very clear that it is the seller's issue.

Per the statute:

(2) Prior to or at the time of delivery for sale, the seller shall provide the purchaser a valid certificate of compliance or certificate of noncompliance, as appropriate, issued in accordance with Section 44015 of the Health and Safety Code.

When the statute states "shall", that is compulsory and is not waivable by any party.

I'm sorry I don't have better news but if the buyer takes it to small claims court, and the seller does not have a statute that supports their cause, and the buyer presents that vehicle code, the court will have no choice but to rule in the favor of the buyer, along with court costs.