By Susann Nordvik 

Virginia is one of several states that requires every vehicle pass a safety inspection before being put on the road.[1]  This is particularly important in connection with used car sales, in that every year, many transactions of used vehicles take place where the vehicle is either not covered by a manufacturer’s warranty, or the vehicle is sold by an unaffiliated dealer that does not certify pre-owned vehicles.

Provisions of the Virginia Code require that dealers provide certain disclosures and supply proof of a passing vehicle inspection.[2]  In particular, Section 46.2-1529.1 of the Virginia Code requires that a dealer of used motor vehicles provide either:  1)  A written disclosure of the terms of any warranty; or, 2) a clear and unmistakable disclosure that the vehicle is being sold “AS IS” with all faults.  The statute requires specific language for an as is sale, which must be acknowledged by the buyer’s signature:  “I understand that this vehicle is being sold ‘AS IS’ with all faults and is not covered by any dealer warranty.  I understand that the dealer is not required to make any repairs after I buy this vehicle.  I will have to pay for any repairs this vehicle will need.”[3]

If a dealer fails to provide one of the two disclosures at the time of sale of a used car, the purchaser is entitled to recover a civil penalty, and cancel the sale within the first thirty days.  This cancellation permits the buyer to return the vehicle and obtain a full refund of any payments made, however, the dealer may deduct the value of any damage to the vehicle and a limited amount per mile driven by the buyer for general wear and tear.[4]

Moreover, prior to sale, a dealer is also required to obtain a passing inspection of the vehicle, make such repairs as necessary to bring a noncompliant vehicle into compliance, or barring that, provide an appropriate disclosure to the buyer informing them that the vehicle did not pass the inspection.[5]  If the correct disclosures are given, that vehicle that may appear to be a bargain at first blush may require significant repairs in order to make it driveable.  In such a case, the buyer is well advised to have a trusted mechanic inspect the vehicle prior to purchase so that an informed decision about the purchase can be made.

A different issue arises when a vehicle appears to have the correct documentation, but in fact cannot pass safety inspection once the deal has been made and the vehicle is driven off the lot.  In the digital era it is entirely possible for unscrupulous dealers to falsify records, including Carfax reports, to conceal failures and defects.  It is therefore important that every potential buyer of a used vehicle engage in their own research to avoid stepping into a bad deal.

But what does a buyer do if they have been duped into purchasing a vehicle without the proper disclosures or with documentation that has potentially been falsified?  The answer lies within the Virginia Consumer Protection Act (“VCPA”).  The VCPA provides a remedy for fraudulent acts or practices by a retail vehicle dealer.  Included prohibited practices include:  “Misrepresenting that goods . . . have certain . . . characteristics, . . . uses or benefits,” and “[m]isrepresenting that goods . . . are of a particularly standard, quality, grade, style, or model,” as well as “[u]sing any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.”[6]  An aggrieved buyer can recover their damages, including attorneys’ fees, and a civil penalty up to triple the amount of their damages if it is proven that the fraudulent conduct was willful.[7]

Therefore, in a situation where documents have been falsified, or where the dealer has actively avoided providing appropriate disclosures, the requisite willfulness may likely be shown.  If you have suffered a loss as a result of a dealer’s failure to disclose or through false or improper documentation, you may have a very limited time to act.  Therefore, do not hesitate to contact one of the qualified consumer attorneys at the firm, or other qualified counsel that provides assistance in VCPA cases.

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[1] Virginia Code, § 46.2-1157(A).

[2]  Virginia Code, §§ 46.2-1529.1, 46.2-1539.

[3]  Virginia Code, § 46.2-1529.1(B).

[4]  Virginia Code, § 46.2-1529.1(C).

[5] Virginia Code, § 46.2-1539.

[6] Virginia Code, § 59.1-200(A)(5), (6), and (14).

[7] Virginia Code, § 59.1-204(A), (D).