When you buy something privately, you have fewer rights than when you buy something from a business.
If you buy second-hand products from an online business or second-hand dealer, your rights are the same as when buying new, but you can't expect the same quality.
Before you buy
Private sales can be made a number of ways, including online through Trade Me or Facebook, at auctions, through classified ads and at fairs. You have limited rights if the products are faulty or not as described.
Examine the items carefully. You buy second-hand products ‘as seen’, including any flaws or wear and tear. Ask the seller to point out any damage or faults. It is a good idea to get a receipt from the seller and record anything they tell you about the item.
Before you buy, it is a good idea to:
- see if the products have a current manufacturer’s warranty that you can take over
- ask questions about the product’s age, any wear and tear or faults — keep a copy of the seller's answers
- ask the seller if they kept the original receipt or a copy of it
- get an independent expert to check out any big items, eg a mechanic to look over a car
- search for money owing on the item on the Personal Property Securities Register (PPSR).
Make sure you also have the seller's name, phone number and address. Without their name and address, you can’t claim against them in the Disputes Tribunal if things go wrong.
Searching the Personal Properties Securities Register (PPSR)
The PPSR tells you if there is money owing on an item (also called a registered security interest) before you buy it. If the seller still owes money on it, it could be repossessed from you.
Search the PPSR by the seller’s name. For vehicles, you can also search by number plate (registration number), vehicle identification number (VIN) and chassis number.
Searching the PPSR(external link) — Companies Office
Security interests include:
- hire purchase agreements
- long-term leases over more than a year
- loans with personal property as security, eg car loans.
If there is a registered security interest on the PPSR, go back to the seller and get them to pay the money owing to clear the debt.
Your rights when buying privately
Generally, when you buy products or services privately you can’t cancel the contract easily and you have limited legal rights. Private sales aren’t covered by the Consumer Guarantees Act or the Fair Trading Act.
You do have rights if:
- the seller misled you
- they don’t have a right to sell the products
- the item is seriously faulty or unsafe.
Remedies under the Contract and Commercial Law Act
The product must:
- match either the sample shown or the description given by the seller
- be sold at a reasonable price if this has not been agreed beforehand
- be sent within a reasonable time if no timeframe was agreed beforehand and delivery is part of the sales contract.
The seller also must have good title, which means the right to sell those products.
If not, you may be able to get a full or partial refund or compensation under the warranties in the Contract and Commercial Law Act (CCLA). Your choice of remedy depends on how serious the problem is.
If you are entitled to a refund, it should be in cash (not a credit note). You can choose to accept a replacement or repair instead of a refund or compensation.
But a seller can also state that the CCLA doesn’t apply. They can state this in the contract at the time of sale or in the website terms and conditions. Look out for a written statement that says ‘No other warranties either express or implied by law are made with respect to these products’.
False or misleading statements by the seller
If a seller makes a false or misleading statement, you can cancel the contract or claim compensation under the CCLA if:
- the false or misleading statement was serious
- you were persuaded to buy the products based on the statement.
However, the contract can state that there will be a different remedy for misrepresentation.
Misleading prices or advertising
If the seller has contracted out of the CCLA, the contract needs to include a statement on a remedy for misrepresentation.
Electrical appliances and other regulated products
Under the Electricity Act, electrical appliances must be safe even when sold second-hand by a private seller. Get them checked out by an expert or qualified person if you can.
Also, some regulated products, even if they're second-hand, must comply with Product Safety Standards and Unsafe Goods Notices under the Fair Trading Act.
Making a claim for breach of contract
If the agreed contract is breached, you may be able to make a claim to the Disputes Tribunal under the common law rules for contracts. For example, if you bought a car privately and as part of the deal the seller agreed to give you a spare set of four tyres, but then didn't provide them, you could make a claim to the Disputes Tribunal, who might order the seller to provide the money for the tyres.
Contracts and sales agreements
If you bought something and the seller still owes money on it, the creditor may be able to repossess the products if:
- the item was worth more than $2,000 when the seller originally bought it or used it as security to take out a loan
- you knew about the security interest when you bought the products.
If the creditor does repossess and sell the products, you may be able to make a claim against the seller for a breach of the CCLA, if you were not told about the security interest.