The laws and
regulations listed below are some of the ones most frequently referenced.
The list is
not intended to describe all applicable laws or regulations.
Chapter
90: Motor Vehicles
Section 2 - Registration of Motor
Vehicles (7-Day Transfer Law)
Section 5 - General Registrations and General Registration Plates (Dealer/Repair)
Section 7N - Voiding Contracts of Sale
Section 7N ¼ - Warranties on Used
Motor Vehicles (Lemon Law)
Section 7N ½ - Defective or
Malfunctioning New Motor Vehicles
Chapter
90D: Motor Vehicle Titles
Section 15 (a) - Transfer of Title (Deliver title when delivering vehicle)
Section 16 - Dealers; Assignment
and Warranty of Title; Record of Transactions
Chapter
140: Dealer Licensing
Section 58 - Classes of Licenses
Section 59 - Licensing Authority of City/Town
(Licenses; Term; Fees, etc.
Section 59A- Licensing of Motor Vehicle Junkyards
Section 62 - Record Keeping
(Used Car Dealer Record Book)
Section 66 – Certain Authorities May Enter
Licensed Premises; Examination
Section 67 – Penalty for Refusal to Allow Entry
or Examination
Section 67A – Removal of
Registration Number Plates & VIN Plates from Vehicles to be Junked
540 CMR Chapter 18.00: RMV
Regulations
Selected Portions of RMV Regulations
Relating to Dealers
RMV Regulations Applicable to ALL Section 5
Classes
Selected
Statutes and Regulations (or portions thereof) Relevant to Motor Vehicle
Dealers. (see 540 CMR 18.00 at end for
Regulations Relevant to all Section 5 Classifications)
Posting
Date: 2/4/08
Chapter
90, Section 2. Seven Day Transfer Law. [The statute quoted here (or portion thereof) is current as
of the posting date. You may check the
statute at the website of the General Court at http://www.mass.gov/legis. Click on “General Laws.”]
(5th paragraph)
A person who has attained 18 years of age and who transfers
the ownership of a registered motor vehicle or trailer owned by him to another
or who loses possession thereof and who intends to transfer the registration of
such motor vehicle or trailer to a newly acquired new motor vehicle or newly
acquired used motor vehicle of the same type and having the same number of
wheels may, subject to other provisions of this chapter, operate such newly
acquired new motor vehicle or trailer or newly acquired used motor vehicle or
trailer for a period beginning from the date of transfer until five o’clock
post meridian of the seventh calendar day following the date of transfer within
the period for which the transferred vehicle was registered; provided, however,
that the number plates issued upon registration of the transferred motor
vehicle or trailer shall be attached to the newly acquired vehicle. During such
period any operator of the newly acquired vehicle shall carry an original copy
of the bill of sale reciting the registration number to be transferred from the
former vehicle to the newly acquired vehicle or the certificate of transfer
issued by the dealer on a form approved by the registrar in place of the
certificate of registration.
Posting
Date: 2/4/08
Chapter
90, Section 5. General Registrations. [The statute quoted here (or portion
thereof) is current as of the posting date. You may check the statute at the website of the General Court at http://www.mass.gov/legis. Click on “General Laws.”]
The registrar may issue general registrations and general
registration number plates in such form as he determines to any person engaged
in the following occupations who meet the eligibility requirements stated in
this chapter and the rules and regulations of the registry of motor vehicles.
(1) manufacturer;
(2) dealer;
(3) repairman;
(4) recreational vehicle and recreational trailer dealer;
(5) boat and boat trailer dealer;
(6) farmer;
(7) owner-contractor;
(8) transporter; and
(9) person involved in the harvesting of forest products as
defined by the regulations of the registry of motor vehicles.
(b)
No person shall be eligible for a general registration and general registration
number plates unless said person holds the necessary license or permit required
by any federal, state or local law for engaging in said occupation, and
provides truthful and complete information in the application for general
registrations and number plates in the form prescribed by the registrar.
(c)
Unless prohibited by this chapter or any rule or regulation of the registry,
any motor vehicle or trailer owned or controlled by any person who has been
issued a general distinguishing registration number which properly displays the
valid corresponding general registration number plate shall be regarded as
registered under this chapter; provided however, that no motor vehicle or
trailer so registered shall be loaned or let for hire for more than five
consecutive days.
(d)
An owner-contractor who has received a general registration and number plate
may only operate or tow the following vehicles or trailers with said
registration and number plate:
(1) Any special mobile equipment as defined in section one;
(2) A mobile construction crane as defined in said section
one; and
(3) Any other motor vehicle or trailer authorized by the
rules and regulations of the registry.
A
dealer in recreational vehicles and recreational vehicle trailers or a dealer
in boats and boat trailers who has received such a registration and plate may
only operate with said registration trailers owned by him and held for sale and
demonstration.
A
farmer who has received such a registration and plate may only operate or tow a
vehicle or trailer under said registration and plate principally used for and
dedicated to carrying on a farm related activity. Such registration and plate
may not be used on a passenger motor vehicle.
A
transporter, as defined in section one, who has received such a registration
and plate may only operate with said registration a motor vehicle or trailer
not owned by him and only in the course of such business.
(e)
Except for a dealer, any person who owns a motor vehicle or trailer registered
for operation with a general registration issued under this section shall apply
to the registrar for a sticker or decal which indicates that said owner has
complied with the requirements of chapters sixty-four H, sixty-four I and
ninety D, with respect to each motor vehicle or trailer so registered.
(f)
The registrar may make rules and regulations relative to the issuance, use and
display of general registration numbers, number plates and stickers or decals
issued under this section. The registrar shall prescribe the form of a written
voucher document which shall be carried on the person of any operator of a
motor vehicle. A copy of said voucher shall be retained by said dealer on the
licensed premises.
(g)
Whoever makes a false statement in an application for a general registration
and number plate shall be punished by a fine of not less than one hundred nor
more than five hundred dollars or by imprisonment for not less than thirty days
nor more than two years.
(h)
In addition to any penalty provided by law, the registrar may suspend or
revoke, after notice and an opportunity for a hearing, any general registration
or number plate if he has reason to believe that the holder thereof has
violated the provisions of this section or the rules and regulations of the
registry made pursuant hereto.
Posting
Date: 2/4/08
Chapter
90, Section 7N. Voiding Contracts of Sale. [The statute quoted here (or portion
thereof) is current as of the posting date. You may check the statute at the website of the General Court at http://www.mass.gov/legis. Click on “General Laws.”]
Notwithstanding
any disclaimer of warranty, a motor vehicle contract of sale may be voided by
the buyer if the motor vehicle fails to pass, within seven days from the date
of such sale, the periodic staggered inspection at an inspection station
licensed pursuant to section seven W; provided, that the defects which are the
reasons for the failure to issue a certificate of inspection were not caused by
the abusive or negligent operation of the motor vehicle or by damage resulting
from an accident or collision occurring after the date of the sale; and
provided, further, that the cost of repairs necessary to permit the issuance of
a certificate of inspection exceeds ten per cent of the purchase price of the
motor vehicle.
In
order to void a motor vehicle sale under this section the buyer shall, within
fourteen days from the date of sale, notify the seller of his intention to do
so, deliver the motor vehicle to the seller, provide the seller with a written
statement signed by an authorized agent of such inspection station stating the
reasons why the motor vehicle failed to pass the safety or combined safety and
emissions inspection and an estimate of the cost of necessary repairs. The
buyer shall be entitled to a refund of his purchase price unless the buyer and
seller agree in writing that the seller may make the necessary repairs at his
own cost and expense within a reasonable period of time thereafter. This
section shall apply only to motor vehicles purchased for the immediate personal
or family use of the buyer.
Posting
Date: 2/4/08
Chapter
90, Section 7N ¼. Warranties on Used
Motor Vehicles. [The statute
quoted here (or portion thereof) is current as of the posting date. You may check the statute at the website of
the General Court at http://www.mass.gov/legis. Click on “General Laws.”]
Section
7N1/4. (1) For the purposes of this section the following words shall have the
following meanings:—
“Business
day”, Monday to Friday, inclusive, except for state or federal holidays.
“Consumer”,
a buyer, other than for purposes of resale, of a motor vehicle, any person to
whom such motor vehicle is transferred during the period of any express or
statutory warranty under this section applicable to such motor vehicle, and any
other person entitled by the terms of such warranty to enforce its obligations.
“Dealer”,
any person engaged in the business of selling, offering for sale, or
negotiating the retail sale of used motor vehicles or selling motor vehicles as
broker or agent for another, including the officers, agents and employees of
such person and any combination or association of dealers, but not including a
bank or other financial institution, or the commonwealth, its agencies,
bureaus, boards, commissions, authorities, nor any of its political
subdivisions. A person shall be deemed to be engaged in the business of selling
used motor vehicles if such person has sold more than three used motor vehicles
in the preceding twelve months.
“Motor
vehicle” or “vehicle”, any motor vehicle as defined in section one, sold or
replaced by a dealer or manufacturer, except that it shall not include auto
homes, vehicles built primarily for off-road use or any vehicle used primarily
for business purposes.
“Private
seller”, any person who is not a dealer and who offers to sell or sells a used
motor vehicle to a consumer.
“Purchase
price”, the total of all payments made for the purchase of a vehicle, including
but not limited to any finance charges, registration fees, payments made for
credit life, accident, health, and damage insurance, and collision and related
comprehensive insurance coverages and service contracts and the value of a
trade-in.
“Repurchase
price”, the purchase price, as defined above, less any cash award that was made
by the dealer in an attempt to resolve the dispute and was accepted by the
consumer, and less any refunds or rebates to which the consumer is entitled,
plus any incidental damages not previously reimbursed, including but not
limited to the reasonable costs of towing from point of breakdown up to thirty
miles to obtain required repairs or to return the vehicle under this section,
and the reasonable costs of obtaining alternative transportation during the
applicable warranty period after the second day following each such breakdown
not to exceed fifteen dollars vehicle rental charges for each day in which the
cost of such alternative transportation is reimbursable.
“Used
motor vehicle” or “used vehicle”, any vehicle driven more than the limited use
necessary in moving or road testing a new vehicle prior to delivery to a
consumer, including a demonstrator vehicle, except that it shall not include
auto homes, vehicles built primarily for off road use, motorcycles, or any
vehicle used primarily for business purposes.
(2)
(A) (i) No used motor vehicle shall be sold in the commonwealth by a dealer to
a consumer unless accompanied by an express written warranty covering the full
cost of both parts and labor necessary to repair any defect that impairs the
said used motor vehicle’s safety or use; provided, however, that the consumer
may be required to pay no more than one hundred dollars total toward the repair
of any covered defect, series of defects or combination of defects during the
warranty period. Defects that affect only appearance shall not be deemed to
impair safety or use for the purposes of this section. For the purposes of this
section, defect shall include defect, malfunction or any combination or defects
or malfunctions.
(ii)
Defects or malfunctions which involve parts or components that are covered or
are warranted under an express warranty issued by the dealer of the used motor
vehicle shall be excluded from this section if the following conditions have
been met: the manufacturer’s warranty has been duly assigned or transferred to
the buyer; is enforceable according to its terms; is not inconsistent with this
section; and, the seller has assured that the repair authorized by such
manufacturer’s express warranty was made.
The
terms of the seller’s warranty shall be tolled for any period of time the used
motor vehicle is out of service by reason of repair under the manufacturer’s
warranty.
(B)
The express warranties required by this section shall be of the following
durations:
(i)
For a used motor vehicle which, at the time of sale, has been operated less
than forty thousand miles, ninety days or three thousand seven hundred and
fifty miles, whichever occurs first. Said ninety days or three thousand seven
hundred and fifty mile warranty is in addition to any right the consumer may
have under section seven N1/2.
(ii)
For a used motor vehicle which, at the time of sale, has been operated forty
thousand miles or more, but less than eighty thousand miles, sixty days or two
thousand five hundred miles, whichever first occur.
(iii)
For a used motor vehicle which, at the time of sale, has been operated eighty
thousand miles or more, but less than one hundred and twenty-five thousand
miles, thirty days or one thousand two hundred and fifty miles, whichever first
occur.
(iv)
If the used motor vehicle’s true mileage is not known, such warranty period
shall be determined by the age of said used motor vehicle in the following
manner: a used motor vehicle three years old or less shall have a warranty as
provided in clause (i); a used motor vehicle more than three, but less than six
years old, shall have a warranty as provided in clause (ii); and a used motor
vehicle six years old or more shall have a warranty as provided in clause
(iii). A used motor vehicle’s age shall be determined by subtracting its model
year from the year in which the warranty holder purchased said used vehicle.
(C)
The warranty periods established by this section shall be tolled during any
period in which the used motor vehicle is out of service as a result of any
repair attempt pursuant to any warranty created by this section. The applicable
warranty period shall be extended thirty days from the date of completion of
any repair required by this section as to the defect repaired if the warranty
would otherwise have expired during such period.
(3)
(A) A dealer may repair, within the meaning of this section, either by
performing the repair himself or by arranging and making payment for prompt
repair by another.
(i)
A consumer shall return a vehicle for repair under this section by presenting
it to the dealer no later than five business days after the expiration of the
applicable warranty period and informing him of the defect. Said return period
shall be tolled during any time period in which the consumer has notified the
dealer of the defect but cannot reasonably present the vehicle to the dealer;
including, but not limited to, the reason that a used motor vehicle is
inoperable and the dealer refuses to pay the charge to tow said vehicle. The
dealer shall immediately accept return of a vehicle when it is so presented.
Said used motor vehicle shall be deemed out of service commencing the day it is
so presented, notwithstanding any dealer’s failure to accept its return on said
day. During the applicable warranty period and the aforesaid return period, the
dealer shall pay the reasonable costs of towing from point of breakdown up to
thirty miles to obtain required repairs or to return the vehicle to the dealer.
Upon
return of the used motor vehicle to the consumer after repair, the dealer shall
provide the consumer with a warranty repair receipt describing (a) the defect
complained of, (b) the work performed in an attempt to correct such defect and
the identity of the repairer if it is not the dealer, and (c) the parts
replaced in performing such work. For the dealer to toll the ten business day
period as provided in clause (ii) of this paragraph said dealer shall attach to
each such warranty repair receipt copies of such order forms, invoices,
receipts or other evidence of a parts order and its receipt to evidence his
compliance with this paragraph.
(ii)
If the dealer fails to repair the same defect within three attempts, or if the
used motor vehicle is out of service for more than a cumulative total of ten
business days after the consumer has returned it to the dealer for repair of
the same, then the dealer shall accept return of the vehicle from the consumer
and refund the full repurchase price, less a reasonable allowance for use. A
reasonable allowance for use shall be fifteen cents for each mile the used
motor vehicle has been operated between its sale and the dealer’s repurchase.
A
consumer shall have the option of retaining the use of any vehicle returned
under the provisions of this section until such time as said consumer has been
tendered a full refund. The use of any vehicle retained by a consumer after its
return to a manufacturer under the provisions of this section, shall, in
instances in which a refund is tendered, be reflected in the above-mentioned
reasonable allowance for use.
A
used motor vehicle shall not be considered out of service for purposes of the
ten business-day period described hereinabove for any day in which a part
necessary to repair a defect complained of is not in the dealer’s possession;
provided, however, that the dealer has ordered the part by reasonable means on
the same day on which he knew or should have known that the part was necessary,
except that in no event shall a part’s unavailability operate to toll the ten
business-day period for more than twenty-one days. The applicable warranty
period shall be extended by the number of days a part is unavailable.
(iii)
All dealers shall submit to state-certified, used car arbitration, if such
arbitration is requested by the consumer, asserting his or her right to a
repurchase under this section, within six months from the date of original delivery
to such consumer of a used motor vehicle. State-certified, used car arbitration
shall be performed by a professional arbitrator or arbitration firm appointed
by the secretary of consumer affairs and business regulation and operating in
accordance with the regulations promulgated pursuant to this section, and shall
result in a written finding of whether the motor vehicle in dispute meets the
standards set forth by this section for vehicles that are required to be
repurchased. Said finding shall be issued within forty-five days of receipt by
said secretary of a request by a consumer for state-certified arbitration under
this section. Said secretary shall promulgate rules and regulations governing
the proceedings of state-certified, used car arbitration which shall promote
their fairness and efficiency. Such rules and regulations shall include, but
not be limited to, a requirement of the personal objectivity of each such
arbitrator, and the protection of the right of each party to present its case
and to be in attendance during any presentation made by the other party.
If
a motor vehicle is found by state-certified, used car arbitration to have met
the standards set forth by this section for vehicles required to be
repurchased, and if the dealer who sold said motor vehicle is found to have
failed to provide said refund as required, such dealer shall, within twenty-one
days from the issuance of such finding, deliver such refund, including the
incidental and other costs set forth in the definition of “repurchase price” or
appeal the finding in a district or superior court. No such appeal by a dealer
shall be heard unless the petition for such appeal is filed with the clerk of
the district or superior court within twenty-one days of issuance of the
finding of the state-certified arbitration and is accompanied by a bond in a
principal sum equal to the money award made by the state-certified arbitrator
plus five hundred dollars for anticipated attorneys’ fees, secured by cash or
its equivalent, payable to the consumer.
The
liability of the surety of any bond filed pursuant to this section shall be
limited to the indemnification of the consumer in the action. Such bond shall
not limit or impair any right of recovery otherwise available pursuant to law,
nor shall the amount of the bond be relevant in determining the amount of
recovery to which the consumer shall be entitled.
Upon
an appeal, the court shall vacate the award only if:
(a)
the award was procured by corruption, fraud or other undue means;
(b)
there was evident partiality by an arbitrator or corruption in any of the
arbitrators, or misconduct prejudicing the rights of any party; or
(c)
the arbitrators exceeded their powers.
In
addition to any other rights and remedies, any consumer dissatisfied with any
finding of state-certified, used car arbitration shall have the right to file a
claim pursuant to chapter ninety-three A.
In
addition to any other recovery, any prevailing consumer shall be awarded
reasonable attorneys’ fees and costs.
Whoever,
within twenty-one days of any finding in favor of the consumer of the
state-certified, used car arbitration, fails to appeal such finding and does
not deliver a refund shall be punished by a fine of fifty dollars per day until
the delivery of such refund. Said fine shall not exceed five hundred dollars
for each such violation. The amount of said fine shall begin to accumulate on
the twenty-second day following the arbitration decision. If eighty-one days
has elapsed from the issuance of a finding in favor of the consumer of the
state-certified, used car arbitration, and no appeal has been taken and no
award delivered and no fine paid, the attorney general shall initiate
proceedings against dealer for failure to pay said fine. The proceedings
initiated pursuant to the provisions of this section shall be commenced in
superior court department of the trial court.
In
addition to the remedies hereinbefore provided, the attorney general may bring
an action on behalf of the commonwealth to restrain further violation of this
section, to enforce any provision, and for such other relief as may be
appropriate.
(iv)
At any time within the applicable warranty period and after a consumer has
complained of a defect, notwithstanding any objection from the consumer, the
dealer shall have the option of repurchasing a used vehicle and refunding the
full repurchase price, less a reasonable allowance for use. A reasonable
allowance for use shall be fifteen cents for each mile the used motor vehicle
had been operated between its sale and the dealer’s repurchase.
(v)
If the dealer is required to or elects to repurchase a vehicle under the terms
of this section, the consumer and dealer shall cooperate with each other to
execute all necessary documents in order to clear the title of any encumbrances
on the repurchased vehicle.
(B)
It shall be an affirmative defense to any claim under this section that an
alleged defect (i) does not impair the vehicle’s use or safety, (ii) is the
result of owner negligence, abuse, damage caused by accident, vandalism, or, an
attempt to repair the vehicle by a person other than the dealer, the dealer’s
designee, or the manufacturer’s representative under clause (ii) of paragraph
(A) of subsection (2), (iii) is the result of any attempt by the consumer to modify
the vehicle, (iv) was covered or warranted under an express warranty issued by
the manufacturer of such used motor vehicle, that such warranty issued by the
manufacturer of such used motor vehicle was in effect during the warranty
period established by this section, so long as the conditions in said clause
(ii) of said paragraph (A) of said subsection (2) are met.
(4)
Clear and conspicuous notice of the warranties created by this section, of the
rights pertaining thereto, and of the implied warranty of merchantability shall
be given to the consumer in writing at the time the consumer purchases a used
motor vehicle from the dealer. Failure to provide such notice shall toll the
warranty periods under this section until such notice is given.
(5)
The secretary of consumer affairs and business regulation shall promulgate
rules and regulations to implement the notice provisions of this section. Said
rules and regulations shall include the establishment of wording, format,
placement, and distribution of all notices specified in this section. In her
discretion, and in order to facilitate ease of understanding by consumers, said
secretary may consolidate the notices required by this section and any other
notices pertaining to the purchase of motor vehicles; provided, however, that
such consolidation does not render the notices inconsistent with any of the
provisions of this section or any other law. Each notice required by this
section shall describe the procedures available to redress violations of this
section and shall contain the telephone number of the attorney general’s
consumer protection division complaint section and the office of consumer
affairs and business regulation.
(6)
A dealer’s failure to comply with any of the provisions of this section shall constitute
an unfair or deceptive act under the provisions of chapter ninety-three A.
(7)
Notwithstanding any provisions of law to the contrary, this section shall not
apply to any used motor vehicle sold by a dealer to a consumer for less than
seven hundred dollars.
(8)
A private seller shall clearly disclose to any prospective buyer, before the
sale is completed, all defects the seller knows of which impair the used motor
vehicle’s safety or substantially impair its use. Failure to so disclose known
defects shall entitle the buyer, within thirty days after the sale, to rescind
the sale and be entitled to return of all monies paid to the seller less a
reasonable amount for use as defined in clause (iv) of paragraph (A) subsection
(3). In any subsequent action by a buyer under this section, if the court finds
that the settlement offer was unreasonable in light of the circumstances or
that the private seller has otherwise failed to comply with the requirements of
this subsection, in addition to damages, it shall award the buyer reasonable
attorneys’ fees and costs; if the court finds that the buyer’s action was
frivolous or not in good faith, it shall award the seller reasonable attorneys’
fees and costs. It shall be an affirmative defense in any such action that an
alleged defect does not impair the vehicle’s safety, or substantially impair
its use, or that it is the result of the buyer’s negligence, abuse, damage
caused by accident, vandalism or attempt to modify the vehicle.
(9)
Nothing in this section shall be construed in any way to limit the
enforceability of any implied warranties created by law, any rights created by
section seven N or seven N1/2, or chapter ninety-three A or any rules and
regulations promulgated pursuant thereto, or express warranties given by a
dealer in connection with the sale of a used motor vehicle, or any other rights
or remedies available to consumers under applicable law.
(10)
If a consumer is eligible for relief under the provisions of section seven
N1/2, to have repairs effected or other relief provided under the provisions of
an express warranty covering such used motor vehicle issued by the manufacturer
of such used motor vehicle, said consumer shall make reasonable effort in
accordance with the terms and conditions thereof to obtain such relief or
repairs before seeking enforcement of rights under this section. If the
consumer, notwithstanding his eligibility to do so, is unable to enforce rights
under said section seven N1/2 or under such express warranty and the dealer provides
such relief or, in accordance with the provisions of this section, repurchases
such used motor vehicle, the dealer shall be subrogated to the rights of such
consumer against such manufacturer under the provisions of said section seven
N1/2, such express warranty and otherwise in accordance with applicable law,
and may enforce the same in his name in the superior court or district court
department. Such manufacturer shall hold the dealer harmless from and against
all damages, liabilities, losses and reasonable expenses of suit, including
reasonable attorneys’ fees arising out of or incurred by the dealer by its
compliance with the provisions of this section if such manufacturer, having
been notified in writing by the dealer that such rights have been asserted by a
consumer, fails to resolve the same at its own expense in or within seven
business days.
(11)
The licensing authorities responsible pursuant to section fifty-nine of chapter
one hundred and forty for licensing used motor vehicle dealers shall distribute
copies of this section to each dealer licensed at any time a license is granted
or renewed.
(12)
The provisions of this section shall not apply to the sale of a leased vehicle
by a lessor to the lessee of said vehicle, a family member or employee of said
lessee or to the sale of a used motor vehicle by an employer to his employee.
(13)
Any action brought pursuant to this section shall be commenced within two years
of the date of original delivery of the used motor vehicle to the consumer.
Posting
Date: 2/4/08
Chapter 90, Section 7N
½. Defective or Malfunctioning New Motor
Vehicles; Sale And Repair Or Replacement. [The statute quoted here (or portion
thereof) is current as of the posting date. You may check the statute at the website of the General Court at http://www.mass.gov/legis. Click on “General Laws.”]
Section
7N1/2. (1) For purposes of this section the following terms shall have the
following meanings:
“Business
day”, any day during which the service departments of authorized dealers of the
manufacturer of the motor vehicle are normally open for business.
“Consumer”,
a buyer or lessee, other than for purposes of resale, of a motor vehicle, any
person to whom such motor vehicle is transferred during the duration of any
express or implied warranty applicable to such motor vehicle, and any other
person entitled by the terms of such warranty to enforce its obligations.
“Dealer”,
any class one seller of motor vehicles as defined in section fifty-eight of
chapter one hundred and forty.
“Lessee”,
any person who acquires the right to possession of and use of a motor vehicle
under a lease agreement for a term of not less than one year.
“Manufacturer”,
any person who is engaged in the business of manufacturing motor vehicles, or,
in the case of motor vehicles not manufactured in the United States, any person
who is engaged in the business of importing motor vehicles.
“Motor
vehicle” or “vehicle”, any motor vehicle as defined in section one sold, leased
or replaced by a dealer or manufacturer after the effective date of this
section, except that it shall not include auto homes, vehicles built primarily
for off-road use or any vehicle used primarily for business purposes.
“Nonconformity”,
any specific or generic defect or malfunction, or any concurrent combination of
such defects or malfunctions that substantially impairs the use, market value
or safety of a motor vehicle.
“Term
of protection”, one year or fifteen thousand miles of use from the date of
original delivery of a new motor vehicle, whichever comes first; or, in the
case of a replacement vehicle provided by a manufacturer to a consumer under
this section, one year or fifteen thousand miles from the date of delivery to
the consumer of said replacement vehicle, whichever comes first.
(2)
If a motor vehicle does not conform to any applicable express or implied
warranty, and the consumer reports the nonconformity to the manufacturer of the
vehicle, its agent or its authorized dealer during the term of protection, the
manufacturer, its agent or its authorized dealer shall effect such repairs as
are necessary to conform the vehicle to such warranty.
(3)
If the manufacturer, its agent or authorized dealer does not conform the motor
vehicle to any such applicable express or implied warranty by curing any
nonconformity after a reasonable number of attempts, the manufacturer shall
accept return of the vehicle from the consumer. In instances in which a vehicle
is sold and subsequently returned, the manufacturer shall refund the full
contract price of the vehicle including all credits and allowances for any
trade-in vehicle, less any cash award that was made by the manufacturer in an
attempt to resolve the dispute and was accepted by the consumer, and a
reasonable allowance for use, or shall offer to replace the vehicle. In
instances in which a vehicle is leased and subsequently returned, the
manufacturer shall refund all payments made by the consumer to the manufacturer
under the terms of the lease agreement less any cash award that was made by the
manufacturer in an attempt to resolve the dispute and was accepted by the
consumer, and a reasonable allowance for use, or shall offer to replace the
vehicle. The consumer shall have an unqualified right to reject a manufacturer’s
offer of replacement and demand a refund. In instances in which a vehicle is
replaced by a manufacturer under the provisions of this section, said
manufacturer shall reimburse the consumer for any fees for the transfer of
registration or any sales tax incurred by the consumer as a result of such
replacement. In instances in which a leased vehicle is replaced by a
manufacturer under the terms of this section, an identical model vehicle shall
be provided to the consumer for the remaining term of the original lease
agreement. In instances in which a vehicle which was financed by the
manufacturer or its subsidiary or agent is replaced under the provisions of
this section, said manufacturer, subsidiary or agent shall not require the
consumer to enter into any refinancing agreement which would create any
financial obligations upon such consumer beyond those implied by the original
financing agreement. In instances in which a vehicle which was leased from a
dealer or manufacturer is replaced under the provisions of this section, said
dealer or manufacturer shall not require the consumer to enter into any lease
agreement which would create any financial obligations upon such consumer
beyond those implied by the original lease agreement. In instances in which a
refund is tendered under the provisions of this section, the manufacturer shall
also reimburse the consumer for incidental costs including sales tax,
registration fee, finance charges and any cost of options added by an
authorized dealer. Whenever a vehicle is replaced a refund is given under the
provisions of this section, in instances in which towing services and rental
vehicles were not made available at no cost to the consumer, the manufacturer
shall also reimburse the consumer for towing and reasonable rental costs that
were a direct result of vehicle nonconformity. Refunds shall be made to the
consumer and lienholder, if any, as their interests may appear. A reasonable
allowance for use for all motor vehicles other than motorcycles shall be
obtained by multiplying the total contract price of the vehicle, or in the case
of a leased vehicle the total amount of payments made by the consumer to the
manufacturer under the terms of the lease agreement, by a fraction having as
its denominator one hundred thousand and having as its numerator the number of
miles that vehicle traveled prior to the manufacturer’s acceptance of its
return. A reasonable allowance for use for motorcycles shall be obtained by
multiplying the total contract price of the motorcycle by a fraction having as
its denominator twenty-five thousand and having as its numerator the number of
miles that the vehicle traveled prior to the manufacturer’s acceptance of its
return.
It
shall be an affirmative defense to any claim under this section: (i) that an
alleged nonconformity does not substantially impair the use, market value or
safety of the vehicle; (ii) that a nonconformity is the result of owner
negligence, damage caused by accident, vandalism, or attempt to repair the
vehicle by a person other than the manufacturer, its agent or authorized
dealer; or (iii) that a nonconformity is the result of any attempt
substantially to modify the vehicle which was not authorized by the
manufacturer.
A
consumer shall have the option of retaining the use of any vehicle returned
under the provisions of this section until such time as said consumer has been
tendered a full refund or a replacement that is acceptable to the consumer. The
use of any vehicle retained by a consumer after its return to a manufacturer
under the provisions of this section, shall, in instances in which a refund is
tendered, be reflected in the above mentioned reasonable allowance for use.
(4)
A reasonable number of attempts shall be deemed to have been undertaken to
conform a motor vehicle to any applicable express or implied warranties if (a)
the same nonconformity has been subject to repair three or more times by the
manufacturer or its agents or authorized dealers within the term of protection,
but such nonconformity continues to exist or such nonconformity has recurred
within the term of protection, or (b) the vehicle is out of service by reason
of repair of any nonconformity for a cumulative total of fifteen or more
business days during the term of protection; provided, however, that the manufacturer
shall be afforded one additional opportunity, not to exceed seven business
days, to cure any nonconformity arising during the term of protection,
notwithstanding the fact that such additional opportunity to cure commences
after the term of protection. Such additional opportunity to cure shall
commence on the day the manufacturer first knows or should have known that the
limits specified in clause (a) or (b) have been met or exceeded. The term of
protection, said fifteen business day period and said additional opportunity to
cure shall be extended by any period of time during which repair services are
not available to the consumer as a direct result of a war, invasion, fire,
flood or other natural disaster. The term of protection, said fifteen business
day period and said additional opportunity to cure shall also be extended by
that period of time during which repair services are not available as a direct
result of a strike; provided, however, that the manufacturer, its agent, or
authorized dealer provides or makes provision for the free use of a vehicle to
any consumer whose vehicle is out of service by reason of repair during a
strike. The burden shall be on the manufacturer to show that any event claimed
as a reason for an extension under the provisions of this paragraph was the
direct cause for the failure of the manufacturer, its agent or authorized
dealer to cure any nonconformity during the time of said event. Extensions for
concurrent events shall not be cumulative.
(5)
Nothing in this section shall be construed as imposing any liability on an
authorized dealer or creating any cause of action by a consumer against a
dealer under the provisions of this section.
Nothing
in this section shall be construed to limit the rights or remedies which are
otherwise available to a consumer or manufacturer under any other applicable
provision of law.
Nothing
in this section shall be construed as imposing any liability on a dealer or
creating a cause of action by a manufacturer against its authorized dealer
under this section except with respect to (i) failure by an authorized dealer
to properly effect preparation, installation of options or repairs when such
preparation, installation of options or repairs would have prevented the
occurrence of or cured a nonconformity; (ii) express warranties offered by an
authorized dealer which exceed the provisions of the manufacturer’s express
warranties; and (iii) that portion of the cost of reimbursing a consumer for
dealer-added options which represents the dealer profit from the addition of
such options. The manufacturer shall reimburse its authorized dealer for all
incidental and consequential damages, including attorney’s fees, incurred by
such dealer as a direct result of any legal action brought by a consumer under
this section.
No
consumer shall be required by any manufacturer, its agent or its authorized
dealer to give notice directly to a manufacturer of the existence of any
nonconformity before resorting to state-certified, new car arbitration.
No
motor vehicle that is returned to the manufacturer under the provisions of this
section shall be resold in the commonwealth without clear and conspicuous
written disclosure of the fact that it was so returned prior to resale of the
vehicle. The attorney general shall prescribe the exact form and content of any
such disclosure statement.
(6)
All manufacturers shall submit to state-certified, new car arbitration, if such
arbitration is requested by the consumer within eighteen months from the date
of original delivery to such consumer of a new motor vehicle. State-certified,
new car arbitration shall be performed by a professional arbitrator or
arbitration firm appointed by the director of consumer affairs and business
regulation and operating in accordance with the regulations promulgated
pursuant to this section, and shall result in a written finding of whether the
motor vehicle in dispute meets the standards set forth by this section for
vehicles that are required to be replaced or refunded. Said finding shall be issued
within forty-five days of receipt by said director of a request by a consumer
for state-certified arbitration under this section. Said director shall
promulgate rules and regulations governing the proceedings of state-certified,
new car arbitration which shall promote their fairness and efficiency. Such
rules and regulations shall include, but not be limited to, a requirement of
the personal objectivity of each arbitrator in the results of the dispute he
will hear, and the protection of the right of each party to present its case
and to be in attendance during any presentation made by the other party. All
findings of fact issuing from a state-certified, new car arbitration shall be
taken as prima facie evidence of whether the standards set forth in this section
for vehicles required to be refunded or replaced have been met in any
subsequent action brought by either party ensuing from the matter considered in
said arbitration.
If
a motor vehicle is found by state-certified, new car arbitration to have met
the standards set forth by this section for vehicles required to be replaced or
refunded, and if the manufacturer of said motor vehicle is found to have failed
to provide said refund or replacement as required, such manufacturer shall,
within twenty-one days from the issuance of such finding, deliver such refund
or replacement, including the incidental and other costs set forth in
subsection (3), or appeal the finding in superior court. No appeal by a
manufacturer shall be heard unless the petition for such appeal is filed with
the clerk of the superior court within twenty-one days of issuance of the
finding of the state-certified arbitration and is accompanied by a bond in a
principal sum equal to the money award made by the state-certified arbitrator
plus two thousand five hundred dollars for anticipated attorneys’ fees, secured
by cash or its equivalent, payable to the consumer.
The
liability of the surety of any bond filed pursuant to this section shall be
limited to the indemnification of the consumer in the action. Such bond shall
not limit or impair any right of recovery otherwise available pursuant to law,
nor shall the amount of the bond be relevant in determining the amount of
recovery to which the consumer shall be entitled. In the event that any state-certified
arbitration, resulting in an award of a refund or replacement, is upheld by the
court, recovery by the consumer shall include continuing damages in the amount
of twenty-five dollars per day for each day, subsequent to the day the motor vehicle
was returned to the manufacturer pursuant to subsection three, that said
vehicle was out of use as a direct result of any nonconformity not issuing from
owner negligence, accident, vandalism, or any attempt to repair or
substantially modify the vehicle by a person other than the manufacturer, its
agent or authorized dealer; provided, however, that the manufacturer did not
make a comparable vehicle available to the consumer free of charge. In addition
to any other recovery, any prevailing consumer shall be awarded reasonable
attorneys’ fees and costs. If the court finds that the manufacturer did not
have any reasonable basis for its appeal or that the appeal was frivolous, the
court shall double the amount of the total award made to the consumer. Any consumer
dissatisfied with any finding of state-certified, new car arbitration shall
have the right to file a claim pursuant to chapter ninety-three A.
(6A)
A clear and conspicuous listing of the rights of the consumer under this
section shall be affixed by a sticker to a window of each new motor vehicle
offered for sale or lease in the commonwealth. An enumeration of these rights
shall also be provided along with ownership manual materials. The form and
manner of these notices shall be prescribed by the director of consumer affairs
and business regulations.
(7)
Failure to comply with any of the provisions of this section shall constitute
an unfair or deceptive act under the provisions of chapter ninety-three A. The
failure of a manufacturer either to abide by the decision of a state-certified
arbitration or to file a timely appeal shall entitle any prevailing consumer to
an award of no less than two times the actual damages, unless said manufacturer
can prove that such failure was beyond his control. For the purposes of said
chapter ninety-three A, the timely delivery by a manufacturer of a refund or
acceptable replacement, pursuant to a finding by state-certified arbitration,
shall constitute the granting of relief upon demand.
The
director of consumer affairs and business regulation shall inform the office of
the attorney general of any method, act or practice of which she is aware that
is deemed by her to be a violation of any provision of this section.
(8)
Whoever, within twenty-one days of any finding in favor of the consumer of the
state-certified, new car arbitration, fails to appeal such finding and does not
deliver a refund or replacement vehicle or notify the consumer of the estimated
delivery date of the replacement vehicle, shall be punished by a fine of five
thousand dollars per day until the delivery of such refund or replacement. The
estimated delivery date shall not exceed sixty days from the date the
manufacturer notifies the consumer that a delivery will be made. Said fine
shall not exceed fifty thousand dollars for each such violation. The amount of
said fine shall begin to accumulate on the twenty-second day following the
arbitration decision. If eighty-one days has elapsed from the issuance of a
finding in favor of the consumer of the state-certified, new car arbitration
and no appeal has been taken and no award delivered and no fine paid, the
attorney general shall initiate proceedings against said manufacturer for
failure to pay said fine. The proceedings initiated pursuant to the provisions
of this section shall be commenced in superior court department of the trial
court.
In
addition to the remedies hereinbefore provided, the attorney general may bring
an action on behalf of the commonwealth to restrain further violation of this
section, to enforce any provision, and for such other relief as may be
appropriate.
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