My Car Failed DEQ!

Photo by Robert Couse-Baker

My car failed DEQ. Now what?

Many Oregonians buy used cars and find out it will not pass DEQ. Frequently, these same buyers ask “is it illegal to sell a car that won’t pass DEQ?” The quick answer is yes, it is illegal.

Legal requirement

If a dealer sells a used car to someone who lives in a metro area that requires DEQ testing, the dealer must ensure that the vehicle can pass the DEQ test at the time of sale, unless the dealer first discloses that the car cannot pass. Typically what happens is a consumer buys the car, then a few days down the road the check engine light comes on. When the consumer takes the car in for its DEQ test, it will fail. According to the Oregon Department of Environmental Quality, if a check engine light is illuminated on your dashboard, your car will not pass the DEQ test.

Why did the Check Engine light come on after I bought my car?

A check engine light can come on for a variety of reasons, but they all relate to something needing attention with a car. If a dealer has a car in his inventory that has a check engine light on, he can simply reset the light without fixing the problem. This will keep the light off until the car completes a drive cycle. The amount of time needed for the drive cycle to complete will vary from car to car, but it is usually long enough for a dealer to sell the car. Frequently these are problems with emission sensors or faulty catalytic convertors, which will require repairs.  This practice is illegal under Oregon’s Unlawful Trade Practices Act.

Is it illegal for a dealer to sell a car without a catalytic converter?

Many used cars are sold with aftermarket parts installed or with modified exhaust systems. This might include a straight pipe, high performance mufflers, or other equipment intended to increase the car’s performance. If the dealer does not disclose that these modifications will cause the car to fail DEQ, that is illegal. It is illegal because a car with faulty emission equipment will not pass DEQ.

What do I do?

It is illegal for a car dealer to sell a car in Oregon that cannot pass its DEQ test to a consumer who lives in a DEQ county. If you just purchased a used car and it has failed its DEQ test or the check engine light has recently turned on, please call our office at 503-383-1496 for a free consultation to see if we can help you with your problems.

FTC Buyers Guide 2017

On November 18, 2016 the Federal Trade Commission (FTC) amended the Used Motor Vehicle Trade Regulation (FTC Used Car Rule), which made several changes to the FTC Used Car Buyers Guide. The FTC Used Car Buyers Guide is a sticker approved by the FTC, and required to be affixed on the rear passenger window of used vehicles a dealer is offering for sale. The 2016 amendment to the FTC Used Car Rule purposely corrected a common confusion to the Buyers Guide – the AS IS clause.

Used car dealers often use the AS IS clause of the Buyers Guide to avoid any and all liability arising from used car sales. Whenever a consumer complains about a car purchase, dealers usually refuse to provide any remedy, believing that the AS IS clause shields them from all liability. Many consumers are also convinced that they have no remedy even when the dealer has plainly violated various consumer protection statutes. In an attempt to clear up the confusion, the FTC made the following amendment to the AS IS clause:

Old Rule:

AS IS – NO WARRANTY

YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.

New Rule:

AS IS – NO DEALER WARRANTY

THE DEALER DOES NOT PROVIDE A WARRANTY FOR ANY REPAIRS AFTER SALE.

Contrary to what dealers think, AS IS does not mean that the dealer is completely absolved of any liability after the sale. As the new language suggests, AS IS simply means that the dealer is not offering any warranties with the sale of the vehicle. The Oregon Attorney General has further clarified this distinction in the official commentary of the Unlawful Trade Practice Act:

“Unless explicitly disclosed prior to a sale or lease, a motor vehicle that is offered for sale or lease to the public is represented, either directly or by implication, to be roadworthy when it is sold, to have an unbranded title and to have no undisclosed material defects. . . for used vehicles, even if the dealer states on the FTC Buyers Guide (“As Is”) that the dealer is not providing a warranty, the dealer must still disclose material defects about which the dealer knew or should have known.”

OAR 137-020-0020(3)(o) Official Commentary. In other words, if the dealer is selling a car that is not roadworthy, has a branded title, or has other material defects, the dealer must make a separate disclosure. Simply providing the AS IS disclosure in the FTC Buyers Guide is not enough.

Generally, it is a good idea to write down all of the dealer’s promises or representations on the contract prior to signing. However, even if you signed the AS IS clause and failed to write anything down, you may still have a remedy for purchasing a car with problems if the dealer knew or should have known of the defects.