[ChrisX5M50i]

Hello everyone. I'm here in need of some advise about dealing with the Honolulu BMW dealership that sold me my 21 X5 M50i. I bought it knowing that it was a previous lease return vehicle, which was leased by one owner for about 3 years. During the time that I've had the car, I've only driven it approximately 150 miles, and it's thrown a code for low cat efficiency, lean to rich, which i assumed might have been a faulty O2 sensor. Also, there is a strong exhaust smell, which I assumed could be that the catalytic converter was messed up. Anyway, rather than doing any work on it, I took it into the dealership for them to fix it since it's on warranty. As it turns out, the car has an aftermarket down pipe which voids the warranty. This was not my doing, and I'm assuming the dealership missed it on it's return inspection. They told me that I'd have to pay for the repair which I assume involves replacing the down pipe with a stock one and whatever other things are involved in returning it to stock.

Shouldn't this get me out of the purchase agreement? I'm pretty sure it's illegal for them to sell me a car with non-functional emissions equipment, and either they just missed it, or they misrepresented it. Such a shame, because I love the car and the price wasn't horrible, and at only 30k miles, it's barely broken in. I just worry about someone modifying the car and flogging the crap out of it during a lease, and getting away with it, then passing it on to me.

What do you think? Do I have any recourse here or is this a lost cause? It's my first BMW, and I went into it a little fast, but I did a lot of research on the cars, particularly the N63 engine, I just kind of feel blindsided by something like this, especially from an actual BMW dealership and not some little used car lot.

Thanks for your time, looking forward to your input.

[X5MnM3comp]

Sorry this happened to you. I have never heard something like this happened in a dealership. Was it a certified pre own? If so, this would automatically put them at fault. If it was a “sold as is” case, did they inform you or was there an inspection report provided? If the inspection report was provided and showed the car did not pass smog and you signed off on it, I don’t know how you would be able to argue about the repair charge. I hope that’s not the case.

[ChrisX5M50i]

Thank you for your reply. It was not a certified pre-owned car. It does have about 7 months of manufacturer warranty left though. There was nothing about the modifications on the report that I remember, but I definitely will check again. Thanks for the suggestion!

In addition, the AC system stopped working, which was the primary reason to bring the car in, so hopefully that gets resolved soon too. It worked perfectly for the test drive and for about a week afterwards. Almost like they just topped the refrigerant to get the car out the door...

[IanH]

Its definitely illegal for them to sell you a car with modified emissions equipment. To some extent you may have to have some proof they did... which might be a challenge.

I would escalate to bmw usa corporate and continue to press the issue with the dealer.

[alex2364]

I would insist on returning the car. Sounds like it doesn't have the original cats and aftermarket downpipe so there's 99% chance it's been tuned in the past. Service department said your emission warranty is void but if the sales department said the remaining factory warranty is intact when they sold it, then that's fraud on their part. They should have given you paperwork if this car was sold "as is" or with remaining warranty.

[pbonsalb]

I hope they don’t deny that it was modded and say that the buyer must had modded it.

[BlkGS]

They are not required to verify everything on the car is stock if it's just a car on their lot. The fact that they didn't CPO it was your first red flag, it probably had been flagged in their system for a tune previously and that's why they didn't CPO it.

How long have you had it? If it's been days, you might be able to talk to them about undoing the deal. If it's been weeks or months, you're probably screwed. It isn't illegal to sell a modified vehicle, so don't go in with that attitude.

That said, yes, someone probably flogged on it during their lease. It was a lease that's what people do on high performance leases. But here's the thing, THAT'S OK. It's a high performance vehicle, it's designed for it. It's not some cheapo 330i 4 cylinder, it's a high performance vehicle with crazy amounts of cooling and robustness, it will be FINE.

Personally, I'd have the O2 sensor replaced, maybe put a spacer on the O2 if the new one keeps tripping, and ride with it. It's a perk, you got a better than new vehicle with mods that aren't gonna affect anything except maybe it's gonna smell a little more like a performance car.

[DrVenture]

If it is throwing codes, I'd assume that it was tuned and then reverted to the stock tune. It isn't going to pass emissions in that condition. Even a tuned vehicle with the O2 sensor disabled will not pass emissions. It will never enter the "ready" state.

The dealer cannot knowingly sell you a car with altered emissions and not tell you. If they have system records showing it was tuned or anything else, that is a smoking gun. And it could get very expensive for them if you sue and notify the authorities (BMW and EPA).

Seems like you have a bit of leverage and they are playing a risky hand. I'd suggest they fix it and you won't drop a dime on them. Don't waste your time with the SA, ask for a private conversation with the service manager. Be forewarned they may call your bluff. You may have to sue. They may refuse to service your vehicle. It could ugly.

[ChrisX5M50i]

IanH and Alex, I agree with both of you, but it might be more expensive than it's worth. If I have to hire a lawyer and go after them, costs are going to add up pretty quickly and I gotta decide if it's worth it. I'll see what the dealer says today, and try to go in nice and calm and see how it goes.

Pbonsalb, they just might try to say that I modified it, which is hilarious because why would I complain about a code if I modified it a day or two after I bought it? Definitely the person that leased the vehicle and returned it with an aftermarket downpipe. I thought if you modify a vehicle during a lease, you have to return it stock or at least try to, or else you owe the dealer a whole bunch of extra money.

BlkGS, I'm sure you're right about not having to verify that everything is stock, but I'm pretty sure the emissions control stuff is legally supposed to be functional. You're right about it being a performance car. If I knew for sure that they'd honor the rest of the warranty (engine internals, transmission, transfer case, engine electronics, sensors, etc) then I might be fine with it. At this point because of the deception, I'd rather just get out of it and possibly look at something else with a valid warranty.

Thanks again for everyone's input. I'll let you know how it goes.

[CTPJ]

Does Hawaii have emissions testing requirements? If so, I would think that the dealership would have had to have it pass prior to selling the car. Try to get a copy of the report showing the results to see if it passes or not. It might help your case.

[tturedraider]

If things don’t go well today you should definitely consult an attorney on how to proceed.

[BlkGS]

Keep in mind, you have to prove they know and hid it. That means proving they actively kept this from you, not just you didn't notice, and that means that they would have had to find the modifications in the first place. In a lease returned, non CPO car they might have just taken a cursy glance for safety - does it have brakes with enough material to sell and tires with enough tread to sell.

I wish you luck with it, but it would be hard to prove they knew and hid it, and even if they knew they could say it was in the inspection report they made available or something like that that maybe you didn't read (which isn't their fault). To your point, it is likely far more expensive to pursue a legal recourse than cost effective.

If the vehicle is modified, they would not warranty components related to that. They have reasonable grounds to say that the modifications increased power beyond rated factory limits. But here's the thing, none of that is gonna happen. It likely had a JB4 or something else on it for tuning and it's gonna be fine. The N63TU3 is a stout motor, it's gonna be just fine.

[BlkGS]

Originally Posted by CTPJ

Does Hawaii have emissions testing requirements? If so, I would think that the dealership would have had to have it pass prior to selling the car. Try to get a copy of the report showing the results to see if it passes or not. It might help your case.

In NC emissions testing was not required prior to sale. Cars just purchased were exempt for the first year you owned them.

Many counties got rid of emissions testing as well, because it was a joke. You 100% could pass emissions testing with sensors reading not ready, because that was not a failure, so everyone who put longtube headers on would delete the rear O2s and turn them off in the tune.

[smrtypants44]

It seems like the path of least resistance would be to just stage 2 tune the car and enjoy the extra power and kill the cel problem.

You could also try and find someone selling their stock DPs online and have an exhaust shop put it back to stock.

[ZL9M2]

As I see it there is unfortunately no way to prove that you didn't modify the vehicle yourself. It's your word against theirs. They have the sales document and I assume that the vehicle had no codes when it was sold to you. It's a moot point unfortunately whether they knew of the modification or just missed it in the in the inspection.

[XutvJet]

I'm an environmental consultant and have been in the business for 27 years.The fact is they sold you a car that is not 50 state emissions compliant. That's a huge no-no and illegal. The OEM cats have a 10 year warranty (even longer in CA I believe). Your car's cats have been tampered with/removed thus not allotted your emissions warranty. It's not your fault that they missed this modification during their inspection.

Go in to the dealership/call/email with a cool head and calm voice, but be firm if they start to brush you off. if they brush you off, ask to talk with the store manager. If that doesn't work, threaten to contact the Hawaii Department of Health Clean Air Branch (see below), BMW corporate, and that you'll leave bad reviews on various review platforms as this isn't acceptable. As a last resort, small claims court. In Hawaii, the limit to dispute is $5,000. You don't need an attorney. I would think that a dealership does not want the heat of an unannounced Hawaii Department of Health inspection and their inspectors snooping through their service shop. Many violations will be found. I've audited countless service shops over the years. They all have environmental, health, and safety violations.

You SHOULD NOT be on the hook for this. A downpipe replacement will probably be close to $2000.


Clean Air Branch
Environmental Management Division
Hawaii State Department of Health
2827 Waimano Home Road, Hale Ola Bldg., Rm. 130
Pearl City, HI 96782
Phone: (808) 586-4200
Fax: (808) 586-4359
E-mail: cab@doh.hawaii.gov

[DrVenture]

Originally Posted by ChrisX5M50i

IanH and Alex, I agree with both of you, but it might be more expensive than it's worth. If I have to hire a lawyer and go after them, costs are going to add up pretty quickly and I gotta decide if it's worth it. I'll see what the dealer says today, and try to go in nice and calm and see how it goes.

Pbonsalb, they just might try to say that I modified it, which is hilarious because why would I complain about a code if I modified it a day or two after I bought it? Definitely the person that leased the vehicle and returned it with an aftermarket downpipe. I thought if you modify a vehicle during a lease, you have to return it stock or at least try to, or else you owe the dealer a whole bunch of extra money.

BlkGS, I'm sure you're right about not having to verify that everything is stock, but I'm pretty sure the emissions control stuff is legally supposed to be functional. You're right about it being a performance car. If I knew for sure that they'd honor the rest of the warranty (engine internals, transmission, transfer case, engine electronics, sensors, etc) then I might be fine with it. At this point because of the deception, I'd rather just get out of it and possibly look at something else with a valid warranty.

Thanks again for everyone's input. I'll let you know how it goes.

!!

[ChrisX5M50i]

Wow, what an amazing community! First BMW and already amazed by the informative responses. Thank you all.

Update: I talked to my sales associate and he informed me that they knew the car was modified and it was supposed to be returned to stock before it got to me. He's off today, but said he would follow up. I'm sure they don't want an inspection, and I really don't want to get anyone in trouble, especially if they'll return the car to stock. They replaced a bunch of parts including a radiator, brakes, tires and probably more, so I can't imagine they missed the DP, but you never know. Mistakes happen and if it can be resolved, I'll be happy.

I'll try to keep you all informed! This could get interesting, but hopefully not too interesting.

[X5MnM3comp]

Originally Posted by XutvJet

I'm an environmental consultant and have been in the business for 27 years.The fact is they sold you a car that is not 50 state emissions compliant. That's a huge no-no and illegal. The OEM cats have a 10 year warranty (even longer in CA I believe). Your car's cats have been tampered with/removed thus not allotted your emissions warranty. It's not your fault that they missed this modification during their inspection.

Go in to the dealership/call/email with a cool head and calm voice, but be firm if they start to brush you off. if they brush you off, ask to talk with the store manager. If that doesn't work, threaten to contact the Hawaii Department of Health Clean Air Branch (see below), BMW corporate, and that you'll leave bad reviews on various review platforms as this isn't acceptable. As a last resort, small claims court. In Hawaii, the limit to dispute is $5,000. You don't need an attorney. I would think that a dealership does not want the heat of an unannounced Hawaii Department of Health inspection and their inspectors snooping through their service shop. Many violations will be found. I've audited countless service shops over the years. They all have environmental, health, and safety violations.

You SHOULD NOT be on the hook for this. A downpipe replacement will probably be close to $2000.


Clean Air Branch
Environmental Management Division
Hawaii State Department of Health
2827 Waimano Home Road, Hale Ola Bldg., Rm. 130
Pearl City, HI 96782
Phone: (808) 586-4200
Fax: (808) 586-4359
E-mail: cab@doh.hawaii.gov

That’s is a great point. I know for fact in the factory warranty which OP still has on the car, an itemized warranty states the lengths of time warranted for emissions. Usually 10 years for what I can remember. Base on that language along with request of a copy of dealer’s presale smog check (regardless if it’s passed or failed), they will have no excuse to accept any demand from OP.

[IanH]

So, if they took this vehicle in on lease return or trade in... they have pictures and documentation of it when it came in. Even more if they did work to bring it into saleable condition.

I'd say you are pretty much set with the current disclosed information that they will be forced to fix everything and reinstate the warranty coverage (even if its the dealer privately warrantying the car)

It will likely never get to this point, but its pretty much a certainty that if you got a lawyer involved they would be forced to take the car back and give you a refund. I hope they are as nice to you as they should be and fix everything wrong with the car.

[XutvJet]

Originally Posted by ChrisX5M50i

Wow, what an amazing community! First BMW and already amazed by the informative responses. Thank you all.

Update: I talked to my sales associate and he informed me that they knew the car was modified and it was supposed to be returned to stock before it got to me. He's off today, but said he would follow up. I'm sure they don't want an inspection, and I really don't want to get anyone in trouble, especially if they'll return the car to stock. They replaced a bunch of parts including a radiator, brakes, tires and probably more, so I can't imagine they missed the DP, but you never know. Mistakes happen and if it can be resolved, I'll be happy.

I'll try to keep you all informed! This could get interesting, but hopefully not too interesting.

Just an FYI, most any environmental division will call the party (i.e., the dealership) about complaints like this. If they don't like the answer they get, they'll show up unannounced to investigate. Enforcement is their job. Modifications/tampering with emissions systems and being in the business of selling cars that aren't compliant is a huge topic of interest for state and federal air enforcement agencies as of late, especially west coast states. Ignorance is not a defense.

[DrVenture]

I'd add that is they knew about, and "forgot", that they already billed the original lessee for the issues on the vehicles return.