SAL’S LAW
Your Legal Eagle
D.P. @ KLNS: Sal, I am in the process of selling an aircraft to a friend. We signed all of the FAA forms including the new registration and bill of sale. No money has changed hands as of today but we hope to work that out shortly. The buyer is now having second thoughts and I am worried he will back out. At what point can I say “Deal or No Deal”?
Sal’s Law: D.P., the answer to your question really depends on how the transaction is documented. The signing of FAA forms alone does not transfer ownership of an aircraft, much the same as if you were to pick a loaf of bread off the shelf at a supermarket. You don’t own it, until money exchanges hands. You may even have recourse after you purchase it, if the terms of the sale were not complied with.
For this reason, no-one (and I mean no-one) should ever consider purchasing or selling an aircraft unless a sales contract is put into place, escrow is created and the terms and conditions of exchange are made clear. In a case recently from Ohio we had occasion to set in motion a transaction where the contract called for an airworthy aircraft to be transferred on a specific date. All of the FAA documents were completed in advance by the seller and buyer. One day prior to the exchange date in the contract, the aircraft’s vacuum pump failed. This renders the aircraft un-airworthy and therefore, compliance was not possible.
While most contracts would give the seller some time to remedy the failed device, the fact is that the aircraft still belongs to the Seller and it is he, alone who will pay for the new pump.
In addition, the contract of sale should state who will be responsible for expenses leading up to closing. For example, if the contract is contingent upon a pre-purchase inspection (as it should be) there needs to be a recital as to what amount of defect will render the contract unenforceable. Remember, no pre-purchase is going to come out 100% clean. If the deal falls through at that point, who pays the price of the pre-purchase inspection? Does a broken radio knob cancel the contract?
Absent a clear contract, these are questions that lawsuits are made out of. So the long answer to your short question is this, under the circumstances you describe, absent the exchange of money, the deal is not a deal. Next time out, don’t exchange the suitcase full of money without a valid sales agreement.
T.T. @ KEEN: I recently overheard on the airways, an exchange between a controller and an aircraft with regard to a landing clearance. An aircraft had been cleared to land. An animal on the runway had caused the controller to cancel the landing clearance while the plane was on final approach. He told the pilot that they would have to chase the animal away or wait for it to leave. The pilot called back that he had the animal (a large dog) in sight and would land long and over the head of the animal. The tower simply said to him that he could not issue a clearance and he would be operating “at his own risk”. This seems like two contrary statements. Who prevails?
Sal’s Law: Anytime an animal occupies the same runway that an aircraft wishes to use, the runway is considered “contaminated” and controllers will almost always shut the runway down for safety reasons, until the animal can be chased away or moves on of their own accord. There are plenty of deer strikes on rural runways that cause aircraft damage and cost pilots a lot of “doe”.
The controller issued the proper communication by telling the pilot he was operating at his own risk. Air Traffic Control Manual Section 3-3-2 states that if a runway becomes unsafe, the controller must either tell the pilot that the runway is closed, or if the controller believes that the “intended operation will not adversely affect other traffic, inform him/her that the operation is at their own risk”.
In this case, the controller is quite literally telling the pilot that landing may pose some risk and is not necessarily recommended and may be unsafe, however if the pilot insists, he/she is taking the risk upon himself. If there were a more serious problem on the runway, such as vehicles or a large crater, the controller would have to inform the pilot that landing clearance could not be given; the runway was closed and then quote the appropriate NOTAM. In that case, landing would be prohibited.
Either way, the controllers caution should be carefully considered, since your engine sound may scare the animal away, or scare the animal along the same runway you are using. Of course we all know that at the airport a canine is called a Kay-Niner!
Blue Skies all!
Sal Lagonia Esq., is an Aviation Attorney, Professor of Aviation Law and frequent speaker on aviation safety issues. Questions may be sent to Sal@LagoniaLaw.com or to his main office at 914-245-7500.