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Thread: 51 percent rule?

  1. #1

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    51 percent rule?

    Hi,
    I have a question. I am looking at a Pitts project. It was certified Experimental, but had a forced landing and was damaged. It has sat in a barn for 20 years. needs wings ang gear, new engine. If I tear into this thing. can I recertify it as a new airplane? The only thing I will be using is The Fuselage and tail feathers. Is this any different than buying finished parts in a kit? I figure the amount of work I will be doing is mor than half....any thoughts?
    Thanks
    Dennis H.

  2. #2

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    I don't know the FAR on this, or if there even is one, but it seems to me that there is no way this can be called a new airplane if you are using used parts.
    I think that if you ever tried to sell it and represented it as new; then any buyer would have a strong case against you for fraud in the sale, if there was a problem,or any lawyer for any future buyer.
    I don't see how it matters if it is experimental or not, new and used are different.
    Finished parts in a kit are not used and have not been through an accident, so there are differences.

    I would phone or write the AOPA legal branch if you are a member of AOPA and have the legal service option.
    Good luck
    Last edited by Bill Greenwood; 09-25-2012 at 06:16 PM.

  3. #3

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    Quote Originally Posted by DennisH View Post
    Hi,
    I have a question. I am looking at a Pitts project. It was certified Experimental, but had a forced landing and was damaged. It has sat in a barn for 20 years. needs wings ang gear, new engine. If I tear into this thing. can I recertify it as a new airplane? The only thing I will be using is The Fuselage and tail feathers. Is this any different than buying finished parts in a kit? I figure the amount of work I will be doing is mor than half....any thoughts?
    Yes, it is different because I'm guessing those parts were previously built by someone for "education and recreation," which means they count as 'amateur built' on the Form 8000-38, fabrication/assembly checklist. They do not have to be built by you because any number of people can contribute to building a homebuilt, as long as they are doing it for education/recreation. The parts should not count as being fabricated by a commercial entity - because they weren't.

    So the answer is YES, you should be able to rebuild the plane, easily comply with the major portion rule, certify the aircraft like it's a new homebuilt and obtain a repairman certificate, as I'm guessing that's your motivation.
    Last edited by martymayes; 09-25-2012 at 07:54 PM.

  4. #4
    Quote Originally Posted by Bill Greenwood View Post
    I don't know the FAR on this, or if there even is one, but it seems to me that there is no way this can be called a new airplane if you are using used parts.
    I think that if you ever tried to sell it and represented it as new; then any buyer would have a strong case against you for fraud in the sale, if there was a problem,or any lawyer for any future buyer.
    I don't see how it matters if it is experimental or not, new and used are different.
    Finished parts in a kit are not used and have not been through an accident, so there are differences.

    I would phone or write the AOPA legal branch if you are a member of AOPA and have the legal service option.
    Good luck
    "New or used" is irrelevant. Thousands of experimental aircraft have been constructed with used engines, props, landing gear, instruments, etc and this has no bearing on how the plane is sold. Once a plane flies, the entire contraption is "used".

    The original poster needs to contact a local DAR for guidance but there shouldn't be any registration issues with rebuilding an experimental or building an experimental with previously constructed (used) parts. The FSDO will need to be convinced the builder has sufficient knowledge of the construction of the new aircraft to properly conduct a condition inspection before they will issue a Repairman's Certificate.
    Sam Buchanan
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  5. #5

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    Sam, as I said I don't know a relevant FAR, But.
    There is probably no problem at all with his rebuilding the Pitts,
    BUT to call it a new airplane is just not factual, any more than if you rebuilt a wrecked Ferrari and tried to pass it off as a new car.

    And of course it is a normal part of almost anyone buying a plane to ask about previous damage. Is he going to falsify that? If he buys a new engine it will come with a new logbook from the factory, and if it is a used engine most buyers are going to want to see the logbook that came with and shows the history of that engine. Is he going say that there is no engine log as if the engine has no history and just came out of thin air?

    Now he can probably just keep the plane for himself and call it anything he wants;But

    Let's say he sold the plane, as a new airplane, and then there was either a qualiity problem or even worse an accident that might be traced to the tailplane off the wrecked plane.
    Any attorney who can read and write is going to raise this issue.

    How do you think a jury of average people, not EAA folks or pilots, is going to react when the lawyer tells them that the seller sold a plane that he represented as new, when in fact it was not new, and more so had parts that were not only used,, but which some came from a wreck. And his side can call an expert witness like yourself, perhaps to try to convince them that according to EAA that used and wrecked is really new.
    How do you think they are going to vote? Not how you'd vote, but the jury that would hear such a case?

    Why not rebuild the plane, but be honest on describing it if and when it is sold?
    Last edited by Bill Greenwood; 09-25-2012 at 11:04 PM.

  6. #6

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    I agree with Bill......

    Has the Pitts been formally de-registered? The airframe still has a serial number and potentially a N number, which would prevent it being considered a new aircraft after the rebuild.

    I see no issues in rebuilding to an airworthy condition and having an AP sign off on the conditional inspection. The airframe, although it may be in perfect shape, has damage history. If it were my aircraft, I would go ahead and rebuild with very detailed documentation in the logs of the current state and what was done to make it airworthy again. This would be a very factual respresentation of the aircraft's state.

    I don't see any issues with the 51% rule.

    I think the issue being danced around is the resale value of a damaged history aircraft. I think detailed documentation of the repair will negate this issue. As buyer, I would value the repair documentation in the resale process. I would also become very skeptical (if representing as new) when I start asking to reivew the build documentation and seeing large sections missing. Then I would start playing 20 questions and most likely walk away once I discovered the truth. Once a mis-representation is discovered, all trust would be lost.
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  7. #7
    Quote Originally Posted by Bill Greenwood View Post
    Sam, as I said I don't know a relevant FAR, But.
    There is probably no problem at all with his rebuilding the Pitts,
    BUT to call it a new airplane is just not factual, any more than if you rebuilt a wrecked Ferrari and tried to pass it off as a new car.

    And of course it is a normal part of almost anyone buying a plane to ask about previous damage. Is he going to falsify that? If he buys a new engine it will come with a new logbook from the factory, and if it is a used engine most buyers are going to want to see the logbook that came with and shows the history of that engine. Is he going say that there is no engine log as if the engine has no history and just came out of thin air?

    Now he can probably just keep the plane for himself and call it anything he wants;But

    Let's say he sold the plane, as a new airplane, and then there was either a qualiity problem or even worse an accident that might be traced to the tailplane off the wrecked plane.
    Any attorney who can read and write is going to raise this issue.

    How do you think a jury of average people, not EAA folks or pilots, is going to react when the lawyer tells them that the seller sold a plane that he represented as new, when in fact it was not new, and more so had parts that were not only used,, but which some came from a wreck. And his side can call an expert witness like yourself, perhaps to try to convince them that according to EAA that used and wrecked is really new.
    How do you think they are going to vote? Not how you'd vote, but the jury that would hear such a case?

    Why not rebuild the plane, but be honest on describing it if and when it is sold?
    This discussion is rapidly going off the tracks. I am not in any manner advocating dishonesty or skirting around the regs concerning registration.

    My point was in regard to how a jury would react to the hypothetical of a crash involving the plane with the previously built fuse (this scenario is so far-fetched I'm not sure why I'm even spending time with it.....). I see absolutely no legal problems with selling a homebuilt aircraft with "used" components as long as everything is properly documented, accepted construction practices are followed, the old plane was deregistered, and the DAR was properly informed of the aircraft's history. How could a jury possibly have issues with that?? Once the aircraft has received its airworthiness certificate......it is legally airworthy regardless of the origins of its components. It can be called "new", "used", or whatever but its legality is not under question. Neither is the integrity of the builder if all the above steps have been taken.
    Last edited by Sam Buchanan; 09-26-2012 at 07:26 AM.
    Sam Buchanan
    EAA Technical Counselor
    The RV Journal RV-6 build log
    Legal Eagle XL build log
    APRS track

  8. #8

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    If you can come up with the original registration and airworthiness certificate you then have proof that your plane was experimental amateur built. From there you can restore the plane and get a new airworthiness certificate assuming the old one expired (they used to do that), or if the a/w cert and registration did not expire, you could talk to your local FSDO about re-entering Phase I after a major modification. You would need an A&P to sign off the condition inspection for you, assuming the holder of the original Repairman Certificate was not available.

    If on the other hand you want to just use some of the parts and call it a new airplane you need evidence that the used parts were amateur built, otherwise they will not count towards the 51% amateur built content as required under the new guidelines in AC20-27G. BTW, if you are starting over you cannot use the old Form 8000-38. You must use the new form, which has much more stringent documentation requirements.

    Lastly make sure you get clear title with an FAA bill of sale properly executed, even if you just plan to use it for parts. Sometimes proving ownership can be a tricky thing on planes that have been sitting for a long time.

    I suggest you get a good DAR to help you evaluate what you have and see which course is best for you. It would be a shame to do a lot of restoration work and then not be able to get it signed off.

  9. #9

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    Thanks for all the replies. My main concern is the repairman certificate. I don't really care about the resale. I figure if someone doesn't want to buy it...well then...don't. I just want to be able to maintain it myself. It did have one of the older airworthiness certificates that had an expiration. I will look into that further.
    Thanks
    Dennis

  10. #10
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    As others point out, you can probably do what you want (take it through certification again and get the repairman's certificate). Even if you can't get the repairman's certificate, that's not necessarily a bad thing. Having a different set of eyes take a look at your plane annually is NOT A BAD THING. You can do all the maintenance other than the condition inspection.

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