What can you do if an Owner won't take back his horse? PART 2

You wouldn't think it would pop up all that often...you have someone else's horse and you want the owner to take it back, but the owner refuses to accept their own horse! 
Because horses are expensive, an owner often wants the burden of care to be on someone- anyone!- else.  Such cases are quite numerous, so the issue deserves a follow-up post.  We discussed this issue once before in the post, "What can you do if an Owner won't take back his horse?"

A wonderful reader sent us the following story (re-used on the blog with permission; names have been removed; edits limited to editorial purposes only):

I came across a craigslist ad saying something along the lines of, "Beautiful TB in Foal with APHA/A PintoHA registered Sire, for Free lease." So, I called the owner, to get more info. I was in the market for a horse. I had been looking at foals, for a while, but they were either too expensive, or too many stipulations.
The woman said, if I take care of her TB mare, while she is in mare, pay bills, vet, board, feed, ALL and care, I can keep her foal. So, I said,"great!"

I asked her to write a contract. She said she would bring it, when she delivers the mare. The mare was 7 months pregnant, at the time. I asked what shots she needed, and do I need to know anything about her. She told me what feed and she is UTD on shots, but will need her Rhino, in a month.

So, the mare was delivered, by the owner. The owner, "forgot," the contract, but said she would mail it to me. Ok. I have been taking amazing care of the mare. I would send the owner emails every month or more, updating her or asking her questions. She got back to me, in a timely manner.

The mare had her foal on March 20th. The foal is going to be 3 months, soon. The mare is severely underweight. Not because I'm not feeding her enough, but because she is old (23!) which I had no idea she was that old. The owner said she has always been a broodmare, never used for riding.

Foal and mare were very healthy, at birth. The foal is almost the same size as his mom! He is eating solids, eating hay and drinking water. I have tried everything to get the mare healthy, but nothing is helping.

The owner asked me, since I'm taking such good care of the mare, would I want to keep her. I told her I can't give her the time and I don't have the funds, for both horses. So, I said, "No."

This is when she started not answering emails. I let her know the mare is very underweight, and she said not to worry. That was one of the last emails, from her.

I have strangers commenting on how bad the mare looks, and the pony riding business at our barn believes it risks having their business license taken away due to the mare's condition.

My vet suggested I start slowly weaning. I contacted the owner many times, letting her know, she needs to come get the mare, but she won't reply.

I want to call the police, in her town, to see if they can contact her, and let her know she needs to take her horse back. It is her horse.  The mare needs to go home, now.

In the previous post we discussed that using the terms of the written lease agreement would be the most helpful. In this situation there isn't a written agreement (remember what this post said, one of the Three Most Common Contract Errors is not using a contract...though I understand how difficult it can be to get one before the horse transaction occurs!).  The previous post also provided options through the court system, and while still viable, can cost you time and money.  So here are some further options moving forward:

1. Follow the steps you would with an abandoned animal (notice to owner, notifying appropriate authorities)
2. Send a certified letter to the owner notifying that board payments will commence 30 days from the notice, and the owner will be invoiced monthly, accruing interest for late payment
3. Commence a small claims action against the owner for monies due to you for caring for the property of another
4. Send the owner a Bill of Sale, Assignment of Ownership, or Transfer of Title requesting the owner sign and return to you.  This absolves the owner of all further liability and you can then euthanize the horse if medically necessary, or otherwise donate or find a new home for the horse.

Be sure to send in your story of trials and triumphs to help educate your fellow horsemen and women about how to better practice law equine law in your everyday horse lives!
Send to: RibbonsandRedTape {at} gmail {dot} com

Three Common Equine Contract Errors

1. Not using a contract

When a client comes to me with a problem related to the sale of a horse, a trial period, a lease, or similar and I ask to see the contract...and there isn't one.  Prevailing in a "he says" "she says" situation can be very difficult because everyone tends to remember past events with the filter of their own motivations.  However brief, make it a priority to have something in writing, signed by the parties, that represents your agreement (and covers your potential liabilities).

2. Not getting a signature

When someone provides a contract to the other party, and allows the horse to leave the premises before the contract is signed and returned.  While the person who took the horse is possibly "on notice" of the terms of the arrangement, the signature represents that the person agrees to be bound by the terms.  If someone leasing a horse receives a contract dictating he or she must pay for the horse's rehab for 30 days in the event of lameness, but then doesn't sign the contract, the owner of the horse most likely cannot compel the Lessee to act in accordance with the terms of the contract.  In the horse world things often happen quickly or with agents (such as a trainer picking up a horse), but stand firm and get the signature first.

3. Contract that is Incomplete and Missing Terms

When a client comes to me with an equine issue that is not accounted for in the contract.  For example, the parties may have used a Bill of Sale but not a Purchase and Sale Agreement.  If the owner made warranties or promises when he sold you a horse, but those are not included in the documentation, then you will likely have a difficult time proving your case.  The best situation is to review your contracts with an equine attorney to make sure they are appropriately broad, as well as appropriately specific, for your situation.  Or, if you are provided with a contract by the other party and you wish to add terms, include them on a contract and have both parties date and sign the addition.  In any contract situation consider what is material, particularly the terms related to money, dates, and what to do if something goes wrong.  It is those material provisions that, at a minimum, should be in your contract.

Lesson to be learned: Use a contract that is complete and correct for your specific, particular situation; provide it to the other party and receive a signature before you take any further action related to the horse deal.

Equine Architecture: is your barn safe?

Have you ever had an accident happen at the barn? Horses kick each other, a barn fire, wash rack injury?  
Being around horses is an inherently dangerous risk, and boarding barns should not be liable for injuries that occur as a natural byproduct of our equestrian sport.
However, boarding barns cannot waive gross negligence, and there may be times that such conduct or conditions around the barn result in avoidable injury.

Today we have a special feature from equine architect Joseph Martinolich.  Joe loves working with horsemen because horse people are so passionate about their sport!  However, Joe has also seen a number of errors made in equine architecture, errors that have led to injury.  He has been an expert witness in court cases revolving around these types of injuries.
I asked him a few questions about equine building and design to help serve you, my readers, as both boarders and barn owners (whether for private use or as a business).

1. How does your company intersect with equine law?

I have been a licensed architect for 30 years and over the last 15 years I have been specializing in equine design (stables, arenas, farm planning etc). This unique knowledge and experience has allowed me to assist  the legal community by serving as an expert witness on cases involving  injuries or damage involving horses, horsemen,  and/or the facilities in which they are they are used or stabled. My involvement has entailed reviewing and evaluating existing equine facilities for proper clearances, construction and overall design and how those physical conditions may or may not have  contributed to the injury or damages being claimed. 

2. What are the top two most common architectural issues you see arise in equine law?

While each case has been unique, I have seen one issue that appears to come up time and again. That being the unrealistic perception that some people have that the building or structure  should somehow be designed and constructed to safeguard them against every possible injury or damage, even when improperly used or maintained. One way to further describe this is to think of the building as a tool which needs to be operated and maintained properly in order to do the job for which it was constructed. Consider something as simple as a latch on a stall door - if not properly used or operated can result in a horse from getting loose and getting or causing an injury. The building (or latch) can only work and create a safe environment if its used properly by the people within it.

3. If someone is building or renovating a horse facility, what should they keep in mind to help them avoid liability?

Many issues will directly or indirectly affect the safe and functional use of  a farm and stable, just a few of these include:
  • Proper Planning: from the location of the building on the property, to the clearances and space requirements for for people, vehicles and horses, to the selection of proper materials. Sometimes trying to make use of less-than-ideal conditions or materials may save some time or money initially, but can come back to haunt the owner in the long run.
  • Proper maintenance: deteriorated wiring, splintering wood, exposed nails and screws, clogged drains, faulty door hardware etc are accidents waiting to happen. Regular maintenance  needs to be part of every stable owners operating plan. The facilities can  not simply be built and forgotten about.  
  • Proper electrical design & construction: Stables and arenas are unique environments due to the exposure to dust, birds, vermin, chewing horses, regular exposure to water (at wash stalls, etc). The lighting and power distribution in these facilities needs to be carefully planned to account for these conditions. Exposed and unprotected wiring is subject to being chewed  by vermin and horses, so protecting these components in conduit (plastic or metal tubing in which the wires are routed) adds a level of protection. Using GFCI (ground fault circuit interruption) protected outlets to reduce the risk of shock. The proper selection of UL listed damp/wet locations light fixtures, and to avoid the attracting insects and nesting birds, as well as other measures are all ways to minimize the chances of injury and fire. 

If you are a boarder I would encourage you to always examine the premises prior to your horse's arrival to ensure it is suitable for you.  And once you are a boarder, remain observant of how you can better ensure the safety of yourself, your horse, and others at the barn.  
As a barn owner, maintenance of safe conditions is paramount.  It should be part of your daily routine to be aware of broken or rotting boards, sharp objects, or dangerous conditions.  Your boarding agreement should also require prospective boarders sign that they have had the opportunity to examine the premises and find them suitable, and of course a provision waiving negligence.

Want some more barn eye-candy? Be sure to check out Joe's full gallery of projects.  He is based in Lexington, KY but available in any locale, or for consultation by phone or e-mail.

Have a question about whether your Boarding Agreement protects you as well as it should?  Contact me and I can help you find an attorney in your state.  As a word to the wise, I recently won a case because the Barn Owner did not use a Boarding Agreement at all and therefore could not meet her burden of proof to prevail in the dispute.  I'd recommend at least a brief agreement rather than no agreement at all- even for short-term boarders!

An Equine Assignment (nope, not homework!)

I've seen a number of legal issues pop up recently in regard to contract assignments, and wanted to help you know 1. What they are and 2. What you should do if you see one in your contract

A contractual assignment is the transfer by one party of the rights and obligations he has in the contract to a third-party.  That third-party person is the "assignee" and is said to "step into the shoes" of the "assignor."

Where do we see contractual assignments in the horse world?

Assignments in equestrian contracts are typically found in long-term or ongoing contractual agreements.
For example, take a look to see if your Boarding Agreement have an assignment provision.  Often the owner of the barn will reserve the right to assign the Boarding Agreement.  This means that if the barn owner sells the barn and assigns the boarding agreement to the new owner, then the new owner steps into the shoes of the barn owner and your board agreement is now with the new owner, typically without your prior consent, without you having to sign any new document, and without any say in the matter.
Two other examples: the Purchase and Sale Agreement of a horse that is being paid for by installment payments, or a Lease Agreement for a horse.  An assignment would allow either the buyer or the seller, or the Lessee or Lessor, to give to a third-party the rights and duties under the contract.  This could be the right to receive payment or the obligation to make payments, depending on which party is making the assignment.

Do you have an assignment provision in your contract?

The ability to make assignments can be great in some instances, bad in others, or of no truly material effect.  In the example of the Board Agreement, it might not matter if the barn owner assigns the Agreement to a new owner because the new owner will be bound by the terms of the existing Board Agreement, such as the services provided to the horses and the boarders.  But in an installment Purchase and Sale Agreement, if you are receiving payments and the person buying your horse assigns the contract, the contract may be assigned to someone you don't trust to make payments to you (or doesn't pass a credit check).  Or in a lease agreement, the contract may be assigned by the lessee to someone that you wouldn't want to ride or lease your horse.

When you see an assignment provision in your horse contract, consider whether all or only one party to the contract is allowed to assign, if there are parameters or limitations to the right to assign, and think through what the consequences might be to the ability (or inability) to make an assignment. 
 And of course, if you have any questions about the assignment provision and what it means for you and your equestrian activities, be sure to ask a licensed attorney in your jurisdiction for a consultation.