About Me

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Rachel Kosmal McCart is a lifelong horsewoman and the founder of Equine Legal Solutions, PC, an equine law firm based in the Portland, Oregon area. Rachel is a member of the New York, California, Oregon and Washington State bars and is admitted to practice before the U.S. District Court for the District of Oregon and the U.S. District Court for the Central District of California. Rachel currently competes in three-day eventing.

Friday, September 21, 2007

Evicting a Boarder from Your Boarding Stable

From time to time, boarding stables find themselves in the difficult situation of having to evict a boarder. Much erroneous information circulates in the horse community about boarding stable evictions and what is and is not lawful. However, unlike evicting a tenant from an apartment, boarding stable evictions are not subject to state landlord/tenant laws unless your boarder actually resides on the property. Horses are considered personal property and therefore the eviction process is governed exclusively by contract.

When Can You Evict a Boarder?

As the owner of a boarding stable, you can generally evict boarders for any reason that is not based upon unlawful discrimination (i.e., age, race, sex, national origin, physical disability). Common (and lawful) reasons for evicting boarders include late or non-payment, personality mismatches, destructive horses and unsafe horsemanship. However, you do not even need to have a reason!

How Much Notice Do You Have to Give?

If you have a written boarding contract, you must provide the amount of notice specified in your boarding contract. If you do not have a written boarding contract, Equine Legal Solutions recommends that you provide your boarder with one month's advance notice, although this time period is not legally required. This 30-day period allows your boarder to find new accommodations without undue hardship, and in most cases, the boarder will vacate before the 30-day period has expired. However, there are certain circumstances where you may need to evict your boarder immediately, such as in cases where the boarder is engaging in unsafe or unlawful behavior. In such instances, you should provide the boarder with the shortest amount of time in which they can reasonably be expected to find a new place and move out. Typically, a week would be reasonable under such circumstances. Note that if you have reason to believe that your boarder has been engaging in unlawful behavior, such as threatening another boarder with bodily harm, willfully injuring a horse or stealing, you should immediately contact law enforcement and report the alleged crime. In addition, because your other boarders may be in danger, you may want to give such a boarder as little as 24 hours' notice to vacate the premises.

What Should the Notice Say?

In eviction notices, as in many of life's most difficult communications, less is more. Include only the most basic information: the date and time by which the boarder needs to be out, and the amount, if any, that will be due upon the boarder's departure. Do not specify the reasons for termination, as it will provide the boarder with a basis for arguing with you. To give the boarder an incentive to move out as soon as possible, state that you will provide a prorated refund of any prepaid board if the boarder moves out before the termination date. Also state that if the boarder does not move out by the termination date, that a daily board charge per horse and a daily storage fee for personal property will apply.

What Format Should the Eviction Notice Be In?

Boarding contract termination notices should always be in writing and signed by a person with authority to act for the boarding stable, such as a stable manager.

How Should I Deliver the Eviction Notice?

Deliver the notice of termination to the boarder's home address (or the address given by the boarder in the boarding contract) via a method that provides proof of delivery. Fax notice, with confirmation of delivery, is acceptable. Email notice is not, unless acknowledged in a reply email from the recipient. For mail deliveries, Equine Legal Solutions highly recommends Federal Express rather than U.S. Postal Service registered or certified mail. Not only is it faster, the likelihood of the recipient signing for it is much higher. Most folks with credit and/or legal problems are well aware that no good news ever arrives by certified or registered mail, so they will not sign for it, and by the time that the stable determines the notice hasn't been delivered, more time has passed. Personal delivery (i.e., handing the notice to the boarder) is not recommended, because the boarding stable will have no independent proof of the date of delivery. Plus, the boarder may be very angry when they receive the notice and cause a scene (or worse).

What If I Don't Know Where to Find the Boarder?

In many cases in which the boarder owes a substantial sum of money in back board, the boarder cannot be located. In such instances, it may be helpful to use free Internet-based search services such as reversephonedirectory.com and whitepages.com. Paid searches through online services such as Intelius.com can also yield excellent results. If these methods fail, you can contact a professional process server to run a "skip trace" for you and serve the boarder with the notice. You can find a professional process server in your area by contacting the National Association of Professional Process Servers.

Do I Have to Give the Boarder a Refund?

While your boarding contract may not require you to give your boarder a partial refund for the unused period, it is often an excellent idea to do so. Stating in the termination notice that you will give your boarder a refund of any unused board will give them a reason to move out earlier. Otherwise, they may feel like they should stay until the last day to "get their money's worth," meanwhile creating ill will at the barn. Offering a prorated refund will also help to keep the process as smooth as possible by making the boarder feel as though you are treating them fairly.

Do I Have a Lien on the Boarder's Horses for Unpaid Board?

If your boarder has signed Equine Legal Solutions' boarding contract, it specifies that you have an automatic lien on horses for unpaid board, and that you can sell or otherwise dispose of the horses if they remain on your property after a certain specified time period following termination of the boarding agreement. Because the boarder has specifically waived any rights that they might have otherwise had under your state's agister's lien law, you can typically take action to sell the horses without having to go through the typical lien sale process, though Equine Legal Solutions strongly recommends that you consult local counsel before doing so.

Without a contract stating that the boarding stable can sell the horses AND that the boarder waives his/her rights under the state agister's lien laws, the lien process is more complicated. In most states, boarding stables have an automatic lien on livestock for unpaid board. Typically, no formal filings are necessary, but the lien applies only for so long as the horses are in the possession of the stable. Having a possessory lien means that once you allow the horses to be removed from your property, you no longer have a valid lien.

However, to foreclose on your statutory lien and be able to sell the horses, you will typically need a court order and have to follow a specific sale process, which is usually cumbersome, time-consuming and expensive. See your state's agister's lien law for more information. Equine Legal Solutions highly recommends that you seek advice from a qualified attorney in your state prior to taking any action on your lien, as the boarder could successfully sue you for conversion if you proceed improperly.

Practically speaking, even though you may have a lien on the boarder's horses for unpaid board, it may be in your best financial interest to allow the boarder to take possession of the horses upon termination, even if they owe you money. Foreclosing on your lien is usually cumbersome and expensive, and during the foreclosure process (which usually takes a month or more), you have to continue to take reasonable care of the horses, incurring out of pocket expenses. Although the boarder must reimburse you for this care, you may not ever be able to collect from the boarder. Meanwhile, the boarder's horses are occupying stalls or pasture that could be used by paying customers' horses. Moreover, in the typical agister's lien situation, the boarder's horses are seldom worth more than a few hundred dollars, particularly because the public auction required by most lien statutes tends to result in much lower prices than a private sale would.

Therefore, the boarding stable may be more likely to limit its losses by allowing the boarder to take the horses and then immediately filing suit against the boarder, either in small claims court or in regular civil court. This is particularly true when the boarder has a job, because if the boarding stable obtains a money judgment and the boarder doesn't pay it, the boarding stable can seek garnishment of the boarder's wages, which is both effective for the boarding stable and embarrassing for the boarder.

Can I Sell the Boarder's Tack and Equipment to Satisfy the Debt?

In many cases, the boarder's tack and equipment is worth more money than the boarder's horses, and is also more readily salable than the horses. Plus, it doesn't eat! If your boarder has signed Equine Legal Solutions' boarding contract, it specifies that you have an automatic lien on the boarder's personal for unpaid board, and that you can sell or otherwise dispose of it if it remains on your property after a certain specified time period following termination of the boarding agreement. Because the boarder has specifically waived any rights that they might have otherwise had under your state's lien laws, you can typically take action to sell the personal property without having to go through the typical lien sale process. However, Equine Legal Solutions highly recommends that you consult local counsel before doing so.

Without such a contract stating that the boarding stable has a lien on the boarder's personal property, very few states' lien laws provide for a lien. See your state's agister's lien law for more information. Equine Legal Solutions highly recommends that you seek advice from a qualified attorney in your state prior to taking any action with respect to a boarder's personal property, as the boarder could successfully sue you for conversion if you proceed improperly.

What If the Boarder Doesn't Leave?

Once the eviction date has come and gone, the boarder is no longer lawfully entitled to be on the stable premises. If the boarder tries to come onto the stable premises after the eviction date, the boarding stable should call law enforcement to report the trespass. Note that if the boarder wants to take possession of their horses and personal property after the eviction date (and you consent - see above regarding your lien rights), you can accomplish the hand-off by meeting the boarder at the entrance to your facility rather than allowing them access to your property.


Lisa said...

What do you do when you have no signed contract and the owner abandons the horses.

washington_horselover said...

Yes Lisa, same here! What if you were helping a friend out with horse care temporarily and suddenly they moved out of state and won't return calls or messages? So far I've read the RCW's (Im in Washington) and the end result is sad for the horse.
My concern is what the bad horse owner could do to me legally if I call the Sheriff and the sheriff sells the horse at auction. (as explained in the RCWs.)

If I follow the RCW's, and give proper written notice, and plenty of time, and don't try to get financial compensation for the horse over staying its welcome for months, and then the sheriff takes it - will I have any negative legal liabilities with the previous owner?

I really just want them to come get their horse or give me permission to find it a good home. I'm not after money owed, I just want the horse properly cared for, especially because winter is coming...

juno said...

What if the border has been paying every month what she can (at least half or more of the asking board)but has fallen behind with remaining board.its not a boarding facility but a private farm there was no contract signed and the boarder never received any receipts for board paid.the boarder has not had proper access to her horses and once she was told she owed she offered him one of the horses as payment or to move both horses and work on paying him back without recurring more board.he said no to owning the other horse so the border had the other horse taken over including his monthly board so as not to recur more board for two horses.he refused to allow her to move the horse(only one of the horses he feels is worth collateral not sure why as its just a pleasure horse and in fact the second horse would be worth more)the farmer has voiced wanting the one horse that was not offered to him but that horse is the boarders baby and she really loves her.the family has fallen on hard times but has been trying to work with the farmer on payment the farmer is aware of all the struggles boarder is dealing with.recently (3 weeks ago)farmer insists she owes way more then she thought her husband has been paying him in cash every month but has not received receipts.either the farmer or her husband is lying so to cover her butt and keep her horse the boarder has offered up a detailed verbal agreement on paying the monthly board which is less and more affordable now that she is down to one horse as of Dec 1st as well as an extra $150-200 monthly through Etransfer so as to keep track of what's paid,she also stated that once her taxes were done february/march she would payoff the remaining balance.she validated the possibility her hubby wasn't paying what she thought he was so would take over from there.the farmer agreed the boarder said as of january she will put this agreement into play he agreed she has since paid the full monthly board for dec just not the extra $150-200 on top to go towards balance owing as she stated she would do that in january and he agreed.two days ago she got an email saying if the full balance is not paid by January 15th he will then take over ownership of her horse she literally has no way of paying it in that amount of time.can he do that does she have any rights here?yes she acknowledges she owes him she has apoligize profusely and is trying to pay him.

Rachel McCart, Equine Legal Solutions said...

Hi, folks. We are unable to offer legal advice regarding individual situations on our blog, but if you live in, or your matter involves, California, Oregon, Washington or New York, we may be able to offer you a telephone consultation. Here is more information about our consultations: http://www.equinelegalsolutions.com/consultations.html