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.

Monday, February 25, 2008

When It's Better to Just Let the Horses Go...


Non-paying boarders and abandoned horses have always been a significant problem for boarding stables, and judging from the volume of calls we receive at Equine Legal Solutions, the problem is escalating quickly. While state agister's lien laws typically provide the boarding stable with an automatic lien on the horses for unpaid past due board, foreclosing on that lien may not make sense. Here's why:

-Worthless Collateral. The horses seldom have much market value, and even if they do, that market value will be compromised by the situation. Registration papers (if the horse is even registered) will be hard, if not impossible, to obtain. Agister's lien statutes frequently require that the horse be sold at public auction, which almost certainly means a lower price than a private sale. Even if a private sale is permitted by the agister's lien statutes, prospective buyers will be spooked by the possibility of title problems. Note that all of these issues are exacerbated in a soft horse market.

-Expense. Horses are expensive to keep, and getting more expensive all the time due to the rising costs of hay, feed and bedding. To properly foreclose on an agister's lien and sell the horses, it will likely take at least 60-90 days, often longer. During that entire time, you will have to feed and care for the horses at your own expense, and you may not ever recoup those expenses. Not only that, you will have to hire an attorney to represent you in the civil lawsuit you will almost certainly need to bring to properly foreclose on the lien. Most attorneys charge several hundred dollars per hour and require a substantial deposit or retainer up front, and unless you have a signed boarding contract that provides for attorneys' fees in the event of a lawsuit, you will have virtually no chance of recouping your attorneys' fees.

-Better Alternatives. If you allow the horses to leave the property, it limits the amount that the boarder owes you, making it more likely that the claim can be brought in small claims court. And, you can usually convince the boarder to make at least some cash payment when they take the horses, reducing the amount of money that you have to chase. If, when the boarder arrives to take the horses, you can convince the boarder to sign a statement that they do owe you the amount in question, it will make pursuing your claim that much easier. In small claims, you can represent yourself and therefore do not have to incur the expense of hiring an attorney. And, contrary to popular opinion, small claims judgments CAN be enforced. For example, if the boarder has a job, you can garnish their wages. If the boarder owns a home, you can put a lien on it, ensuring that you will be paid if the property sells. A claim reduced to a court judgment is far easier to enforce than a claim of lien, and in most instances, judgments earn interest until they are paid and you can usually recoup the cost of enforcing a judgment.

-Liability. Horses are fragile. During the months it will take to foreclose on your agister's lien, you will be caring for the horses and if something happens to them, the horse owner could sue you.

-Opportunity Cost. While you are feeding and caring for horses that belong to a non-paying boarder, those horses are occupying stalls or pastures that could be occupied by horses belonging to a good paying customer.

-Stress. Let's not forget about your quality of life. Foreclosing on an agister's lien is a lengthy, expensive and time-consuming process that typically leads to a lot of stress for the boarding stable owner. The horse owner often surfaces at the 11th hour wanting to negotiate a deal or try to stop the foreclosure process, and they always seem to show up on a holiday or weekend. When the stable owner refuses to allow the boarder to take the horses, the horse owner will usually try to bring the sheriff out to intervene. Typically, the sheriff will arrive, hear the other side of the story and tell the parties that the situation is a civil matter and therefore law enforcement will not get involved or allow the boarder to take the horses. However, such situations frequently turn into a scene before that happens, with shouting, threats and worse.

7 comments:

Anonymous said...

I have a question from the other side of the fence: i'm boarding a facility where I feel the standard of care has dropped off sharply in recent months, and I feel that my horse's health and safety are in jeopardy every day that he is there. I've pre paid and found a place to move to right away, but they are hemming and hawing about the 30-day notice written in the contract. I perused the contract and can't find where they promise any standard of care--there are a few minor things that I could dispute, but do I have any legal claim to a refund of my prepaid fees because of health hazards? Will any kind of animal welfare law back me up here?

Rachel McCart, Equine Legal Solutions said...

Unhappy boarders are almost always better off moving than trying to force the boarding stable to live up to their standards. If the standard of care is bad enough that you feel it's an emergency to leave, don't wait for the notice period to expire - just move. If the stable won't provide you with a refund of board for the unused period, consider taking them to small claims court. Animal control will generally not intervene unless it's a life-and-death matter, such as the horses having no access to water or horses that are truly starving to death.

Anonymous said...

Hello Rachel, we are horse transporters and we recently transported 2 horses and 40 bales of hay from CA to KS. Payment was to be payed, as CASH $2200.00 upon delivery. But, after we arrived and off loaded all our customers hay and their 2 horses, they refused to pay us. Stating that they were not happy with the service that we provided. Because when we arrived to pickup their horses, their horses would not load into the trailer, they were dangerous horses, that would just rear up everytime they got close to the trailer. We spent 4 hrs trying to load their horses patiently, but eventually, after one of the horses lost his balance and fell over, we were forced to load the horses by putting a rope around their butts and pulling them into the trailer, basically. We never used and whips or sticks and we never struck these horses, during the loading process. We were completely humane. But, the point is that they contract with us to transport their horses and hay from CA to KS, safely and in tact and that is what we did and now they refuse to pay. Also, one of the owners of the horses was present during the loading process (he sat in a chair and watched) and never said anything, to us, about not wanting us to transport their horses, even after they were loaded. Supposedly, our customers did not decide that they were not happy with our service, until after we were already on the road and on our way to KS.(How convientent) Had they said that they were not happy with our service in CA, before we left with their horses, then we would have gladdly off loaded their horses and gone on our seperate way. But, they never even gave us an inkling of hestitation. The entire time that we transported their horses they never, said anything about not being happy with our service. When we first arrived in KS they told us that they wanted to have the vet check out the horses and then they would pay us. And, we agreed. The horses passed the vet check with a clean bill of health. And now our customers still refuse to pay us. What should we do? They are also threatening to give us bad feedback on our shipping web site, which we currently have 100% positive feed back, from all of our prior customers. Stating that they would be putting on the feedback that we abused their horses, which is not even remotely true, if we did not accept $500.00 for our payment, for the transport of their horses, even the vet said that the horses were in perfect health and endured no trauma what so ever. Please, help!

Nicole said...

Hello Rachel,
I had a verbal agreement for board with a lady with a small 10 horse barn near my home. Unfortunately one bad thing after another happened and I ended up months behind on board. Eventually I tried to sell him, had a buyer that back out due to sudden health emergancy then another was a trainer that was looking for a client and the client ended up buying a horse before coming out to see mine. Both agreed he was a great deal at 6000 and knew I was in a tight situation. Either way they both fel through, so I tried to go out to get pics to post ads for him and she said that I was not welcome to the property without her money and that my tack (thousands of dollars worth of tack) and my horse are going to be sold to the first person that offers her enough money to cover the expenses.
Time went on, I found a job, and started contacting her, letting her know that I had income coming and when it would be. Then contacted her (all this through emails) again when I had the money. Several times. She never replied. I then did some searching and found the ad that she had posted for his sale - private treaty and had a friend call and inquire about the ad. He's been sold. I then contacted her stated I know shes sold my horse and that their is no longer a reason to keep my tack. She has put me off for 3 weeks, and finally replied "I am ending all communication until you give me your address" which I assume means shes sueing me... What I cant figure out is for what? She should have made back her money through selling him

I have been doing some research and it seems that according to the Texas stable keepers lien, it was illegal the way she sold my horse (for way less then hes worth through private treaty) and secondly she can not keep my tack... What can I do??

Please help!

Rachel McCart, Equine Legal Solutions said...

Hi, Nicole. Because you're in Texas and I'm not licensed to practice there, I'm sorry to say that I can't provide you with any legal advice. However, we do know several Texas equine attorneys - check the "links" section of our website, www.equinelegalsolutions.com, for a state-by-state directory of equine attorneys.

Anonymous said...

Rachel,
Instead of selling the horse after following all of the Texas requirements for the Stable Keepers Lien, is it legal to keep the horse and obtain ownership?

Rachel McCart, Equine Legal Solutions said...

I'm not licensed in Texas, so can't comment on a matter of Texas law. Suggest contacting one of the equine attorneys we know in Texas for advice on your specific situation:
http://www.equinelegalsolutions.com/attorneydirectory.html