The Legal Equine

The Story of an Unwanted Horse: Will It End in Euthanasia?

2011-12-21T19:32:00.000-08:00

Unwanted horses are not an abstract issue for me. I have been diligently trying to find a quality home for a registered 13 yo Paint mare over the past three years. This mare isn't a horse we purchased, or a horse we bred. She belonged to a friend of mine, and I took her in three years ago as a temporary measure until I could find her a new home.

This mare isn't a beloved pet who has earned a lifelong place in our herd (as several others have). She's a pasture ornament who costs us $300/month to keep. She is also the reason my right knee will never be the same. (I tried to fix her really spoiled under-saddle manners so she might find a good home as a light-duty riding horse. She rewarded me by flipping over backwards with absolutely no warning.)

Twice over the past two years, I found this mare a new home. Twice, she came back to me. The first time, the person moved and decided to get rid of all her horses. The second time, a concerned citizen called me to tell me the mare was half-starved. And that second home was the one I checked out in person, the one with a gated entrance, pretty white vinyl fencing and lush green pastures.

People often don't seem to value things they get for free, so after two bad experiences giving her away, I advertised the mare for sale for a nominal sum. I bought a premium Internet ad ($50), and had plenty of photos and even video clips. Six months later, I had received exactly zero serious inquiries (unless you count the gal who said she wanted to come and see the mare, but had to save up gas money first, or the backyard breeder who wanted to trade me one of several home-bred yearlings she hadn't been able to sell).

I'm still diligently trying to find this mare another home. But the prospects don't look good. This mare is pretty, a cherry-chestnut sabino overo, and her sire has sired several APHA world champions. But she's not sound, not rideable, and is unproven as a broodmare at age 13. No one seems to need a pasture pet, especially when sound riding horses are being given away. Most folks are finding it difficult to afford the horses they already have. The rescues are full. The humane choices look like spending $300/month for the next 15 years, or euthanizing the mare. Let's hope it doesn't come down to that. But it very well might.

Horse Sale Sabotage: When Does Legal Action Make Sense?

2011-12-13T11:37:00.000-08:00

I have a very nice Western Pleasure show horse for sale. While he's a cute Western Pleasure mover and quite competitive at Paint shows, what really sets him apart is his temperament - he's super-quiet, kind and forgiving, suitable for a novice or walk-trotter. This is the kind of gelding that you can let sit for a while, then hop on him without longeing first. And, he's young, sound, healthy and cute as a bug's ear. Horses like this gelding are hardly ever for sale. Even in a down economy, it shouldn't be too hard to sell him, right? Well...

I'm offering my gelding at a fair price. After one buyer wanted me to throw in my $3,000 show saddle, I edited the ad to indicate the price was firm, so buyers would be aware I wasn't among the many folks desperate to sell.

A week later, I had two serious inquiries. One prospective buyer came to try the gelding and really seemed to like him. She needed a confidence-builder show horse and my gelding would excel in that job. The other prospective buyer purchased plane tickets to come and try him, was serious enough that she planned to stay two days to try him thoroughly. Suddenly, the buyer with plane tickets sent me a cryptic email canceling. Then, a day later, the other buyer emailed me to say she was going to look elsewhere.

What the heck was going on here?! Two serious buyers canceling in less than 48 hours?! I immediately got a little suspicious.

There is NOTHING wrong with this gelding, and he's everything I've advertised him to be. He's been a good boy for the buyers who've come to try him, too. But, as an equine attorney, I'm pretty familiar with the dark side of our industry. I know there are quite a few horse sellers not above spreading lies to increase the chances of selling their own horses. Hmmm.

So, I started where every Internet-savvy armchair detective would - I Googled the horse's name. Nada, except the ads I had placed for him. Then, I went low-tech - I simply emailed the prospective buyers and asked them why they had decided to pass on the horse, and explained I was concerned someone might be spreading misinformation about him.

Fortunately, both buyers responded right away, and assured me that no one had told them anything bad about my gelding. The buyer who tried him just didn't feel my gelding was "the one," and the other buyer had apparently been planning to make me an offer, then saw my price was firm and changed her mind about coming. So, it turns out my fears were unwarranted. No one was sabotaging my horse sale. But, I sure was glad I checked it out - knowledge is power.

What if someone *had* been sabotaging my gelding's sale, and I knew who it was? If I hadn't already sold the horse, it would make sense for me to send the saboteur a "cease and desist" letter threatening them with legal action if they continued to try to sabotage my horse sale.

If the cease and desist letter didn't stop the sabotage, I'd have several possible bases for a lawsuit, including unfair competition claims and tortious interference with business conduct. However, to make a viable case, I'd have to PROVE I would have sold my gelding but for the sabotage, and prove I had damages sufficient to justify taking legal action.

How would I prove sabotage killed the horse sale? The easiest way would be to get testimony from one of the prospective buyers that they were prepared to purchase my gelding until someone told them something negative about him. They would have to identify the "someone" who relayed the misinformation. AND, the something negative would have to be untrue, such as that he had bucked me off and put me in the hospital. The something negative would also have to be an affirmative statement about something based on fact, not opinion. For example, if someone told the prospective buyer they thought my gelding "wasn't a good mover" - that wouldn't be proof of sabotage, because whether or not a horse is a "good mover" is highly subjective.

So, what if I could prove sabotage, prove where it came from, and prove it interfered with my sale? From there, whether or not it would make sense for me to file a lawsuit would depend upon economics. Naturally, it's helpful that I'm an attorney and could represent myself in the lawsuit (notwithstanding the old saw about attorneys who represent themselves having a fool for a client). However, the time I spent on my own case would mean I'd have less time available for paying clients' cases. And, there would be court costs and other out of pocket expenses.

So, I'd have to determine whether my damages from the sabotage exceeded the costs and opportunity costs of pursuing a lawsuit. If I sold the gelding for full price a week after hearing about the sabotage, I'd have virtually no damages and the case would be a clear non-starter. But, if I had the gelding for another six months, and then had to sell him at a rock-bottom price, my damages might be significant enough to consider taking legal action.

The analysis wouldn't end there, though. I'd have to make sure the saboteur was solvent enough to pay any legal judgment I might get against them. Typically, I determine whether prospective defendants are solvent by hiring a private detective to do an asset search and background check. You'd be surprised how many "big names" are actually broke, with their fancy rigs owned by the bank, and the IRS first in line to seize any assets they might later acquire...

Any horse sellers out there who have questions about horse sale sabotage are welcome to contact us. We can offer a phone consultation to folks in California, New York, Washington and Oregon (the states where I'm licensed to practice). Folks in any state can also write in anonymously to one of the several question-and-answer columns I write - for Pleasurehorse.com, RateMyHorsePro.com and Bay Area Equestrian Network.

New Internet Saddle Sale Scams Get Clever. Really Clever....

2011-11-22T17:27:00.000-08:00

My assistant, Donna, suggested I write this article. Donna has been looking for a used Blue Ribbon western show saddle online and came across an ad on a tack resale website. The photos looked great and the saddle was really well-priced. So well-priced, in fact, that Donna (smart gal!) knew something was fishy. After a bit of digging, she found the exact same saddle offered for sale on another site by the REAL seller, at the REAL price! Wow.

I've seen similar scams on Ebay, where a high-end Western show saddle was listed for sale as an auction, complete with pictures and a realistic buy-it-now price. The only tip-offs that the auctions might be suspect were the seller's location (Asia) and the fact the sellers had zero or just a few Ebay feedback ratings. Within a day, Ebay had yanked the auction listings I saw, but what if someone had used the Buy-it-Now feature?

Here are some tips to avoid getting ripped off when buying tack and other horse equipment via the Internet:

(1) Don't look for tack on just any old website.

For new tack, stick with well-known retailers with an established reputation and clearly defined return policy, such as Dover Saddlery, Schneider's and SmartPak (all of which I've had multiple excellent tack-buying experiences with). For used tack, EBay is a good choice because you can view the seller's feedback and what else they have for sale before you buy. Also, EBay has a good buyer protection policy, just make sure your purchase will qualify BEFORE buying. All of the other tack resale websites I'm aware of are just classified ad sites and therefore can't offer any support if there's a problem with your purchase, other than banning the seller from posting any other listings on the site (which might help the next guy, but it won't help you!). Buying from someone who posted the item on an Internet forum is really risky, unless you know who they are in real life.

(2) Ask for the serial number.

Anyone selling a used saddle should be able to provide you with the saddle's serial number. You can then contact the manufacturer to verify that the serial number is a real one (because heck, anyone can make up a serial number that *sounds* real). The manufacturer can also verify that the details the seller provided are accurate, such as the saddle's size, when it was made, the model, etc. You might also want to check with Stolen Horse International to make sure the saddle hasn't been reported to them as stolen, and also Google the saddle's serial number for the same purpose.

(3) Ask for more photos.

The real seller of an item should have it right there, so they should be able to take a photo of any detail you want to see, and email it to you. Phony sellers won't be able to provide any more photos than the ones they've copied from another ad. Good one to ask for: Close-up photo of maker's stamp and serial number.

(4) Pay with a credit card.

If you use your credit card, your card issuer can help you in the event of fraud. While Paypal offers buyer protections for certain Ebay purchases, those protections don't apply to other types of transactions, like sending money to pay for an item purchased through a classified ad. If you pay with a wire transfer, cashier's check, regular check, money order, etc., you're trusting the seller to deliver the goods.

(5) Trust your instincts.

If the price is too good to be true, most likely, so is the deal. Someone in Hong Kong selling a Western saddle? Doubt it. You ask the seller a question and the answer sounds funny, like they're not familiar with saddles? Steer clear. Seller wants you to wire the funds somewhere weird, say, Bank of Nigeria? No way!

Boarding Stable Lien Foreclosure - Washington Law

2011-10-11T13:51:00.000-07:00

This article is the final installment in our four-part series on boarding stable lien foreclosure. For information on boarding stable lien foreclosure in California, New York and Oregon, see our preceding blog posts, or visit the "Boarding" section of Equine Legal Solutions' website.

Boarding stables, even very high-end ones, occasionally find themselves with customers who run up large past due balances and refuse to remove their horses. As a result, the facility finds itself essentially feeding and caring for someone else’s horses for free. Meanwhile, the deadbeat customer’s horses occupy facilities that could be filled with paying customers’ horses. How can a Washington horse facility lawfully sell a customer’s horses to satisfy a debt?

RCW 60.56.010 provides Washington persons and businesses with an automatic lien on their customers’ horses to satisfy debts incurred in caring for or providing services to those horses, such as boarding and training. This type of lien is sometimes called an agister’s lien, and it means the facility can refuse to allow a customer’s horses to leave until the bill for those horses is paid in full.

While the lien is automatic, the ability to sell the horses to satisfy the debt is not. Here are the steps a lienholder must take to be able to sell the horses:

The lien holder must perfect the lien pursuant to RCW 60.56.015 by:

Posting a lien notice in a conspicuous place where the horses are kept
Providing a copy of the lien notice to the debtor
Providing a copy of the lien notice to any other lien holder (if the lien is more than $1,500)

Within 180 days after the lien attaches, the lien holder must file suit against the debtor in a court that has jurisdiction over the area where the horses are located
If the court finds in the lien holder’s favor, the horses may be sold pursuant to the requirements of RCW 60.10.030, which include prior notice to the debtor.

Frequently Asked Questions about Horse Lien Foreclosure in Washington

Q: The horses aren’t worth anything. Can I give them away, sell them for a dollar, take them to a rescue or donate them to a therapeutic riding facility?

A: Not lawfully. If you give away or donate the horses without the debtor’s permission, the debtor could later sue you for what is called conversion. Conversion is essentially the civil form of theft. Even if the debtor doesn’t ultimately win their case against you, you will still have to pay a lawyer to defend you, which is expensive.

Q: I don’t know where the debtor lives. How can I sue them if I don’t know where they live?

A: In order to sue someone, you will need to have them personally served with a summons and complaint. That means you’ll need to know where to find them. To find the debtor, you may want to use one of the many free online people finder services, such as WhitePages.com (which also has a reverse phone directory search). In extreme cases, you may need to hire a private detective to track down the debtor for you.

Q: The debtor has several horses, and one is worth more than the others. Can I keep the valuable one and let the debtor take the rest?

A: Yes, but you can only assert a lien on the valuable horse for the amount that is actually owed with respect to that horse.

Q: Is there any other way to sell the horses without going through the lien foreclosure steps in the Washington statutes?

A: Only two: Getting the debtor to sign the horses over to you, or getting the debtor to waive their rights under the lien statutes. Equine Legal Solutions’ horse boarding contract forms contain a lien statute waiver provision.

Q: The debtor already took the horses from my property. Can I still file a lien?

A: Because the horses aren’t on your property anymore, you no longer have the automatic lien provided by the agister’s lien statute. However, you can still sue the debtor to collect the amount owed, which is often a more practical alternative to foreclosing on an agister’s lien – here’s why.

Q: Do I have to keep feeding and caring for the horses that are on my property, even though I’m not getting paid?

A: Yes, or you run the risk of violating animal cruelty laws. However, RCW 60.10.030 provides that lien sale proceeds are applied first to the reasonable expenses of holding the horses and preparing them for sale.

Q: I’m a vet, farrier or business other than a boarding barn. Do I still have lien rights?

A: Yes, as long as you have the horses in your possession. RCW 60.56.005 is broad as to whom it applies: “farmer, ranchman, herder of cattle, livery and boarding stable keeper, veterinarian, or other person, to whom horses…are entrusted for the purpose of feeding, herding, pasturing, training, caring for, or ranching.”

Q: Can I go to small claims court and get an order to sell the horses?

A: No, you will have to file in regular civil court.

Q: Can I foreclose on my lien without having to hire an attorney?

A: Technically, yes, but you may find the statutory requirements difficult to navigate on your own, and errors will cause additional delay.

Q: If I hire an attorney to represent me, can I recoup that cost from the debtor?

A: Only if you have an attorneys’ fees and costs provision in your boarding contract, training contract, or other contract covering your care of the horses – see RCW 60.10.030(a). All of Equine Legal Solutions’ equine form contracts include this type of provision.

Still have questions? Contact ELS to schedule a telephone consultation with an equine attorney licensed in Washington.

Boarding Stable Lien Foreclosure - Oregon Law

2011-10-10T14:51:00.000-07:00

This is the third of a four-part series on boarding stable lien foreclosure - stay tuned for the final article on Washington law.

Boarding stables, even very high-end ones, occasionally find themselves with customers who run up large past due balances and refuse to remove their horses. As a result, the facility finds itself essentially feeding and caring for someone else’s horses for free. Meanwhile, the deadbeat customer’s horses occupy facilities that could be filled with paying customers’ horses. How can an Oregon horse facility lawfully sell a customer’s horses to satisfy a debt?

Oregon Revised Statute Section 87.226 provides Oregon persons and businesses with an automatic lien on their customers’ horses to satisfy debts incurred in caring for or providing services to those horses, such as boarding, breeding, training and veterinary care. This type of lien is sometimes called an agister’s lien, and it means the facility can refuse to allow a customer’s horses to leave until the bill for those horses is paid in full.

While the lien is automatic, the ability to sell the horses to satisfy the debt is not. Here are the steps a lienholder must take to be able to sell the horses:

File a written notice with the Oregon Secretary of State. The notice must meet all the specific requirements outlined in ORS 87.242(2).
Send a copy of the written notice to the horse owner(s) by registered or certified mail.
Send a copy of the written notice to anyone else who may have a lien on any of the horses, such as a veterinarian or farrier who hasn’t been paid for working on the horses. This copy also needs to be sent certified or registered mail.
Then, the lien holder must go to court before it can sell the horses by either:

(a) Filing suit against the debtor in the Oregon Circuit Court for the area where the horses are located.

(b) Filing a petition with the clerk of the Oregon Circuit Court where the horses are located requesting an order for foreclosure of the lien. This petition must include the specific items listed in ORS 87.272.

If the lien holder files suit as described in 4(a) above, the lien holder will ask the court to rule that the debtor owes the money. If the court rules in favor of the lien holder, the debtor will generally have 30 days to pay the lien holder. If the debtor doesn’t pay, the lien holder can go back to court and ask for an order permitting the lien holder to sell the horses to satisfy the judgment.
If the lien holder files a petition with the court clerk as described in 4(b) above, a judge will review the petition and may consider any other evidence submitted to the court. If the judge finds the lien holder has met the statutory requirements for filing and serving the notice of lien, the judge will issue what is called a show cause order. The show cause order directs the lien holder and the debtor to appear before the judge for a hearing. At the hearing, the debtor can present any arguments it has against the lien. If the judge finds in favor of the lien holder, the judge will issue an order allowing the lien holder to sell the horses.
The horses must be sold in a very specific fashion, as set forth in ORS 87.306.

Frequently Asked Questions about Horse Lien Foreclosure in Oregon

Q: The horses aren’t worth anything. Can I give them away, sell them for a dollar, take them to a rescue or donate them to a therapeutic riding facility?

Q: I don’t know where the debtor lives. How can I send them a notice if I don’t know where they live?

A: ORS 87.252 requires the lien holder to send a notice to the debtor’s “last-known address.” If you don’t have a last-known address and therefore can’t send the notice, a court won’t issue an order allowing you to sell the horses. To find the debtor’s last-known address, you may want to use one of the many free online people finder services, such as WhitePages.com (which also has a reverse phone directory search). In extreme cases, you may need to hire a private detective to track down the debtor for you.

Q: The debtor has several horses, and one is worth more than the others. Can I keep the valuable one and let the debtor take the rest?

A: Yes, but you can only assert a lien on the valuable horse for the amount that is actually owed with respect to that horse.

Q: Is there any other way to sell the horses without going through the lien foreclosure steps in the Oregon statutes?

Q: The debtor already took the horses from my property. Can I still file a lien?

Q: Do I have to keep feeding and caring for the horses that are on my property, even though I’m not getting paid?

A: Yes, or you run the risk of violating animal cruelty laws.

Q: I’m a vet, farrier or business other than a boarding barn. Do I still have lien rights?

A: Yes, as long as you have the horses in your possession.

Q: Can I go to small claims court and get an order to sell the horses?

A: No, you will have to file in the circuit court.

Q: Can I foreclose on my lien without having to hire an attorney?

A: Technically, yes, but you may find the statutory requirements difficult to navigate on your own, and errors will cause additional delay.

Q: If I hire an attorney to represent me, can I recoup that cost from the debtor?

A: Yes, if you file suit to foreclose upon your lien and you win your case – see ORS 87.336. Of course, your ability to collect a judgment for costs and attorneys’ fees is limited by the debtor’s ability to pay.

Still have questions? Contact ELS to schedule a telephone consultation with an equine attorney licensed in Oregon.

Boarding Stable Lien Foreclosure - New York Law

2011-10-07T11:36:00.000-07:00

This the second in a four-part series - stay tuned for similar articles dedicated to Oregon and Washington.

Boarding stables, even very high-end ones, occasionally find themselves with customers who run up large past due balances and refuse to remove their horses. As a result, the facility finds itself essentially feeding and caring for someone else’s horses for free. Meanwhile, the deadbeat customer’s horses occupy facilities that could be filled with paying customers’ horses. How can a New York horse facility lawfully sell a customer’s horses to satisfy a debt?

NY Lien Law Art. 8 §183 provides New York persons and businesses with an automatic lien on their customers’ horses to satisfy debts incurred in caring for or providing services to those horses. This type of lien is sometimes called an agister’s lien, and it means the facility can refuse to allow a customer’s horses to leave until the bill for those horses is paid in full.

While the lien is automatic, the ability to sell the horses to satisfy the debt is not. Here are the steps a lienholder must take to be able to sell the horses:

The lien holder must provide the debtor with written notice of the pending sale, and the notice must meet the specific requirements of NY Lien Law Art. 9 §201.
If the debtor objects to the lien sale, the debtor must file suit in court within 10 days after the debtor is served with the lien sale notice – see NY Lien Law Art. 9 §201-a.
If the horses in question are worth $100 or more, the lien sale must be a public auction in the city or town where the debt was incurred (e.g., where the boarding stable or other facility is located) – see NY Lien Law Art. 9 §202.
Prior to the sale, the lien holder must advertise the sale in a specific manner – see NY Lien Law Art. 9 §202.

Frequently Asked Questions about Horse Lien Foreclosure in New York

Q: The horses aren’t worth anything. Can I give them away, sell them for a dollar, take them to a rescue or donate them to a therapeutic riding facility?

A: If the horses are really worth less than $100 total, you may be able to sell them for a small sum of money in a private sale if you meet all the other notice and sale requirements - see NY Lien Law Art. 9 §202. Otherwise, if you give away or donate the horses without the debtor’s permission, the debtor could later sue you for what is called conversion. Conversion is essentially the civil form of theft. Even if the debtor doesn’t ultimately win their case against you, you will still have to pay a lawyer to defend you, which is expensive.

Q: I don’t know where the debtor lives. How can I meet the notice requirements of the lien statutes if I don’t know where they live?

A: NY Lien Law Art. 9 §201 provides for notice by mail to the debtor’s last known address in certain circumstances. Otherwise, to find the debtor, you may want to use one of the many free online people finder services, such as WhitePages.com (which also has a reverse phone directory search). In extreme cases, you may need to hire a private detective to track down the debtor for you.

Q: The debtor has several horses, and one is worth more than the others. Can I keep the valuable one and let the debtor take the rest?

A: Yes, but you can only assert a lien on the valuable horse for the amount that is actually owed with respect to that horse.

Q: Is there any other way to sell the horses without going through the lien foreclosure steps in the New York statutes?

Q: The debtor already took the horses from my property. Can I still file a lien?

A: Because the horses aren’t on your property anymore, you no longer have the automatic lien provided by the agister’s lien statute - NY Lien Law Art. 8 §183 specifically depends upon possession. However, you can still sue the debtor to collect the amount owed, which is often a more practical alternative to foreclosing on an agister’s lien – here’s why.

Q: Do I have to keep feeding and caring for the horses that are on my property, even though I’m not getting paid?

A: Yes, or you run the risk of violating animal cruelty laws.

Q: I’m a vet or business other than a boarding barn. Do I still have lien rights?

A: NY Lien Law Art. 8 §183 specifically applies to veterinarians. NY Lien Law Art. 8 §183 is also fairly broad in its coverage, but if you are unsure, Equine Legal Solutions strongly suggests obtaining a legal opinion from an attorney before taking action.

Q: Can the debtor dispute the lien in small claims court?

A: No, they will have to file suit in regular civil court.

Q: Can I foreclose on my lien without having to hire an attorney?

A: Technically, yes, but you may find the statutory requirements difficult to navigate on your own, and errors will cause additional delay.

Q: If I hire an attorney to represent me, can I recoup that cost from the debtor?

A: Only if you have an attorneys’ fees and costs provision in your boarding contract, training contract, or other contract covering your care of the horses – there are no statutory provisions in the New York agister’s lien law for recovery of attorneys’ fees and costs. All of Equine Legal Solutions’ equine form contracts include provisions for recovery of attorneys’ fees and costs in the event of a contract dispute.

Still have questions? Contact ELS to schedule a telephone consultation with an equine attorney licensed in New York.

Boarding Stable Lien Foreclosure in California: What You Need to Know

2011-09-27T14:00:00.000-07:00

This article is the first in a four-part series on boarding stable lien foreclosure. Stay tuned for articles on the specifics of agister's lien foreclosure in Oregon, Washington and New York - every state is different.

Boarding stables, even very high-end ones, occasionally find themselves with customers who run up large past due balances and refuse to remove their horses. As a result, the facility finds itself essentially feeding and caring for someone else’s horses for free. Meanwhile, the deadbeat customer’s horses occupy facilities that could be filled with paying customers’ horses. How can a California horse facility lawfully sell a customer’s horses to satisfy a debt?

California Civil Code Section 3080 provides California persons and businesses with an automatic lien on their customers’ horses to satisfy debts incurred in caring for or providing services to those horses, such as boarding and health care. This type of lien is sometimes called an agister’s lien, and it means the facility can refuse to allow a customer’s horses to leave until the bill for those horses is paid in full.

While the lien is automatic, the ability to sell the horses to satisfy the debt is not. Here are the steps a lienholder must take to be able to sell the horses:

Sue the debtor for the past due amount.
When filing suit or at any time during the suit, the lien holder can ask the court for an order allowing the lien holder to sell the livestock. This application for an order must contain specific information, as set forth in California Civil Code 3080.03. The lien holder must request a hearing on the application for an order.
The lien holder must serve the defendant with a copy of the application for an order to sell the horses and the notice of hearing. The notice of hearing must contain very specific information, as set forth in California Civil Code Section 3080.04.
The court will then hold a hearing on the sale issue. The court will issue an order permitting the sale only if all the following conditions are met:

The statutory lien applies to the debt at issue;
The lien holder has shown the debt is valid;
The lien holder has shown the lien is valid;
The sale is necessary to prevent the horses from declining in value OR that equitable concerns demand the sale (such as the cost of continuing to feed the horses during the remainder of the lawsuit);
The method of sale proposed by the lien holder would be commercially reasonable; AND
The lien holder isn’t seeking the sale for reasons other than the debt.

Frequently Asked Questions about Horse Lien Foreclosure in California

Q: The horses aren’t worth anything. Can I give them away, sell them for a dollar, take them to a rescue or donate them to a therapeutic riding facility?

Q: I don’t know where the debtor lives. How can I sue them if I don’t know where they live?

Q: The debtor has several horses, and one is worth more than the others. Can I keep the valuable one and let the debtor take the rest?

A: Yes, but you can only assert a lien on the valuable horse for the amount that is actually owed with respect to that horse.

Q: Is there any other way to sell the horses without going through the lien foreclosure steps in the California statutes?

Q: The debtor already took the horses from my property. Can I still file a lien?

Q: Do I have to keep feeding and caring for the horses that are on my property, even though I’m not getting paid?

A: Yes, or you run the risk of violating animal cruelty laws. However, California Civil Code 3080.02(a) specifically provides that you can add the cost of caring for the horses during the pending lawsuit to your original claim.

Q: I’m a vet, farrier or business other than a boarding barn. Do I still have lien rights?

A: Yes, as long as you have the horses in your possession. California Civil Code 3080(c) is broad as to what it covers: “any and all grazing, feeding, boarding, general care, which includes animal health services, obtained or provided by the livestock servicer, or his employee, transportation or other services rendered by a person to livestock for the owner of livestock, or for any other person acting by or under the owner’s authority.”

Q: Can I go to small claims court and get an order to sell the horses?

A: No, you will have to file in regular civil court.

Q: Can I foreclose on my lien without having to hire an attorney?

A: Technically, yes, but you may find the statutory requirements difficult to navigate on your own, and errors will cause additional delay.

Q: If I hire an attorney to represent me, can I recoup that cost from the debtor?

A: Yes – California Civil Code 3080.16(c)(1) provides that the livestock sale proceeds shall be applied first to the debtor’s expenses, including reasonable attorneys’ fees.

Still have questions? Contact ELS to schedule a telephone consultation with an equine attorney licensed in California.

Trainers Earning Sale Commissions for "Nothing"? Think Again!

2011-07-31T23:11:00.000-07:00

After a lot of soul-searching, I decided to switch over from showing on the APHA circuit to doing 3-day eventing. As a result, I decided to sell my APHA Western Pleasure horse, Big Time Ben ("Benny"). Though today's market seems to be steadily improving, it's still vitally important to do a good job of presenting your horse for sale. I have a renewed respect for what it takes to start marketing a show horse! Here's the rough timeline of my Sunday.

10:45 - 11:00 a.m.: Round up show saddle, show pad and show bridle, put in wheelbarrow, trundle from house to barn.
11:00 - 11:30 a.m.: Put Benny in cross-ties, clip his muzzle, ears, and bridle path. Thank my lucky stars he is easy to clip.
11:30 a.m.- 12:15 p.m.: Bathe Benny (who is a loud chestnut tobiano - lots of white). Finish off tiny amount left in bottle of purple shampoo, trudge up to house for second bottle.
12:15 - 12:30 p.m.: Comb out Benny's enormous (but gorgeous) tail. Trim tail so it doesn't drag on ground.
12:30 p.m. - 1:00 p.m.: Band Benny's (thick) mane.
1:00 p.m. - 1:15 p.m.: Tack Benny up.
1:15 p.m. - 1:30 p.m.: Belatedly remember it's impossible to hold horse and take photos at same time. Flag down DH (dear husband) on tractor, solicit DH's help to take photos. Feel distinct relief that he is willing to help. Try to find flat and attractive part of pasture for photo location, settle for reasonably flat and not too unattractive. Pose Benny. Pose Benny again. Hand Benny over to DH, Benny immediately steps off with me, not realizing he has been handed off to DH. Tell Benny whoa. Hand camera over to DH, re-pose Benny, ask DH to shoot a bunch of photos, which he does (like the good sport he is).
1:30 p.m. - 1:35 p.m.: Review photos, and every single one has a cocked ear, tail in mid-swish, mouth in mid-yawn, resting leg, or other defect. Re-pose Benny. DH obligingly takes more photos. Review photos and decide there are a few that are good enough.
1:35 p.m. - 1:40 p.m.: Return to barn with Benny in tow for spurs, video camera and tripod. Put on spurs.
1:40 p.m. - 1:45 p.m.: Holding Benny, set up tripod. Stop Benny from chewing on tripod. Attach video camera to tripod. Stop Benny from knocking over video camera and tripod.
1:45 p.m. - 2:30 p.m.: Push "record" on video camera, walk Benny down to arena. Tighten very loose cinch, mount up. Ride, trying to consider what prospective buyers will want to see. Halfway through ride, realize equitation is appalling, remember (mostly) to sit up straight and keep eyes and chin up. Walk back to video camera and stop recording.
2:30 p.m. - 3:00 p.m.: Untack Benny, rinse him off, braid his tail back up, and put him out in the pasture with his buddies. Watch him immediately roll in a nice patch of red dirt. Consider that I will have to bathe him before every prospective buyer comes to see him. Resolve to schedule prospective buyers after working hours whenever possible.
3:00 p.m. - 3:15 p.m: Put show saddle, show pad and show bridle in wheelbarrow, trundle back up to house so they won't sit in barn and get dirty.
3:15 p.m. - 3:30 p.m.: Find firewire cable, plug video camera into laptop. Realize video camera has to be plugged into outlet to upload video to laptop, plug in video camera. Upload video.
3:30 p.m. - 3:40 p.m.: Connect USB cable to camera, wonder why still photos are not uploading to laptop. Remember that laptop has memory card slot, take memory card out of camera and plug into slot. Upload still photos.
3:40 p.m. - 9:00 p.m.: Review raw video footage, scarf down leftover Thai food (spoiling nice dinner that DH makes). Cringe at own equitation in first half of video footage. Figure out which video editing software that came with laptop seems like best option to produce horse sale video. 30 minutes later, realize selected video editing software is not best choice, change mind, start over. Bumble through learning new software. Continue bumbling through learning new software. Edit video down to bare essentials. Find suitable song to put with video (considering that video audio mostly consists of video camera lens cap clacking against tripod - v. annoying!). Tweak video until satisfied (or relatively so). Create ad on Dreamhorse.com, pay the $30 fee, and upload photos.
9:00 p.m. - 9:20 p.m.: Try to recall which email address I used to sign up for You Tube account. Guess wrong. Succeed on second try. Upload video. Log back into Dreamhorse, add video link to ad.
9:20 - 9:40 p.m.: Post photos and video of Benny to Facebook, announce that I'm selling him. Watch friends' comments come in, feel sad.

Moral of the story: If you think your trainer has done "nothing" more than create an ad for your horse and make a video, they still deserve their commission if those tools (which take longer than you might think to produce) help your horse sell!

Here is Benny's Dreamhorse.com ad (with a link to the video).

To Sue or Not to Sue: How One Equine Attorney Evaluates Legal Cases

2011-07-21T21:44:00.000-07:00

A equine lawyer colleague of mine in Texas, Alison Rowe, recently published an article about how she evaluates cases, and her article is excellent. As an attorney for Equine Legal Solutions, I frequently help prospective clients decide whether their equine legal case is worth pursuing, and if it is, whether I am the right attorney to represent them. Here is my perspective.

I offer every prospective client an initial half-hour phone consultation at a substantial discount to my typical hourly rate. In that half hour, here's what I'm looking for:

Blameworthiness. Did someone actually do something wrong? Contrary to popular opinion, just because someone lost money or was injured doesn't mean they have a legal case. Someone else has to be at fault! Anything that falls into the category of "bad things that just happen to horses" isn't a sound basis for a legal case. For example, if a customer takes a horse to the trainer, and the horse requires colic surgery a week later, that doesn't automatically mean the trainer (or his insurer) should have to pay for the vet bills because the colic happened at the trainer's barn. Rather, the customer would have to show that the trainer did something wrong to cause the colic.
Damages. How much money did the prospective client lose, and can they easily back up that number? If a horse dies, is seriously injured or becomes permanently lame, the measure of the prospective client's damages is the actual fair market value of the horse at the time of the death, injury or onset of lameness. It doesn't matter that the horse was a dear family member - in the eyes of the law, he's worth only what a professional appraiser says he's worth.
Proof. So the prospective client thinks they've been wronged, but can they prove it? For example, let's say a prospective client buys a horse and exactly one day later, the horse is lame. That doesn't mean the prospective client has a legal case against the seller. The prospective client has to be able to show (a) what is causing the lameness, (b) that the cause of the lameness existed at the time of sale and (c) that the seller knew about the lameness at the time of sale. Generally, unless you can find vet records showing the lameness (and it has to be the same lameness) while the seller owned the horse, the buyer won't have a viable legal case against the seller. If the buyer had a pre-purchase examination and the horse was lame (even slightly) on the day of the exam, the case is generally a non-starter.
Cost-Effectiveness. Generally speaking, each party in a lawsuit pays their own attorneys, with no hope of recouping those costs, even if they win the case. There are two notable exceptions: (a) when the dispute involves a contract that specifically states the winner can collect attorneys' fees and costs from the loser if there's a dispute over the contract and (b) when statutory law specifically provides for attorneys' fees (most common in fraud and unfair trade practices statutes). Otherwise, unless what the prospective client stands to recover in a successful suit greatly exceeds what they can expect to spend in legal fees, the case is a non-starter. Occasionally, a client will tell me that "cost is no object" and it's the principle that's important to them, but in my experience, cost is always an object when the client starts to receive their legal bills. The average active litigation matter at Equine Legal Solutions costs $3-5,000 per month in legal fees, and the average case that proceeds to trial can easily cost $75,000. And no, merely paying a lawyer to send a demand letter doesn't typically achieve the desired result. Clients usually have to sue and pursue their cases for quite some time before a settlement can be reached, and the ability to reach a satisfactory settlement depends completely upon the other side's willingness to be reasonable. In general, I tell clients that their damages must exceed $25,000 before it even makes sense to think about suing someone unless they have a rock-solid case and their ability to collect attorneys' fees and costs also looks rock-solid.
Ability to Collect. It doesn't do any good to sue someone if they have no money to pay you. Lawsuit winners are on their own to collect judgments - courts only help to the extent that the lawsuit winners drive the process by filing liens, serving garnishments and using other collection tools, all of which cost the lawsuit winner out-of-pocket to do. For this reason, I have a private investigator do a background check and asset search on every prospective defendant in a legal case before we sue. If the prospective defendant is in jail, has filed for bankruptcy (or is about to do so), has lots of liens on their property (especially if the lien is held by the IRS), and/or has big outstanding legal judgments against them, the case is a no-go. It's amazing how many seemingly well-off prospective defendants turn out to be leveraged to the hilt. As a general rule, if all of a prospective defendant's major assets have four legs and a tail, that's not a case worth pursuing.
Emotional Fortitude. Suing someone is highly emotional, and it has the effect of magnifying and prolonging what is already a very difficult situation. Bringing a lawsuit shouldn't cost the prospective client their sanity and well-being, no matter how much money is at stake or no matter how wrong someone was.
The X Factor. With years of experience under my belt, I've learned to trust my instincts. No matter how good a case sounds, if I just don't get a good vibe from the prospective client, I don't take the case. I listen carefully, and if the prospective client doesn't tell me the whole truth, keeps interrupting me, argues with my legal opinion, avoids answering my questions, or just sounds like a nutcase, I take a pass. If they're already my client and I discover they're lying to me or they blatantly ignore my advice, I fire them.
Expertise. A wise colleague once told me that knowing what you don't know is the most important part of being a lawyer. For that reason, even if a case seems excellent and I get the warm fuzzies from the prospective client, I don't take it on unless the case is squarely within my expertise and I have enough room in my caseload to do the case justice. If I did otherwise, I wouldn't be doing the client any favors, and I'd be setting the stage for potential malpractice. Therefore, if I have any doubts whether I'm the right attorney to handle the case, I refer the prospective client to another lawyer I trust (and I don't take a referral fee). The kinds of clients I want to have tend to respect a lawyer who steps up and says they're not the right person for the job, and those clients tend to remember me later when they have a matter that is within my expertise.

EHV-1 Outbreak and Potential Liability for Boarding Barns

2011-05-20T20:00:00.000-07:00

We were surprised at the questions that poured in following yesterday's article about potential liability for horse show managers and other equine event hosts associated with the EHV-1 outbreak. Lots of folks weren't even aware of the EHV-1 outbreak, or they weren't aware that it was serious, or that it was in their state. While being the bearer of bad news is never pleasant, we're glad we could help inform horse owners.

Both boarding barn managers and boarders are asking about boarding stables' potential liability associated with the outbreak. Here's our advice for barn owners, and you'll note it is very similar to our advice for equine event hosts:

First and foremost, educate yourself about EHV-1 and understand exactly what's going on right now in your state. Dr. Tanis MacDonald, DVM has written a very informative article in layperson's terms about what EHV-1 is, why this outbreak is different, and how to prevent infection.Don't rely on what you hear from friends - go to reliable sources, such as www.thehorse.com, your state veterinarian's website, and the National Cutting Horse Association's updates (the current outbreak is linked to an NCHA event in Ogden, Utah and the NCHA is being very proactive about gathering and disseminating accurate information). However, keep in mind that the information on these websites may not be up-to-the-minute. Keep checking every day until the risk of infection has passed.
Second, understand the real risks of EHV-1 infection at your facility. Don't assume that just because you don't have any cutting horses in your barn, you're in the clear. Call your veterinarian and talk it over with them. Make sure your vet understands the population at your barn, including how often boarders take their horses to places outside the barn (and where they take them), how often you have people hauling in for lessons and arena use, and the type and frequency of events hosted at your barn (such as team practices, lessons, etc.). This is an excellent time to ask your vet about best practices for barn management generally. Then, take your vet's advice.
Third, understand your potential liability as a barn owner:

As a barn owner, it's your legal duty to educate yourself about best practices for equine management, and then implement those practices. These best practices include important (but often overlooked) practices, such as quarantining new horses. If you don't follow best practices, and a boarder's horse gets hurt or injured as a result, you will have potential liability. Note that this is true generally, not just with respect to EHV-1 infection. In the case of limiting the risk of EHV-1 infection at your facility, best practices are dependent upon a number of factors, including where your barn is located geographically and what kind of boarding population you have. Therefore, it's essential that barn managers contact their veterinarians and follow their advice about managing the EHV-1 risk at their facility.

If your vet recommends that you not allow horses to come and go from your facility, or that you segregate certain horses, that policy will need to apply equally to everyone. If you make exceptions to the policy, and those exceptions result in an outbreak of infection at your facility, you will have potential liability.

Let's say that you have a boarder who insists that XYZ event is too important to miss, and they decide to take their horse to XYZ event in violation of your barn policy. Do you have to let them come back? In a word, no. It's too risky for the remaining boarders. Keep in mind that if you have to refund prepaid board to avoid a dispute, that's much less of a financial loss than managing a disease outbreak. If you have a written boarding contract that requires boarders to follow barn rules, the boarder violating your policy would be a material breach of your contract, which would allow you to terminate the boarding contract for cause. Note that how much notice you're required to give the boarder depends upon what your contract says. Many boarding contracts require 30 days' advance notice regardless of the reason for terminating the contract - in a situation like this, a termination-for-cause clause like the one in Equine Legal Solutions' boarding contract forms would be very useful. Here's more information about terminating boarding contracts.

If there is an outbreak of infection at your facility, you as the barn manager will then have a duty to deal with it, including implementing biosecurity measures to halt the spread of infection. If you don't implement appropriate measures, or don't do so quickly enough, you could have potential liability. Keep in mind that your management of the situation will be evaluated from the comfort of hindsight...

For those folks who own barns, but employ barn managers to manage their facilities for them, you will be liable if your barn manager is negligent in handling the EHV-1 situation and boarders' horses become ill or die.

Finally, consider that being too cautious hardly ever results in a lawsuit, while being casual about risk often does...

EHV-1 Outbreak and Potential Liability for Equine Event Hosts

2011-05-19T11:59:00.000-07:00

At Equine Legal Solutions, we have received a number of questions from our clients about the EHV-1 outbreak. Many of our clients wanted to know whether they should cancel or postpone events scheduled for this weekend or the following week. Here's our advice:

First and foremost, educate yourself about EHV-1 and understand exactly what's going on right now in your state. Dr. Tanis MacDonald, DVM has written a very informative article in layperson's terms about what EHV-1 is, why this outbreak is different, and how to prevent infection.Don't rely on what you hear from friends - go to reliable sources, such as www.thehorse.com, your state veterinarian's website, and the National Cutting Horse Association's updates (the current outbreak is linked to an NCHA event in Ogden, Utah and the NCHA is being very proactive about gathering and disseminating accurate information). However, keep in mind that the information on these websites may not be up-to-the-minute.
Second, understand the real risks of EHV-1 infection associated with hosting this particular event at your facility. Don't make a decision based solely upon what you've read so far. Call your veterinarian and talk it over with them. Make sure your vet understands the type of event and where participants will be coming from. And then, take your vet's advice.
Third, if you decide to go ahead with the event, understand the legal implications of that decision:

If you host an event, knowing that there is a risk of EHV-1 infection, you have assumed that risk. But, the event participants have not necessarily assumed that risk - they may not even know about the current outbreak. So, to prevent potential liability, you should inform each participant of the risk of EHV-1 infection associated with the event before they arrive at your facility. Rather than putting your own interpretation on the EHV-1 information, it is better to get permission from reliable sources to reprint their articles on the subject. Recommend that participants talk it over with their own veterinarians before deciding to attend. If participants are adequately informed and decide to attend the event anyway, they have assumed the risk that their horses could become infected.

If you host an event and your facility also has boarders or other horses not participating in the event, you should make sure that those horses' owners understand the EHV-1 risk and agree with your decision to continue with the event. If they disagree, and then their horses become infected with EHV-1, you could be liable.

If you host an event at your facility, and there is an outbreak of infection, consider that you will then have a duty to manage it, including implementing biosecurity measures to halt the spread of infection. If you don't implement appropriate measures, or don't do so quickly enough, you could have potential liability. Keep in mind that your management of the situation will be evaluated from the comfort of hindsight...

We hope this information helps you make an informed decision!

Not Just for Racehorses Anymore: California Horse Sale Disclosure Law Now Applies to Show Horse Industry

2011-04-29T10:30:00.000-07:00

Though he is now deceased, California racehorse owner Jess Jackson (as in Kendall-Jackson winery) has had a lasting impact on horse sale law. Frustrated with the common horse racing industry business practice of agents receiving undisclosed commissions from both buyers and sellers (creating an obvious conflict of interest), Jackson took action. In 2006, with significant support from Jackson, Kentucky passed a law making undisclosed dual agency unlawful. In 2010, Florida’s Department of Agriculture enacted regulations governing disclosure in horse sales.

In 2007, a bill authored by Jackson-owned Stonestreet Stables and introduced by California Senator Patricia Wiggins proposed expanding California’s existing horse sale disclosure law which had been in effect since 1994, Section 19525 of the California Business and Professions Code. The proposed expansion would have Section 19525 apply to all horse transactions, not just those in the racing industry, and give the law more teeth by expanding the recoverable damages and providing that successful litigants could recover their costs and attorneys’ fees. The legislative history notes that the intent of the proposed bill was to “provide a reliable written record of horse transactions and punish…those who use equine transactions to defraud.” The bill never made it out of committee.

In February 2009, Senator Wiggins quietly reintroduced the bill. This time, it met with a lot less opposition. The bill was amended, however - to eliminate the proposed right of a wronged party to recover their expenses and attorneys’ fees and to reduce the amount of potential recoverable damages. Both of these changes had the practical effect of making it significantly less attractive for wronged parties to pursue legal action, as they would have to pay their own attorneys’ fees and expenses, and the potential lawsuit award would be lower than originally proposed.

On August 6, 2010, new Section 19525 of the California Business and Professions Code went into effect.

Q: What horse transactions are covered by the new requirements?

A: California sales, purchases and transfers of show horses or racehorses, including prospects, breeding stock and breeding rights to stallions.

Q: I don’t live in California. So, the statute doesn’t apply to me, right?

A: Not necessarily. Here are some situations where the statute would likely apply: (i) you sell a horse to a buyer in California; (ii) you buy a horse from a California seller; (iii) you act as an agent for a California buyer or seller; (iv) you receive a commission in connection with a horse sale or purchase that took place in California, or where one of the parties lived in California.

Q: I’m selling a horse in California – what does the law require me to do?

A: Provide the buyer with a written bill of sale that includes the purchase price and is signed by the seller and the buyer (or their authorized agents).

If you pay a commission (or anything worth $500 or more) to the buyer’s or seller’s agent in connection with a sale, you must: (i) provide a written statement describing the commission or item of value to the person whose agent will receive it and (ii) the person whose agent will receive the commission or item of value signs the statement or otherwise agrees in writing.

Q: I’m a trainer who often helps clients buy and sell horses. What should I be aware of?

A: You can’t act as agent for both the buyer and the seller unless, before the transaction occurs: (i) you tell the buyer and seller you’ll be representing both of them and (ii) both the buyer and seller agree in writing to have you represent both of them.

If you represent the buyer and/or seller in a sale, you can’t accept a commission or anything else worth $500 or more in connection with the transaction unless: (i) you provide the person you’re representing with a written statement describing what you’ll receive and (ii) the party you’re representing signs the statement or otherwise agrees in writing.

Even if you aren’t representing the buyer or seller, if you pay a commission (or anything worth $500 or more) to the buyer’s or seller’s agent in connection with a horse sale, you must: (i) provide a written statement describing the commission or item of value to the person whose agent will receive it and (ii) the person whose agent will receive the commission or item of value signs the statement or otherwise agrees in writing.

You won’t be able to enforce a commission agreement unless: (i) the agreement is in writing; (ii) the person required to pay you has signed the agreement; and (iii) you met all the disclosure requirements for agency and commissions.

Q: What if I sell my horse at auction – do I still need to provide a bill of sale?

A: No, as long as the receipt delivered by the auctioneer identifies the buyer and seller and specifies the purchase price. But, note that the agency and commission disclosure requirements still apply.

Q: I bought a horse in January 2011 and just found out the seller paid my trainer $1,000 to close the deal. The horse has been lame ever since I bought him. Can I return him?

A: Although you may have other legal grounds for rescission, this statute doesn’t provide for it. However, if you were to sue your trainer and the seller in connection with the undisclosed $1,000, you could potentially recover $3,000 (3x the undisclosed commission amount) under the statute.

Q: In September 2010, my trainer sold my show horse and told me she got $25,000 for him. I ran into the buyer at a horse show and learned that the buyer paid $50,000 to my trainer. Does the statute provide any recourse for me?

A: Yes. While the $25,000 difference between the actual sale price and the price your trainer gave you is not technically a “commission,” if your trainer retained that $25,000, they received compensation in connection with the sale that wasn’t disclosed to you. Therefore, pursuant to the statute, you could recover up to $75,000 from your trainer (3x the undisclosed compensation amount).

Q: Same question as above, only the sale took place before August 6, 2010. Can I recover damages under the statute?

A: No. With respect to show horses, the statute applies only to sale transactions that occurred on or after the effective date of the statute, which was August 6, 2010. But, you may have other legal grounds to sue your trainer, such as fraud and breach of fiduciary duty.

Q: I’m really mad at my trainer for lying to me about the sale price and want to go after him for the $75,000 that the statute would allow. However, a lawyer I consulted told me that it would cost $50,000 or more in attorneys’ fees if my case went to trial, and he wants a $20,000 retainer up front. Can I get my attorneys’ fees back?

A: This statute doesn’t provide for recovery of attorneys’ fees and costs. However, consult with your attorney about whether there may be other statutory grounds, such as applicable fraud statutes, for recovery of these expenses. If the answer is “no,” it may not be cost-effective for you to sue your trainer.

Q: I’m a trainer and recently flew to the Netherlands and helped my client select a horse. My client paid me a 10% commission on the sale price, plus my expenses for the trip, all of which were agreed upon in writing by me and my client in advance of the sale. While I was looking at horses for my client, a representative from one farm said they would “give me something to make it worth my while” if my client bought a horse from their farm. At the time, I thought it was just sales talk, and ignored it, particularly because they never mentioned an amount. My client did end up buying a horse from this farm. A month later, I received a nice note from the farm owner, along with a $1,000 check. Can I cash the check?

A: Only if you disclose the check in writing and your client agrees in writing that you can accept the $1,000.

Q: I’m a trainer and just realized I violated the statute, but I didn’t know it existed until I read this article. Can I still get sued?

A: Yes. The law applies even if you weren’t aware of it at the time you violated it.

Q: Can I call the cops and have them arrest my trainer for violating the statute?

A: No, the statute is civil, not criminal. So, even if you call the police to report the matter, they will advise you that it is a civil matter and that you will need to pursue the matter in court.

Horsey Humor: The 7 Stages of Aging on Horseback

2011-04-14T12:42:00.000-07:00

Thank you to Lauren Zayas for emailing me this gem today (author unknown):

The Seven Stages of Aging on Horseback
Stage I: Fall off pony. Bounce. Laugh. Climb back on. Repeat.
Stage 2: Fall off horse. Run after horse, cussing. Climb back on by shimmying up horse’s neck. Ride until sundown.
Stage 3: Fall off horse. Use sleeve of shirt to stanch bleeding. Have friend help you get back on horse. Take two Advil and apply ice packs when you get home. Ride next day.
State 4: Fall off horse. Refuse advice to call ambulance; drive self to urgent care clinic. Entertain nursing staff with tales of previous daredevil stunts on horseback. Back to riding before cast comes off.
Stage 5: Fall off horse. Temporarily forget name of horse and name of husband. Flirt shamelessly with paramedics when they arrive. Spend week in hospital while titanium pins are screwed in place. Start riding again before doctor gives official okay.
Stage 6: Fall off horse. Fail to see any humor when hunky paramedic says, “You again?” Gain firsthand knowledge of advances in medical technology thanks to stint in ICU. Convince self that permanent limp isn’t that noticeable. Promise husband you’ll give up riding. One week later purchase older, slower, shorter horse.
Stage 7: Slip off horse. Relieved when artificial joints and implanted medical devices seem unaffected. Tell husband that scrapes and bruises are due to gardening accident. Pretend you don’t see husband roll his eyes and mutter as he walks away. Give apple to horse.

Proposed Law Has Big Impact on Oregon Horse Owners

2011-01-28T10:25:00.000-08:00

On January 10, 2011, the Oregon State Senate Interim Committee on Business and Transportation introduced Senate Bill 262. The bill is very far-reaching and includes several requirements likely to affect nearly every Oregon horse owner. The main points of the bill are set forth below.

Update - Current Status

Word from Oregon State Senator Mark Hess' office is:

"At this time, the bill has been referred to the Senate Committee on Environment and Natural Resources, but the Chair does not plan to schedule the bill for a hearing"

Note that this does not mean the bill is officially "dead," as the original sponsor of the bill has been quoted as saying. Also, controversial bills have a habit of coming back in different forms later on - this bill has already been raised once before.

Horse Licensing

Oregon horse owners would be required to apply to the state ag department for an "ownership certificate" for each of their horses.
The "ownership certificate" would cost up to $100 per horse.
The application would include the owner's name and contact information, as well as a copy of the horse's registration papers (if any), the horse's location, and the horse's age, color, markings and other identifying information.
The only exemption is for horses in Oregon less than 30 days.
If an Oregon horse owner doesn't get an ownership certificate, the first offense carries a max fine of $500 per horse, and afterwards, a max fine of $1,000 per horse.

Horse Transportation

No one can pick up a horse in Oregon for transport without an "ownership certificate" or a document proving the horse has been in Oregon for less than 30 days.
Anyone trailering a horse within Oregon must stop at least every eight hours for a "rest break."
The "rest break" would require that the horse be unloaded for at least six hours and fed and watered.
Violation of the rest break rule carries a max fine of $500 per horse for the first offense, and afterwards, a max fine of $1,000 per horse. So does violation of the documentation requirement.
Horses on trailers must be checked at least every six hours.
Horse trailers must be single-level only and "designed, constructed and maintained in a manner that at all times protects the health and well-being of any equine being transported."
"Aggressive" horses must be segregated from other horses.
Horse trailers must be tall enough to allow the horses inside to stand with their heads "extended to fullest normal postural height."
Drivers must drive "in a manner reasonably calculated to avoid causing injury to the equines."
If a horse is in "obvious physical distress", the driver has to seek veterinary attention for the horse.
No one can use an electric prod to load or unload a horse.

Horse Sales

Oregon horse sellers must provide buyers with a signed and dated state ag department transfer form.
Oregon horse buyers must file the transfer form with the state ag department within 30 days after purchase and pay a $10 transfer fee.
An Oregon horse buyer can't resell the horse until they receive a new "ownership certificate" from the state ag department unless they hold an "equine trader" permit.
Obtaining an equine trader permit entails paying a $100 annual fee and submitting an application to the state ag department that includes the applicant's name and contact information, date of birth and any criminal convictions within the last seven years.
When an equine trader buys a horse, they have to get a notarized bill of sale, a state ownership certificate and a completed transfer form. They must also provide the seller with a receipt.
Equine traders must keep records of all the horses they sell.
The state ag department can inspect an equine trader's horses and records at any time.
Violation of the equine trader rules carries a max fine of $500 per horse for the first offense and afterwards, a max fine of $1,000 per horse.
When anyone consigns a horse to a livestock auction, they must provide an ownership certificate to the auction.
The auction must provide all horse buyers with a bill of sale, ownership certificate and transfer form.
Livestock auctions must maintain records of all horses sold.

Horse Rescue

The state ag department has to keep a registry and a public list of all Oregon horse rescues.
To register with the state ag department as a horse rescue, the rescue must be an Oregon non-profit corporation and meet certain standards for horse care.
Horse rescues must re-register with the state ag department every year.
Horse rescues must keep records of all horses sold or adopted.
The state ag department can regulate the adoption and sale of wild horses and horses sold or adopted by rescues.
The state ag department can inspect a rescue's horses and records at any time.
No one (person or entity) can solicit donations in Oregon for horse rescue unless they are a registered rescue or clearly disclose that they aren't.

Where Did this Bill Come From?

The legislative history reveals that the bill was introduced at the request of Lindy Minten, a private citizen in Scio, Oregon. The reasons for her interest in this matter are unclear. (This paragraph edited to delete misidentification of Ms. Minten as Dalinda Minton)

What Can Oregon Voters Do About the Bill?

The bill is currently being reviewed by the Oregon State Senate Environment and Natural Resources Committee. Here are the members of the Committee. Interested Oregon voters can email them:

Jackie Dingfelder, Committee Chair (Democrat) - sen.jackiedingfelder@state.or.us

Alan Olsen, Vice Chair (Republican) - sen.alanolsen@state.or.us

Mark Hass (Democrat) - sen.markhass@state.or.us

Floyd Prozanski (Democrat) - sen.floydprozanski@state.or.us

Chuck Thomsen (Republican) - sen.chuckthomsen@state.or.us

Oregon voters can also find out who their state senators and representatives are, and email them.

Tough Liability Questions: Answer Them Now Before It's Too Late

2011-01-18T15:48:00.000-08:00

Horse owners always have lots to do. There are horses to be fed, mares to be bred, colts to be worked, and (always!) stalls to be cleaned. These types of chores tend to be their own reminders. Now, here's your reminder to do the other important chores, ones that can protect you, your family, your home, your business and your horses! Individual horse owners, here's some food for thought.

Can You Afford to Replace Your Horse?

Your special horse is irreplaceable. At least, emotionally speaking. But, if you were to lose your top show horse, herd sire or other valuable horse, could you afford to go out and buy a horse to "replace" him? No? Then consider equine mortality insurance and equine loss of use insurance.

Can You Afford a Huge Vet Bill?

What if your favorite horse needs a $10,000 surgery? Could you afford it, or would you have to euthanize him? Without equine major medical insurance, you might have to answer that question.

Do You Board Your Horse?

Yes? Did you sign a boarding contract with the stable owner? Yes? Did you get a copy? Yes? Now's the time to actually read it so that you know what it says before you need it. No? Now's the time to ask for a copy so you know what you signed.   Will your homeowners' insurance cover you if your boarded horse injures someone? Are you sure? Check with your homeowners' insurance agent. Not covered or not sure? Think about joining the United States Equestrian Federation - for well under $100, your membership includes a free equine liability insurance policy!

Are You Leasing Your Horse?

If you're leasing your horse, you need to protect yourself (and your horse!) with a good lease contract, one you know will hold up in court if you need to enforce it.   Freebies you found on the Internet and contracts you drafted yourself don't count - here's why. Think your homeowners' insurance will cover you if your horse injures the person leasing him? Think again - unless the lessee isn't paying you for anything, the lease situation will be considered "commercial" and therefore not covered by your homeowners' policy. Check with your homeowners' insurance agent to be sure. Not covered? Think about joining the United States Equestrian Federation - for well under $100, your membership includes a free equine liability insurance policy!

Do You Keep Valuable Tack in Your Horse Trailer?

Yes? Guess what - horse trailer insurance policies usually don't cover the contents. Some bozo steals your trailer, and your show saddle is in the tack room. If you've insured your horse trailer, that's probably covered, but your show saddle probably isn't. Pfft - gone! Check with your insurance agent now before the unthinkable happens!

Is Your Property Safe for Visitors?

Even for social guests, you have a legal obligation to fix dangerous conditions you know about, or warn visitors so they don't hurt themselves. Now's the time to fill in holes, mend fences, put up warning signs and fix drainage issues that cause slippery footing.

Have Your Horses Ever Been Known to Bite or Kick?

If so, they might end up being four-legged liabilities. In addition to obtaining the proper liability insurance, warn visitors of your horses' habits, and put up warning signs on stall doors or pasture fences, especially if your horses are boarded or your fences adjoin any area with a lot of foot traffic. Contrary to popular opinion, warning signs don't create liability by announcing that you're aware of a dangerous condition - rather, they help prevent liability by serving as a warning to unsuspecting people who might otherwise enter your horses' enclosure (such as stall cleaners at a boarding barn).

Do Your Horses Ever Get Loose?

Unless you live in an officially designated "open range" area, you have a duty to contain your animals on your property, and if your animals get loose and cause damage, you can be held liable. For example, if you forget to latch the pasture gate, your horses get out on the road, and a passing motorist hits and kills your horse, you will probably be liable to the motorist for his/her injuries and damage to his/her vehicle (along with any property damage at the accident scene). The motorist most likely won't be liable to you for killing your horse because it was your negligence that allowed the horse to be out on the road in the first place. Now is the time to check your homeowners' insurance to make sure you will be covered if your horses get loose and cause damage (and if not, get appropriate liability coverage). Also, now is the time to check your fences and put safety measures in place to prevent the horses from escaping your property even if someone happens to forget to latch a gate or a stall door.

Reputation Isn't Anything, or Why You Can't Trust the Big Boys

2010-12-13T19:42:00.000-08:00

At Equine Legal Solutions, we receive more calls about horse purchases gone wrong than any other equine legal issue. In about half of the calls, the horse buyer was so impressed by who the seller was that they didn't exercise good judgment. Because the horse seller was a well-known trainer and told the buyer the sale horse was sound and healthy, the buyer figured they didn't need a pre-purchase veterinary examination. Because the seller was a leading breeder and told the buyer the horse was a top young prospect, the buyer bought the horse sight unseen. Because the seller imports and sells hundreds of horses each year and had glowing testimonials on its website, the buyer didn't feel it was necessary to draw blood during the pre-purchase examination and test it for tranquilizers and pain medications. In each case, the buyer thought that because the seller was well-known, they couldn't afford to sell the buyer a lame horse, a drugged horse or a horse with serious behavioral problems.

In almost every case, the buyer contacted the seller to discuss the problem, expecting the seller to work with them to make it right because the seller was so well-known. Instead, the seller didn't return the buyer's calls, or emails or text messages. Or the seller did respond, but it was only to tell the buyer they had no idea what the buyer was talking about, that the horse was perfect when it left the seller's facility. Sometimes, the seller even went so far as to imply (or even say in so many words!) that the buyer and the buyer's veterinarian, trainer, etc. simply didn't know a good/sound/healthy/well-trained horse when they saw one.

How can well-known horse industry figures get away with selling lame, drugged and otherwise unsuitable horses to unsuspecting buyers? Simple - there are generally no consequences. Most of the time, the horse's price was low enough that it doesn't make economic sense for the buyer to sue the seller. If the buyer takes the seller to small claims court, even if the seller loses the case and has to pay the buyer, the buyer is still generally stuck with the horse. And, the buyer often has difficulty collecting a judgment from the seller and can't afford to hire a lawyer to help them. Plus, small claims court cases aren't reported, so there's no easily accessible public record of the seller's loss. Horse businesses generally aren't members of the Better Business Bureau, so filing a complaint with the BBB won't do any good. And almost all "governing bodies" of horse sport, such as breed registries and the United States Equestrian Federation, will generally decline to intervene and typically aren't even willing to seriously entertain formal complaints against their members based on fraud and misconduct in horse sales. So, the buyer has no recourse but to complain to anyone who will listen. However, unless the buyer is a well-known industry figure themselves, the buyer's complaints won't reach the ears of anyone the seller cares about (i.e., other customers). The seller can easily brush off the few stories that might make their way onto Internet chat rooms as the isolated (and erroneous) complaints of one disgruntled (and clearly misguided) buyer.

Horse buyers tend to think that well-known horse industry figures can't afford to sell inferior horses, but opposite is true. Horse businesses can't afford not to sell their culls. Not only are low quality horses and horses with problems not making any money for the sellers, they're actually costing the seller hundreds of dollars each month in feed, farrier bills, etc. But, every horse sale puts money in the seller's pocket. The math is pretty straightforward, and the incentive to cheat is just too big for a lot of horse sellers to resist.

And, cheating is often pretty easy. Certainly, it's easier than being honest. Buyers make cheating even easier by not doing their homework before buying. Most buyers won't knowingly purchase a lame horse, but if the seller gives the horse enough Banamine, the horse will test ride sound, and the sale will go through. Most buyers aren't eager to buy a horse that cribs, but if the buyer never sees the horse in person before buying, they won't know the horse is a four-legged buzz saw until the seller has already cashed their check. Most buyers won't buy a horse that flips over backward, but if the seller fixes the problem with a little Ace before the buyer's test ride, the buyer won't be any the wiser until they end up in the hospital.

Boarder Bankruptcy = Boarding Stable Nightmare

2010-12-09T18:20:00.000-08:00

You have a boarder in your barn who owes you a ton of money. You're fed up with their excuses and bad checks, and you decide it's time to take action. Just as you're starting the process of foreclosing upon your agister's lien (i.e., taking the necessary legal steps to sell the horse), the boarder triumphantly announces to you that they have filed for bankruptcy. As a result, the boarder claims you "can't touch my horse now" and that furthermore, they don't have to pay you. Whaaaaat?!! Could this be true?

This exact scenario has happened to a handful of Equine Legal Solutions' boarding stable clients. Federal bankruptcy law is designed to protect debtors from collections actions, divide the debtor's assets among its creditors, and give debtors a fresh start of sorts. When a debtor files for bankruptcy, there is an immediate and automatic court order forbidding creditors to take any further collections actions against the debtor. What that means is that the creditors now have to deal exclusively with the bankruptcy court rather than the debtor.

If a bankrupt boarder owes a boarding stable money, the boarding stable is considered a creditor in the boarder's bankruptcy. Practically, that means that as of the date the debtor files for bankruptcy, the boarding stable can't send the debtor any more bills for past due amounts or pursue any more legal claims against the debtor. If the boarding stable has filed a lawsuit against the boarder, they have to dismiss the suit (even if it's in small claims). In particular, the boarding stable can't lawfully sell or give away the debtor's horses. Meanwhile, the boarding stable is still legally obligated to feed the boarder's horses, lest they be accused of animal cruelty. Seriously? Yes.

Assuming that the boarding stable had a valid lien on the horse for the past due board, that lien will generally continue for as long as the stable maintains possession of the horse. But, the boarding stable will need to take certain legal steps in order to be able to do anything with that lien. First, as soon as possible, the boarding stable will need to file a claim in the bankruptcy. To do that, the boarding stable will need the assistance of a bankruptcy attorney. Next, the boarding stable will need to file a motion with the bankruptcy court and obtain the court's permission to sell the horse. This will also require the assistance of bankruptcy counsel.

Most of the time, however, the cost of hiring a bankruptcy attorney exceeds what the bankrupt boarder's horse is worth. It also usually exceeds the amount of board the bankrupt debtor owes the boarding stable. So what can the boarding stable do? Its best bet is to get the debtor to take possession of the horse. This will likely extinguish the boarding stable's lien on the horse, but a lien that's too expensive to enforce is practically worthless anyway. On the other hand, if the debtor takes the horse, the boarding stable gets the horse off of its feed bill. Considering that the debtor's bankruptcy may take months or even years to complete, this benefit is not insubstantial.

Bottom line, when a boarder files for bankruptcy, it's a no-win situation for the boarding stable. Unfair? You bet it is!

Career Truths Learned from Horse Shows

2010-10-27T22:28:00.000-07:00

Performance is relative. You don't have to be perfect to succeed, just better than the next guy.
If you have a bobble, go on as if nothing happened, and it's likely no one will notice.
The only person whose opinion really matters is the guy (or gal) who signs your paycheck.
Stay humble. Just because you won today doesn't mean you'll win tomorrow. Or the next day.
Long term, gimmicks and shortcuts are no substitutes for talent and hard work.
Hard work is no substitute for talent, but it'll do in a pinch.
Appearance does count. Often, a lot.
If you don't keep your skills current, you'll be obsolete.
No matter how catastrophic today's failure may seem, there will another opportunity to succeed tomorrow.
If you're successful today, no one will remember you failed yesterday.
Cherish your accomplishments. Learn from your failures.
Succeeding at something challenging is far more satisfying than succeeding at something easy.
Understated is a safe choice, but not always the best choice.
Looking like a winner makes you feel like a winner. If you feel like a winner, you'll have a competitive edge.
If you're ostentatious, you'll get noticed. But if you don't deliver, you'll really be noticed.
Be careful of the enemies you make - they could be your judges tomorrow.
Money and connections can help you down the road to success, but you'll need hard work and talent to get the rest of the way.
The good guys don't always win. Neither do the smartest or most talented guys.
No one likes a complainer. Everyone likes a complimenter.
There's no substitute for being prepared.
No matter how good you are, if you don't play by the rules, you'll still lose.
Cheaters win sometimes, but not most of the time.
If you're not having fun, something needs to change. Only you can make that change.
If you think you're too good for something, you'll quickly find out you're not good enough.

You're your own worst critic.
No success is worth sacrificing a friendship.
If you think you're going to lose, you will. If you think you can win, you just might.
Trying to succeed is different than trying to avoid losing.
Long term, consistent performance will take you farther than flashes of brilliance.

World Equestrian Games - A Spectator's Review

2010-10-20T22:12:00.000-07:00

I'm thrilled to report that the World Equestrian Games were every bit the once-in-a-lifetime experience I hoped they would be. Thanks to my parents, Mary and Brian Kosmal, for treating me to the ultimate horse vacation as a 40th birthday present!

WEG Highlights

-The completely amazing seats we had for team show jumping on the first day of our visit. I had ordered these seats via AQHA's advance-ticketing and they were by far the best seats we had all week, right in the middle of the exhibitor section of the main stadium, surrounded by friendly and cheering team members from Australia and Sweden. We were across the aisle from the US team and recognized George Morris and Laura Kraut.

-The audience participation. The entire stands clucked when it looked like the rider on course might not make it. Every time a horse took a hair-raising long spot or had a spectacular knockdown, the crowd gasped in unison.

-An unlikely underdog team. We remarked that while it might be possible to buy the best show-jumpers in the world (e.g., Presley Boy, who reportedly sold for $5M), you still had to ride them, and the riders from the Kingdom of Saudi Arabia proved very capable horsemen, showing skill and excellent judgment on course. They may not have won the team competition, but they made a very impressive showing.

-The universality of horse behavior. When the ribbons were awarded for the team show jumping, we were amused to note that several of the horses were hopping around in the lineup, and one was kicking at a loose leg strap on its cooler. At one point, it looked like a collision between two restless horses (both stallions) was imminent, but fortunately, the awards were over just in time. During the victory gallop, several of the horses didn't appreciate being held back so they didn't pass the first-place horse, and they threw in a few lively bucks. Even world-class show jumpers still act like horses!

-Western horsemen receiving well-deserved respect from mostly English-discipline audiences. I was pleased to see that the NRHA demo ring was smack in the middle of the traffic flow for the major show jumping and carriage driving venues. The clinicians were demonstrating on well broke reiners and giving kids test rides. All day long. No glitz, no logos, no training gimmicks, no one selling videos. Just cowboys in jeans, hats and boots demonstrating horsemanship and offering fellowship. No wonder the stands were full every time I passed.

-The astonishing variety of things to see. We spent nearly four days at WEG and felt like we barely did it justice. For example, we didn't get to the Horse Park's "Gift from the Desert" temporary exhibit on the Arabian horse, which we heard was a don't-miss. We wished we'd had tickets to see some of the carriage driving. And some of the eventing. Hopefully, the WEG will come back to the US before we're too old to go!

-Really friendly staff and volunteers. Everyone we met went out of their way to be helpful, from the parking attendants to the shuttle bus drivers to the folks checking bags and coats as we entered the WEG grounds. Warm smiles and hospitality were everywhere. Thank you, Kentucky!

-Impressive logistics. The WEG was a HUGE event. Not just in terms of sheer numbers of spectators and exhibitors, but also in terms of variety of disciplines represented. And WEG management delivered - events started on time, movement from one place to another was fairly smooth, and quality of experience was consistently high. I can only hope that the exhibitors were handled as well as the spectators.

-Crass commercialism and embarrassing amateurish displays were sidelined. I was thrilled to see that while the WEG offered a full schedule of clinicians hawking "training tools" and other horse-expo-type attractions, these activities were wisely and artfully confined to an area of the Horse Park separated from the main events. Unless you purposely sought them out, you'd miss them. Thank goodness.

-Surprisingly great service at ordinary restaurants. As it was fairly late each evening when we left the Horse Park, we patronized local upscale chain restaurants rather than taking any time to seek out local favorites. At each one, we received well above average food and service. From well-made cocktails at PF Chang's to super-attentive service at Outback, we felt welcome. Even during a quick lunch at the McDonald's closest to the Horse Park, we were surprised by the warm reception. Hospitality kudos, Lexington!!

WEG Lowlights

-The WEG's official hotel reservation system. Anticipating zero availability, my mother went through the WEG's system to reserve our hotel rooms for the games when she bought our WEG tickets in the fall of 2009. Despite my mom having entered criteria that should never have produced this result, the WEG reservation system (which required payment in full for the entire stay, in advance) placed us at an airport Days Inn 70 miles from the Horse Park. After one night in this fleabag, my father (bless him!) called around and found us better accommodations for the remaining nights, within just a few miles of the Horse Park. And at normal market rates. Thankfully, it appears we escaped without any bedbug hitchhikers in our luggage.

-Amusement park food and parking pricing. Just add cartoon character parking lots signs and subtract tiny servings of Kentucky Derby pie in boxes, and we could have been at Six Flags. Not only were spectators prohibited from bringing in our their food and beverages, the WEG went so far as to search the bags and coats of every person entering the grounds. The three of us had a rather uninspired lunch of sandwiches, chips and drinks, and the total was nearly $50. Subway would have been better, not to mention less expensive. One afternoon, we visited the Veuve Clicquot booth for a glass of champagne, only to change our minds when we discovered that the price of a very modest glass was $19 (while an entire bottle can generally be purchased at Costco for around $30). Because there were no in-and-out privileges at the parking lot, we couldn't leave the grounds to eat and then come back without paying another $20. Charging a premium is one thing, ripping people off is another...

-Blase vendors. I knew the vendor booths were very, very expensive (reportedly $15K for a basic 10x10 booth), so I didn't blame the vendors for charging premium prices. When I walked through the vendor areas, I overheard some quiet conversations among vendors about sales being pitiful. As someone who occasionally has booths at trade shows, I sympathized. That is, until I encountered a rather disinterested attitude from several vendors. My mother and I were greeted warmly by the Persian rug vendor, the custom bootmakers from Ecuador and the Botswana horseback safari guide. But when I visited the CWD and Devocoux saddlery booths to check out the various models (and I'm a serious buyer), I was completely ignored, despite the paucity of other shoppers. In the Bit of Britain store, the Spanish leathergoods firm Lilo had a boutique. As the inadvertent owner of quite a collection of silk scarves that I have no idea how to wear, I was intrigued by the snaffle bit leather item that turned a scarf into a belt. But, when I went to purchase one, the fellow who was self-importantly telling another patron about how the WEG logo silk ties had been his idea and were a big seller (and I had the impression he was an owner of Lilo), could hardly be bothered to answer my simple question about whether the belt accessory could be purchased separately from the (cheap polyester) scarf. Had I not really, really wanted one of these items, I would have walked away. The Bit of Britain cashier who rang up my purchase was gracious and friendly. When I returned to the Lilo boutique to collect my belt accessory (which was in fact available separately, thank goodness, albeit at a pretty steep price), the fellow didn't miss a beat in his conversation, and I noticed that he wrapped my purchase in a white plastic grocery bag with a rose on it, the kind that NYC delis use, instead of the logo-imprinted handled shopping bag in which he wrapped another patron's purchase. Nice...

Horse Industry Insiders: Are We Killing Our Own Future?

2010-09-27T21:41:00.000-07:00

I'm a big fan of Bob Avila's article series in Horse & Rider magazine. As soon as I receive the magazine, sometimes even before I get out of the truck, I flip right to Bob's article. Bob is a straight shooter, and he's secure enough in his career that he can say in print what others just gripe about back at the barn. Kudos also go to H&R editor Juli Thorson, who has the guts to publish articles with sometimes-unpopular opinions about tough ethical issues our industry faces. The theme of Bob's October article is greed - short-sighted things we do that hurt ourselves, our horses and our industry.

Among other things, Bob points out that knowingly selling an unsuitable horse to a buyer is particularly short-sighted. He's absolutely right. Every week, I hear from several unhappy horse buyers who got ripped off on their first horse deal and are so disillusioned that they exit the horse industry forever. A good proportion of those buyers are parents who purchased horses for their kids, so one bad horse deal killed generations' interest in horses. The kids who have a bad first horse experience never come back to horses. Instead, they take up soccer, or video games, or skateboarding, and these are the interests they pass on to their children, not 4-H or Pony Club.

To expand on Bob's theme, questionable show ring preparation and presentation are also hurting our industry. When's the last time you went to a horse show and saw any spectators in the stands who weren't related to the participants? Only the industry's largest events seem to draw any sizable non-insider crowds. When those spectators come to our events, they see things that look ugly to them, such as horses with unnatural movement, dead tails and miserable looks on their faces. These are not the displays of equine majesty the spectator reasonably expected from our industry's most prestigious events.

When a spectator dares to ask why, the answer typically implies (rather strongly) that the spectator is an ignorant know-nothing. The spectator walks away insulted and shaking their head, never to return, and certainly never interested in participating in this type of abusive spectacle. If they're a horse person, they might post what they saw on various Internet chat boards, and other non-insiders will pile on with supportive posts. The result: A reputation that no one can succeed at top levels of competition without engaging in questionable practices or outright abuse.

Next week, I'll be attending the FEI Games in Kentucky with my parents (Apparently, marketers thought Americans are not sufficiently familiar with FEI, so the FEI Games were re-christened World Equestrian Games for their American debut). I'm really excited about attending the Games, but at the same time apprehensive. The tickets were ridiculously expensive (thanks, Mom and Dad, for sponsoring the trip for my 40th birthday!), and I hear that everything else at the Games is exorbitant as well - earning the event the nickname World Extortion Games. We're staying an hour away in Louisville, but I'm really glad after hearing rumors of a bedbug outbreak in Lexington hotels. Every horse world has-been and minor celebrity seems to be putting on some sort of exhibition at the Games - how embarrassing that our horse industry colleagues from around the world will leave the States thinking those folks are the best horsemen and horsewomen America has to offer. Every horse industry business with something to hawk seems to be an "official sponsor" of the FEI Games, further cheapening our industry's international image. I know I'm going to see some amazing international level show jumping. But I'm also going to see some things that I'll have to explain uncomfortably to my folks, and some things that make me worry about the future of our industry...

Stay tuned for updates live from the Games!

More Reasons Why Drafting Your Own Horse Contracts is a Bad Idea

2010-09-14T18:17:00.000-07:00

In an earlier post, I covered the top three reasons why drafting your own horse contracts is a bad idea. Today, reviewing a client's horse boarding contract, I was inspired to add to the list. This client is educated, articulate and has owned a boarding stable for years. She has some excellent ideas about stable management. Yet, in drafting her own boarding contract and liability releases, she made some critical mistakes.

(1) A Patchwork Contract is Only as Good as the Raw Materials

While lawyers often do create contracts by using pieces of other contracts, they do so very carefully, and the contracts they start with are usually high quality and often drafted by the lawyer who is now using them to create a new agreement. In contrast, when a non-lawyer drafts a contract, they typically use examples they find on the Internet or get from their friends, and then add some of their own language. The contracts they find may not be drafted by a lawyer, and even if they are, chances are excellent that the lawyer didn't know much about horses. The contracts may not be well-written, and even if they are, they may be totally irrelevant to the client's situation. And as for the language that the clients draft themselves? It's almost always a disaster. Even if the client does have a master's degree or a PhD - they just don't have the training and experience that a lawyer does.

(2) Patchwork Contracts Require Skilled Editing

When non-lawyers cobble together their own contracts from pieces of other contracts, the pieces don't usually match. There are often missing section references, cross-references to sections that don't exist, and capitalized terms that aren't defined anywhere. Some of the language doesn't make any sense, and some of the terms even contradict each other. Simply put, the contract ends up being confusing.

In contrast, part of a lawyer's job is to make sure that a contract flows well, all the cross-references are correct, all capitalized terms are accurately defined and that the contract uses terms consistently throughout. Lawyers get paid to read every single letter and number and make sure there are zero mistakes.

(3) Why Confusing Contracts Can be Fatal to the Client

When a contract is ambiguous, and the parties disagree about its meaning, courts typically side against the party who provided the contract. So, for example, if a boarding contract never defines an important term, or one term contradicts another, the courts will likely side with the boarder's interpretation of the contract.

(4) Liability Releases Contain Magic Language

Enforceability of liability releases is a continually evolving body of law. Legal cases upholding or tossing out liability releases are decided every day, and frequently, they turn on very subtle language differences. It's a lawyer's job to keep up with the case law and make sure the latest "magic language" is in the liability releases they draft. In contrast, non-lawyers have little idea what makes a liability release enforceable, and so they tend to just copy release provisions that "look legal." Often, those provisions are written in legalese which, contrary to what the non-lawyer might believe, actually undermines the release's enforceability.

Very often, non-lawyers copy liability release provisions from various contracts and don't pay enough attention to the parties named in the release. As a result, a boarding contract for "Star Stables" can contain release provisions that refer to "Pacific Stables" and never mention Star Stables anywhere. Or, Star Stables might be named, but not its owners, employees, etc. Anyone not named as a released party won't be able to enforce the liability release, which means it's open season for ambulance chasers. That's a pretty big oops!
More information about what makes an equine liability release enforceable.

Horse Boarders' Legal Rights (or Lack Thereof)

2010-09-01T18:43:00.000-07:00

At Equine Legal Solutions, we receive a lot of calls from horse owners who are unhappy with a situation at their boarding stable and want to know what their "legal rights" are. The short answer is that boarders have only the legal rights given to them by their boarding contract (if they have one) and relevant case law. Note that the boarder not having received a copy of the contract or having lost their copy of the contract doesn't change the boarder's legal rights.

What if the boarder doesn't have a written boarding contract? The answer is that at best, they have a verbal boarding contract (the terms of which will be very hard to prove). Aside from that, they can rely only on relevant case law to provide them with any legal recourse, such as if the boarding stable was negligent in caring for their horse (and the horse suffered injury or death as a result).

On occasion, boarders have spoken to various friends and relatives and come up with the idea that their state's landlord/tenant law applies. That's just flat wrong. Unless the boarder lives on the property, landlord/tenant law won't apply to a horse boarding dispute. In the four states where we practice, California, New York, Oregon and Washington, there are no laws governing horse boarding, other than animal cruelty statutes and local zoning regulations governing use of the property.

Generally, questions about horse boarders' legal rights fall into three categories: Terminating the boarding relationship, raising board prices and what the boarding stable is required to provide for boarders and their horses.

Boarding Contract Termination

A boarding stable's right to terminate the boarding contract is governed by what the contract says. If the boarding contract says nothing about termination or there is no contract at all, the boarding stable can give the boarder practically any form of termination notice. Unless the boarding contract specifies the boarding stable has to give the boarder advance notice prior to termination, the boarding stable can notify the boarder that it wants the boarder to leave immediately. Unless the boarding contract says termination notices must be in writing, the stable can give the boarder notice in any form it chooses, including verbally, as long as the boarder receives the notice.

Nothing else is relevant, including:

How long the boarder has been at the facility (yes, even if it's been decades)
Whether the boarder is current on their board payments (yes, even if they're paid up in advance - they can get a prorated refund)
Whether the boarder wants to leave
Whether it's practical for the boarder to move their horse by the termination date
Whether there's another boarding stable that meets the boarder's personal standards of geographic location, price, care, etc.
Whether the boarder is required to give the facility advance notice if the boarder terminates the boarding contract
The boarding stable's reasons for terminating the contract. The boarding stable doesn't have to have a reason to terminate a boarding contract, and even if they do, they don't have to tell the boarder what it is.
Whether the boarding stable has met the boarder's personal standards of horse care, etc. up until the point of termination

Raising Boarding Rates

There's no rent control in horse boarding. Unless a boarding contract says otherwise, a boarding stable can raise its rates as much as it wants, as often as it wants, with as little advance warning as it wants. Much like terminating a boarding contract, nothing else is relevant, including:

How long the boarding rates have been the same
How recent the last rate increases were
Whether the boarder is current on their board payments
Whether the boarder can afford the increase
Whether the boarding stable's amenities and level of care justify the increase
The reasons (if any) that the boarding stable gives for the increase

Often, boarders want to know if there's anything they can do if they don't like a board increase. Essentially, there are two choices: Pay or leave. And if the boarder chooses to leave, they must provide the boarding stable with the notice specified in the boarding contract (if any).

Boarding Stable Standard of Care

Again, the standard of care for boarding stables is governed largely by what the boarding contract says. Otherwise, the boarding stable has to provide only the most basic level of care. For example, unless the boarding contract says otherwise:

If a boarder's horse is bigger than average, or eats more than average, the boarding stable isn't legally obligated to feed him more, as long as he's not starving to death (literally). So, if a boarder thinks their horse needs more feed than he's getting, and the boarding stable wants to charge the boarder extra, they can. If the boarding stable doesn't want to increase the horse's feed, the boarder might have to buy their own feed. And the boarder should be prepared to store and feed the extras themselves.
Similarly, the boarding stable can feed whatever type of hay and/or feed it chooses, as long as it's not unsafe. And "unsafe" means moldy, contaminated, or of a type not suitable for horses, such as silage. Hay that's merely stemmy or poor quality isn't sufficient cause for a negligence lawsuit as long as the horses aren't starving to death (literally).
The boarding stable can use whatever type of bedding it wants, bed stalls at any depth it wants, and clean stalls as frequently/infrequently as it wants, as long as stall conditions are not "Call Animal Control" unsanitary. If the boarder wants different bedding, more bedding, and/or more frequent stall cleaning, the boarder will probably have to pay for it. Even if the boarder's horse is allergic to the current bedding, is on stall rest, etc.
The facilities the boarding stable provides have to be reasonably safe for normal use. Just because a horse got hurt doesn't mean the boarding stable was negligent.
The boarding stable can provide as few or as many amenities as it chooses. And the existing amenities don't have to be operational. The wash rack plumbing doesn't have to work, the outdoor arena can be too muddy to use nine months out of the year, and the indoor arena lights can be sketchy. If the boarder feels like they're paying for amenities they can't use, they should negotiate with the boarding stable, and if that doesn't work, consider leaving.

Bottom line, if a boarder isn't happy, and they can't work out a compromise with the boarding stable, they should either get comfortable with the situation the way it is, or prepare to move to another boarding stable.

What to Expect at USEF Disciplinary Hearings

2010-08-23T22:44:00.000-07:00

Part of what we do at Equine Legal Solutions is represent clients in United States Equestrian Federation disciplinary hearings (as well as breed association discipline actions). Most of our clients are defending themselves against alleged USEF rule violations, often involving equine drugs and medications. Other clients are on the offense, urging the USEF to take action on official grievances filed against fellow competitors or trainers. Although the bare bones are described in the USEF rules, the USEF disciplinary process is a bit mysterious if you haven't been through it before. Here are some important facts to know.

USEF Can't Suspend You Without Notice and a Hearing

USEF Rule GR601 clearly states that no one can be suspended or otherwise barred from competing without a notice and a hearing. So, if your horse flunks a drug test, you're not automatically suspended. Instead, you'll receive an official notice from USEF in the mail. And it might be quite a while after the competition - months, even. So don't think you're in the clear if your horse was drug tested and you haven't heard anything within 30 days.

Discipline Actions Don't Always Start with USEF

Clearly, if your horse is drug-tested at a USEF-sanctioned show and it tests positive for prohibited medications, the USEF will notify you of a potential disciplinary action. Likewise, if the steward at a USEF-sanctioned show observes you engaging in a practice clearly prohibited by USEF rules, you'll likely be hearing from USEF about it. However, not all disciplinary actions start with USEF. Once in a while, an exhibitor is upset enough about a perceived show unfairness or USEF rule violation to put their grievance or protest in writing and submit it to USEF with the hefty $200 filing fee ($300 for non-members).

The time window for filing a protest or grievance about something that happened at a USEF show is very small. Per USEF Rule GR603, the protester has to submit a written complaint (signed, with their name and address - no anonymous complaints) to the show management within 48 hours of the alleged USEF rule violation, or the protester can submit their complaint directly to the USEF within 10 business days after the last day of the USEF recognized competition. Because of the timing, most complaints are submitted directly to USEF.

The Clock Starts Ticking When You Receive a Notice

When you receive a notice from USEF of an alleged rule violation, you may not have much time to act. USEF Rule GR606 provides that the USEF only has to give 20 days advance written notice of a hearing on a disciplinary matter (unless your hearing is before the relevant show committee, in which case only 24 hours is required). How much notice you receive is typically a function of when the USEF Hearing Committee meets next, and how full its calendar is.

As a practical matter, none of our clients has ever received less than 60 days notice prior to a hearing, and 90-120 days is more typical. The notice always comes by mail. And because USEF hearing notices are mailed to your most recent address on file with USEF, when you send in your USEF membership, it makes sense to use an address that's not only current, but also gets checked on a regular basis.

Although you may receive 90 or even 120 days notice prior to the USEF hearing date, you won't have that much time to prepare. The notice will contain a deadline by which all your evidence must be submitted to the USEF Hearing Committee. Evidence submitted by the deadline is compiled by USEF staff and provided to the Committee prior to the hearing date. On the hearing date, the Committee usually meets before the hearing to discuss the cases to be heard that day, including evidence submitted, and the Committee may have already made a preliminary determination before your hearing. So, it helps to submit your evidence in advance.

You Can Postpone the USEF Hearing Date

If you can't make the hearing date or you need time to gather evidence and retain counsel, you can request that your USEF hearing date be moved. But, per USEF Rule GR607, you have to ask for a continuance quickly - at least 21 days prior to the hearing date AND you have to provide a $750 fee. Note that asking for a continuance may be well worth the $750 if the scheduled hearing date is in the middle of a busy competition season. While it's possible, Equine Legal Solutions has not yet had a client whose continuance request was denied.

The USEF Hearing Committee Didn't Just Fall off the Turnip Truck

Most of the members of the USEF Hearing Committee (all volunteers) have been in the horse industry all their lives. They're breeders, exhibitors, judges and trainers. They've typically been on the Committee a long time. So, they know how the game is played, and they've heard all the excuses. Your explanation of "The groom gave him the wrong meds" just won't fly, and neither will "I didn't know it was against the rules." A winning smile won't be enough. You'll need to prepare your defense with the deep knowledge and experience of the Committee in mind - don't insult their intelligence. Sometimes, the best you can do is admit your mistake and beg for leniency.

Why You Want an Equine Attorney for your USEF Hearing

USEF Rule GR608 provides you with the opportunity to have your lawyer represent you at a USEF hearing. Unless you don't care if you get the maximum penalty for a USEFUSEF hearing process before knows what to expect. She can develop a good plan of action for your defense, and she'll know what the possible outcomes are, including how to negotiate a plea agreement or the timing of a USEF suspension. She can help you prepare your evidence, testimony and witnesses, and make sure your case is presented to the USEF Hearing Committee in the best possible light. She'll be able to predict what questions the USEF Hearing Committee might ask, and help you prepare the answers.

Perhaps equally important, a good equine attorney will be a calming influence who can help guide you and provide moral support in the days, hours and minutes leading up to the USEF hearing. She'll manage the deadlines and submit the paperwork while you go on with your business. At the USEF hearing, your attorney's job is to be your advocate. If your equine attorney does her job, you'll leave for the hearing with the comfort that at least one person knows what's going on, and she's squarely in your corner. Your equine attorney can speak for you and ask USEF witnesses tough questions without compromising your case. Her job is to be poised and articulate, so you don't have to be.

For more information about USEF disciplinary hearings, and a free consultation, contact Equine Legal Solutions.

Buying a Horse Boarding Stable in Foreclosure or Financial Distress

2010-08-14T18:09:00.000-07:00

At Equine Legal Solutions, we receive a lot of calls from folks buying horse boarding stables. Given the difficult economy, many of the facilities are in foreclosure or otherwise in financial distress. Here are few key points to consider before you close escrow.

Congratulations: You Just Bought a Money Pit

So the horse property was a bargain? That's good, because you're going to need cash - and plenty of it! Be prepared to start fixing things right away. Usually, a horse property in financial distress means "deferred maintenance" (otherwise known as letting the property go to hell in a hand basket). The first time it rains, you'll discover the barn roof leaks, the gutters need replacing and there are a lot of areas in urgent need of gravel. When you're the one checking horses every morning, you'll notice that half the automatic waterers leak or don't work at all. The stall doors don't all open and close smoothly, and one of the barn doors leaps off its track at the slightest provocation. The electric fence shorts out, and there are numerous baling twine fixes scattered throughout the property. If the arena needs resurfacing, you're in for a big job with a big price tag.

Even if you're really careful about inspecting the property prior to purchase so you have a good idea of what you're in for, horses are really hard on a facility. They lean on fences, chew on stalls, pull up rubber mats, and break automatic waterers. And you'll find the existing boarders have a wish list of fixes and improvements, and they'll expect you to hop to it and do them all right away.

And there there's the equipment you'll need. Unless you already have one, you'll need a full-size tractor to drag the arena, load and unload hay, mow the pastures, maintain the manure pile, and other routine barn tasks. And tractor attachments are generally sold separately. At a minimum, you'll probably need a mower, a manure spreader, a set of forks, a bucket and an arena drag. But, you say, can't I do all those things with an ATV? Short answer: Everyone I know who started out with an ATV upgraded to a tractor within two years.

One unfortunate (but very common) fact of buying a horse boarding facility in financial distress is that some of the essentials may sprout legs before you close escrow. There's a strong resale market for used pipe panels, rubber stall mats, fence chargers, etc. The seller may conveniently assume these items aren't fixtures because they can be easily removed. And unless it's in your contract, you can expect that there won't be any hay or bedding on the place when you move in.

About Half the Current Boarders Will Leave

At the same time you're incurring a lot of extra expenses, you'll have a steady stream of existing boarders who depart. In fact, you can expect that at least 50% of the current boarders at the facility will leave within the first six months. Yes, 50%. Sobering statistic, isn't it? Surely, you'll do such a good job and you're such a nice person that your barn will be different. Ah, read on, you optimist you!

A good percentage of boarders will leave for financial reasons. Horse properties in financial distress often undercut their board prices to attract more boarders, even when it doesn't make financial sense. If that's happening, you'll quickly realize you need to raise your prices to cover your expenses, maybe significantly. When you do, boarders will leave, some because they can't afford the increase and others because you had the audacity to raise prices to market rates (and they'd been paying the same board amount since 1982). And because it's very unusual to have a boarding facility where all the boarders' accounts are current, you'll discover that some (or a lot) of boarders are significantly past due, or they habitually pay late, and you'll need to evict them. Horse people are generally horse people first and (maybe) business people second. Remember, if the existing owners and or managers had done a great job of making the place profitable, it wouldn't have been available for you to buy.

Most of the boarders who leave will do so because people don't like change. The existing boarders are there because they like things the way they are. When someone new buys the facility, it means change, and even positive changes aren't always welcome. If the previous owners didn't run the place like a business, and you have to make a lot of significant changes, such as implementing contracts and enforcing rules, you can probably expect most of the boarders to leave.

Generally, one or more trainers work out of a horse facility, and if they leave, boarders who train with them will often follow them to another facility. Just like the boarders, the trainers are there because they are comfortable with the way things are. When the facility changes management, some of the changes may not be to the trainers' liking. Or, you may find that you can't live with the existing trainers, either because they don't work and play well with others, or because they don't pay their bills (or both).

Attracting New Boarders Takes Time (and Marketing)

Because you've run the numbers (and adjusted them after you moved in and found out what the place really costs to keep going), you know how many boarders you need to be profitable. Chances are excellent that because of boarder departures, you'll need to attract new boarders to reach that number.

Expect it to take at least six months for new boarders to come, because the best way to advertise in the horse world is word of mouth, and that takes time. If the stable was poorly managed and in need of repairs, you have reputation repair work to do. You'll need to convince influential horse people that the facility has changed for the better. The most important thing you can do is get the word out that the facility is under new management. Call the editors of all of the regional horse publications, introduce yourself as the facility's new manager, and invite them out for a tour. They might be willing to write a feature article on your place, and even if you have to place some paid advertising to get the article, it will be worth it, because a good percentage of the local horse community probably reads it. Plan an open barn day and invite the general public. Host clinics and horse shows so attendees can see what great changes you've made and help spread the word for you.

Good luck with your new horse property, and please visit the boarding section of our website for more horse boarding business tips.

Taken for a Ride: Clever Schemes Dupe Unsuspecting Horse Buyers

2010-08-10T14:09:00.000-07:00

At Equine Legal Solutions, we receive lots of calls from unhappy horse buyers inquiring about their legal rights. Most of the time, these are individual transactions between amateur owner sellers and amateur owner buyers. The buyer's unhappiness isn't due to the seller's blatant dishonesty or unfair dealing.  If the buyer complains of behavioral issues, it often turns out that the buyer didn't try out the horse thoroughly before buying it. If the buyer complains of unsoundness or other physical problems, the buyer didn't typically have a veterinary prepurchase examination. The seller is often just as surprised as the buyer to find out that the horse has some issues.

But there are other, much less innocent horse sale situations.   Some horse sellers make their living preying on the goodwill of unsuspecting horse buyers. They knowingly misrepresent horses and actively mislead buyers. The buyer ends up with an unwanted horse and a lighter wallet, and the seller profits.

The duped horse buyers' stories all start the same way. They buyer found the horse on a popular Internet horse sale site, such as Dreamhorse. The horse was far enough away and the price was low enough that it didn't seem practical to go see the horse in person before buying. Instead, the buyer relied on the glowing descriptions and attractive photos provided by the seller. Sometimes, the seller even provided the buyer with videos. Usually, the professional look of seller's website and its glowing testimonials from happy buyers reassured the buyer about buying a horse sight unseen.  The seller gave every appearance of having a long-standing, reputable business selling quality horses. Often, the seller even provided the buyer with a bill of sale or horse sale contract. So, the buyer agreed to purchase the horse and paid with a cashier's check or wire transfer. The buyer arranged (at their own expense, naturally) to have a commercial shipper pick up the horse and deliver it to the buyer. Weeks later, a horse arrived and the buyer's nightmare began.

Bait and switch is a classic unscrupulous sales tactic in which a seller lures buyers by advertising an attractive item at a bargain price. But the seller has no real intention of selling the buyer the advertised item. Instead, the seller sells the buyer a different item that is inferior in quality and/or higher in price. Some horse sellers employ bait and switch to great effect. Typically, the seller delivers the actual horse that was advertised. But, on arrival, the horse doesn't match the advertisement. Usually, the mismatch is something that wouldn't be obvious to the buyer without seeing the horse in person. Maybe the horse was advertised as being 16 hands and he is really 15 hands on a tall day. Possibly, he is really 17 years old instead of 12.

In a more nefarious spin on the bait and switch scheme, the seller delivers a completely different horse than the advertised horse. One San Diego area woman had a small herd of attractive horses that she would photograph and advertise for sale. When she had a buyer for one of the horses, she would go to her local feedlot auction and buy a horse that looked similar, then put the auction horse on the truck for delivery to the buyer. When this scheme got to be too much trouble, she simply failed to deliver a horse at all.

How do the sellers get away with these schemes? Simply put, they're smart. The sellers target horse buyers who are inexperienced and unlikely to be working with a trainer. They target buyers with a modest budget who are looking for a good "everyday" horse, not a registered show horse with specialized training. Often, the buyers are looking for their first horse. The horses are relatively inexpensive, so buyers are more likely to act on impulse.

When the buyer receives the horse and is dissatisfied, the buyer contacts the seller. Usually, the seller completely ignores the buyer, and doesn't answer email or phone calls. Sometimes, the seller does respond. Often, the seller believes in "the best defense is a good offense" and firmly declares there's nothing wrong with the horse, acting miffed that the buyer has dared to impugn their good reputation, even threatening to sue the buyer for defamation. Less often, the seller will appear sympathetic and generously offer to take the horse back and either trade it for another horse or resell it for the buyer. Of course, when the buyer considers the shipping costs and other expenses, the seller's offer doesn't seem so generous after all.

Isn't the seller committing a crime? Can't law enforcement help these wronged horse buyers?  While the seller may be technically committing criminal fraud, law enforcement is typically unwilling to become involved because they consider the situation to be a civil dispute and the amount of money involved is relatively small. But, because law enforcement will typically investigate a particular horse seller if they receive an unusually high number of complaints, the unhappy horse buyer who suspects fraud should file a police report in the seller's local area (which can be done by telephone) and in the buyer's local area.

When the buyer takes time to look closely at any sale contract they signed, they usually discover it says the horse was sold "as is" and/or it doesn't contain any of the representations the seller made about the horse. So, the buyer often walks away, thinking they don't have a legal case against the seller.   Often, the buyer does in fact have a viable legal case against the seller, despite what the seller's contract may say.

However, bringing that legal case to justice is typically impractical.   Usually, the horse sale price is low enough that the matter can be heard in small claims court. But small claims courts have very limited powers, and while they can award money damages, they can't usually issue an order requiring the seller to take the horse back. In regular civil court, the buyer can seek the remedy of rescission, which would put buyer and seller back where they started as though the sale had never happened. But, the buyer will need to hire an attorney to represent them, and the cost of hiring an attorney is usually much more than the price of the horse, so suing the seller in regular civil court isn't usually a viable option for the buyer.

Even if the buyer has the time, energy and resources to pursue the seller in court, this option is often still impractical. Because the buyer's agent, the shipper, picked up the horse at the seller's facility, the most appropriate venue for a lawsuit is usually the seller's location, not the buyer's location. The buyer could try to sue in the buyer's location, but especially in small claims court, the seller may be able to raise a successful defense that the buyer's local court has no jurisdiction over the seller. The buyer is then often forced to refile the case in the seller's location. In small claims court, the buyer must personally appear to plead their case, which means the buyer has to travel to court in the seller's location. In regular civil court, the buyer will have to hire local counsel and also travel to the court in the seller's location. Meanwhile, the buyer still has the unwanted horse, which costs the buyer money to board, feed, shoe, and vaccinate.

What about self-help? Can the buyer simply return the horse to the seller? Unless the seller agrees to accept delivery of the horse, no reputable commercial horse shipper will be willing to transport the horse. Even if the buyer transports the horse, there are two big obstacles to this approach. First and foremost, the buyer often doesn't have a good physical address for the seller. The seller may have a bogus address on their website, or have given the buyer a PO box rather than a street address. And even if the buyer has a street address for the seller, the buyer might drive cross-country with the unwanted horse in tow, only to find out that the street address is not a horse facility, or that the seller has conveniently moved. Even if the buyer can find the seller and the seller has a horse facility, the buyer takes a real risk by simply dumping the unwanted horse on the seller's property.   The buyer usually has to trespass to accomplish the drop-off, which could result in an unwanted encounter with law enforcement, or worse, the wrong end of a shotgun. If law enforcement does respond, they will generally refuse to let the buyer drop off the horse, and the buyer is forced to load up the horse and head home, having made a long trip for nothing. Perhaps even more significant, if the buyer dumps the horse back on the seller, the seller will have a legal claim against the buyer for board and care of the horse, because the sale was completed and therefore the horse belongs to the buyer, not the seller. And these costs may quickly eclipse the purchase price of the horse, especially because the seller is now in control of the horse's expenses.

Even if the buyer mounts a successful legal case against the seller and obtains a judgment, enforcing the judgment is another matter. The purchase price paid by the seller is long gone. The seller is often an accomplished deadbeat, with no assets to seize. The seller doesn't have a job (other than ripping off horse buyers), so there are no wages to garnish. And the bank account to which the buyer wired the horse purchase price is generally closed.

The end of the duped horse buyer story is typically frustrating, inspiring little faith in our justice system. The seller gets the money, and the buyer is stuck with the unwanted horse. Sometimes, the outcome is even worse. In some instances, the horse has such severe health problems that it must be euthanized, a painful and expensive proposition for the buyer.  Or, the unwanted horse carries Strangles or some other contagious disease and spreads it to other horses in the buyer's barn.

The best thing that an unhappy horse buyer can do is to help others avoid the same fate.   If the buyer found the horse through an ad on a horse sale website, they should contact the site administrator and inform them of the problem. If the website administrator receives enough complaints about a particular seller, they may shut down the seller's account.  As discussed above, the buyer should file a report with local law enforcement, both in the buyer's area and in the seller's area. While filing a complaint with the Better Business Bureau is unlikely to yield results for the buyer because horse sellers are rarely BBB members, it may accomplish the goal of creating a record that a complaint was filed, just in case any other prospective buyer checks out the seller's reputation. Perhaps most importantly, the buyer should tell their story, being careful to stick to the facts (why this isn't defamation).

Legit or Not? Check Out that Horse Organization Before Reaching for Your Checkbook!

2010-07-28T18:51:00.000-07:00

In my last post, I highlighted two new horse-related organizations whose purpose for existence is to make money, not serve their members. Several people emailed to ask how they could check out an organization to see if it was "legit" before joining or donating money. This is an excellent question!

What Is a Non-Profit Organization?

Lots of organizations call themselves "non-profits." But are they the real deal?  "Non-profit" doesn't mean the organization doesn't make a profit - many charitable organizations make quite substantial profits. Rather, "non-profit" means that because an organization meets certain IRS regulations defining what a charity is, the organization is exempt from paying federal income taxes. To become tax-exempt, an organization must apply to the IRS and qualify. Qualifying with the IRS as a 501(c)(3) non-profit organization is hard work - the application is many pages long, and it requires the organization to provide very detailed information about where its money comes from, and how it spends that money, as well as the people involved with the organization. And the IRS doesn't just rubber-stamp approve 501(c)(3) applications - the organization must demonstrate in its application that it clearly meets the various IRS requirements for exemption.

To qualify for tax exemption, the IRS requires that the organization have a very specific type of purpose.  It must be able to clearly demonstrate that its primary purpose is one of the following.   "Charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals." The IRS defines "charitable" as "relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency."

How Can I Tell if It's Really a Non-Profit?

A quick search of the IRS charity database is all it takes to find out whether an organization is really a 501(c)(3) or not. If the organization has registered with a state as a non-profit organization but hasn't qualified with the IRS, it's not a "non-profit." What about if an organization says it has submitted its application for tax-exempt status, but it hasn't been approved yet? The good news is that if the application is ultimately approved, contributions made at any time after the application was originally submitted to the IRS will become tax-deductible. The bad news is that if the organization's application isn't approved (and many aren't), contributions will not be tax-deductible.

Where Will Your Money Go?

As noted above, many non-profit organizations earn substantial profits and have large operating budgets.  You might be shocked at what a small percentage of contributions goes toward the actual persons or animals in need versus the organization's administration and fund-raising efforts. Fortunately, you can find this out before you donate!

501(c)(3) organizations are required to make certain financial information available to the public. For example, you are legally entitled to visit the organization's offices and obtain copies of its tax returns and application for tax exempt status. You can also request copies from the IRS. Here's more information.

Even if you aren't concerned with whether your contribution is tax-deductible, you probably still care how your money will be used. Organizations that aren't tax-exempt non-profits aren't legally required to make any financial information public. But, you should ask anyway! Just keep in mind that because there is no legally required public disclosure of the organization's financial information, there probably won't be a way for you to check. What does the organization say about how donations will be used? If the organization offers memberships, what benefits come with your membership, and are they worth the price? If the organization touts its donations to charities and that is part of the attraction for you to donate or join, why would you not just donate directly to the charity instead?

Who's Behind the Organization?

An organization is no better than the people who run it. If you're considering donating to or joining an organization, check out who's in charge of it first. The organization's website should clearly state who the members of its board of directors are, and who its officers are. The website may provide a bio of each such person, but you should also Google the people's names. Doing so can yield a wealth of information, such as arrest records, lawsuits and other red flags. At the very least, Googling can help you fact-check the bios on the organization's website - are they accurate, or do they stretch the truth, exaggerate, or leave out important facts? If the organization can't even be forthcoming about who its people are, imagine how much less forthcoming they will be about how they spend their money!  Check to make sure the directors and officers are obviously well-qualified to run the organization, both in terms of business background and relevant horse experience. The number of officers and directors should be proportionate to the size of the organization. A local organization with 15 board members probably won't be able to make decisions efficiently.

Is the Organization Real or Virtual?

The Internet has offered con artists a wealth of new ways to separate horse people from their money. Perhaps the most appalling offenders are the "Internet farms." These outfits offer horses for sale that they don't own. In fact, they have often never laid eyes on the horses before, despite the glowing descriptions and lovely videos. While Internet farms' websites often suggest that they have palatial horse facilities, with all the sale horses on-site, Internet farms usually exist only on the Internet. What they do is find horses for sale (often horses overseas who are not advertised to the general public), then advertise those horses on their website (often without the seller's knowledge). The horses are listed at asking prices far more than the current sellers are asking for them. If the Internet farm generates a buyer, the Internet farm either buys the horse from the seller and then immediately resells it to the buyer at a huge markup, or the Internet farm approaches the seller and offers to introduce the buyer to them (for a fee, of course!). Either way, the buyer pays way more than they should for the horse, and might very well get a horse that has been recklessly misrepresented.

How can you find out if an organization has an actual physical location? You can start by looking at the contact information on its website. Is it a PO Box or a street address? You can't always tell by looking, as some mailing centers allow their customers to use the mailing center's street address. And sometimes instead of using a box number, the organization will call it a "suite" instead. Even if the address looks like a perfectly normal street address, use Google Earth to see if it actually exists, and what it looks like - is it a Mailboxes, Etc. store or a real place? And then Google the address to see what information comes up that might prove suspect, such as that 20 other organizations have the same address. For example, there are several "breed registries" listed in the American Horse Council's directory that have the exact same address, the exact same website and the exact same person listed as a contact. Hmm. The women's horse organization discussed in our previous blog post lists no address on the contact page of its website, and the address for sending in advertising payment is a PO Box. The trail rider's organization discussed in our previous blog post lists a PO Box as its mailing address. Neither organization has an actual physical office, it seems.

Phone numbers can also yield a wealth of information. Don't be fooled by the mere fact that an organization has a toll-free number - anyone can get one, and thanks to the miracle of Internet telephony, anyone can get one cheaply, too. Look up the phone number in a reverse directory search and find out whether it's a cell phone or a land line. If it's a land line, reverse directory results will generally tell you whose name the number is registered in, the physical address, and even who the phone company is. If it's a mobile phone, that fact alone might be a red flag. The phone number on the women's organization's website comes back as a land line registered to the organization's founder (not the organization itself). And when I called it at 9:30 p.m. Eastern time (long after business hours), a rather breathless-sounding woman answered and background noise did not sound like a business.

Email addresses can also be telling. Does the organization list its email address as being at its domain name, such as office@organizationsdomain.com, or is its email address hosted by Yahoo, MSN, AOL or similar? Most organizations that have been around for anly length of time and are well organized will not list personal email addresses as their contact information. Rather, they want to make sure that even if the contact person moves on, the organization will still receive important email. The women's organization lists the founder's personal email address as its contact email.

Finally, the organization's website itself can yield important information. Is the overall look and feel professional, or does it look like a website that someone made at home? Checking to see who owns the organization's website domain and when the domain was registered can be interesting as well. The women's organization domain is registered to The Women's Horse Racing Association - different organization, but the founder is listed as the contact person. Apparently, after registering the domain in June of 2009, she quickly realized the horse industry as a whole was a much broader market than just the racing industry.

Is There Anybody Home?

Before donating money or joining an organization, see if you can get to a real live person and ask a question. If you call, do you get a knowledgeable person who sounds like they're in the United States? Or do you get an automated phone tree and/or have to leave a voicemail? If you leave a voicemail, do you get a prompt return call? If you email, do you get a prompt response?

Horse People as Marketing Victims: Beware of New "Organizations"

2010-07-13T20:08:00.000-07:00

If you're a horse person, you've probably suffered under the barrage of marketing efforts conducted by two new horse related groups.   A hailstorm of emails, press releases and social media postings have encouraged you to join these new groups, crowing about how fast they are growing.   To avoid giving these groups even more publicity, I will avoid naming them or linking to them here. One is a group targeted at trail riders, and the other is a group targeted at women horse owners.

Much like the cottage industry "breed registries" that popped up everywhere in the late 90s (most of which are now defunct), these groups purport to exist for their members' benefit. The trail ride group alleges that membership will provide access to trails "many of which would not be accessible to you otherwise" and "increase the value of your horse." There's no evidence on the group's website supporting either of these claims.

At least the women's group doesn't make any unsupported claims about its membership benefits. Instead, it offers no discernible membership benefits other than access to its membership directory (for an additional $35 if you want a print version) and the "opportunity" to pay $150-200 to attend its conference. Ironically, the 2010 conference topics include "Making Money in the Horse Industry."

Who would plunk down membership fees just to access a directory? Clearly, someone who wants to market their horse-related business. As list rental goes, $50 is very inexpensive. Gee, do you think you'll get any spam email or junk mail if your contact info is listed in that membership directory?!

Make no mistake - these groups' real purpose is to make money. And to make money for their founders, not their members. It's no coincidence that these groups target the two largest demographics in the horse industry: Women and trail riders.   It's also no coincidence that group membership is pricey. The trail ride group charges from $25-75, depending upon how many horses and riders you want to "register." The women's group charges a whopping $50 for a one-year membership, and adds an additional $35 if you want a membership directory. By August 19, 2009, the women's group had issued a press release congratulating itself on reaching 500 members. Assuming each member paid the $50 fee, that's $25,000. And counting!

But what about the trail ride group's claims to benefit charities? Like any charitable organization, before giving, you should ask what percentage of the proceeds actually go to the charities. The trail ride group's website says that it donated $100,000 to charities (which are named) in 2009. But what it also says is "Our annual donations to horse rescues based on how many funds we have left at the end of our fiscal year."   A hundred thousand dollars were the leftovers, after the bills and the founders were paid?! This organization is raking in some serious capital!

Who's behind these organizations anyway? The women's group's own website proudly trumpets that its leader is - surprise- a marketing consultant.  But the leader apparently isn't a horse person! The group's website makes no mention of its founder's horse industry experience and an Internet search reveals no ties whatsoever to the horse industry.

However, the women's group's founder has plenty of experience attempting to make money from industry groups. Turns out that women horse owners are a far larger and more lucrative demographic than women football players - check out the Women's American Football Club. And women in the music business. Ditto for senior citizen Wii bowlers - seniorwiicentral.com and seniorwiicircuit.com were quickly shuttered. Despite the fact that the women's group's founder gives seminars on the topic, it seems that using astrology to guide business endeavors is not foolproof after all!

The trail ride group's website is fairly circumspect about its two founders' backgrounds. While the founders claim to have formed the group because of a need for more competitive trail rides closer to their home, an Internet search for their names turned up no competitive trail ride results except for one hosted by their group.   Instead, one co-leader's name shows up in several results for an Austin tennis league.

So why are big-name sponsors supporting these groups? The answer is simple: Money!   It's clear that these groups' marketing efforts are paying off, and sponsors don't want to be left out of the gravy train. If a big-name clinician can make a few bucks by endorsing a trail ride group, he'll do it.   If a horse product manufacturer can drive traffic to its online store and generate sales by offering a few bucks in credit to trail ride group members, they'll do it. At the same time, the sponsorships lend legitimacy to these groups.

Why are horse people apparently joining these groups in droves?  The answer is simple: Marketing! These groups are excellent at marketing themselves. The constant press implies that they have a lot of exciting things going on, and you'll be left out if you don't join. What you'll really be left out of, however, is lining the founders' pockets!

Why did I write this article? Do I have a vendetta against these groups? Am I just a mean killjoy? In a word, No. Here are my only personal experiences with these groups.

When I started receiving constant emails from the trail ride group, I was annoyed enough to unsubscribe from their email list. Or at least I was annoyed enough to try to unsubscribe! Despite the group's claims to be anti-spam law compliant, it took three separate attempts to stop the tide of email, and I finally succeeded only after I threatened to report them to the Federal Communications Commission for non-compliance with anti-spam laws. Ironic, no?

In the summer of 2009, a smooth-talking Texan cold-called me. He was forming a new organization for trail riders and wanted my firm to sponsor it. He made no bones about the fact that the organization existed solely to make money, citing the women's organization as an example of how lucrative these groups could be. When I declined to sponsor, he tried to pick my brain about who else he could call to sponsor it, and what membership benefits would entice people to sign up. I found the whole conversation really offensive, not to mention shady, and didn't return any further calls or emails from him (and believe me, he didn't give up easily!). I don't know if his group and the trail ride group mentioned elsewhere in this article are one and the same.

In June 2010, I had an email exchange with the women's group's founder. She had received a copy of Equine Legal Solutions' newsletter and emailed me a compliment. I thanked her and mentioned that I'm available for speaking engagements, which is what I typically do when a horse industry group leader says something nice about our articles. (While speaking to horse industry groups is typically not a paid gig, I do it regularly because I really enjoy sharing knowledge with fellow horse people and helping them avoid legal problems.) My jaw dropped when I received her response: "I apologize..I thought you were a member. We only use our members as speakers. Should you decide to join we would certainly consider having you on one of our panels.." So they wanted me to pay $50 before they'd "consider" having me speak to their group?!  Really?! I emailed back saying that I found this offensive.

Buying Your First Horse: A Guide to Avoiding Misery and Financial Ruin

2010-06-12T22:27:00.000-07:00

Too many first-time horse owners select a horse that isn't right for them. Eventually, they get frustrated and give up on horses altogether, forever missing out on the joy of horse ownership. At Equine Legal Solutions, our whole lives are about horses. We want to do everything we can to encourage new horse owners and help them enjoy horses as much as we do. So, we put together this guide to buying your first horse!

Buying a horse is a lot like buying a used car. Both take a lot of research, plus some experience and smart buying strategies, to make a purchase you'll be happy with. Like used car salesmen, horse sellers have earned a reputation as somewhat shady characters who often downplay flaws and enhance attributes. With creatures as beautiful and sensitive as horses are, it's easy to let our hearts rule our heads. But that's why we wrote this guide - to help first time horse buyers make smart choices.

Not So Fast! Before You Buy a Horse...

As much as we love horses, we know that not everyone should own one. Not even every horse lover should actually own a horse. Horses are a huge time commitment, as well as a huge emotional and financial commitment. Horse ownership is certainly not for the faint of heart (or light of wallet)! Here are some steps we suggest taking before you decide to buy a horse. If you don't have an instructor (but we highly recommend you do!), rely upon the advice of a trusted friend who is very knowledgeable about horses and has horses whose behavior you admire.

Enroll in regular riding lessons (at least once a week) with a reputable trainer or instructor.
Consider a full or partial lease of a horse for at least six months. Leasing is an arrangement in which you pay either a fixed fee or a portion of the horse’s expenses in exchange for riding time on that horse. In the typical full lease, you take over all of the horse’s expenses and care responsibilities, and in a typical partial lease, the owner remains primarily responsible for these items. Ask your instructor or trainer to recommend a leasing situation for you. Many trainers and instructors have horses for lease in their barns. Equine Legal Solutions offers horse lease agreement forms that clarify the owner’s and the lessee’s responsibilities.
Only if leasing a horse doesn't provide enough “horse time” for you, should you consider actually purchasing a horse. Deciding to buy a horse is a huge commitment, a lot like going from owning a dog to having a baby.

Horse Buying Budgets

First time horse buyers often ask me how much they should spend on a horse. The answer really depends upon what you want to achieve with that horse. If you just want to go out and have fun, and maybe compete at a local level, you should be able to find a suitable horse for $5,000 or less (with some variance based upon the local horse market in your area). If you have more serious competitive aspirations, consult with your instructor regarding what you should expect to spend for a suitable horse. Keep in mind that your first horse can be a “starter horse” – a horse that is safe for you and will help you learn basic horsemanship skills. Even if you eventually want to compete at a national or world level, your first horse doesn’t have to be the horse that will take you to the top.

Now, one important thing to know is that the initial purchase price of the horse is just a small fraction of the ongoing expenses you can expect to incur. Here are some of the items you should budget for on a monthly basis, in the approximate order of magnitude:

Board[1]
Lessons[2]
Competitions[3]
Farrier[4]
Veterinarian[5]
Tack and Equipment[6]
Feed and Supplements[7]
Bedding[8]
Miscellaneous[9]

You should ask your instructor to help you create a realistic budget, and ask horse-owning friends for input as a reality check.

What Kind of Horse Should You Buy?

Your number one priority should be your personal safety. It won't do you any good to own a horse if you admire it from your hospital bed! You want to buy a horse that is well-trained, well-mannered and kind, with a quiet, steady temperament. Your first horse should be one that nearly anyone can handle and ride. If it isn’t, horse ownership won't be fun, and it might well be dangerous.

Beauty is as Beauty Does

Nowhere is the old adage "Beauty is as beauty does" more true than in the horse world! Temperament should be the single most important factor in your horse-buying decision. Your first horse should be kind, gentle, quiet and calm and shouldn't ever kick or bite. Despite all the lessons you've taken, you will make mistakes in handling and riding your new horse, and you want him to be tolerant and forgiving, a gentle teacher. Even if you are keeping your horse with a professional trainer, you should easily be able to perform the following tasks with your new horse:  Catch him in his pasture or stall, halter him, lead him to the grooming area, tie him up, groom him, pick out his hooves, saddle, bridle and mount him.

Let your instincts be your guide. When you go to look at a horse, even you as a novice can tell a lot before anyone even rides the horse! Does the horse walk quietly and slowly with the seller, and wait patiently for them to tie it up, or does it prance ahead of the seller or try to use them as a scratching post? Does the horse stand still for grooming and saddling, or does it swing its body all over the place? Does the horse wait quietly for the seller to tighten the girth and mount, or does it step off just as the seller is putting her foot in the stirrup? Does it pin its ears and wring its tail, or does it wait patiently for the seller to mount up?

Here is a very simple temperament test we've found to be a very reliable indicator. When you go to look at a horse, bring a jacket with you (any kind of jacket). While the seller is riding the horse, place the jacket on the fence of the area where the horse is being ridden. If it’s an open area, place the jacket on the ground. Note the horse’s reaction to the jacket – does he casually notice the jacket and go right on by, or does he screech to a halt or jump sideways? You want a horse to notice the jacket and even be casually interested in it, but not afraid of it. He should go right past the jacket without snorting or eye rolling. Life is just too short to have to convince your horse on a daily basis that demons are not in fact lurking behind every rock and muck bucket.

Does Size Matter?

There's no perfect size horse except the horse you feel comfortable with. As long as you can mount and dismount without difficulty, and your feet are not hanging significantly below the horse's barrel when you're mounted, size doesn't matter too much.   Keep in mind that most horse sellers either can't or don't accurately measure their horse's height. And even if they do, the horse's height is just one indicator - a 14'2" hand horse might easily accommodate a 6' tall rider if the horse is large-bodied enough.  If the horse sounds perfect except for his height, go look before you rule him out.

What Breed Should You Buy?

Much like dogs, horses have been selectively bred for generations to develop particular breeds with particular characteristics. Certain breeds tend to be quieter and more docile, such as Quarter horses, Paint horses and many types of draft horses. Other breeds tend to be more spirited, such as Arabians and Thoroughbreds. However, there are outstanding examples of quiet, docile horses as well as highly spirited horses in every breed. Your instructor can help recommend the right breed(s) for you.

How Much Does Age Matter?

When buying horses for children, there's an old saying that the age of the horse and the age of the rider should add up to 20.   It may not be 100% accurate, but it's not far off, either! Adults can substitute years of horse experience for age, and the same formula will still apply. Younger horse usually aren’t quiet and experienced enough for a first-time horse owner. Horses can live to 30 years plus with good care, so don’t exclude older horses from your search – your veterinarian will be able to advise you on an older horse’s prospects for long-term health and soundness. If a horse is still sound and active at, say, age 15, there's a good chance he has many good years left. Some first time horse owners dream of buying a young horse so they can learn together, but that's usually a recipe for disaster. There's (yet another) old saying that when matching horses and riders, "Green and green equals black and blue."  When an inexperienced horse person buys a young, inexperienced horse, the horse usually runs roughshod over them and becomes a 1200-lb. dangerous spoiled brat.

Age vs. Experience

By itself, age is not always a reliable indicator of training and experience. You want a horse who has been there, done that - well-trained and very experienced under saddle. There are older horses out there who have been “pasture puffs” and have little riding history. First time horse owners should steer clear of any horse that is advertised as “needs finishing” or “green.” Choose a horse that is currently doing exactly what you want him to do. For example, if you like trail riding, choose a horse that is a very experienced trail horse. Likewise, if you want a show horse, choose a horse that is already competing (and winning!) at the level you want to compete.

Gelding or Mare?

You notice that "stallion" is not among the choices in the header of this section.  Buying your first horse is one of those times when it's accurate to say "never": A stallion is never an appropriate choice for a first time horse owner. Although there are many quiet mares out there who never show signs of being in season, many horse owners prefer geldings, because as a general rule, they tend to be more reliable and less moody.

Should I Care About Color?

In a word, NO! There is an often-quoted saying that “a good horse doesn’t have a bad color,” and with a few small exceptions, it's quite true. You may have your heart set on a particular color, such as a palomino or black and white pinto, but this type of thinking will shrink the list of potential horses and may serve to exclude a horse that would otherwise be perfect for you. Once the horse is at home and you've fallen in love with him, you'll think his color (whatever it is) is beautiful! You should choose temperament and experience before beauty – every time!

Where Can I Find the Right Horse?

You may face a long and difficult search to find your first horse. Everyone wants to own a horse who is well trained, so they seldom come on the market. Instead, they tend to be passed down from child to child within a family, or among families that take lessons from an instructor. Your chances of finding the right horse are much, much higher in a private sale than through an auction - here's why.

Your instructor should be integrally involved in your horse-buying process. Before doing anything, consult with your instructor about what your horse-buying criteria and your budget should be. Your instructor may even know of a horse for sale right now that's perfect for you!  If not, you might want to start your search by browsing the classified ads on your own – you can find them at major Internet sites such as Dreamhorse and Ag Direct and also in the back of free publications at your local feed and tack stores.

There are so many ads – how can you narrow down the list? Start with geography – eliminate the horses that are more than a day’s drive from your home, because you will want to go and see the horse in person before buying. Next, sort by age, gender and breed. Finally, read the text of the ads and eliminate the following:

*Pregnant mares. You won’t be able to ride before and after the pregnancy, plus raising a foal is not a project for novice horse people. Code words include “in foal.”

*Horses not suitable for a beginner. If the ad says the horse needs an intermediate or advanced rider, believe it and move on.

*Hyper horses. Code words for this include: “spirited,” “has a lot of go,” “barrel prospect,” “gymkhana prospect,” “endurance prospect,” “needs strong rider,” “needs quiet rider,”

*Horses that are a pain in the a$$. Code words for this include: “can be stubborn at times,” “needs a firm rider,” etc.

*Horses that aren’t well-trained enough for you. Code words include “great X prospect” or “in training for X” (where X = what you want to do with the horse). See also “loads of potential,” “well started,” “needs finishing,” “ready to start,” “still growing,” and “will mature to X.”

*Horses that have health or soundness problems mentioned in the ad. Exception: a horse described as “serviceably sound” may work for you, but only your veterinarian can tell you for certain.

Now, what DO you want to see in an ad?

*Horses with a good temperament. Code words to look for include "bombproof", “quiet,” “steady,” and “calm.” In search functions that have a scale of 1-10 where 10 is the most spirited, you want to look for something close to a 1 and no more than a 5. Keep in mind that most horse sellers exaggerate, so if they say he's an 8, he's probably really a 10 - WAY too much horse for a first time horse buyer!

*Horses that are well-trained. Look for a “proven youth horse” that “anyone can ride.” Sellers may exaggerate, but at least you can start with horses advertised as being safe.

Choose ads for horses that you think might be suitable, and run them by your instructor. Based upon the instructor’s comments, you can help narrow your search and develop more specific criteria, then develop a list of horses to call and inquire about. Just like buying a used car, buying a horse involves a degree of creativity in interpreting the text of an ad. Our “Equine Advertising Translation Guide,” while meant to be funny, also includes more than a kernel of truth.

When you have identified ads for suitable-sounding horses that your instructor has approved, you can begin calling about them and asking questions, using our free horse buying checklist. Trust your instincts – if you don’t like the answers to your questions, the owner is unresponsive, or doesn’t answer your questions fully and openly, don’t waste your time by going out to look at the horse. Don’t be intimidated by the fact that you are a first time horse buyer – any seller who treats you rudely or speaks condescendingly to you is not someone from whom you want to buy a horse.

Going to Look at Horses: 20 Dos and Don’ts

Once you have called and inquired about all of the horses in the ads you have selected, go over your notes with your instructor and eliminate any horses that your instructor does not approve. You can continue to use our horse-buying checklist as a tool for evaluating the horses that you see in person. Here are a few tips to sharpen your horse-buying skills and etiquette.

DON’T rely too heavily on email – it’s often quicker to make a call then ask lengthy questions in email.
DON’T start calling about or looking at horses in person until you are ready to buy. Few things are more irritating to a horse seller than a tire kicker.
DON'T even inquire about a horse unless there's a possibility you could buy it.
DON’T look at horses that are priced more than 20% over your horse-buying budget, unless you have good reason to believe that the seller will negotiate the price to fit within your budget.
DON’T try to negotiate the price before you have even seen the horse. Wait until you have thoroughly tried out the horse, THEN negotiate.
DO call and make an appointment with the owner before coming out to look at a horse, and try to be on time. If you will be late or need to cancel or postpone the appointment, call the owner as soon as you know. Getting a horse ready to show to prospective buyers can be hard work, and the owner deserves your courtesy.
DO make sure you have good directions to the horse’s location. Mapquest can be somewhat unreliable in rural areas, so get backup directions from the horse’s owner. DO get the owner’s cell phone number so you can call if you get lost.
DO leave non-horsey friends and family members at home, including your kids.
DON’T bring your dog, even if he’s on a leash.
DO make sure you wear appropriate clothing, and that means jeans (or breeches) and boots. You should bring and wear your safety helmet. For safety’s sake, never wear shorts, flip-flops or sandals.
DO look around the facility. Observe what is in the trash cans (tubes of calming paste?) and what condition the other horses are in.
DO have the horse’s owner ride the horse before you ride the horse. If you don't like the horse after seeing the owner ride it, there's no obligation for you to ride it.
DON’T be afraid of offending the owner if you decide the horse isn’t right for you. As soon as you are certain of this, you can simply politely inform the owner that you don’t think it’s a good match and say your good-byes. This will save both your time and the owner’s.
If the horse appears suitable, DO perform all of the tasks listed above under “Beauty is as Beauty Does” when you go out to look at the horse. If you can’t perform these tasks with this horse, it’s time to move on.
DON’T ruin your negotiating power and tempt yourself to buy too soon by showing up with a horse trailer in tow. (You will want to get a pre-purchase vet exam anyway, and that will take at least a business day or two to set up)
DO bring your video camera or regular camera and take plenty of photos and video.
DO take notes about what you observed before you forget.
DO have your instructor come out in person and pre-approve the horse before you purchase.
DO talk over the horse’s price with your instructor to make sure that he or she feels the horse is priced fairly (and if not, what a fair price would be).
DO listen to your instructor! If he or she says a horse is unsuitable, be prepared to move on, no matter how beautiful the horse is or how much you want it.

Negotiating the Price

DO NOT be influenced by the seller who tells you that another prospective purchaser is making an offer, coming out to see the horse or otherwise tries to pressure you into making a decision before you are ready. If another purchaser does actually buy the horse before you make an offer, you will find another horse. Counsel anyone accompanying you to look at the horse not to discuss price or your horse-buying budget. Also counsel anyone accompanying you not to be overly enthusiastic about the horse in front of the seller – save that discussion for the truck ride home. Make sure that anyone accompanying you understands in advance that you will not buy any horse until your instructor has approved it.

Once you have identified what you think is a suitable horse, have your instructor come out to evaluate the horse. You should expect your instructor to charge you for the time that he or she spends in looking at horses for you to buy. You are seeking his or her professional opinion, and that opinion is worth paying for. Be sure to ask up front how much this service will cost so that there are no surprises. If your instructor does not approve of the horse, do not buy it, no matter how much you may want it – your instructor is a trained professional and you should trust his or her opinion.

You can expect most horse sellers to negotiate on the asking price. A lot like buying a used car, how much the seller is willing to negotiate depends upon market conditions (how likely is it that they can sell the horse quickly at full price), how long the horse has been for sale, the seller’s personal financial circumstances, and, to a certain degree, how much the seller likes you and thinks you will provide a good home for their horse. Before you make any offers, ask your instructor what they think a fair price is. If the horse is fairly priced up front, you may not even want to negotiate. Keep in mind that you are not at a swap meet – you don’t want to insult the seller by offering a price that is ridiculously low (more than 20% less than what they are asking). If the seller won’t negotiate on the price, perhaps they would agree to deliver the horse or provide some other concession that would be helpful, such as sending the horse’s winter blanket along with him. Only in unusual circumstances is any tack included in a horse sale, although most sellers do include a halter (some states even legally require horses to be sold with a halter).

Sales Commissions

Your instructor may charge a buyer’s commission on any horses that he or she selects for you, and this charge may be in addition to, or in lieu of, any fees that he or she charges to look at horses for you. Be sure to ask up front how much the commission will be. Commission rates for buyers typically run from 10-20% of the purchase price and are typically paid by the buyers. Note that a single horse sale may involve two commissions – one to the seller’s instructor (paid by the seller) and one to the buyer’s instructor (paid by the buyer).

After you have selected a horse, if your instructor does not want to charge you for his or her help in buying your horse, consider presenting him or her with a nice token of your appreciation, such as a gift certificate to a tack shop or restaurant, or even some homemade cookies.

DO NOT Buy a Horse without a Vet Check!

Once you and your instructor have identified a suitable horse, you should make arrangements with the seller to have the horse checked by a veterinarian. Choose a veterinarian who has not seen the horse before (ask your instructor for a recommendation). Both you and your instructor should be present for the vet check to hear the vet’s comments firsthand. Rarely will a vet outright “pass” or “fail” a horse on a vet check. Instead, they will relate their observations to you and you will be responsible for making a decision based upon those observations. Your vet will check the horse’s soundness and general health, and may recommend further testing or X-rays for a more complete evaluation. Because it is fairly common for sellers to administer painkillers, sedatives and other drugs that can mask lameness or enhance performance, we highly recommend having your vet draw blood at the time of the exam. Your vet can store that blood back at the clinic and test it for various substances if the horse’s behavior or soundness changes abruptly after your purchase. A typical vet check will cost $200-500 (more if X-rays or further tests are recommended), but it is the best way to make sure that you do not buy expensive or heartbreaking health or soundness problems, so well worth the price even if it costs more than the purchase price of the horse.

Get It in Writing!

After you have negotiated the purchase price, enter into a horse purchase contract with the seller. Your purchase contract should clearly state the terms of your purchase, including any representations and warranties that the seller has made about the horse. We offer a variety of purchase forms that you can download and complete.

We wish you the very best of luck in finding a horse to become a member of your family!

Footnotes to Costs:
[1]Ranges from full care, which includes feeding and stall cleaning, to self-care, which includes only a place to keep the horse and the boarder does all of the work and provides all of the feed and bedding. Boarding rates are highly dependent upon the local market in your area. If possible, you should choose a boarding facility that is no more than 20 minutes from your home so that it will not be a hassle to be there every day.

[2] Even if you have already had several years of lessons, you should plan to continue instruction so you can continue to develop your skills. Having an ongoing relationship with a professional instructor can help prevent problems and solve those that do arise, all in an environment that helps you stay safe.

[3] You may want to participate in at least some modest forms of competition and/or social events with your horse, which involve entry fees, transportation for the horse, and special outfits and equipment. Consult your trainer or instructor for more guidance on this expense item.

[4] Your horse will require regular farrier care every 6-8 weeks, and the cost will depend upon what type of trimming and shoes the horse requires, as well as your local market. Older horses may require special or corrective shoeing to keep them sound, which typically costs more than regular shoeing.

[5] Your horse will require shots at least twice a year and worming approximately every two months. Ask your veterinarian to recommend a vaccination and worming program for you. Your horse will also require emergency or special care from time to time, and you should plan the cost of this care into your budget. To offset the cost, you may wish to purchase a major medical insurance policy on your horse. Some horses may also require medications or other treatments, such as acupuncture or chiropractic work, to maintain their health and soundness. Your horse will also require dental care approximately once a year. Don't be surprised if your horse's health care costs more than your own!

[6] When you buy a horse, you will have an initial investment for a saddle, bridle, grooming supplies and other basic items. You will also have ongoing expenses, such as fly spray, grooming supplies, horse blankets and replacement of equipment that wears out or is damaged. Ask your instructor or trainer for guidance in choosing equipment and supplies that are good quality and long-lasting, as price is not always a reliable indicator of quality.

[7] Many first time horse buyers wisely choose older horses. Older horses do often require extra feed and supplements to keep them healthy and sound. Consult your veterinarian for more specific nutrition advice.

[8] Many boarding facilities provide bedding as part of a full-care program.

[9] There always seems to be some unexpected expense that arises – just part of horse ownership!

What to Do When Boarders Want to Negotiate Your Boarding Contract

2010-05-31T12:31:00.000-07:00

Equine Legal Solutions' boarding contract forms customers occasionally relay questions from their boarders about our forms. Frequently, the boarders want to negotiate the terms of the boarding contract. Here is our advice, based upon our experience representing boarding facilities.

Decide in Advance What's Negotiable, and Hold Firm

When you complete your boarding contract, decide what terms are negotiable, and what terms are set in stone. The list of what you'll negotiate should be very short, and limited to costs and customer services. For example, you might give a boarder with multiple horses a small discount, or you might agree to provide an extra feeding every day for an additional charge. What you don't want to change are the standard terms on which you do business. Some contract terms are essential to help you manage your business, such as payment dates and late fees. Other terms, such as those contained in your boarding contract's liability releases, are essential to limit your legal liability. If you lose a boarder because you won't negotiate your standard terms and conditions, it's not really a loss, because you can't afford to change your business model for a single customer.

The Negotiation Won't Stop

The type of boarder who wants to negotiate boarding contract terms is typically a negotiator by nature. If you allow your boarders to cross out boarding contract provisions they don't like, what will be next - your barn safety rules? Your feeding schedule? Your helmet policy? Not only that, if word gets out among your boarders that your boarding contract is negotiable, you'll find yourself having to negotiate a different contract for every boarder.

The Negotiator Will Turn into Your Problem Boarder

Any boarder who goes over your boarding contract with a fine-toothed comb will generally be very hard to please. The fine-toothed comber is much more likely than the average boarder to turn into a "special needs" boarder who always wants more. Their attitude is generally that they're special and therefore the regular rules shouldn't apply to them.

Common Provisions Boarders Want to Negotiate - and Why You Shouldn't

Here are the two most common items boarders want to negotiate in our boarding contracts, and our advice about why the boarding facility should hold firm.

Liability releases. They're in our boarding contracts for a compelling reason - to protect you from liability. There are no "extra" words in our liability releases, so if you change the wording or cross anything out, you compromise that protection. "Negligence" is specifically mentioned in our liability releases because it's the most common allegation in a lawsuit. Note that while gross negligence can't generally be successfully disclaimed in a liability release, ordinary negligence generally can be.

Liens on horses. In our boarding contracts, the boarder agrees to waive any rights they may have under state agister's lien laws and instead, agrees you can sell or give away the boarder's horses if they are seriously delinquent. Sounds dramatic, but it's never going to be a problem for boarders who pay their board. And, it's essential because provides the boarding facility with a much more cost-effective and efficient option than relying on the typically cumbersome and antiquated state agister's lien laws.

Easing the Transition: How to Introduce a New Boarding Contract

2010-05-18T16:25:00.000-07:00

Prior to their purchase, many of Equine Legal Solutions' boarding forms package customers have had no written boarding contracts at all, or they have used the same contracts for years. As a result, they are understandably concerned about how their boarders will react to being asked to sign a new contract that is far more robust (and therefore, often a lot longer) than their previous contracts. Here are our recommendations.

Stop Gossip Before It Starts

If you've been in the boarding business for any length of time, you know that any change at a stable precipitates gossip, and lots of it. To make sure your boarders hear about the new contract from you first, tell all of your boarders about it at the same time. Don't even hint to anyone, even trusted friends, that a new contract is coming until you've made a formal announcement.

Everything Goes Down Better with Snacks

To introduce the new contract, schedule a barn meeting at a time when most of your boarders will be able to attend, such as an evening or weekend. Send out announcements a week or so in advance so your boarders can plan ahead to attend. Don't pass out copies of the new contract before your barn meeting - it will just give boarders ample opportunity to get worked up about anything they don't like or don't understand in the new contract. Make the barn meeting a social event - serve beverages and snacks. Consider having the barn meeting coincide with another fun barn event, such as a tack swap or games day. If you have some upcoming improvements planned for your barn or you have a new service to offer, start off the meeting by announcing them, no matter how small they are. It never hurts to start on a positive note!

Prepare for the Meeting

While you don't necessarily want to give a speech with notecards in hand, do plan how you'll introduce the new contract. First, explain why you're implementing a new contract. Common reasons include: "Our insurance company/lawyer is requiring us to update our contracts/have a better liability release;" "We haven't updated our contracts in X years;" and "We've recently experienced some problems with X that we need to address in our contracts." Part of the key to smoothing the way for a new boarding contract is helping your boarders understand you aren't doing this to be unfair or inconvenient, but rather that you have sound business reasons behind it.

Second, distribute a copy of the contract to each person at the meeting. If you are using Equine Legal Solutions' boarding contract, you might also want to distribute copies of the instructions, which help explain various sections that might otherwise be confusing, such as the indemnification clause.

Third, give the boarders a few minutes to look at the contract, then ask if there are any questions. Be prepared with answers to questions you can anticipate. If you don't know the answer to a question, be honest, tell the boarder you don't know the answer, but you will look it up and get back to them promptly. That's far better than trying to guess at the answer or making up an answer. Here are some commonly asked questions and suggested answers:

"Why is this so long compared to the old contract?" Answer: It's far more detailed than the old contract so we can be more clear about expectations on both sides. If we know what to expect and boarders know what to expect, we'll both avoid a lot of problems.
"Why are you asking us to release you from your own negligence?" Answer: In order to bring a legal case against us, a boarder would have to allege we were negligent in some way. By specifically including negligence in the liability release, we discourage boarders from suing us.
"Why are you asking us to indemnify you if you get sued?" Answer: More than anything else, we want to discourage lawsuits. Our contracts are with our boarders, but at the same time, our boarders bring a lot of people to the barn who haven't signed this contract and might sue us, such as family members and guests. We want our boarders to keep an eye on those guests and help prevent accidents from happening in the first place. We think that's more likely to happen if our boarders have a financial incentive to help us prevent lawsuits.
"If you have insurance, why do you even need these liability releases?" Answer: While our insurance can pay for our legal defense if we get sued, it doesn't prevent anyone from suing us in the first place, and it doesn't prevent them from winning if they do sue. Liability releases do both of those things.
"Why do you need these liability releases? Doesn't our state have an equine activity statute?" Answer: Equine activity statutes don't really offer very much legal protection for us, and they have a lot of potential loopholes.
"What do you mean you can sell my horse if I get X days behind on my board?" Answer: We want to have a powerful incentive for boarders to pay us on time. Also, we're concerned about reports from all over the country about boarders disappearing and leaving horses behind. If that happens to us, we want to be able to find the abandoned horses new homes. If you pay your board on time, this will never be an issue for you.
"What if I don't agree to all these new terms?" Answer: These are the terms on which we're going to operate our business going forward. We hope everyone will agree to them, but if anyone decides not to do so, they can give us 30 days' notice and find a new facility. We will miss them, but we just can't afford not to have everyone sign this new contract.

At the close of the meeting, make sure everyone understands when the new signed contract is due, and that if they don't return it by the deadline, they can expect to receive a 30-day notice.

Follow Up is Key

After the meeting, immediately distribute (by email or otherwise), a copy of the contract to each boarder who didn't attend the meeting. Accompany it with a cover letter explaining the need for the new contract, and setting a deadline for return of the new contract.

As each signed boarding contract comes in, review it to make sure the boarder filled it out completely and correctly, and that there are no edits made by the boarder. Any incomplete or incorrect contracts should be returned to the boarder with a written note about what needs to be fixed. If the boarder has made their own edits to the contract, the contract should be returned with a note that politely states that the contract sets forth the terms on which you will be doing business going forward and those terms are not negotiable. (our next article will discuss why you shouldn't negotiate the terms of your boarding contract)

A few days before the new contract is due, follow up in person, by phone and/or email with each boarder who has not yet returned their signature page for the new boarding contract. Politely make sure they know they'll receive a 30-day notice if you don't receive it by the deadline.

On the day after the deadline for returning the new boarding contract, send a 30-day notice (or whatever notice your current boarding contract requires) to each boarder who didn't return the new contract. A few boarders may in fact leave rather than sign. This isn't a tragedy - you can replace them with boarders willing to sign the new contract with no problems. Better to have a stall vacant for a month or so than to have it occupied with a horse whose owner refuses to sign your contract - that's just asking for trouble.

After the Dust Settles

If you don't already have a filing system, the new boarding contract is a good excuse to implement one. Keep your files in an area that is not readily accessible to boarders, but is readily accessible to you or your stable manager. Put each boarder's contract in a folder with their name on it, then file them by the boarder's last name. If there are any other documents for that boarder, such as termination notices, you can file them in the same place. When you send out bills every month (which you should do), place a copy in the boarder's file.

Top Five Mistakes Boarding Stables Make

2010-04-22T18:51:00.000-07:00

At Equine Legal Solutions, we see boarding facilities make the same mistakes - over and over. And some of them are downright costly!

(1) Drafting Their Own Boarding Contracts and Liability Releases

When it comes to drafting contracts and liability releases, boarding facilities seem to think they can do a fine job by borrowing someone else's or cobbling together their own from pieces they find on the Internet. The problem is that unlike, say, do-it-yourself electrical wiring, the consequences of do-it-yourself legal work are not always immediately apparent. Instead, contracts are like life rafts - you don't realize they have holes until you really need to use them, and then, it's way too late! The boarding facility who drafted its own contracts won't realize that its liability release is woefully inadequate until it gets sued. Or a boarder owes the stable $3,000 in back board on a worthless horse and the stable discovers to its extreme dismay that its contract doesn't allow it to sell the horse or give it away, so it has to rely on the time-consuming and expensive state lien foreclosure process.

Other reasons why drafting your own contract is a bad idea.

Why not get a boarding contract forms package from Equine Legal Solutions instead? For less than $150, you can rest easy knowing your contract is enforceable, and you can benefit from other people's experiences without having to make your own costly mistakes. You also don't have to worry about whether your contract is up to date - ELS automatically sends you the updates, and for free!

(2) Being Too Nice

As a group, horse people are really nice, trusting folks. So, when a boarder gets behind on board payments, breaks the barn rules or is just downright irritating, they tend to give that boarder second chances. And third chances. And fourth chances. The longer a boarding stable waits to evict a problem boarder, the bigger the problem will become, and the harder it will be to get rid of them.

(3) Letting Late Payments Get Out of Control

We hear from a LOT of boarding stables who want to know what to do with a boarder who is past due. Often times, the boarder owes thousands of dollars. Why wait months to evict a boarder who isn't paying? Every day a boarder doesn't pay is a day when the boarding stable feeds someone else's horse for free AND loses the opportunity to fill that horse's stall with a paying boarder.

(4) Being Uninsured or Underinsured

Insurance is not just for pessimists! Boarding facilities of all sizes need commercial liability insurance and care, custody and control insurance. They also need to insure their buildings and property against fire and other damage, and they need to insure their vehicles. For more information, see Equine Legal Solutions' equine insurance buying guide.

(5) Letting Boarders Work Off Board

With (very) rare exceptions, allowing boarders to work off their board just flat-out doesn't work. Most of the time, the boarder doesn't take their obligations seriously, isn't reliable and/or doesn't do the job to the facility's standards. If the boarder is a teenager, double the probability that it won't work.

Helmet Waivers and Other Helmet-Related Liability Issues

2010-02-11T15:52:00.001-08:00

Unless you've been marooned on a desert island for the past two decades, you are probably aware that ASTM/SEI certified riding helmets can help prevent head injuries. Nevertheless, many equestrians choose not to wear helmets, for a variety of reasons, mostly related to tradition, fashion and comfort. As a result, we receive a lot of questions about helmet-related liability.

Should I Require Everyone to Wear a Helmet While Riding?

The short answer: Only if you are capable of, and willing to, enforce your helmets-required policy. Riding lesson programs and guided trail rides are typically able to enforce helmet policies because all riding is supervised and many programs even provide helmets for their customers. In contrast, boarding stable personnel are not always present when boarders and their guests are riding. If a facility has a helmets-required policy and doesn't consistently enforce it, that situation could create the basis for a negligence claim, i.e., the failure to enforce a safety rule contributed to an accident.

If you aren't confident that you'll be able to ensure compliance with your helmet policy, and/or you don't want to be a policeman, you may be better off having a "helmets highly recommended" policy rather than a "helmets required" policy. That advises riders that you recommend wearing safety helmets, but leaves it up to the individual whether they choose to take the protective measure of actually wearing a helmet. One exception may be riders who are under 18, who may not be of sufficient age and experience to fully understand the risks of not wearing a helmet.

What About Helmet Waivers?

Regardless of whether you have a "helmets required" or "helmets recommended" policy, you should also have a liability release that spells out the dangers associated with not wearing a helmet. Such a release can provide the basis for an "assumption of the risk" defense to a negligence lawsuit if the injured party signed a statement saying they understood the increased risks of injury associated with not wearing a helmet and they agreed to accept those risks. Equine Legal Solutions' liability release forms include a helmet waiver clause.

Individual Horse Owner Liability and Insurance

2010-01-29T11:46:00.001-08:00

As an equine attorney, I'm often asked to give presentations on equine liability. It's a very broad topic, of course, so I try to tailor it to the audience. Many of the audience members are individual horse owners. Here are some common areas of concern, and some recommendations for how to address those concerns.

What if My Horse Injures Another Person or Another Horse?

Just because a horse injures someone doesn't automatically mean the horse owner will have liability for the injury. The horse owner must be at fault. Common scenarios in which the horse owner might be at fault:

-The horse has a dangerous habit, such as kicking or biting. The horse owner fails to warn of the danger. The horse's dangerous behavior then causes injury to someone unaware of the horse's tendencies.

-The horse owner rides or handles the horse in a way that is negligent. As a result of the negligent riding or handling, the horse then injures someone. For example, a show rider might run over another horse and rider in a crowded warm-up arena because the show rider is on their cell phone and not looking where they are going.

-The horse owner fails to provide adequate fencing or stall door latches, and the horse gets loose. The horse runs out onto the road in an area that is not legally designated as "open range." A passing motorist doesn't see the horse in time to avoid an accident, and the motorist is injured.

The Role of Liability Releases

Liability releases serve two very valuable functions. First and foremost, they discourage people from suing in the first place. They can also provide a viable legal defense and prevent the person suing from winning their case. What they don't do is pay for the cost of your legal defense, and if you lose, the cost of the legal judgment. That's where insurance comes in.

What About Homeowners' Insurance?

Many horse owners are under the impression that if their horse injures someone, their homeowners' insurance will provide coverage. Only when the accident actually happens and they really need coverage do they find out that their insurance may not help them. Most policies have a very small cap on medical expense payouts. Some homeowners' policies will not provide coverage if the horse is not kept at home. Others have specific exclusions for livestock. In many cases, if you lease your horse, that will be considered a commercial use and therefore excluded from your homeowners' insurance. Best to check with your homeowners' insurance agent and read your policy before you actually need the coverage.

Liability Insurance for Individual Horse Owners

There are liability policies specifically for horse owners. These policies are very inexpensive, and can provide coverage and peace of mind. Member benefits for United States Equestrian Federation include a basic horse owner's liability policy, and the cost of a membership is typically less than the cost of buying the policy separately.

Boarding Friends' Horses at Your Home

2009-11-19T13:32:00.000-08:00

Horse owners who keep their own horses at home often take in a boarder or two to help with costs and provide some social interaction for themselves and their horses. Friendly boarders can help with chores and take care of your own horses while you're away. Taking just a few simple steps can make the difference between an at-home boarding situation that works, and "What was I thinking?!"

(1) Insurance

If you're accepting compensation of any kind (even just reimbursement for feed), your homeowners' insurance will most likely consider this a commercial use of your property. The typical homeowners' insurance policy will not cover commercial use. Practically speaking, that means you're uninsured if anything happens to the boarder or their horse. Without liability insurance, all of your personal assets are at risk. So, call your insurance agent and find out what it will take to be insured for boarding a horse or two.

(2) Liability Releases

You don't know who your friends really are until something bad happens. Even if you're sure your friend would never sue you, how can you be sure about your friend's insurance company or non-horsey spouse? A good liability release discourages people from suing in the first place, and helps prevent them from winning their case if they do sue.

(3) Boarding Contracts

Even in the simplest of boarding situations, having a written contract helps preserve friendships by managing expectations. If there's any doubt about how much board is, and when it's due, everyone can refer to the contract. When the boarding contract outlines what the property owner's and boarder's responsibilities are, it minimizes confusion and helps keep things running smoothly. And if the boarding situation doesn't work out, the contract says how much notice is required to terminate the arrangement.

Rights of First Refusal in Horse Sales

2009-11-05T15:03:00.000-08:00

At Equine Legal Solutions, we are frequently asked about rights of first refusal in horse sales. These calls typically come from former horse owners who are upset that they weren't notified before a horse was resold or otherwise transferred to a new owner. They want to know if they can get the horse back. The answer is almost always no. Here's why:

(1) The right of first refusal wasn't in writing. Often, the original horse sale was conducted without anything in writing. Other times, the buyer received a simple bill of sale that doesn't include a right of first refusal. Either way, a verbal agreement will be very hard to enforce, particularly if there were no emails or other evidence supporting the existence of a right of first refusal.

(2) The horse is already sold before the former owner finds out. When the horse has been sold to a third party who is unaware of the right of first refusal, the former owner typically has no legal case against the horse's new owner and therefore no way to obtain possession of the horse. Instead, the former owner has a legal case for damages against the person who granted the former owner the right of first refusal. However, damages are based solely on the monetary injury suffered by the former owner when the right of first refusal was breached. Emotional damages don't count, so the basis for damages is the difference between what the former owner would have purchased the horse for under the right of first refusal versus what the horse's market value was at the time the right of first refusal was breached. Usually, the right of first refusal would have entitled the former owner to buy the horse at the same price the horse was offered to another buyer, so the monetary damages for breaching the right of first refusal would be zero.

The best way to ensure that a right of first refusal is honored is to have a written contract clearly stating the right of first refusal, along with exactly how it will be executed. For example, how much notice of a pending sale does the horse owner have to give the former owner? How long does the former owner have to respond? At what price can the former owner buy the horse under the right of first refusal? A good right of first refusal clause also provides for liquidated damages in the event the right is breached. Liquidated damages represent a dollar amount the parties agree the breacher has to pay the rights holder if the right of first refusal is breached. Liquidated damages eliminate the problem of having to prove actual damages as described in (2) above.

In response to customer demand, Equine Legal Solutions is incorporating rights of first refusal clauses into all of its horse sale and purchase agreements. Currently, the Simple Equine Sale Agreement and the Equine Installment Sale Agreement contain rights of first refusal, and each of the other sale and purchase contract forms are being updated.

Why Drafting Your Own Equine Contracts Doesn't Save Money

2009-10-30T14:50:00.000-07:00

Customers often ask why Equine Legal Solutions doesn't allow customers to edit the equine legal forms they purchase from us. Other than the fact that all our forms are copyrighted, and allowing customers to make derivative works would dilute our intellectual property rights, we want to protect our customers from themselves.

Contract drafting is a technical skill. Just like dentists and carpenters, lawyers receive specialized training and then hone their skills through experience. However, while most people wouldn't even consider filling their own cavities or building their own staircases, they seem to have no reservations about drafting their own contracts. Why? The simple answer is delayed consequences. While the disastrous results of do-it-yourself dentistry and carpentry are immediately obvious, it takes time to find out whether a contract is a disaster.

In my equine law practice, I see a wide range of equine contracts, and the vast majority of them are very poorly drafted. When I review the contracts with potential clients and gently explain how they might not do what the potential clients need them to do, the potential client is rarely surprised. They sigh and ruefully explain that a chat forum buddy sent them a sample document, or they cobbled together the contract using pieces of other contracts they found on the Internet. They didn't want to spend the money to have a professionally drafted contract, so they created their own and hoped for the best. And unfortunately, they are now paying the price.

Here are the top three problems I see with equine contracts drafted by non-lawyers:

(1) The contract doesn't include all the material terms.

Part of a lawyer's job in drafting a contract is to anticipate contingencies and plan for them. As an equine attorney, I hear about or are directly involved in thousands of horse transaction problems, and I use that knowledge of potential issues in drafting my contracts to make sure those "what ifs" are covered.

The amateur contract drafter doesn't have this knowledge and experience, so they do the best they can. But their best isn't good enough. Here are some critical omissions that I see over and over:

-Horse installment sale contract doesn't address what will happen if the buyer doesn't finish paying for the horse.

-Liability release doesn't include all the parties being sued. If the release doesn't include you, it can't protect you!

-Boarding contract lien provisions are insufficient to allow the boarding stable to sell a horse to satisfy a past due board bill. The boarding stable must then rely upon statutory lien rights, which are usually time-consuming and costly to enforce.

(2) The contract doesn't say what state's law will apply, or where the parties can sue each other.

Why does this matter? Here's a very typical example: Sally, who lives in California, buys a horse from Stanley, who lives in Texas. Sally goes to Texas, tries the horse, and buys it. Later, Sally discovers a problem with the horse and calls ELS about suing Stanley. The bill of sale that Sally received from Stanley in Texas says nothing about what state's law will apply or where the parties can sue each other. Sally will probably have to sue Stanley in Texas, because that is where Stanley lives, and where the contract was made.

(3) The contract doesn't provide for attorneys' fees and costs if the parties sue each other.

Why does this matter? In most states, with some very limited exceptions, if you sue someone for breach of contract and you win, the loser doesn't have to pay your attorneys' fees and court costs unless you have a contract that says they do. With the typical breach of contract lawsuit costing a minimum of $10,000 to litigate, your attorneys' fees and costs could easily eclipse what you might win in a lawsuit, making it cost-ineffective to sue.

Cost is the number one reason why horse people draft their own contracts instead of using a professionally prepared form or a lawyer-drafted contract. However, at the end of the day, is it really a cost savings to draft your own contracts? Sure, you might save $24.99 by not buying a liability release form from Equine Legal Solutions, but will that savings be justified when someone falls off your horse and sues you for $1.5 million? And you might not think you can afford to pay $500 for ELS to draft a customized contract for the sale of your $50,000 stallion in which you are retaining breeding rights, but you'll be glad you spent that $500 when the buyer resells the stallion before your breeding rights expire and you are not left wondering what to do because your contract says exactly what will happen.

Boarding Stable Cost Spreadsheet

2009-09-26T11:45:00.000-07:00

I've seen a lot of discussion lately on chat boards about the expense of running a boarding facility. So, I've created an Excel spreadsheet detailing those costs. I'd be happy to share it with anyone who could use it, in exchange for feedback (I'm sure I've inadvertently omitted a few line items) - just email me at info @ equinelegalsolutions.com (no spaces) and I'll email you a copy.

So You Think You Can Ride?

2009-08-17T16:23:00.000-07:00

California working cowhorse trainer Larry Trocha had a few horses for sale and sent out an email to his mailing list about them. Apparently, Larry received quite a number of inquiries, some of them alarming, so he sent out a follow-up email clarifying a few points. Well, one point, really.

While Larry's email is rather amusing, it does highlight the serious problem of people who want to buy horses that simply don't exist. NO HORSE is completely safe for anyone to ride. That is, unless it's tied up in front of Wal-Mart and has a quarter slot in its neck. And, as much as a kind, well-trained horse might try his best, NO HORSE can completely compensate for lack of horsemanship.

Thanks to Larry for his generous permission to share his email with my readers:

Hi Rachel,
Larry Trocha here.
This past week, I have received a lot emails and phone calls
concerning the horses I have for sale. There seems to be much confusion about what horses I have available for sale and what those particular horses can and can not do.
Right now, I have three (3) good horses for sale.
1. One paint cutting horse gelding priced at $8500.
http://www.horsetrainingvideos.com/paintcuttinghorse.htm
2. One almost black, 3-year old filly, trained to cut cattle, priced at $5000.
(This one is tuned and ready for the nonpro futurities)
3. I also have a 3-year old, chestnut filly, trained to work cattle, priced at $3500.
All three of these horses are priced at about half of what they should be.
Most of the inquiries (and misconceptions) are about the paint cutting
horse gelding.
People watch the videos of him working and fall in love with
him.
And rightfully so.
He's a talented horse.
Then, people read the description I wrote and totally
mis-interpret what I said about the horse.
So, just to make sure there are no misunderstandings...
I'm going to spell everything out so everybody gets it right.
Below are some of the common questions I've been getting.
Plus, my answers to the questions.
Q. I see your horse, Berry is a cutting horse. Would he be
good for my grandmother to ride?
She's in a wheel chair right now but I think if we
could get her in the saddle, she'd be fine. What do you think?
A. Uuuuuuuhhh... no. =o
Q. My 13 year old son would love to use Berry for
cutting competition and high school rodeo events. Do you think
this would work?
A. Did you watch the video of Barry cutting cattle? If your son
can ride that... then sure he is.
He would be a good horse for ANYBODY
to compete on...
IF they know how to RIDE.
Q. I'm about to retire and need a horse I can ride on the trails.
Would Berry make a good horse for me?
A. Probably... if you know how to RIDE.
Q. I saw in the video that Barry will do a nice, pleasure horse jog.
Is it difficult to get him to do that?
A. Not at all... if you know how to RIDE.
Q. If I took Berry on trail rides, will he spook?
A. Probably not. However, ALL horses will spook at one
time or another. Berry is well trained so it won't be a problem...
if you know how to RIDE.
Q. Barry, looks like the kind of horse that is easy to
control and reins real light. Will he work that way for me?
A. Most definitely... if you know how to RIDE.
So... by now you see the common
denominator here...
"if you know how to RIDE".
Any well trained horse
will usually work well for anybody who
knows how to ride correctly.
And by the same token, NO HORSE will work well for
somebody who can't ride.
It's as simple as that.
You have to realize ALL HORSES will either RISE
or FALL to the level of the rider.
If you are a good rider, a good horse
will stay good.
If you are a poor rider, your well trained horse will
quickly degenerate into a horse that performs poorly.
That being said,
you should keep this in mind...
Even if you ride poorly and mess your horse
up, as soon as your riding gets better, your horse will get better too.
That is the reason I don't discourage a poor rider from buying
a well trained horse.
Most people NEED TO EXPERIENCE what a WELL TRAINED
horse is like before they can improve their horsemanship.
In other words, how will you ever KNOW what a GOOD horse
is UNTIL you get to RIDE one.
That good horse will teach you a lot.
Sure, you'll screw him up for a while but he'll
come right back to where he was... once you get better.
There is just no way around that.
Why do you think I make such a big deal about how to use
your hands, legs and body in my training DVDs?
It's because that is the KEY to MAKING and MAINTAINING
a well trained horse.
Okay, I hope this explanation clears things up.
And I darn sure hope that question about the
grandmother in the wheel chair was just a prank.
Reading it though, it sounded like the person was serious.
Scary!
Take care,
Larry Trocha
Larry Trocha Training Stable
www.HorseTrainingVideos.com
www.HorseTrainingTack.com

Equine Law News of the Weird

2009-07-29T16:24:00.001-07:00

The heat must be getting to folks, because it's not even a full moon!

(1) Why riding after a six-pack of beer isn't such a red hot idea
(2) And you thought YOU were having problems at YOUR boarding stable (Warning: R Rated)
(3) Beware of door-to-door peddlers selling meat from coolers
(4) Why running away to join the circus still isn't the answer
(5) Even clients with chandeliers in their barns can be deadbeats

Ten Reasons Why Your Trainer Can Sell Your Horse Faster and for More Money Than You Can

2009-07-13T10:12:00.000-07:00

Having your trainer sell your horse for you often means selling your horse faster, and for more money. Here's why:

(1) Connections and Eyeballs. Your trainer knows a lot of people in the horse industry, and it's your trainer's business to get out there and maintain those connections. Many of your trainer's connections are other professionals. Some of those other professionals may have clients looking to buy a horse just like yours. Your trainer also has people walking through his barn every day. Some of those folks are actively looking to buy a horse. Others might buy a horse if they see one they like. Many of them might have friends who are looking for horses. If your horse is in your trainer's barn, all of those people will see him and hear that he is for sale.

(2) Financial Motivation. Depending upon the arrangement you have with your trainer, your trainer will earn a 10-20% commission when your horse sells. The quicker your horse sells, the quicker your trainer gets paid.

(3) Lack of Emotional Attachment. Your trainer may like your horse, but they aren't emotionally attached to him. So, they won't be advertising him for sale and half-hoping no one calls!

(4) Knowledge and Candor. Your trainer knows your horse, both his strengths and his flaws. So, your trainer can set a price for your horse that reflects your horse's real market value, not his sentimental value. Your trainer will know how to highlight your horse's finer points, and downplay his weaknesses. Your trainer will know where and when your horse is the most marketable, and what sort of buyer will be most interested in him.

(5) Moving Up. Your trainer wants to see you move up, and usually, selling your current horse means you have the opportunity to progress. While your trainer may like you personally and want to see you grow as a horseman, they want to see you move up for other reasons, too. The quality of horse you ride and how well you do reflects upon your trainer's professional reputation, so selling your current horse and buying a better one is good for your trainer's business.

(6) Marketing Expertise. Most trainers make their "real money" selling horses. So, most of them sell quite a few. That means they know what works, and what doesn't. They know where to advertise, what to say in the ads, what the videos should show and what photos to include.

(7) Brand. You may not think of your trainer this way, but he or she is a brand, just like Tide or Crest. If your trainer's brand has value, it can add value to your horse. Put another way, horse value is very subjective, and your horse could be worth a lot more in your trainer's barn than in your own.

(8) Facilities. Your trainer has the right facilities to show a horse. They have an arena with good footing, and the jumps or other equipment required to show what your horse can do. To make your horse look his best, they have a wash rack, clippers, and other grooming necessities ready at hand. And, the training barn ambience can enhance your horse's value - buyers feel like they have to pay more money for horses kept at nice barns.

(9) Time for Appointments. Trainers are usually at the barn all day, every day. So, they can meet prospective buyers nearly any time, not just after work or on weekends.

(10) Negotiation Skills. Because they sell a lot of horses, experienced trainers can easily separate the tire-kickers from the serious buyers. When a buyer is interested, trainers know what to do to tip them over the edge into buying the horse. In negotiations, experienced trainers know how far to push different types of horse buyers on price or terms without losing the sale, and they know what is reasonable for the market. In short, trainers know how to close a horse sale deal.

All Hat and No Cattle

2009-06-17T11:05:00.000-07:00

"All hat and no cattle" is an expression that my childhood best friend's dad used to describe someone who was all talk and no action. I think about it every time I'm in the presence of a certain type of horseperson. You know the type. Within the first five minutes of meeting them, you've heard what their show accomplishments are, what big-name trainers they've worked with, and what well-known horses they've owned.

Last week, I was in the local feed store, in line behind a heavy-set gal in breeches. She was haughtily explaining to the clerk-in-training (who was unlucky enough to be manning the cash register when she swooped in) that she'd just spoken to the guys in the warehouse and they had X number of damaged bags of feed and that she WOULD TAKE THEM. When the poor clerk was wondering aloud what to charge her, she rather unkindly explained that she "always gets a 50% discount."

While the clerk wisely went to seek counsel from the manager, I decided to satisfy my curiosity about who this arrogant, obnoxious gal was. (I have to admit feeling a little protective toward the employees of my favorite feed store...) So, I casually asked her what kind of horses she had. She announced that was a "warmblood breeder," taking in my grubby jeans and cowboy boots with an expression of distaste. She added that she had just sold a yearling for $20,000 (or some other astronomical figure - I can't recall the exact number). Catching her a bit off guard, I asked what kind of warmbloods. The explanation was lengthy, and full of stallion names, but ultimately unclear as to the exact registration of the foal crop. (Read: not registered.)

Conversationally, I asked how many mares she had. Answer: one (!!). She quickly followed up with a lengthy monologue that included the fact she'd hauled her "show jumpers" down to Pebble Beach for a show. The monologue curiously omitted any discussion of whether she'd won anything (surely, the omission was not due to modesty). At no time during any of the conversation (if you can call it that) did she (a) introduce herself, or (b) ask me anything at all. Bemused, I paid for my feed, and headed out to the truck, thinking, "All hat and no cattle."

It's been my experience that whenever a horseperson is quick to tell you about their accomplishments, they're not very accomplished. If you ask the right questions, their story usually unravels a bit. Witness the gals at last year's world show who were lording it over my friend on her first trip down there, making her feel like a 4-Her at her first county fair. When my friend said she'd be ecstatic if she came home with a top ten placing, one of these gals bitchily replied that she'd "be lucky to make the finals." Fortunately, I didn't personally overhear that exchange, because I might have let that gal have a piece of my mind right then and there!

After several days of hearing these gals discuss their previous world show achievements (loudly and often), I decided to get on the computer and see what they really accomplished. Guess what?! Their last trip to the world show was ten years ago (when the breed wasn't as nearly as competitive as it is today). One of them didn't even compete in two of the classes she continually bragged about winning. Another one achieved one or two top ten placings, but in the walk/trot division. The third one achieved a few top ten placings, but they were all at or near the bottom of classes with less than ten entries!! Did they not know all this info was available online? Guess not! Boy, was I excited when my friend racked up a reserve world championship AND another top ten placing. And yes, the classes had FAR more than ten entries! (And the braggarts? Did not do so well. Pity.)

The guy you should keep your eye on at a show is not the fellow who pulls up today in the brand-spanking-new trailer plastered all over with his name, hops out in a crisply ironed shirt and barks at his lackeys unloading a bunch of brand-spanking-new expensive show gear. Instead, watch out for the guy who arrived quietly yesterday wearing a t-shirt and dusty boots who's been riding a series of horses in well-worn workmanlike tack. He's the guy who came to get a job done, and chances are, he's going to come home with the prizes.

What Kind of Insurance Does a Horseback Riding Instructor Need?

2009-05-27T19:17:00.000-07:00

If you are giving riding lessons and receiving compensation (no matter how little), you'll need insurance. Although Equine Legal Solutions is a law firm and does not sell insurance, we often assist clients in determining their coverage needs and in negotiating coverage issues with their insurers. Here are the types of insurance we recommend, and reasons why they are advisable to have.

Commercial Liability Insurance

Commercial liability insurance is fairly broad in scope. It covers most types of liability claims, including negligence. Even if you have a good riding lesson contract with a liability release, you can still be sued. In the United States, it seems that almost anyone can sue almost anyone else for anything. Therefore, one of the most valuable roles of commercial liability insurance is to pay for your legal defense in the event you're sued (not to mention any actual judgment that might be issued against you). The average negligence lawsuit defense runs well into the tens of thousands of dollars in a case that goes to trial, so the cost of commercial liability insurance is money well spent.

If you give lessons at a facility owned by someone else, the facility owner will typically require all on-site instructors to provide proof of insurance, and to name the facility owner as an additional insured.

Even if you give lessons at a facility that has its own commercial liability insurance, you'll still want to have your own liability insurance. Your activities may not be covered by the facility's policy. Even if they are covered, if the facility's commercial liability insurer has to pay out on a claim related to your negligence (or alleged negligence), the insurer may pursue you for reimbursement if you're not listed as an insured party under the policy.

Property Insurance

If you own the lesson facility, you will want to have casualty insurance that covers fire, etc. With rural properties, this type of insurance is often called a "farm and ranch policy."

Vehicle Insurance

If you have a truck and trailer, you will want to insure them as well. In many cases, your auto insurance will cover damage to the trailer you are towing (but NOT the contents of the trailer), so check with your insurance agent to clarify what your coverage terms are.

Equine Mortality, Major Medical and Loss of Use Insurance

If you have lesson horses that would be difficult to replace, you'll want to consider insuring them. Mortality insurance generally makes sense only if you could not afford to replace the horse without undue financial hardship. Likewise, major medical insurance is recommended if you couldn't afford a several-thousand-dollar vet bill without breaking the bank. Loss of use insurance may be advisable for lesson horses because their value is often heavily dependent upon their ability to be lesson horses. Do be advised that some loss of use policies provide that the insurer may opt to take possession of the horse before they are obligated to pay the claim. If this would be unacceptable to you, loss of use insurance probably does not make sense for your situation.

Adopting a Horse: Avoiding Heartbreak and Regret

2009-05-05T16:03:00.000-07:00

With the closure of U.S. horse slaughter plants and a decline in the U.S. economy, more horses than ever before are being offered "free to a good home." Horse rescue organizations are full to capacity, leaving the private sector to absorb many of these lost equine souls. However, before you adopt, there are some important considerations.

Free Horses Aren't Really Free

There's no such thing as a free horse. For starters, unless the horse is already on your property, you'll need to go and pick him up, which translates into gas money (and if you don't have a truck and trailer, paying a hauler). Then, unless you have extras on hand, you'll need to buy some basic supplies, such as a halter and leadrope, a salt block, a feed tub and a water bucket. If you're lucky, the tack, bits, blankets, protective boots, and other equine et cetera you already have will work for the new horse. If you're not so lucky, you'll be making at least one trip to the local tack shop.

Where will you house the free horse? Do you have horse property with an empty stall or paddock, or will you need to make some improvements or even pay board? If you plan to pasture the horse with your other horses, will they get along with each other, or will they engage in dominance battles that result in vet bills and broken fences? What will you do if the new horse doesn't peacefully join your existing herd?

What kind of physical shape is the free horse in? Does she need to have her feet trimmed? Are her vaccinations current? Does she need worming? Is she in need of an equine dentist? Is she underweight? Does she have special health needs? Is she pregnant? Ka-ching for each "yes" answer.

Now, consider the free horse's current training level. Even if the free horse is intended to live a life of leisure, behavior is a serious consideration in a 1,000 pound pasture ornament. How are his manners? Does he have any bad habits? Has he been abused? Is he broke to ride? If so, does he need a refresher course? Unless the free horse is perfect in every way, or you have the time, experience and skill to train (or re-train) him, you'll need to hire a professional trainer.

Even if your new equine family member is in perfect health and very well-trained, he still has to eat. And use bedding. And have his feet done. And receive routine vet care. In short, you'll likely spend several hundred dollars per month on his upkeep, so make sure your budget can really handle another horse before you sign the adoption papers.

Horses are Gifts that Keep Giving

Hopefully, the free horse will give you nothing but gentle companionship for years to come. But be aware that free horses are always free for a reason. Sometimes, the reason has nothing to do with the horse, such as a change in the horse owner's financial circumstances. Other times, the reason is horse-based, such as the fact that the horse has health or lameness issues, a bad habit, or simply isn't trained. Before taking on a new horse, the horse adopter should do some diligence to determine why the horse is really being given away. For example, a pre-adoption vet check would be an excellent idea. If the horse is broken to ride, the adopter should take ample time to try out the horse before agreeing to adopt it, preferably with some input from the adopter's trainer, or at least some knowledgeable horse friends. Remember, if the free horse sounds too good to be true, he probably is!

Some People Expect a Free Ride

Time and time again, Equine Legal Solutions receives calls from anxious horse adopters frantic because someone who gave them a horse is now threatening to take the horse back, weeks, months or even years later. Sometimes, the adopter and former owner had a legitimate misunderstanding from the beginning. Far more often, the former owner regrets having given the horse away and their financial situation has improved. Or they see what great things the adopter has done with a horse they considered worthless. In most of these cases, the parties had nothing in writing, leaving the situation open to interpretation (and litigation). The former owner can claim that they really just "free leased" or loaned the horse to the adopter, or that the adopter agreed to buy the horse and hasn't paid, or even worse, that the adopter stole the horse. Occasionally, the former owner can support a claim of ownership by producing registration papers for the horse in the former owner's name and/or a bill of sale between the former owner and a previous owner. Frequently, the adopter has nothing to support their claim of ownership other than canceled checks for the horse's care expenses, leaving them with an impossible choice between defending themselves in an expensive court battle or reaching a settlement with the former owner. To prevent these types of problems and make sure they obtain proof of ownership, anyone adopting a horse should insist that the horse owner sign the horse over to them in writing, preferably using a document like Equine Legal Solutions' Equine Donation Agreement. ELS recommends that the adoption be unconditional, so that the adopter can rest assured that the former owner will not try to take the horse away at some future date and so that the adopter is free to find another good home for the horse should the need arise.

Recession Ripples Throughout Horse Industry

2009-04-20T14:23:00.001-07:00

From time to time, I'm asked how the downturn in the economy has affected the horse industry. Here's my perspective as an equine attorney.

Boarding

Although Equine Legal Solutions always receives a lot of calls from boarding stables about boarders who aren't paying their bills, the situation seems to have reached nearly epidemic proportions, particularly in California. Our practice spans California, New York and Washington, and most of the calls about past-due boarders come from California, with an increasing number from Washington. Over half of our free phone consultations are now about non-paying boarders, whereas those calls typically represent more like 20% of our call volume.

In more and more of the non-paying boarder cases, the boarding stable has no way of reaching the boarder. Sometimes, the information the boarder gave the stable was completely fictional - the boarder intended to dump the horses on the boarding stable from the very beginning. (Note that screening potential boarders would help eliminate this problem.) In other cases, the boarder's contact information was initially good, but the boarder's phone has now been disconnected, and the boarder hasn't visited the stable in quite a while. Often, the boarding stable has sent the boarder a certified or registered letter, which has been returned unclaimed. The boarding stable is often desperate for solutions and wants to know when the boarder's horses are considered abandoned and what the stable can do with them.

Now more than ever, the boarding stable is usually better off not executing on its agister's lien. The horse market has declined significantly due to the slaughter ban and the recession. Horses that would have brought at least $500 at auction a few years ago now have no value at all. Meanwhile, hay prices have increased dramatically, making it more expensive to feed horses while waiting for foreclosure proceedings to conclude. And, the chances of being able to collect past due board through traditional methods are slimmer. The boarder may be out of work, with no wages to garnish, and/or may be preparing to file for bankruptcy. Usually, the best thing a boarding stable can do is to get the boarder to come and take the horses, even if the boarder owes the stable money. Getting the horses off the property stops the meter from running on the hay bill and it also cuts off the stable's potential liability for the horses' care.

More boarding stables are having to enforce the payment, lien and eviction portions of their boarding contracts. Unfortunately, many of them are finding their contracts don't adequately address the issues they face. These old, outdated contracts have unwieldy and difficult notice procedures for eviction involving certified and/or registered mail (which most deadbeat boarders will not claim). Often, they require the stable to give the boarder 30 days' notice of termination, even if the boarder owes the stable thousands in back board, effectively making the stable feed the boarder's horse for free for yet another month. And they contain virtually no practical remedies for collecting past due board and getting rid of abandoned horses and tack. As a result, more boarding stables are weighing the high cost of dealing with boarding problems, and deciding that having a boarding contract they can rely upon to protect their interests is well worth the relatively small price.

Breeding

Most breeders booked fewer breedings in 2009, and many of the bookings were made later than usual, simply because mare owners needed to wait to make sure they had the money to breed this year. Mare owners are being more selective, opting to breed fewer mares. Large breeders are downsizing their broodmare bands, keeping the best and offloading the rest. Many smaller breeders are exiting the breeding business altogether, finding that it's less expensive to buy young stock than it is to breed their own. As a result, there's a glut of broodmares on the market and prices are at historic lows.

Given the significant costs associated with shipping cooled semen and artificially inseminating mares, some breeders are finding that offering live cover and on-site artifical insemination services is drawing more local breedings. Breeders are also keeping costs down by doing more of the work themselves and involving veterinarians and stallion stations less frequently.

As usual, discounts are available to mare owners who book early, book multiple mares and/or have mares with proven production or show records. However, these discounts are more widespread, the discounts are deeper, and even the top stallion owners are offering them. Hoping to draw budget-conscious mare owners, some stallion owners are waiving collection and shipping fees on initial shipments, and others are significantly reducing stud fees and eliminating booking fees. Other stallion owners are offering enhanced live foal guarantees, some with no stud fees due until a live foal is born.

Horse Sales

It won't be news to anyone that horse sales are down, and so are horse prices. Craig's List abounds with free horses, and not just junk. More and more of those free horses are sound, registered and/or well-trained. Breeders are having more dispersal sales, and sending more young stock and broodmares to auction.
At the same time, there are fewer buyers at those auctions, and the buyers who do attend buy fewer horses. Sellers are less likely to "no sale" low-selling horses, opting not to haul them home.

Some horse buyers are being more careful. They're making fewer impulse purchases, not buying as many horses sight unseen over the Internet. They're using horse purchase contracts, insisting upon some accountability from the seller. Some horse buyers are taking horses on trial and/or making payments in installments. More sellers are agreeing to these relatively risky terms because they have no other buyers, but conscious of these risks, they are seeking out higher quality horse sale contracts in an effort to protect themselves.

Other horse buyers are cutting costs unwisely, opting not to get a pre-purchase vet exam or not have radiographs or blood draws done during the exam. And some horse sellers are also accepting risky deals that they wouldn't have even considered in a better economy, simply because they need to move some horses, and they need to do it now.

Riding Lessons

It should come as no surprise that many families consider riding lessons a luxury, so children's lessons are eliminated or reduced when a family experiences financial difficulty. Adult amateurs are also doing without lessons, opting to ride on their own instead.

Training

A lot of horse owners who would have sent young horses to a trainer are now either letting those horses sit, selling those horses as unbroke or greenbroke, or doing some of the training themselves. As a result, I think we can expect to see even more untrained young stock for sale in the coming months. Other horse owners who normally keep their horses in full-time training are bringing their horses home, or cutting back to part-time training, filling in the gaps themselves. Fewer training clients are going to shows, and many of those still showing are opting to attend fewer shows and show in fewer classes this year. More and more trainers are opting to use training contracts, fearful that they won't get paid, or will get stuck with a client's horse.

When Accidents Happen: How to Minimize Horse Event Liability

2009-03-17T17:45:00.001-07:00

This interview with a distraught mother whose child was kicked by a horse at the Nebraska Horse Expo illustrates several important points.

Prior Planning Prevents Poor Performance

As the interview indicates, part of what made the victim's mother so upset is that it didn't seem like the event host had a plan for emergencies. Horse event management should have a written procedure to follow if a horse or person is injured during the event. Every member of the show staff, no matter what their position or responsibility, should receive a copy of the procedure prior to the start of the show. At a minimum, here's what such a procedure should include:
(1) A team of show management personnel who will be first responders in the event of an emergency during the event. The list should include contact information and indicate which persons have medical or first aid training. Each member of the show staff should be instructed to call the first responders in the event of an emergency.
(2) Emergency contact numbers for local veterinarians and farriers. Show management should confirm in advance of the show that these veterinarians and farriers will be available throughout the event to handle emergencies.
(3) A reminder to call 911 and order an ambulance if any person is injured during the event, even if they "seem okay" following the incident. (In the heat of the moment, otherwise sensible people can forget this simple step.)
(4) The location of first aid kits and other emergency supplies on the grounds, as well as how to access such supplies (i.e., who has the keys).
(5) A simple form for the show management emergency team to fill out following the incident. The form should state: (a) the time and date of the incident, (b) a description of what happened, (c) the persons and horses involved in the incident, (d) whether any persons or horses were injured, and if so, how they were treated and by whom, (e) the name and contact information for each witness, (f) who from the show management emergency team responded, and what they did, and (g) any other information that the emergency team feels is important.

Let Accident Victims Know You Care

When an accident happens, there's a tendency to avoid the victim for fear of saying or doing something that could result in a lawsuit. But ironically, as seen in the reaction of the Nebraska mother, that avoidance has exactly the opposite result. When an accident happens, part of the emergency response team's responsibility is to keep the victim and their loved ones informed. Make sure they know the team is following an emergency procedure and that help is on the way. Stay with them until help arrives. Provide what comfort you can.

After the accident, follow up to find out how the victim is doing. If the victim can't return to the event, see whether there is anything that can be done to help out, such as making arrangements for horses still on the event grounds. Consider sending a get-well card and flowers or balloons. Human kindness is not legally actionable.

The only thing that should be avoided is making statements that take responsiblity for the accident, such as "It was all our fault." Also avoid making statements about how show management could have prevented the accident. But, if remedial measures need to be taken to make sure no one else is hurt, by all means take them - those measures are not admissible evidence of liability.

Don't Depend on a State Equine Activity Statute

While the Nebraska accident victim's mother says that "they were told that there's a state law absolving owners or organizers from liability at horse shows," the Nebraska Equine Activity Statute may not protect the Nebraska Horse Expo from a lawsuit. State equine activity statutes are limited in the protection they provide, and most have big gaps. For example, as the interview notes, spectators at equine events are specifically excluded by the Nebraska statute unless they have placed themselves in an unauthorized area. And, by merely petting a horse, it's not at all clear that the young accident victim was "engaging in an equine activity," which is defined as "riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, or being a passenger upon an equine-drawn vehicle, or...assisting a participant or assisting show management."

Instead of relying on an equine activity statute to protect the event from liability, show management should insist that each attendee (whether spectator or participant) sign a liability release prepared by an equine attorney. Contrary to popular opinion, well-drafted liability releases are legally enforceable and will be upheld in court.

Liability releases are also no substitute for insurance - events need both. While a liability release may discourage potential plaintiffs from suing in the first place, and keep them from winning if they do, insurance serves a different role. If a lawsuit is filed, the event's insurers will appoint defense counsel and foot the defense bill. If a settlement is reached, or a judgment entered against the event, the insurance company will pay the tab. So, the event host should ensure that full liability coverage is in place for the event, and that all responsible parties are named insureds on the policy.

The Big California Corporate Filings Ripoff

2009-03-14T11:23:00.000-07:00

When Equine Legal Solutions incorporates a business in California, the business' initial mailing address recorded with the California Secretary of State is typically Equine Legal Solutions' mailing address. As a result, we receive a number of credit card applications and other marketing material directed at new businesses. This deluge of targeted junk mail suggests the California Secretary of State sells contact information for newly incorporated businesses.

Now this fact is shocking enough, but it appears that some of the Secretary of State's best customers are scam artists. These scam artists ply their trade by sending out deceptive communications to newly incorporated businesses, implying that the businesses will suffer dire consequences if they don't complete the enclosed forms and send them back with a check. The envelopes bear important-sounding labels such as "Annual Minutes Requirement Statement" and "Avoid Penalties, Fines and Suspension." The companies listed in the return addresses have official-sounding names like "Compliance Services" "Corporate Compliance Center" and "Annual Review Board."

Inside, the forms ask you to list the names of all of your company's officers and directors, along with their contact information. (Considering the ethics of these scam artists and how they obtained your company's contact information in the first place, it seems probable that your officers' and directors' contact information will be sold to other direct marketers.) There are urgent-sounding calls to action, e.g., "Return this form no later than 3/2/09 to ensure time for processing" and "Remit Immediately!" And, the letters are sprinkled with California code references and some are imprinted with official-looking seals.

While it's true that every California corporation should keep minutes of its board and shareholder meetings, and every California corporation has to file a (very short) annual statement with the California Secretary of State, it's certainly not necessary to pay a scam artist to do it for you. Equine Legal Solutions is happy to send its clients a free template for meeting minutes. The Secretary of State's annual statement form is automatically mailed to every corporation, and if you misplace it, the form is also available online. Meanwhile, the ripoff artists want to charge you as much as $250.00 for something you can do for FREE.

Equine Legal Solutions has complained to the California Secretary of State about these practices, and received an unsatisfactory reply. One can only wonder whether the funds generated by renting the mailing lists of new corporations has outweighed the Secretary of State's interest in protecting the public...

Bottom line: if you receive communications that look like these or that ask you to write a check to any entity other than the Secretary of State, put them through the shredder:

Compliance%20Services%20Envelope Annual%20Minutes%20Requirement%20Statement Annual%20Minutes%20Compliance%20Notice Annual%20Review%20Board%20Statement%20of%20Information

Are Your Stable Workers Independent Contractors or Employees?

2009-03-12T16:12:00.001-07:00

Whether your barn workers are considered to be employees or independent contractors is a complex test of facts and circumstances. Here, we examine the common law factors in the context of relationships between a barn and its stall cleaners. In each A situation, the stall cleaners are more likely to be considered employees, and in each B situation, the stall cleaners are more likely to be considered independent contractors. The more "A" factors a barn has, the more likely its stall cleaners will be considered employees. The more "B" factors a barn has, the more likely its stall cleaners will be considered independent contractors.

How Does the Barn Hire Its Workers?
The contractual relationship between the parties can affect the determination of whether a worker is an employee or independent contractor, especially when the determination would not be clear based upon the other factors.

A. Big Barn decides its needs help cleaning stalls, so ita manager, Hapless Hannah, places a classified ad in the local paper. Larry Lieabout and Slacker Sarah answer the ad and accept Big Barn's offer of full-time employment, with health-care benefits (yes, this is fictional). Hannah gives Larry and Sarah an employment agreement to sign.

B. Sizable Stable also needs help cleaning stalls. Its manager, Fearless Frieda, has seen an advertisement on the local feedstore bulletin board for Manure Eliminators, a stable cleaning service. Frieda engages Manure Eliminators, and the parties sign an independent contractor agreement.

How Extensively Does the Barn Train Its Workers?

The more training the barn provides for its workers, the more likely they are to be considered employees.

A. On Larry's and Sarah's first day of work, Hannah introduces them to Peter Cedar, the "Lead Stall Maintenance Technician." Larry and Sarah shadow Peter for two weeks, during which time he instructs them in great detail about the desired shavings depth, amount of shavings banked against the rear stall wall, and the particular behaviors of each horse. Larry and Sarah work under Peter's close supervision until Peter is satisfied that they understand his extensive requirements.

B. Frieda is relieved to have Manure Eliminators on board, because she's received glowing references from other barns about the skill and professionalism of ME's employees. When the ME workers arrive for their first day, Frieda gives them basic instructions and turns them loose to do the work.

Does the Barn Provide Equipment and Supplies for Its Workers?

The more equipment and supplies the barn provides for its workers, the more likely the workers are to be employees rather than independent contractors.

A. Peter is very particular. He insists upon personally selecting the bedding, and Big Barn supplies all of the manure forks, wheelbarrows and other equipment used by Larry and Sarah to clean the stalls at Big Barn.

B. As long as the stalls are cleaned and bedded regularly and Sizable Stable's clients are happy, Frieda is not so fussy about how the work gets done. ME supplies all of Sizable Stable's bedding needs, and its workers bring their own equipment.

Does the Barn Reimburse Its Workers for Business Expenses?

If a barn reimburses its workers for business expenses, those workers are more likely to be considered employees.

A. Big Barn's tractor is an ancient relic and is always breaking down. Fortunately, Larry is a talented mechanic. He regularly fixes Big Barn's tractor and Big Barn reimburses him for all the parts he purchases.

B. Sizable Stable has a tractor that ME uses to compact the manure pile. Part of ME's contract includes maintaining the tractor. Sizable Stable does not reimburse ME for the cost of parts required to maintain the tractor.

Do the Barn's Workers Have Any Control Over Whether They Make a Profit?

The less control your workers have over whether they make a profit or loss, the more likely they are to be employees rather than independent contractors.

A. Larry and Sarah are both paid by the hour, and there is a limited number of hours that they can work.

B. ME is paid a contract price for the job, based upon the number of occupied stalls. ME has control over its profits because it controls how long the job takes, how many workers it sends to do the job, and what its materials costs are.

Do the Workers Have Set Hours?

Setting hours is an exertion of control by the employer that makes it more likely the workers will be considered employees.

A. Given Peter's particularity about the stalls, he insists that all stalls must be cleaned between the hours of 6 a.m. and 8 a.m., and again between the hours of 4 p.m. and 5 p.m. every day. In between stall cleanings, he has an extensive list of other areas to be cleaned.

B. Frieda and ME have decided that ME can clean the stalls whenever it likes, as long as each stall is clean by 3 p.m. Sometimes, ME comes in the morning, and sometimes ME comes in the afternoon.

Do the Workers Work Full-Time?

The less opportunity the workers have to perform work for others, the more likely they are to be considered employees.

A. Although Larry and Sarah have several "free" hours each day and work a bit less than 40 hours per week, their days are so structured by Peter's strict schedule that it would be impractical for them to do work for another employer.

B. Because ME's work for Sizable Stable is limited in scope, ME is free to, and does, contract with other barns in the area.

Should You Have Signatures Notarized?

2009-03-03T13:12:00.000-08:00

What is Notarization?
Essentially, notarization is a stamp applied to a document by a licensed person, a notary, who is trained to follow certain procedures to verify signatures. In general, to have your signature notarized, you must bring the document to the notary and sign it in the notary's presence. You must also bring a photo ID, which the notary will examine to make sure the name you are signing matches the name on the ID, and that the photo on the ID matches you. Having a document notarized therefore creates a presumption that the signature is genuine. However, forgery is still possible, for example, if the forger obtains a fake ID.

Note that the notary's stamp does not have any impact on whether the document is legally enforceable. Notarization merely serves as evidence of the signature's authenticity. Therefore, contrary to popular opinion, notarization does not "make a document legal."

When is Notarizing a Document Necessary?
Generally, notarization is required only when the document or contract says it's required. For example, professional licensing organizations often require their applications to be notarized.

When is Notarizing a Document Advisable?
Basically, it only makes sense to go to the trouble of having a signature notarized if you think there's a possibility of forgery, either real or alleged. For example, if you are entering into a contract with someone and have any doubts about their identity, you should have their signature notarized. Or, if you are entering into a contract you may need to enforce later, such as a horse sale agreement with installments, and you have any concern the person signing your contract might claim they didn't sign it, you should have their signature notarized.

Where Can I Find a Notary?
Most bank branches have at least one person on staff who is a notary. Many copy shops have at least one employee who is a notary. Real estate, mortgage brokers and law offices also often have notaries. Before you go, call ahead find out if there is a notary available, whether their services are available to the public, and whether an appointment is required. Most banks provide notary service at no charge to their customers, but other notaries generally charge $5-15 per notarization.