NC Liens for the Care of Horses

19 06 2013

The two most common calls I seem to be receiving these days in my equine practice are from people who (a) have had horses left in their care for which they are not being paid board or (b) have allowed someone else to keep their horses only to find out later that the person has given away or sold or euthanized their horse without their knowledge or permission.

This article addresses the former situation. You have a horse on your property and the owner or other possessor of the horse (lessee, family member, etc.) is not paying the agreed upon boarding fees. What can you do? Well, assuming you have an agreement for how much they are supposed to pay you for board (written agreements are obviously best, but an oral agreement, especially if made in front of a witness, can be okay too), you may be able to successfully assert a boarding lien, also known as an agister’s lien or a stablemen’s lien, on the horse in your possession.

The statutes that you need to read are N.C. Gen. Stat. Section 44A-2 through 44A-6. You can find them at http://www.ncleg.net/gascripts/Statutes/Statutes.asp. Just put “44A” in the top search box. These statutes explain how to go about asserting a lien on a horse in your care when you aren’t being paid proper board for the animal. Basically they provide, in summary, that if you board animals for people for pay and you don’t get paid, you have a preferential lien on that animal so long as you don’t voluntarily give up possession of the animal and so long as you follow the requirements of those statutes. The statutes provide that once you have not been paid for a period of 30 days you may begin the process to assert your lien on the animal. After 30 days of not being paid you can serve a notice on the owner of the animal (or person with whom you dealt regarding the animal) that contains very specific factual information set out in the statute and giving them ten days from the day that they receive the notice to respond via certified mail and, if they disagree with your assertion of the lien, to request a hearing before the court to determine whether you have a lien. If they do not request such a hearing and you have met all statutory requirements, then you will be entitled to sell the animal at a public or private sale, depending on the situation. Typically a public sale is better because you are permitted to buy at that type of sale whereas you cannot buy the horse yourself at a private sale.

Once you’ve reached the point where you are permitted to sell the animal, you have to give notice of the sale to the owner (or person with whom you dealt regarding the animal) and that notice has to contain very specific information as well. If you follow the letter of the statute properly with regard to all the notices and the sale itself, the buyer at the sale will take title to the horse free and clear of any liens and the proceeds of the sale will pay, first, your reasonable expenses in pursuing the debt (the statute does not include attorney’s fees specifically, but you may have an argument that you are entitled to them), second, the past due boarding obligation owed for the animal’s board and care; and last, any surplus must be paid to the owner (or person with whom you dealt regarding the animal) or, if you cannot find him or her, into the clerk of court for the county in which you have been boarding the horse.

This is of course a very simplified summary of the law regarding liens on boarded animals, but hopefully it has given you a flavor of how the lien process works. And we are of course assuming here that you can actually find buyers to come to your sale if you have one. Right now there is a surplus of horses and in many situations, even where the statutory procedure is followed perfectly, there will be no buyers present at the sale to bid on the horses being sold. If that is the case then you’re still unfortunately out of luck when it comes to that horse. If you’re having a public sale, you can bid in at the amount of your damages and the horse becomes yours. That may be good or that may be bad, depending on your perspective (and the horse!). Then you have a choice to make about whether you keep the horse for yourself or donate the horse to USERL or similar organization. In some cases, I have had clients who asserted a lien on a horse which was left at their property without payment, sold the horse at a public sale, had to buy the horse themselves for the amount of their lien (basically just forgiving the debt to themselves) and ended up selling the horse to a buyer in another state whom they strategically located and contacted about the horse because of that animal’s specific attributes. That is a rarity, of course, but can actually happen and it is truly wonderful when it does!

My recommendation is to hire a good equine lawyer at least for the first time you decide to assert a boarding lien on a horse in your care. Once you’ve been guided through the process once by a legal professional and developed an internal procedure for asserting such a lien, the next time you just might be able to handle it all by yourself!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if I have time and know the answer off the top of my head! If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2013 is $325). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also advertisements for legal services. I have to tell you that in bold, says the State Bar.

Advertisements




Possession Just May BE 9/10ths of the Law with Horses…

23 04 2013

We’ve all heard it before from our parents, grandparents, man at the country store down the road, police officers and others. “Possession is 9/10ths of the Law!”

As an eager young law student I realized that from a technical perspective, this old saying simply isn’t true. If you stole something, possession is not okay. You are still legally wrong and will have to give back what you took if you get caught. Likewise, if you find something and the owner shows up, odds are a court will make you return it to the owner under an “unjust enrichment” theory. Or if you remove your child from custody of your ex-spouse, possession can get you into BIG trouble – so possession actually hurts you in that instance. You get the jist here.

After two decades of experience practicing law, I am coming to realize that although while technically possession is NOT 9/10ths of the law, possession sure does make things easier from a practical perspective in many, many situations – especially with horses.

What do I mean? Well, if you own a horse and you keep him in your barn, you are in good shape from a legal and practical standpoint. You presumably take good care of your horse, you are in a position to know what is going on with your animal from a health perspective and you can see for yourself whether he looks fat, skinny, sick, anxious and so on. Having possession of your own horse is about the lowest risk situation for you and your horse (assuming your farm is a safe place and that you are an informed horse person).

Now put your horse in someone else’s barn just a few miles away. While there are stable managers who are wonderful, hardworking folks who will care for our horses more diligently than even perhaps we will, many of them are overworked and simply do not have the time to spare to examine every horse nose to tail every day. Often they are just doing their very best to make sure all the horses’ basic needs are being attended to and are only checking them out for obvious injuries or illness/lameness. But since they are just down the road, you can go by reasonably frequently to see how your horse is looking, acting and going under saddle as only you can do. But even that is not the same as your being with your horse every day. So, as a practical matter, the “risk” to your horse (and your legal rights) elevates a little because you have relinquished possession of your horse. An injury can take place that you do not witness, unapproved food might be fed, unauthorized people might ride your horse and cause damage to themselves or your horse. And so on.

And now, take it one step further and send your horse for training in another city or another state. The further away your horse is sent, the less frequently you are going to be able to visit and check on him or her. The more you will have to rely on the observations of others whom you may or may not know very well. The more you will have to trust that your horse is receiving the proper food, hay, turnout, exercise and treatment in general. Risk to your horse and your legal rights elevates.

So, I know it seems obvious, but keeping your horse close to you and under your supervision is ideal. But for many of us, doing so is not possible or practical. We live in town, we work all the time or many other factors exist that make an on site arrangement with our horse impractical. So remember, the further away your horse is going to be kept, the more infrequently you will be able to visit and the more investigation you need to do on the barn and the trainers in advance of sending your horse there – and the more important it is that your trainer or barn manager being a diligent, conscientious and knowledgeable horse person. In short, the more direct supervision you have of your horse in person, the better – in general. Some owners are not truly “horse people” and their animal is far better off with the trainer or stable owner, but that is the exception, not the rule.

The possession thing seems to work in reverse as well – it can help you and your legal position if you are in rightful possession of someone else’s horse. If you are operating a boarding facility, have a horse boarding with you and the owner stops paying board on the animal, you are better off keeping that horse on site if possible. In fact, the statute which grants boarding liens to stable owners requires that you not voluntarily relinquish possession of the horse or your lien is extinguished. However, if the owner of the horse trespasses on your property and takes the horse away without your consent, that does not constitute your voluntary relinquishment of the horse, thankfully. But be sure you have stated in your boarding contract that owners who have defaulted on board payments cannot take possession of their horse and that any attempt to come onto your property to do so will be deemed a trespass. Also, institute barn hours when the owners are welcome and when the barn is closed and state in the contract that any visits from the owners during closed hours will be deemed a trespass. These up front efforts can help if you get into a legal battle with the horse owner over boarding payments or boarding liens.

So, while you are still the owner of your horse even when it’s in someone else’s possession, it’s very difficult to know everything that is transpiring and, conversely, if you have someone else’s horse on your property, your odds of being paid past due board are much greater if you still have possession of the animal at issue. So maybe those old folks were not misinformed – maybe possession is closer to 9/10ths of the law than I previously believed!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if I have time and know the answer off the top of my head! If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2012 is $325). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also advertisements for legal services. I have to tell you that in bold, says the State Bar.