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.

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Give me back my horse!

10 03 2010

As I continue my representation of horse owners in North Carolina, I am beginning to realize how often possession of the horse is the issue, whether it’s getting possession, finding someone to take possession or keeping someone from taking possession – and how third parties unwittingly get stuck in the middle of these disputes and undoubtedly wish they hadn’t!

Recently I was engaged by a very nice couple from the northeast to help them get their horse back from their trainer.  The trainer had moved the horse and they weren’t sure where the horse was.  The relationship with the trainer had deteriorated significantly into screaming matches between the owners and the trainer, with the precious daughter who loved and showed the horse getting caught in the crossfire.  The couple was upset, said that the trainer had threatened them that they would never see their horse again and they wanted me to get an emergency court order forcing the trainer to give up possession of the horse to them.

Now all of us who are “horse people” know how emotional we get about our mounts.  We love them, probably too much, and treat them sometimes like they are a pet or a child, which we know objectively that they aren’t – but we can’t help it.  So, when someone threatens to take our “baby” from us, we flip out.  It’s understandable, but it’s something that all of us must guard against because that kind of raw emotion causes us to do things that aren’t rational and may not be in the best interests of the horse or ourselves, not to mention others caught in the fray.

Some trigger-happy lawyers might burst into the courtroom, spending tons of the clients’ money and causing a storm of activity and emotion.  And that fuss might make the clients feel better or vindicated for a little while.  But once the reality of the cost and the emotional exhaustion set in they will probably realize that the drama wasn’t really necessary – 99% of the time.  And it’s likely that a court is NOT going to order the horse returned without substantial proof – proof which is often hard to produce on a moment’s notice.  For example, in the case I’m talking about, the trainer had possession of the horse’s registration papers and the Bill of Sale where the owners purchased the horse.  It takes a while to re-create these kinds of documents and they are what you’re going to need to convince a judge to order a horse returned to you – maybe.  If the trainer can show that you owe him or her boarding fees or training fees then there is a good argument that the trainer may have a lien on the animal to the extent of those unpaid fees.   Such a lien will likely cause a judge not to order the animal returned until the debt underlying that lien is paid in full.

Back to the story.  After I got all the facts and was formally engaged by the owners I got the name and number for the trainer with whom they were battling and just called him, telling him I had been retained by the owners and was on a peace mission to see if we couldn’t get the matter resolved without having to get nastier than things already were.  Lo and behold, the trainer was a very nice guy from the western part of the state and really felt bad about the whole situation.   I was able to defuse the situation such that my clients paid the past due fees and he had a neutral driver deliver the horse to a neutral place for the owners to pick up.  It all worked out fine without a huge legal battle.  Saved everyone a ton of money on legal fees, which is always good, even for me.  Folks think lawyers just want to run up legal bills but most of us really don’t, because if you get what you need without doing that, you’ll recommend us to the next person who needs help.  And lawyers that do “run up the bill” usually end up with clients who are very unhappy and that’s not good for the lawyer, no matter how much money is involved.

The bottom line in the situation I was handling was that the owners were from the northeast and from a very different background where negotiations and communications generally were handled differently than they are typically handled by trainers native to North Carolina.  Each had unwittingly made the other mad without intending to and then things just snowballed because of what they both thought the other one was doing or meant to do.

Lessons to be learned:

1.  Be aware of your audience when communicating about your horse and don’t hesitate to make your expectations clear up front in a gentle and friendly way.  It’s really true that, as we say in the South, “you get more with honey than vinegar.”

2.  Put things in writing, for heaven’s sake.  I do believe that the horse industry is one of the most undocumented industries in the world, for various reasons, but oral agreements are recipes for disaster that you can easily avoid.  Better to have a lawyer help you document, but even a handwritten note signed by both sides is often better than nothing written at all.

3.  Keep in YOUR possession the original (or at least a copy, if the trainer must hold the original) of your horse’s ownership papers (registration papers, Bill of Sale, Coggins, etc.).

4.  Remember the horse is not a pet, not a child and try to maintain some sense of objectivity when dealing with disputes involving your barn, your trainer, etc.  If you can’t seem to maintain a sense of professionalism, call me at 919-881-2206 or another equine lawyer for help in handling the matter.  Oftentimes the lawyer, although an expense for you, can resolve the matter more quickly that you will be able to and sometimes for very little in the way of fees.  My fees in handling the return of the horse described above were less than $500.

So the happy ending to the story is that the trainer got paid, the owners and their sweet daughter got the horse back and no one spent a fortune on lawyers!

Dottie Burch

dburch@rl-law.com

Ragsdale Liggett PLLC (www.rl-law.com)

(919) 881-2206

**Note:  of course the facts and names in the above story have been altered somewhat to protect my client’s privacy and preserve any privileged information.  But the essence of the story is there and the lessons to be learned remain the same.

If you get into a bind and need assistance or just want to ask some general questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com.  I used to answer quick questions for free if I could, but I am getting so many calls for free legal advice that I am having to start charging a little something for an initial chat! A good problem to have, I guess 🙂 Starting January 1, 2019, I’m going to be charging $99 for a 30 minute general question session. You won’t be engaging me as your lawyer and we won’t talk specific names because that requires conflicts checks, etc., but frequently I can help folks a lot in 30 minutes. Can’t guarantee it, but usually I can at least give you some direction or general thoughts about a general type of situation. 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.  You can check out our firm’s Equine Law Group at www.rl-law.com if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories and information, this blog is also an advertisement for legal services.  I have to tell you that in bold, says the State Bar.