Exam
The Dead-Beat Boarder
ties that in the event of Boarder’s abandonment of the Horse, the Horse, and any other personal prop- erty owned by Boarder and located on STABLES’s premises, shall become the exclusive property of STABLES, and STABLES may take possession and title of the Horse and any such personal property of Boarder without resort to legal action, other au- thorization or further notice to Boarder. Boarder understands and agrees that if STABLES takes pos- session and title of the Horse it may dispose of the Horse in any manner which it deems appropriate, with all expenses of such disposal, including costs and attorneys’ fees, to be borne by Boarder.
It is important to understand that a clause like the
one above provides a contractual remedy to a very real problem. If a stable simply relies on its state’s livery lien statute (for purposes of asserting a lien on the horses), then the stable will have to follow the requirements of that law in order to dispose of the animal or acquire ownership of it. Asserting a livery lien on a horse is little more than lawfully holding the horse hostage pending payment of charges due (compare this to taking your car to a mechanic and not being able to get it back until you pay your bill— that’s what is called a “mechanic’s lien”). Having a “lien” on something is not the same as
acquiring ownership or the right to dispose of it or treat it as your own. And, in my experience, the process of getting from the point of having a lien to having ownership or cash in hand is complex and expensive—typically more expensive than the value of the horse that was abandoned. Building a practi- cal remedy into the boarding contract puts the horse owner on notice that if they don’t pay the stable what is owed, then the stable can “foreclose” on the horse and all their stuff. That is usually good motivation for a boarder to stay current on their bill. It is also a deterrent for those who might otherwise be prone to defaulting on their payment obligations—if some- one is unwilling to agree to this provision it may be a good indication of their intentions and financial abil- ity to pay. Providing a contractual “incentive” for full and
timely payment of charges is of great value because, at the end of the day, acquiring ownership of the
52 May/June 2019
boarder’s horse may not always be the best option. Acquiring ownership is most obviously produc- tive if the horse has either some use, some market value and can be sold or leased (for cash), or it is in bad enough shape that a veterinarian will agree to humanely destroy it. Acquiring ownership of an animal that falls in between those states is the tricky part and is exactly where the Minnesota farm in the case above found itself: a horse with neither use nor market value that isn’t in bad enough shape to be put down is nothing more than an ongoing finan- cial liability. So how does an “abandonment clause” help in a case like that? By acquiring ownership of the animal through a virtually automatic, contractually based forfeiture provision, the stable can at least lawfully transfer the animal to a rescue organization, donate it, or otherwise give it away and get it “off the books” without incurring (1) ongoing maintenance costs and (2) liability to the owner. Even if a stable chooses to keep the animal and assume the financial liability for its care, once the stable acquires ownership of the animal at least the care it provides the animal is no longer subject to the complaints of the dead-beat boarder. In the case dis- cussed above, remember that the owner of the horses sued the stable asserting dissatisfaction with the level of care and services it had provided to her horses. If that farm had been able to contractually foreclose on those horses, it would not have left itself open to the owner’s claims. And it still would have been able to sue the owner for what she had failed to pay. It is important, however, to remember that wheth- er a stable owns a horse or not, any “custodian” of an animal who is responsible for its care has a legal obligation to provide a minimum level of care that ex- ceeds what state law and local law enforcement might deem “abusive.” Stables must be mindful that no mat- ter what a horse owner agrees to, a private contract is never a defense to a violation of criminal law.
Krysia Carmel Nelson is a Virginia attorney who is a nationally-recognized expert in equine law. She repre- sents horse owners, trainers, riders, breeders, eques- trian facilities, farms, clubs and associations across all nationally and internationally recognized disciplines. She can be reached at
eqlaw@aol.com.
n
Bar
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68
