Because virtually every aspect of horse ownership carries some degree of risk, horse owners should consider the possibility that things can sometimes go wrong and lead to legal issues. In most common cases, the horse does not present the only risk: People who will be interacting with him can cause a multitude of problems, which in a worst-case scenario can land you in court as a horse owner.
A myriad of hazardous situations involving horses can result in a lawsuit, most too complicated to resolve without an experienced attorney. Yet we offer horseback rides to family members, casually board horses on our properties for extra income, and lend our trailers to friends.
The following should not constitute legal advice—always consult an attorney for that—but these five topics are designed to give you an idea of the common areas of conflict that crop up in horse legal issues and court cases.
1. Buying and Selling
Far too many horse buyers are more emotional than careful when buying a horse, and thus they are amazingly cavalier about documenting the transaction. They fall in love with a horse, sometimes by merely looking at it online, and purchase it sight unseen.
Most buyers and sellers jot a few words on paper about the exchange of money and consider that sufficient to change ownership. It may be for some, but protection in a dispute about ownership is better ensured with a detailed and thorough contract that you can easily find if needed.
If presenting a contract—or signing one already drawn up—seems beyond the needs of the average horse owner, consider how many horse buyers wait for registration papers that never arrive, take possession of an injured horse upon delivery, or discover their new performance horse has a periodic lameness issue related to a previous case of laminitis that the seller neglected to disclose.
Sometimes the seller insists on a “right of first refusal” (see below), yet the buyer sells the horse without informing the former owner. What is the recourse when a sale is made on a proverbial handshake deal?
If hiring an attorney to draw up the specifics of a sale seems like overkill, at least consider using one of the many online equine sales contracts that provide a good starting point for buyers and sellers. Specific details or modifications can be added by either party to strengthen its viability, should a dispute arise.
First Right Of Refusal
Horse sellers sometimes ask to add a “right of first refusal” clause to purchase agreements. For most people, being able to repurchase their horse at some later date is a negligible comfort, but they want the reassurance that the buyer is trustworthy. Often, the wording about this in the contract is less than optimal, and it doesn’t hold up under close legal scrutiny.
Julie Fershtman, national trial lawyer, legal consultant, author of two award-winning editions of Equine Law and Horse Sense and widely considered one of the top equine attorneys in the U.S., believes the horse industry needs to do a better job of identifying and protecting this right.
“Even if the right of first refusal is documented, parties can forget about those rights over time, especially when the right of first refusal opportunity occurs many years after the horse has been purchased,” she says. “Before that happens, it can’t hurt to remind the buyer from time to time that you still want to enforce this provision should a sale be possible. If a buyer forgets about the right of first refusal clause and commits to sell the horse to someone else, the legalities can be complicated, time-sensitive, and costly to try to correct.”
Horse buyers are apt to agree to a sellers’ request for a right of first refusal clause because they know the odds of enforcement are small. Some buyers may like a buy-back option in case the horse turns out to be unsuitable.
Most boarding stable owners are careful enough to require signed documentation from boarders limiting the business’s risk of liability in the event of an accident involving a boarder or their horse. That document typically outlines the rules established by the stable for everything from turning off arena lights to requiring all one-day riders or those test-riding a horse for possible purchase to sign a legal liability waiver.
High-profile boarding stable owners don’t rely on loosely worded boarding contracts with one-size-fits-all contractual language, because they know the cost of an attorney is minuscule compared to a judgment against them in a personal injury lawsuit.
More casual horse boarding operations would be wise to follow suit. Non-paying boarders or those routinely late with payments often present a problem that ends up with the horse as the only bargaining chip. In these situations, frustrated stable owners sometimes overstep legal boundaries.
“Declaring the stable to be the owner of the horse and selling it without following the law or putting the horse in the stable’s lesson program may not be legal,” says Julie Fershtman, a national trial lawyer, legal consultant, and author of two award-winning editions of Equine Law and Horse Sense. Fershtman is widely considered one of the top equine attorneys in the U.S.
“Stable owners of all types and sizes should be aware of their state agister’s lien statutes that give them a security interest in the horse that allows them to enforce the lien after a specified period of time has passed and the stable has performed specific procedures,” she says.
Boarding contracts typically include the Equine Liability Law for the state, and stable owners are also required in many states to post signs in the most visible barn areas to remind everyone of the inherent risk associated with horse activities. Copies of equine activity liability releases (sometimes referred to as waivers) should be on-site, signed and dated by non-boarders.
Some horse owners mistakenly believe equine liability waivers are not successfully defended in court, when the reverse is true. Even so, an equine liability release does not guarantee the stable cannot be held liable for any accident. For instance, a lawsuit can be brought by a boarder who can prove the stable owner has been negligent by failing to perform reasonable measures to protect the safety of boarders and their horses.
“Many in the horse industry misunderstand equine activity liability laws, currently found in 48 states, and wrongly assume that these are ‘zero liability’ laws,” says Fershtman.
“That is not true. Although many of these laws limit the basis for a claim or lawsuit, they typically allow for the possibility of certain types of claims to be brought.”
Horse owners sometimes view boarding contracts as routine paperwork that protects the rights of the stable owner, yet these signed agreements are often relied upon by both parties when a dispute arises.
3. Leasing or Share Boarding
While an arrangement for leasing a horse can be a win-win for both parties, the best way to make sure everyone is on the same page is to write down the terms, fees and exclusions, and require each party to read and sign the contract. Without a written reminder, the lessee may believe her payments are for the purchase of the horse rather than its temporary use.
That’s merely one of many disagreements that can arise when time passes and memories fail. A written contract can include standard terms, such as duration of the lease, payment schedule, which days are assigned to each rider, and who is authorized to ride the horse.
More detailed contracts can define liability issues, who is responsible for veterinary and farrier care, and whether the lessee has the option to buy the horse during or at the end of the lease. The more specific the contract, the greater the chance of a positive outcome.
When you own a horse trailer, you can count on someone eventually asking to borrow it, use it in an emergency, or asking you to transport a horse in your trailer for a fee.
In these situations, you need to be aware of what your insurance policy will or will not cover. Those who assume their homeowner’s policy or car insurance will pay an accident claim involving a horse trailer and someone else’s property can live to regret it.
For example, a policy may cover personal use of your truck and trailer, yet consider you a commercial entity if you were paid to transport someone else’s horse. Unfortunately, insurance companies look for holes in your policy that allow them to deny claims. This is why policy holders never want to hear their insurance agent say, “read the fine print” after something goes wrong.
Commercial horse businesses generally carry extensive insurance because their liability is multiplied by buildings, equipment, employees, boarders and visitors. Always know what your insurance specifically covers before you need it.
Trainers and riding instructors should be especially careful since they are on the “front lines” with more hands-on responsibility for clients and horses. Many carry umbrella policies that cover general liability insurance plus added coverage for care, custody, and control of their clients’ horses. The facility where training and riding instruction is conducted does not typically carry coverage that indemnifies trainers and riding instructors.
Horse owners and those in the horse industry shouldn’t live in continual fear of being sued, but we do live in a litigious society. Covering all bases with solid, detailed contracts, hiring a lawyer to handle complicated but common legal issues, and buying insurance specific to your horse activities is the best way to protect your assets.