COVID-19 has necessitated mobility restrictions for horse owners everywhere. As a result, the care of a horse could become a burden. The opportunity to exercise, ride and compete the horse is not only curtailed but, by reason of restricted access arrangements in place at agistment centres, many owners no longer enjoy unlimited freedom to feed and engage with their horse. The pandemic has impacted our valued horse pursuits at an emotional level. It has also heralded an era of greater financial impost around horse ownership because of reduced employment conditions and opportunities and higher feed and care costs.
In this disease emergency, some amongst us are jumping at the chance to spell our horse with someone kind enough to offer to keep it at no-cost or reduced cost for a finite time or indefinitely until things get back to normal. But beware! While every cloud has a silver lining, such offers might lead to a dispute over just who owns the horse when the pandemic has abated and you want your horse back. The potential problem with such an offer is that a misunderstanding can readily arise over whether it was intended to gift the horse to the person who now has it.
Parting with possession of a horse is a significant step. Most of us have heard the expression “Possession is nine-tenths of the law”. The expression means various things from a legal view, including that possession is a form of title which is good against everyone except the true legal owner. The significance of someone with possession of a horse is, therefore, that he or she is prima facie the owner of the horse even if she or he is not the true legal owner. It is the appearance of ownership which matters and can be legally significant.
Handing a horse over to someone does not of itself result in transfer of ownership of the horse at law. A horse can be handed over to someone for various reasons such as to be bred, to receive veterinary care, to be ridden in a show by a professional rider, as a loan to someone to learn to ride on, to be sold, and so on. But the delivery of a horse is also a necessary element under the law for a horse to be gifted to someone else.
A horse, like any other personal possession, can be gifted under a Will upon the death of its owner. A gift of a horse by its owner while the owner is alive, however, can occur in various ways, one of which is by delivery. Delivery of a horse to someone else who has offered to help in the current pandemic is a potential problem if the intention is to recover the horse when circumstances permit, unless certain precautions are taken. When the circumstances of delivery of the horse are unclear, undocumented and disputed, it falls to a Court to decide whether a gift of the horse was made at law.
At the heart of every dispute over a claim of a gift of a horse is the issue whether the horse owner intended to gift the horse at the time when the horse was delivered to the person who asserts the gift. To succeed, the person asserting the gift will normally allege that the owner said something to him or her that meant that the owner intended to gift the horse. For example, it might be alleged the owner said, “Please take the horse, I can’t look after him at the moment”. Recollections of what was said to whom and when are of course inherently uncertain and prone to inaccuracies and exaggerations in the absence of contemporary documented corroboration to support one version over the other. The point is that uncertainty is to be avoided, as it can easily be.
The person alleging the gift may also rely on circumstances like: the owner never visited the horse; the owner never asked about the horse; the owner never paid for agistment or any vet bills; and possibly even that the horse’s registration papers were transferred into the carer’s name (with or without the owner’s knowledge or consent).
So what should a horse owner do to avoid the pitfall of someone potentially taking advantage of the current pandemic by asserting a horse was gifted rather than placed into temporary agistment?
- Document by email or sms that the arrangement is a temporary one, setting out the details including that the horse will be returned when asked and keep the communications in a permanent form.
- Don’t hand over registration papers or sign a transfer of registration form.
- Conceive the arrangement as a lease of the horse and document that arrangement – sometimes called a free lease.
- Whatever the arrangement or its length of time, register his or her interest as the owner of the horse on the Personal Property Securities Register. Registration is important to give notice to the world that the owner remains the owner of the horse.
- Maintain a communication about the horse to demonstrate your attachment to it.
6 April 2020
© 2020 Michael Mackinnon, Solicitor & Independent Counsel