Last night, the 'owner' of our loan pony came and took
her away from us. He said because his ex-girl had
threatened to take the pony. We have another horse on
loan from the same couple.
I think he paid for the initial buying of the horse, but
that was it...he then gave it as a gift to her. So
whose horse is it??? Our family have paid full time
for both horses over the past 2 years.
Do we still have a right over the horses as we've been the only ones to take care of them??
I have no
legal base whatsoever from which to reply, so this is
just my personal opinion. I take it you did not
have a formal written loan agreement? But there
appears to be no dispute that the horses were on loan,
not given to you.... that being the case, I suspect that
you have no rights whatsoever, unfortunately. As
for who actually owns the horses, if the boy had gifted
the horse to the girl, and she had then paid for its
keep, then I think she could argue that it was legally
hers... did she do this before you had the horse on
loan? Or has it been in your care all the time?
If she has not paid for its keep, then I suspect
that the boy could argue that the horse is his property.
Either way, as an outsider I would say that the
sensible thing to do would be to walk away from this
situation, and let them sort it out. I know it's
not as simple as that for you, because you are obviously
attached to your horses, but it is the wisest course of
action.... and there are plenty of lush horses out there
for loan, who don't come with custody suits!
This is a
short practical reply from a legal perspective:
1. The horses are not owned by you. There is no written
agreement of loan - the terms of a verbal one are hard
to prove. If he came and removed them I doubt the
police would do anything. If you went to court he would
probably lie about any verbal agreement and it would be
very expensive.
2. re the agreement with your dad - he can't agree for
his ex - she will have to sign it too (unlikely)
3. Who actually owns the horse between the two of them
will be a question of evidence if it went to court.
They will both lie to meet their own ends so no
way of telling who would win and get the horses.
4 The good news - unless the horses are very cheap and
it could go to the small claims court -or they are
unemployed and eligible for legal aid, they will need
lawyers which are VERY expensive. They are more
likely to scream and shout then fix it between
themselves.
Once it has been decided who owns what, you will either
get to keep them on loan or if they decide to sell -
you may be able to make them a cheap offer which they
may accept to make the whole thing go away.
Conclusion - Unlikely it will go to court (expensive),
unlikely he will take them (as he will have to pay
livery ) - more likely things will calm down and a long
term solution will be reached in the next few weeks.
There are two essential elements to the analysis of this
situation: the strict legal rights and wrongs; and the
practical reality of what can and cannot, should or
should not, be done about it.
On the strict legal position, we are dealing with a
horse, which is treated by the law as a chattel - a mere
item of moveable property. There is an ownership dispute
between the man who loaned her to you and a third party
to the loan relationship. That dispute is not your
dispute, but it can affect your position, because it may
turn out that the man who loaned the horse to you is not
the true owner of the horse.
If the man who loaned the horse to you is NOT the true
owner of the horse, then the true owner is entitled to
take the horse back from you, irrespective of the terms
of your loan agreement. It is as if I were to offer to
lend you my brother's car. Even if I had given you the
keys, and you had driven it home and parked it on your
drive, the law would still be on my brother's side if he
came and took the car back.
If, on the other hand, the man who loaned the horse to
you IS the horse's true owner, then whether or not he is
entitled to come and just take it away depends upon the
terms of the agreement you have with him. If there is an
term requiring him to give you a certain amount of
notice, then he if he comes and takes the horse back
without giving you notice he is technically in breach of
contract, and liable to compensate you for any loss
which you suffer as a result. If there is no term
specifying a notice period, then the loan agreement will
be terminable at will by either party, and he is
perfectly within his rights simply to turn up and say
"the loan is now at an end, please return my
horse" (just as you would be entitled to turn up at
his house and say to him "the loan is now at an
end: here is your horse".
If there were to be litigation (i.e. court action) over
this horse, then it would probably be assigned to the
Small Claims Track in the County Court. This is used for
claims with a value of less than £5,000 and no legal
costs are awarded. If the horse is worth more than £5,000
(which very few loan horses are) then it will probably
be assigned instead to the Fast Track, in which only
limited costs are recoverable. You therefore do not want
to be caught up in any sort of litigation if you can
possibly help it, because it is not your dispute, but
you would probably end up incurring costs which you
could not recover. There is also the possibility that
one or other of the parties disputing ownership of the
horse, rather than going to the civil courts, would
attempt to involve the police by alleging that either
you or the other possible owner had stolen the horse
from them. This really is not something that you want to
be involved with, either.
For the time being, therefore, I think that your best
option (hard though it may be) is to sit back and let
them carry on their dispute about the ownership of the
horse without you. It really is not something that you
should want to get caught up in.
If, at the end of the day, the man claims
"victory" and agrees to leave the horse with
you on loan under a written loan agreement, you should
ensure that the written agreement includes a warranty of
title from him - i.e. a written statement that he is the
true owner of the horse - and a covenant by him to
indemnify you against any costs incurred should any
claim be made against you by the other woman in respect
of the horse in which she alleges that she is the true
owner. This will not be a perfect guarantee, since it is
ultimately worthless if the owner is penniless and so
unable to pay. But it is very much better than having no
sort of comeback at all if it turns out that he is not
the true owner after all.
thanks for
your help guys.
My dad has written up an agreement (which was our
mistake in the first place)
so hopefully it will never happen again. We are
also looking to get the legal ownership transferred to
us.
In order to avoid any possibility of dispute in the
future, you need to observe two points when arranging
for transfer of legal ownership:
1. Make sure that BOTH the possible owners sign a
document transferring to you "all such rights of
ownership as I may have" in the horse (this can
either be a single document which they both sign, or two
separate documents which are each signed by one of
them), and
2. to be legally effective, there must EITHER be some
CONSIDERATION (fancy legal word meaning price: but
"consideration" is actually a slightly wider
term than "price", because a consideration
does not have to be in money) passing from you to them,
or else the documents must be in the form of a deed and
properly executed as such. It is probably easier to have
a definite consideration (i.e price) as this is much
more difficult to get wrong. In the case of the one who
seems less likely to have any rights of ownership, it
can be merely nominal (traditionally, a single
peppercorn is given as nominal consideration.
Alternatively, use one pound). And include in a the
document a statement that the owner (or possible owner)
of the horse acknowledges receipt of the consideration.
NB one trap to avoid: it does not work to say that the
consideration for the transfer of ownership is the
expense you have incurred in the past looking after the
horse, because of the legal doctrine that "past
consideration is no consideration".
