Agistment centres and the power to sell abandoned horses

Horse ownership would not be possible for many without the service that agistment centres provide. Providing such an important service to the horse industry does come with risks, including unpaid agistment fees and abandoned horses.

Agistment centres not only provide a safe and comfortable home for our treasured equine companions, but they also bring horse enthusiasts together to share in the joy of ownership. The provision of such a valuable service to our equestrian community does not come without legal and financial risks. In particular, the heart-breaking reality of unpaid agistment fees and abandoned horses and can take a significant toll on small business owners. The expenses of ongoing care can quickly add up, and the legal complexities of ownership can be difficult to navigate. What can the agistment centre do with an abandoned horse? Can the agistment centre legally sell the horse? The answer to that question depends on a number of things, including the state the agistment centre is in and the contract with the client.

Each Australian state and territory has its own legislation that deals with abandoned property.

The scope of the legislation and provisions vary between states, but in general, it operates to give business owners the power to sell abandoned property after a certain period of time if the owner has not claimed it or paid fees that are owed.

In Western Australia, the Disposal of Uncollected Goods Act 1970 (WA) (the Act) distinguishes between horses valued at less than $3,500, and horses valued at more than $3,500. There are a number of steps and forms involved to exercise the statutory power of sale. The first step in either process is to give written notice to the owner of the horse by way of a prescribed form. The notice must be properly served on the horse owner and detailed records should be kept. Under the Act, the agistment centre must give the owner six months to reply to this notice. The prescribed length of time may pose a challenge for some agistment centres, particularly if there are concerns around the ability to recover the costs of ongoing care and maintenance from the owner. If the owner does not respond, another notice in a prescribed form must be served on the owner and also published in a newspaper and Government Gazette. The agistment centre must then wait for one more month before taking further action to allow the owner time to respond. For horses valued at more than $3,500, an agistment centre would need to apply to the Magistrates Court for an order to sell or dispose of the horse and attend a hearing. For horses valued at less than $3,500, the agistment centre may attempt to sell the horse at a public auction after completing all required steps.

While the legislation provides a useful mechanism for businesses that find themselves in sudden trouble, it is a lengthy and procedurally complex process. There is another way to address this potential problem.

An agistment agreement can be drafted to include a contractual lien and power of sale to reduce the time spent agonising over abandoned horses.

Equine lawyers are familiar with drafting agistment agreements and can provide advice on how to best structure the debt recovery process, including how much notice should be given to the horse owner before taking steps to enforce a contractual lien and power of sale. It's very important that these clauses are drafted carefully and in accordance with the law for them to be effective, but they can be useful mechanisms to streamline the process when an agistment centre operator is confronted with the problem of an abandoned horse. An equine lawyer will also be able to provide guidance on how agistment agreement termination provisions and payment clauses can minimise the impact of late payments and bad debts.

In all cases, the power to sell property should be exercised with extreme caution and under the guidance of a lawyer.

The consequences of selling someone else’s property without a proper legal basis to do so can be serious. Agistment centres can reduce the risk and impact of abandoned horses by investing in a well drafted agreement to protect the business and the horses. It could make the difference between months of stress or an even greener pasture.

*Information is general and not legal advice.