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Nonpaying
Boarder – What To Do?
Q:
We operate a boarding stable in California. One of
our boarders has not paid board for over six months.
How do we go about lien selling the horse? We have
requested payment every month with no response.
A: California
Civil Code Division 3, Part 4, Title 14, Chapter 6.7
Section 3080 provides California boarding stables
with an automatic lien upon horses in their possession
for unpaid board. This lien is often referred to
as an “agister’s lien.” No filing is
necessary – the lien continues so long as the horses
are in the stable’s possession. The stable can use any
peaceable and lawful means to prevent the horses from
leaving the property, such as padlocking the horses’
enclosures. If the horses’ owners arrive to take
the horses, the boarding stable can call law enforcement
to assist them in preventing the horses from leaving.
However,
the boarding stable cannot lawfully sell the horses to
satisfy the lien without a court order. Typically,
the simplest method of obtaining a court order is to
take the boarder to small
claims court and obtain a judgment for the past due
board. The boarding stable can request its
expenses as part of the claim, such as attorneys’
fees, court costs and process serving costs, and the
current limit in California small claims court is
$7,500.
Often,
the most difficult part of bringing a small claims court
suit is locating and serving the boarder.
California small claims rules provide for service by
certified mail, but certified mail service seldom works,
because most nonpaying boarders know that no good news
ever arrives by certified mail, and therefore they will
not sign for the certified mail. Often, while the
stable waits for the certified mail postcard evidencing
signature to come back, the deadline for serving the
boarder expires, requiring the stable to obtain a new
court date and start the service process all over again.
Meanwhile, the stable is continuing to feed and
care for the boarder’s horses, costing the stable
additional resources. To locate and serve the
nonpaying boarder promptly, there is no substitute for
hiring an experienced, professional process server.
Once the
stable has obtained a judgment against the boarder, the
boarder will have 30 days to pay the judgment. If
the boarder pays the judgment, the stable must release
the horses to the boarder. If the boarder has not paid
the judgment within 30 days, the stable can then
petition the court for an order permitting them to sell
the horses. If the stable sells the horses, it
must follow certain notice requirements for the sale –
see Section
3080.17.
What
happens if the stable doesn’t obtain a court order or
otherwise follow the statutory procedure before selling
the boarder’s horses? The boarder may have a
legal claim for “conversion,” which is essentially a
civil form of theft, in the amount of the horses’ fair
market value, plus any reasonable expenses that the
boarder incurs in pursuing the horses. However,
the boarding stable would still have a legal claim for
the outstanding board amount (less any proceeds that the
stable received from the sale of the horses), and the
amount of this claim typically exceeds the horses’
worth. Therefore, a boarder’s suit for
conversion would only be worthwhile if the horses’
fair market value greatly exceeds the amount of
outstanding board, which is not usually the case.
Boarding
stables can avoid the lengthy and costly statutory lien
sale process by having a boarding contract specifying
that the stable has the right to sell the horses after a
certain period of unpaid board and that the boarder
waives his or her rights under the California
agister’s lien statutes. Equine Legal
Solutions’ boarding
forms package includes a boarding contract
containing the necessary clauses.
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