Ask H&H: gift horse
Q: Six months ago, I took a six-year-old horse on loan. Upon collection, the owner said she was giving him to me, before witnesses. I asked for a signed agreement, but the owner said it wasn’t necessary. His passport was transferred to me, although the owner’s details weren’t on it.
I heard nothing from the owner for four months, before I sent her an update. She asked for his livery yard address for the written contract. No contract arrived, but she left a phone message saying she was coming to get him.
My insurance helpline advised this would be theft, as under our verbal agreement, the horse was now mine. I moved him before she turned up. My insurers advised that if the owner wants the horse back, they should take me to court to get him. Is this right?
LL, Ayrshire
ACCORDING to Stuart Farr of Laytons Solicitors, it appears you are claiming you own the horse because he was gifted to you.
“But there is nothing to that effect in writing, and now a dispute of ownership has evolved,” says Stuart.
“The ‘former’ owner may seek to allege this was only a loan. Was the initial loan evidenced in writing? If so, it could have some bearing, especially if the gift was not. Who is the owner boils down to a question of fact, and a court will have to analyse the evidence.
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“But it is not the case that a person can ‘turn up’ to private property and take the horse without permission. Normally, an order from the court for ‘delivery up’ of the horse [when a court orders that a party delivers something to a designated place, for the purposes of retention by the recipient] would be the appropriate step. If the horse is taken, you could consider an order for ‘delivery up’, together with a claim for damages under the ‘tort of conversion’, [the unlawful converting of ownership], if appropriate.
“At the point where the matter is referred to court, ownership can be determined on the evidence,” Stuart goes on.
“Passports are not proof of legal ownership, and so may be only of limited value. If you are concerned about going to court, other options might be mediation or referring the dispute to an arbitrator.”
Lawyer Richard Brooks, partner at law firm Withy King, says: “If the horse was a gift to you, then ownership passes: the horse no longer belongs to the ‘owner’.
“The real trouble is proving it. In this case, I would do nothing unless the previous owner becomes a serious nuisance, or steals the horse. The previous owner should go to court to seek a declaration that they are the true owner, and that the horse should be returned to them,” Richard advises.
“You could apply to court for the contrary declaration yourself, but why not let the previous owner go to the trouble? Either way, evidence from both parties will be tested. The lack of paperwork is unfortunate, but works both ways. Without something in writing confirming a horse is only on loan, the previous owner is in some difficulty.”
Information
Laytons Solicitors Tel: 01618 342100 www.laytons.com
Withy King Tel: 01225 425731 www.withyking.co.uk
This Q&A was first published in Horse & Hound (2 October, ’08)
