In brief - Reduce the likelihood of disputes with a properly drafted agistment agreement

If you agist your horse on someone else's property, or you have someone else's horse agisted on your property, it is highly advisable to have a written agistment agreement setting out the obligations and responsibilities of all parties.

What is agistment?

Not all horse lovers own the property of their dreams - rolling hills, a top notch stable complex and luscious feed. So, a workable alternative for many is to agist their animal on someone else’s property.

Agistment is very common in the equine industry. It involves a situation where the owner of a horse sends it to the property of another person ("the proprietor") to be fed and cared for. Historically, the meaning of the word was limited to a situation in which a horse or other animal was allowed to graze on the proprietor’s property. However, the definition has broadened over time.

Presently, a horse on agistment may be, and frequently is given full care, i.e. hand fed, rugged, stabled and sometimes even exercised by the proprietor. The important element is that possession of the horse is given to a person (other than its owner) who is to be responsible for the horse’s welfare.

What are my obligations as the proprietor?

Agisting horses on a property that you own can be a lucrative business. However, it can also be a very risky business. Proprietors have a general duty to take all reasonable and proper care of a horse. This means that the proprietor is answerable for the reasonable or proper care for the health, welfare and safety of the horse.

If you are planning to agist horses on your property, or you currently agist horses on your property, you should be mindful of the obligations you have to the horse's owner. Some of the obligations are to:

• ensure that the property or enclosure is and remains safe and free from hazards;

• ensure that you house the horse in the manner agreed with the owner. For example, if you agree that the horse will be housed alone, then you cannot house the horse in a paddock or enclosure with other horses. If you do and the horse is injured, you may be liable for any loss or damage suffered;

• ensure that the horse has access to water and feed; and

• promptly notify the owner of important information. For example, if the paddock is low on feed; if the horse’s condition deteriorates; if another horse on the property has an infectious disease which may affect the owner’s horse etc.

What are my obligations as the owner of the horse?

As the owner of the horse, you also have obligations, including but not limited to:

• ensuring that you are satisfied that the proprietor’s property is satisfactory for the purpose that you require and is a safe place for your horse to reside. For example, the paddock may be fenced in barbed wire which may cause you concern. You should properly inspect the property prior to agisting your horse at the proprietor’s property;

• ensuring that your horse is and remains in good health whilst on the property. For example, unless otherwise agreed with the proprietor, you would be responsible for ensuring that your horse is regularly wormed, has the appropriate vaccinations and is regularly shod or attended to by a farrier;

• unless otherwise agreed with the proprietor, ensuring that you provide the necessary equipment to allow your horse to be properly cared for to your requirements. For example, providing halters and leads, rugs, vitamin supplements etc;

• ensuring that you pay the proprietor in accordance with the agreement struck; and

• ensuring that you listen and act on the information provided to you by the proprietor. For example, if the proprietor contacts you to advise that your horse needs worming, you have an obligation to ensure that you worm your horse within a reasonable time.

Should I use an agistment agreement?

There are countless benefits to both proprietors and horse owners in using a properly drafted agistment agreement. An agistment agreement will usually specifically address issues including, but not limited to:

• price for services, including what costs and related services are to be included or excluded from the price for services;

• the extent of the duties the proprietor is required to perform to care for the horse. For example, whether the proprietor is required to feed, stable, rug and exercise the horse, or, whether only feed and stabling are required. Specifying these duties means there can be no confusion in the future;

• what obligations the horse's owner has while the horse is in possession of the proprietor. For example, attending the property regularly to ensure that the horse remains in good health, has access to water and is exercised;

• what is to occur in the event the horse needs urgent veterinary attention. For example, the agreement may state that in the event of an emergency, the proprietor can engage a veterinarian of their choice without having to check with the owner first. Alternatively, the agreement may state that only a particular veterinarian is to be engaged in the event that the horse needs urgent care;

• minimum requirements to be performed by the horse's owner. For example, ensuring that the horse is regularly wormed, vaccinated and shod;

• who will be responsible for damage or loss caused to the horse whilst it is in the proprietor’s possession;

• who will be responsible for damage or loss caused by the horse whilst it is on the proprietor’s property;

• who will be responsible for damage to the proprietor’s property caused by the horse; and

• what recourse the proprietor has if the horse's owner does not pay the agistment fees. For example, the proprietor may exercise a lien over the horse, or keep possession of the horse, until the outstanding agistment fees are paid in full. Alternatively, if payment is not forthcoming, the proprietor could sell the horse, apply a portion of the sale proceeds to the outstanding agistment fees and then return the balance of the sale proceeds to the owner.

Registering your interest in your horse in the Personal Property Securities Register

An added protection for a horse owner, while their horse is in the possession of the proprietor, is to register their interest in their horse in the Personal Property Securities Register (PPSR). A proprietary interest of this nature is called a security interest.

The PPSR is a national register which lists all the security interests that people and corporations have in personal property. In this circumstance, when the register is searched, the person or entity performing the search is notified that the owner has a proprietary interest in the horse.

The issue of liens and security interests is complex and significant. Accordingly, these two issues will be addressed further in my next article.

Having certainty around the matters listed above will ensure that both parties to the agreement can rely upon it and immediately turn to the provisions contained in the agreement in the event of a dispute. This can avoid unnecessary and sometimes emotionally charged arguments about who is responsible for what. Ultimately, having a properly drafted written agreement can save everyone both time and money if a dispute arises.

What if I don’t have a written agreement and a dispute arises?

Horses can be unpredictable and accidents can happen. In some instances, one party to an agistment arrangement may suffer damage as a result of the negligence of another party, unexpected behaviour of a horse, or as a result of a random act of God or nature. Usually, the question will follow – who is liable for the loss or damage?

In this forum, it is very difficult to provide advice on what to do if this occurs and you do not have the benefit of a written agreement. Suffice to say that liability will depend greatly on the individual circumstances. If you find yourself in this position and you are unable to resolve the matter amicably with the other party to the agistment arrangement, then promptly obtaining legal advice is strongly recommended.

Properly drafted agistment agreements protect all parties

Agistment can be problematic, particularly in the event that a dispute arises between the parties. For the protection of all involved, including the horse, the best way to reduce this risk is to ensure that you enter into a properly drafted written agistment agreement. This will reduce the likelihood of a dispute arising and narrow this issues if a dispute does arise.

Unexpected incidents with horses have occurred in the past and will continue to occur in the future. They are part and parcel of owning horses and choosing to have them reside on another person’s property. To avoid disputes, all parties to an agistment arrangement should be mindful of their obligations to each other and to the horses involved.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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