by Lindsay Watt
How do you know you own the horse you cherish and love? You have a passport for it, but the Horse Passport (Scotland) Regulations 2005 says nothing about whether a passport provides evidence of ownership. It only says that you may be prosecuted if you don’t have one. Is there any document that provides conclusive proof of your ownership?
Unfortunately not. The legal rules that apply to your horse are the same rules that apply to a bar of chocolate, and you don’t get a certificate of ownership for those. A horse or pony is a form of property known as “corporeal moveable property”, just like bars of chocolate, or articulated trucks, or saddles. The legal rules that apply to ownership of horses in Scotland have been borrowed from Roman Law, and developed by the Scottish courts over the years, adapting to deal with different situations. These rules are known as the “common law”, and have not yet been replaced by an Act of Parliament. So let’s have a look at the basic rules that apply to bars of chocolate – and horses.
The primary rule is that the person having “legal possession” of the property is presumed to be the owner. You have possession of the shoes on your feet, so it is presumed that you own the shoes. Similarly if you have legal possession of your horse, you are presumed to be the owner. The law does recognise that sometimes you “possess” a horse, although it is in someone else’s field. So if your horse has been sent off to be schooled, or lent out to someone for a period, you are still considered to be in possession of it. But “legal” possession requires a little more than “possession” itself.
To have “legal” possession you must have a genuine belief that you are the owner. If you found the horse wandering along the road, or have obtained in on loan from someone, then you cannot have legal possession of it, and so cannot be presumed to be the owner. In one case a retiring soldier refused to hand back his uniform, on the basis that it was “his”. The regiment took the matter to court, and won, because when it was issued to him, both parties recognised that the uniform belonged to the army.
Being presumed to be the owner is valuable, because in any dispute, you have to prove nothing. It is for anyone challenging your ownership to prove that they are the owner. They only have to prove it “on the balance of probabilities” though, and if they manage to do that, the animal must be returned.
So what does all this mean if you already own a horse, or are thinking of buying one? Essentially your title to ownership of the horse is only going to be as good as the person who you are buying from – so check his ownership carefully. Check he has a passport for the horse, and make sure it is printed with his details, not handwritten. Check the page where the vets record any treatment given to the horse. It doesn’t establish ownership, but if the passport is clear and well ordered, it indicates that the seller is a responsible person. Do not accept any excuses for the absence of a passport – the horse may have been stolen, and you will not become the owner. Another worthwhile thing to do is find out who the previous owner was, and phone them up.
There are many people better qualified to tell you what to check for when buying a horse or pony, but usually you will have access to the horse for a period to check it is suitable for you. Make sure you have checked ownership, before you part with your cash, even as a deposit.
Luckily horse theft is not as common in Scotland as it is in England. The legal situation in Scotland if your horse is stolen is that you do not lose ownership, and if the h orse is subsequently found in someone’s yard, if you can prove ownership, you will be entitled to get your horse or pony back, even if the person “possessing” it has paid a good price for it and bought it in good faith. They may even have a new or forged passport. Unfortunately the thieves know that too, and have worked out ways to prevent you recovering your animal.
Until 1994 in England the law provided that if something was sold in “market ouverte” (open market) then the buyer obtained a good title, even though the horse had been stolen. This was abolished in 1994 in England, but may still operate in other European countries. English law still provides that if someone buys any item, be it a work of art or a horse, in “good faith”, then after six years their title cannot be challenged. In France the same rule applies, but the period is only three years. People may be persuaded to buy by the thief being able to produce a passport for the horse. Many passports for horses who die are never returned to their issuers, but are sold on the black market to “attach” to a similar horse for sale elsewhere.
And then, of course there is the meat trade.
So when buying a horse or pony, remember that your title to them will only be as strong as the seller’s title, so check it out thoroughly. Never buy a horse without a passport, and check through it to make sure that it matches the markings of the horse, and the history of it. The name of the horse, and of the current owner should be printed by the issuer of the passport, and not handwritten.
Once you own the horse, make sure it is freeze branded or microchipped or both, and that you are registered as the owner of the number. Freeze branding is a better discouragement for thieves – think of putting the number on any rugs they wear in winter as well. Take good photographs of the horse or pony, with at least one of them including yourself to establish that you “possessed” the pony. Obtain some sort of written document from the seller transferring ownership of the horse to you. It doesn’t need to be complicated, and a simple letter would do, providing it is signed by the seller. If you can get a witness to sign it as well, then the signature is “self proving” and you won’t have to prove the signature is genuine. If your horse is particularly valuable, you may want to consider using DNA to help with identification of the animal.
Have a look at the Horsewatch Scotland website for some wise advice, and if you register your email address with them, they will email you if they hear of any criminal activity in your area. Finally, watch out for horses’ manes or tails being braided or cut – these have been used in the past by thieves to “mark” horses for a gang to steal later, probably when it is dark.
Thankfully disputes about ownership and theft are rare in Scotland, but the few simple steps outlined above can reduce the risks considerably.
This article is meant to inform you about the law relating to ownership of horses in Scotland. If you have a specific problem about ownership, other areas of law may be involved (such as bankruptcy or matrimonial law) and you really should contact a solicitor for advice. The Law Society of Scotland can help you find one. Their website is at www.lawscot.org.uk. If you cannot afford to pay for a solicitor, legal aid may be available. Contact the Scottish Legal Aid Board Helpline on 0845 122 8686 to find out if you are eligible.