A prospective buyer took my horse for a 2 week trial before purchase. Buyer has neither paid for the horse or returned the horse. What do I need to do to get my horse back?
First, make a written demand that the horse be returned to your possession immediately. If the other party fails to return your property, you will need to sue to regain possession of your horse.
At no time should you enter upon the buyer's property to reclaim your horse as doing so may subject you to a trespass claim by buyer. There is also a common believe that the sheriff can help you get your horse back. This perception is often incorrect. Even with proof of ownership in hand, the sheriff will not reclaim your property without a court order.
The proper course of action is to obtain a writ of possession from the court. A writ of possession is a provisional remedy that allows an individual to obtain possession of his/her property prior to obtaining a court judgment. A writ of possession application needs to include the following:
Seller should note that pursuing a writ of possession is a costly endeavor and should be done with the assistance of legal counsel. In addition to the cost of obtaining the writ itself, the seller must also file an undertaking for twice the estimated value of the horse.
People, in general, have an emotional attachment to their horses and consider them unique and special in their own right. Because of this whenever a horse is in the wrongful possession of another individual, the horse owner considers it an emergency and often wants to get into court right away. Generally, the court will not entertain a writ of possession on an ex parte (emergency) hearing basis, as it is hesitant to interfere with property rights of an individual if that person has not had adequate notice of the hearing.
An ex parte hearing may be justified if the seller can prove there is a danger the horse will be concealed, sold, or endangered by acts of destruction or failure to care in a reasonable manner. Absent these concerns, proper notice under the code is required.
The California law of claim and delivery is unique in that a plaintiff may actually obtain possession of their property prior to the outcome of the lawsuit. The benefits of this particular remedy for the horse owner usually outweigh the cost associated with it as the horse owner gains access to their horse during what is often a lengthy litigation.
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This article is meant to provide general information only and is not intended to constitute legal advice. The information in this article is not intended to establish an attorney-client relationship between attorney and reader. The contents of this article are not a substitute for seeking the advice of legal counsel.
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