Please read the disclaimer before perusing the following article.
written 1996, published in Beef in B.C. May/June 96
Suppose you want to change some property boundaries and make differently shaped parcels of land from the ones you now have. What procedure do you have to follow, and what might you be required to do in order to have the realignment approved?
If you are custom feeding someone else’s cattle, or someone else is custom feeding your cattle, you should know about the Livestock Lien Act.
This is a short, old, provincial statute. It used to be called the “Cattle Lien Act”.
Anyone who feeds and cares for livestock for payment, by agreement with the livestock owner, has the right to claim a debt against the livestock owner. The Livestock Lien Act also allows the feeder the right to look to the livestock for payment of the costs of their care and feeding. It says that the feeder can use the livestock as security for the costs of care and feed, provided that the feeder follows the statute.
The first thing to note is that although the Act refers to “cattle”, “cattle” is defined to include a horse, mule, ass, swine, sheep or goat. Many of the cases deal with boarded horses.
The Act says that every stablekeeper and every “agistor” of cattle has a lien on any cattle (as defined above) “and any effects left with [him]”, for the value or price of food, care, attendance or accommodation provided for the cattle.
An “agistor” of cattle is considered to be someone (other than a stablekeeper) who, for a money consideration or its equivalent, feeds, grazes, stables, boards or cares for animals.
The Act goes on to say that the stablekeeper or agistor can keep possession of cattle, vehicle, harness, furnishings or other gear, or personal effects of a person indebted to the stablekeeper for boarding or looking after the cattle.
Note that the stablekeeper or agistor must keep possession of the cattle or other article against which he is claiming a lien. He cannot let the cattle go and then claim a lien.
However, the stablekeeper or agistor is required to keep the cattle and effects for three months after he claims the lien. During this time the owner of the cattle can pay for the feed and care to date, thus discharging the lien, and can remove the cattle.
If the owner does not reclaim the cattle during the three months, then the stablekeeper or agistor can sell the cattle and effects at public auction, and can deduct the costs of boarding or looking after the cattle. The balance is to be paid over to the owner of the cattle.
If the owner can’t be found, then the balance of the auction price is to be paid into the Supreme Court and if the owner doesn’t show up in the next year, then the balance is to be paid into consolidated revenue.
The final section of the Act requires a copy of sections 2, 3 and 4 of the Act conspicuously posted in the stablekeeper’s “office and in at least 2 other conspicuous places in the stable”.
Requirement to Sell by Auction
In a recent B.C. case (I.C.B.C. v A.G. (Canada) and Timpany), a stablekeeper sold a truck which had been left with him to pay for board for horses. He failed to sell it by auction. The failure to sell the truck by auction did not allow the previous owner of the truck to recover it.
(Comment - I would NOT rely on this case to suggest that a sale other than by auction is generally acceptable. For a lien to be upheld by a judge, the statute which establishes the lien must be followed precisely.)
Priority on Bankruptcy of the Cattle Owner
In 1979, the judge in Re Estate of Canadian Exotic Cattle Breeders’ Co-operative decided that cattle agistors who also filed a proof of claim as unsecured creditors in the bankruptcy of the cattle owners, had not given up their secured position as lien holders.
Failure to Keep Livestock for Three Months
In 1982, the judge in Eraut v. Baykey and others decided that the defendants were responsible to pay the “true value” for two horses which had been sold by an auction mart six days after they arrived. The owner had not made contact with the auction mart operator to pick up the horses. The auction mart owner was entitled to a lien under the Act, but had to keep the animals for three months before selling them. Not having done so, he was had to pay the true value to the horse owner—which was more than the auction sale proceeds from the horses.
The Alberta Livery Stable Keepers Act, which is somewhat similar to the B.C. Act, says specifically that the right to keep livestock as security for the bill for feed and care is not subject to any other charge of any kind. In other words, the lien for feed and care has first priority on the sale proceeds of the cattle. There is no such provision in the B.C. Act.
The cases also indicate that, unlike other liens, there is no lien at common law (judge-made law from cases, as opposed to statute law) for care and feeding of livestock. In other words, in the absence of a statute, there is no right to keep livestock to pay for the cost of their care and feed.
Where does a British Columbia livestock lien fit in? Does it have priority over s. 427 Bank Act security, often taken by banks over cattle? What about a conditional sale agreement filed under the Personal Property Security Act, a common form of feeder program security?
Common sense dictates that the person supplying care and feed to the livestock should be paid first, because without him there would be no livestock. Unfortunately common sense has little to do with priority of creditors.
Without a common-law lien right or a priority section in the statute, the question of the priority of a livestock lien in British Columbia is, unfortunately, grey. The right to hold the cattle is clear. What is not clear is who gets paid first from the sale proceeds.
The Ministry of Agriculture, through its Abbotsford office, plays a limited role in assisting claimants to enforce lien rights. The Ministry has a declaration form that it provides to lien claimants, intended to help them acquaint sales agencies and brand inspectors with the lien rights being claimed and the steps the lien claimant has taken to establish the lien, complying with the Act.
Of course, no one wants to be responsible to assess the validity of the lien, nor to make decisions about the distribution of the sale proceeds—not the Ministry of Agriculture, not the sales yard, not the brand inspection service. (That is because if someone makes a wrong decision on these points, he or she is likely to be sued and may be liable, an unpleasant and costly experience.)
So, in practical terms, getting the livestock sold and having your lien honoured can become a “negotiating situation”. You must either persuade the sale yard and the brand inspector as to the correct steps to take, or be prepared to start a lawsuit to enforce the lien and/or claim damages from anyone who improperly interfered with the sale of livestock and payment to you of the monies to which you are entitled.