Horses and the Law
"The Brood Mare Lease"

Disclaimer - This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

“Tis a gift to be simple.”
Shaker Folk Song

The popularity of leasing a brood mare is starting to take hold as more and more breeders enter the picture. The typical situation arises where a stallion owner may wish to breed to a certain mare, or one may simply want to put a mare and stallion together for the sole purpose of owning the foal. In either case, should a lease be considered and what important points should be covered?

A brood mare lease should be considered where the breeder will be in possession of the mare until the foal is weaned. Typically a breeder will take possession and breed the mare and will care for the mare until the foal is weaned, at which point the lessor receives his mare back and the lessee has the foal he wanted.

This situation allows the owner of the mare to save the maintenance expense of the animal during the lease and also receive compensation for the lease itself. This situation is also beneficial to the lessee who is interested in the foal and will only have the expense of the mare until weaning time.

A brood mare lease should be kept simple and to the point, but must cover certain specifics. Of course, the mare must be described by name, age, color, markings and registration, if any. The lease should also state that the mare is being used for breeding purposes only, and that the lessee is responsible for the board, care, feed, farrier and veterinary fees during the term of the lease. The term itself should also be described and generally goes from the date the lessee obtains possession of the mare and runs until the foal is weaned.

The lease should also state the compensation to be paid. I have found it convenient to have two payments made with such a lease; the first payment to be made when the mare is pronounced in foal, and the second when the foal is weaned. (I can’t help you out on the amount of the payment—many times the payment is a reasonable amount considering all other expenses are paid by the lessee—however, bloodlines are an important factor when considering the lease price.)

Two important situations come into play, which must be addressed in every brood mare lease. What happens if the mare does not come into foal? What happens if the mare is in foal but a live foal is not born or does not survive for at least 72 hours after birth? To address the first situation, I use a clause which sets a date whereby a mare must be in foal. If the mare is not in foal by that date, then the lessee has the option to terminate the lease or continue the lease under the same terms and conditions at no additional lease fee at a later time. In either event, the lessee is responsible for the maintenance costs while the mare is in his care. (Maintenance cost is defined as board, care, feed, veterinary and farrier costs.)

In the second situation, where a live foal is not born or does not survive for 72 hours (and must be able to stand and nurse), then the lessee has the option to renew the lease on the same terms and conditions at a later date with no additional fees or terminate the lease, whereby the lease fees will be returned to the lessee, but not the maintenance costs. Also, in order for the lease payments to be refunded, the death of the foal must not be caused by the negligence or lack of care of the lessee, in which case, the lease fees are not refunded.

To satisfy the lessor that his mare is being well cared for, I include a clause whereby the lessor is entitled to inspect the mare periodically and have access to the vet and vet records pertaining to the care and pregnancy of the mare.

The next situation which must be addressed in the lease is, what happens if the mare becomes injured or dies while in the custody of the lessee? The answer is the lessor or owner of the mare generally bears the risk of loss in the event of injury, sickness or death unless the injury, sickness or death is caused by the negligence of lack of care of the lessee in which case the lessee is responsible. I advise the owner of the mare to consider purchasing appropriate insurance, including mortality insurance, on the mare during the term of the lease.

The lessee, on the other hand, must maintain insurance, commonly referred to as care, custody and control insurance, to cover injury or death to persons or damage to property during the term of the lease. There are other clauses I typically include in a brood mare lease involving indemnity, default and waiver, all of which are affected by the law of the state in which the lease is enforced. It is best to check with an attorney when considering such a lease to be certain these clauses are included in the lease.

I have found much variation in brood mare lease agreements. One really is limited by his own imagination in creating this type of lease. For example, I have seen a brood mare lease agreement between the owner of the mare and the owner of the stallion where costs were essentially equally divided, and the foal was considered jointly owned by both individuals. Another example of a brood mare lease called for multiple breedings where the first foal went to the stallion owner and the second foal went to the mare owner.

All of these examples point to the fact that there is more than one way to create a brood mare lease. Whatever two parties can agree to, with careful wording and review, can create a valid and binding lease agreement.

Enough legal talk–it’s time to hitch horses.

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six horse hitch for the past few years at most major shows in the east.

Disclaimer—This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six horse hitch for the past few years at most major shows in the east.