What do a puppy and a Picasso have in common? At first glance, not much. As a general rule, a puppy is not a great investment vehicle. A painting by Picasso, on the other hand, is terrible at snuggling. Very few large corporations put puppies in their office lobbies. And fine art never licks your feet when you are feeling down.
But companion animals and fine art do have one thing in common. They are both considered personal property under the law, much like a toaster or a car. The law of art ownership is evolving, albeit slowly, to recognize the fact that fine art and antiquities are legally distinct from normal consumer goods. Similarly, the law finally seems to be catching up to the fact that pets have feelings and emotional bonds with their owners that put them in a class of possession distinct from other forms of personal property. Many traditional legal means to determine ownership of personal property, however, continue to be woefully inadequate to determine the ownership of a “thing” that has four legs and can run away on the Fourth of July, and probably has very little monetary value.
The current legal framework frequently has caused ownership disputes that can be both legally and emotionally fraught. Due to the vague definitions in statutes, people are often left to cipher through these unclear laws with very limited remedies available to determine or confirm ownership. This is especially true when pets and fine art are acquired through shady means. Fine art, such as the infamous Mona Lisa, is often smuggled and stolen and historically has been pillaged by colonial powers and armies, making ownership determinations maddeningly difficult. Pet ownership faces similar challenges, as owners may lose their furry family members to unscrupulous practices by rescues and others who claim that they are trying to help pets or during the bitter battles of divorce or breakups.
Further, owners face significant financial hardship when trying to determine or clarify their ownership rights. For example, the owner of fine art or a pet that is illegally possessed by another person can sue for a writ of replevin, but the cost of doing so to reclaim a pet is frequently cost prohibitive. One court has observed that “the reported cases for replevin of a pet dog are few, in part because of the legal expense involved in maintaining such an action.” On the other hand, utilizing the cause of action of replevin for fine art can be well worth it due to the significant monetary value if the art or sculpture is from a world-renowned artist.
Many states, by statute, clear the title to a stray pet if the pet is held for a certain period by a municipal shelter or an authorized humane society. These statutes get around the general common law rule that a person who inadvertently loses property retains title. After the statutory holding period expires, the animal may be euthanized or adopted without subjecting the animal shelter or adopter to exposure. Shelter hold periods do not guarantee clear ownership of a pet, however. The law varies by state, and negligence or misconduct, intentional or unintentional, by a shelter might give rise to lengthy legal disputes between the true owners and subsequent rescues or new owners.
For example, in Lira v. Greater Houston German Shepherd Dog Rescue, Inc., the owners’ German shepherd escaped and was found by the City of Houston’s animal control department. Three days later, the animal control department reached out to a local rescue to see if it would accept the German shepherd. Meanwhile, the owners were trying to locate their missing animal. Upon finding out their dog was transferred to the local rescue, they requested the return of their beloved German shepherd, but the rescue refused, claiming it was now the true owner and the owners were neglectful because the dog tested positive for heartworms, was not neutered, and was neither wearing tags nor implanted with a microchip. The owners sued, and the trial court ordered the rescue to return the German shepherd to his owners. On appeal, the decision was reversed, with the court of appeals determining that the owners failed to redeem their dog timely and thus lost their right to possession of their dog. On further appeal to the Texas Supreme Court, the appellate court’s decision was reversed, with the supreme court upholding the trial court’s decision to enjoin the rescue group and ordering the return of the German shepherd to his true owners.
In reaching this decision, the Texas Supreme Court found that the city’s stray hold period did not clear title to the true owners’ right to claim their property. Texas does not have a statutory stray hold period, but at the time Lira was decided, Houston’s municipal code stated:
It shall be the duty of the officer in charge of the animal control center to offer for sale any and all healthy animals impounded under the terms of section 6-102 and not redeemed within three days. . . . The person entitled to the possession of any animal shall be entitled to redeem the same upon paying the purchaser double the amount paid by him for such animal and his reasonable expenses for keeping the same. Any animal not so redeemed within 30 days from the date of the sale shall become the absolute property of the purchaser.
In finding that this provision could not be found to pass title and possession of the dog to the dog rescue, the court reasoned that the term “impounded” did not suggest a transfer of ownership even to a rescue or the loss of the owners’ right to the return of their property, and therefore the Liras retained their ownership rights to their German shepherd.
Some of the confusion in regard to whether and, if so, when a shelter takes legal right to a pet it has held for a period of time stems from the phrasing used in the text of shelter hold laws. Although the laws certainly imply that holding the pet for the relevant period of time clears title, as shown above, the statutes do not unambiguously say so. They generally just state that after the hold period, the shelter can dispose of the animal, typically by euthanasia or adoption, without specifying that ownership of the pet has been transferred by operation of law.
The actions of municipal shelters can also void the transfer of ownership that would typically be allowed following a shelter hold period. In Feger v. Warwick Animal Shelter, the plaintiff claimed that her cat had been stolen and the shelter accepted the cat from a third party with knowledge that the cat had been stolen. The trial court ruled in favor of the shelter, holding that the shelter was authorized by statute to put the cat up for adoption. The owners appealed and were victorious, succeeding on the grounds that the relevant statute only empowered the shelter to accept cats that were stray or otherwise homeless. The court reasoned that if the plaintiff was able to prove that her cat was stolen and the shelter accepted the cat with knowledge of the theft, the statute simply did not apply.
In contrast, in Alvarez v. Clasen, a cat owner sued her neighbors because they had trapped her cat, who was roaming outside, and took the pet to an animal shelter. The shelter later euthanized the cat. The court held that because the cat was outside on public property when the neighbors trapped her, the neighbors had the right to bring the cat to the shelter, which was empowered to “impound any cat . . . found to be at large.” Both the neighbors and the municipal shelter acted in compliance with the terms of the ordinance, so they could not be sued.
All three cases illustrate the difficulties in relying on a shelter hold to clarify title to and ownership of a pet. If the shelter does not comply with the details of the statute, title to the pet may not transfer, and someone adopting from the shelter might be sued in an action to recover the pet. Although statutes mandating impound periods may seem clear, in practice they can be anything but.
Many lost or abandoned pets are placed in new homes without going through a shelter at all. It is common for pets to be given to friends or relatives with no written contract to memorialize a transfer of ownership. Many people find pets on the street and do not bring them to a shelter. The transfer of ownership of pets is frequently informal, adding complications to any disputes that may arise.
To demonstrate ownership by adverse possession, a person must show that they have actually possessed the property in an “open and notorious” fashion, under the belief that the property is theirs, against the interest of the owner, and the actual possession must be uninterrupted for a specified period of time. Most states have codified these rules in some fashion.
The doctrine of adverse possession is more difficult to assert when dealing with personal property rather than real estate. How does one “openly and notoriously” possess fine art or a pet? In California, the period of possession required to adversely possess property is only five years, but California is an outlier. Most states require possession of property for much longer periods. Similar to the cause of action of replevin, adverse possession litigation to clarify ownership of fine art or a sculpture by a major artist can make financial sense, while spending such a sum to recover a kitten, not so much. This is especially true when considering that the possession period may be longer than the lifespan of most pets, making adverse possession a tool of limited utility when it comes to determining pet ownership.
While the law of adverse possession may not be a useful tool for determining pet ownership, state lost property laws might be. Lost property laws generally require a relatively brief period of public notice before title is transferred to the finder (or to the state, depending on the specific laws). But these laws were not written with pets in mind. For example, Connecticut requires that the finder of lost property surrender it to the police, who must keep the property for six months. Not many police departments would be willing to care for a stray cat for half a year to comply with the statute.
However, at least one court has held that a lost property statute applies to household pets. In Morgan v. Kroupa, the Vermont Supreme Court held that the applicable lost property statute could apply. Although the court noted that the reference to “beasts” in the statute clearly referred to agricultural animals and horses, rather than to dogs, the court found that because the pet’s finder had diligently attempted to locate the owner and had cared for the dog for a year, the statutory requirements were met. The court noted:
Ordinary common law or statutory rules governing lost personal property therefore do not provide a useful framework for resolving disputes over lost pets. Instead, courts must fashion and apply rules that recognize their unique status, and protect the interests of both owner and finder, as well as the public. In this regard, the trial court was correct that family law provides an imperfect analogue. However strong the emotional attachments between pets and humans, courts simply cannot evaluate the “best interests” of an animal. Recognizing, however, the substantial value that society places on domestic animals, it is proper that the law encourage finders to take in and care for lost pets. A stray dog obviously requires care and shelter, and left unattended could pose hazards to traffic, spread rabies, or exacerbate an animal overpopulation problem if unneutered. A rule of decision that made it difficult or impossible for the finder to keep the animal after many months or years of care and companionship might deter these salutary efforts, and would not be in the public interest.
Once again, current legal structures come up short in determining pet ownership, but lost property statutes may provide a clearer framework than common law adverse possession.
Alaska, California, and Illinois have enacted legislation directing courts to consider the “well-being” or “best interest” of the animal when determining pet custody in divorce cases. Other states rely on a mixed bag of precedent and judicial discretion when making ownership decisions.
The recent trend in case law is to treat companion pets as more than just property, and to recognize the “cherished status accorded to pets in our society.” Courts have acknowledged the “special place somewhere between a person and a piece of property.” Thus, intangible factors involving the welfare of the animal and the emotional connection between the animal and parties are being increasingly recognized by courts.
This trend, however, is gaining ground slowly. Most pet owners do not have the financial resources to dispute pet custody in a contested lawsuit, much less to bring a case through the appeals process. This is an issue where statutory clarification would be extremely welcome.
Jennings v. Shauck, an unpublished decision out of the Kansas Court of Appeals, is one of the most recent decisions analyzing pet custody and ownership disputes. The pet in question was a show dog named Oscar. Unlike most pet ownership disputes, Jennings appears to have involved two parties with sufficient financial resources to litigate to appeal, which is unusual.
Emily McLeod and Dave Jennings filed a petition to quiet title against Elizabeth (Betsy) Shauck in September 2019. The parties knew each other through Emily’s work as an animal chiropractor. In October 2017, when Betsy’s partner became ill, Betsy asked Emily and Dave to take Oscar and care for him while allowing Betsy to maintain him as a show dog.
Unfortunately, the parties failed to enter into a written agreement to formalize their understanding. According to Betsy, under the terms of the oral agreement, she would “cover Oscar’s breeding, handling, and showing costs and then Oscar would return to Emily and Dave as their permanent pet once his show career ended.” On the other hand, Emily and Dave testified that they understood they would take Oscar as a pet but would preserve Betsy’s ability to show Oscar if she chose to. While the factual record is a bit convoluted, it was clear that Oscar’s guardians did the lion’s share of caring for him.
Betsy’s partner died in August 2018. Betsy began entering Oscar in shows, with a marked increase in shows in 2019. During these times, Oscar was with Betsy and the dog handler at the shows. However, upon each return from the shows, Emily and Dave began noticing Oscar suffering from health issues and losing weight. Tensions began to escalate between the parties, and in September 2019, Dave drove to Virginia to collect Oscar from a show, slipping into the show and surreptitiously taking Oscar from his crate and back to their home in Kansas.
The parties in Jennings had an arrangement that is apparently common among show dog owners but would be very unusual for most pet guardians. The idea that a “guardian home” of a pet where the pet lives with someone who is not the pet’s legal owner is an uncommon situation, most analogous to the situation of a “foster” pet, where a person agrees to take care of a pet for a shelter or rescue while searching for a permanent home.
The bulk of the opinion in Jennings dealt with various procedural issues, but the court went on to analyze the ownership interests of both parties. Betsy had registered Oscar with the American Kennel Club, listing Dave as a co-owner and listing Emily and Dave’s house as Oscar’s residence. The court opined:
Both parties nurture and care for Oscar in ways that are necessary to satisfy their respective goals and derive corresponding benefits from their considerable efforts. Not only was Oscar a delightful addition to Emily and Dave’s family, but he also proved successful in the show ring. Thus, consistent with common law rules governing ownership, neither party enjoys a greater right of possession than the other. This case is illustrative of the concept of co-ownership . . . .
The outcome seems sensible and fair but offers little clarity. Oscar is a Klimt of dogs. Two parties with colorable claims of ownership litigated over their respective legal status, much like one could imagine two museums both claiming ownership of a rare Viennese painting. The court, lacking any clear written proof of title, declared both to be co-owners. Oscar is a rare pup who has multiple people with resources who want to care for him. Less fortunate pets would benefit from statutory clarity that could resolve pet ownership disputes more promptly and less expensively.
Determining the ownership of pets or fine art can be difficult, complex, and contentious. But the laws concerning fine art ownership have been clarified by the courts due to the value of the objects in question. Nobody minds spending $50,000 in attorney fees to secure title to a $10 million painting. Unfortunately, the ownership of pets does not benefit from similarly robust published precedent.
Because ownership disputes are generally only heard by trial courts, the cost of bringing a claim of pet ownership can be very high. Just as society now recognizes that pets are more than mere chattel, society surely can also find an efficient and inexpensive way to adjudicate ownership rights by clarifying the laws defining ownership, transfers of ownership, and loss of ownership rights.
