Lines from Linda: Whose Leash is it Anyway
BY LINDA AYERS TURNER KNORR
of wanting citizens to take in stray ani- mals that was highlighted in Morgan. Id at 119-123. POTENTIAL LIMITS ON OWNERSHIP INTERESTS IN PETS The most flagrant limitation on own- ership interests in pets in the context of custody is that the traditional property analysis that most jurisdictions utilize leaves no regard for relationships or emotional bonds. There is a clear con- tradiction between how society views the bond between pet and human and the legal system views that relationship. In a recent survey, it was found that 90% of pet owners thought of their pet as part of their family. Jessica Fox, Com- ment: The Use of Agreements in the Resolution of Pet Custody Disputes, 85 UMKC L. Rev. 455, 457 (2017). While the majority of the population finds a strong bond present between them and their pet, the majority of jurisdictions do not acknowledge this. LIMITATIONS BY STATUTE OR REGULATION Other limits on ownership interests in pets include statutes and regulations put in place by the states or local ordi- nances. Pets have much more regulation than other forms of property because they are acknowledged to be corporeal beings that can move, breed and think for themselves. There are four primary limitations derived from local ordi- nances, regulations and state statutes: limitations by registration, behavior, vaccinations and housing. In many areas, dogs are required to have a license or be registered and in some areas cats are required to be regis- tered too. Rebecca J. Huss, Article: Sep- aration, Custody, and Estate Planning Issues Related to Companion Animals, 74 U. Colo. L. Rev. 181, 208 (2003). The purpose of licensing dogs and cats is to reduce the number of animals at shelters by being able to easily identify the pet and reunite the owner with it. Rebecca J. Huss, Article: No Pets Allowed: Hous- ing Issues and Companion Animals, 11 Animal L. 69, 109 (2005). Due to technological advancements, micro- chips now are also being utilized. Id. In summary, mandatory licensing is often required by ordinance or mandate and can often help the local shelters by reducing the amounts of strays turned in to them and aids officials in reuniting owners with their pets. Behavior of pets can potentially be a huge limitation on owners who have feisty creatures. Because animals
can think for themselves, their behav- ior may become aggressive and if a dog is found to have bitten someone, the courts and law enforcement can intervene, take the dog into custody and possibly even euthanize the dog. Rebecca J. Huss, Article: Separation, Custody, and Estate Planning Issues Related to Companion Animals, 74 U. Colo. L. Rev. 181, 208 (2003). Pets’ vocal behaviors can also become a limitation because nuisance laws can restrict bark- ing and howling that “continuously and unreasonably disturbs the peace of oth- ers.” Id at 210. Nuisance laws can also be applied to owner’s maintenance of their pets. If a pet is found to be produc- ing offensive odors and owners cannot control the situation, or if a pet is being kept by their owner in unsanitary con- ditions, nuisance laws will likely apply. Id. In other words, if a pet exercises dis- turbing and continuous behavior, or an owner leaves unsanitary conditions, a nuisance law will likely apply. Many jurisdictions have ordinances and regulations mandating that a pet be given certain vaccines. Most states require that dogs have a rabies vaccine and some areas require that cats are vaccinated for rabies as well. Rebecca J. Huss, Article: No Pets Allowed: Hous- ing Issues and Companion Animals, 11 Animal L. 69, 110 (2005). The rea- soning for having pets vaccinated is to avoid spreading diseases, injuring humans or other pets and to control a potential nuisance. Id. While the idea of a regulation or ordinance that requires you to inject your pet with vaccines may sound off-putting, many parents of human children choose to do this as well and it is often required for public school attendance. As far as owner- ship interest limitations on pets go, this is likely the most widely accepted restriction for both pet ownership and child rearing. Limitations on ownership interests in pets can vary depending on wheth- er a person rents or owns their abode. For those that own their home, there are state and local ordinances that may regulate the number or kind of pet can reside in your home. Restrictions on the number and species of pets in a home can be included in local ordinances or restrictive covenants in subdivi- sions. Rebecca J. Huss, Article: No Pets Allowed: Housing Issues and Com- panion Animals, 11 Animal L. 69, 111 (2005). There are two primary reasons for restrictions on the number and type of pets in a home. First, for restrictive covenants in subdivisions, the restric- tions can “maintain a common scheme
of development,” which is typically desired in subdivisions. Id. This argu- ment is presented most often when the animal in question is not a mainstream pet, but a more unusual species. Id. Sec- ond, regulations limiting the number of pets in the home is a tool for gov- ernments to remove animals from the home in hoarding and nuisance cases without first having to prove animal cruelty. Id. Jurisdictions can also place a ban on “dangerous” dogs in order to protect citizens from dog bites. Id at 110. Owners of condominiums face more restrictions than homeowners because each condominium owner has “both separate ownership of a unit and [an]… interest… in the common areas.” Id at 103. In other words, while condo owners own their unit, their neighbors have an interest in any hallways, stair- cases, sidewalks, or yards. Condomini- ums can place pet restrictions in their by-laws or declarations, which are high- ly enforceable. Id at 104. Renters face even more difficul- ties because “absent a specific statu- tory restriction, a landlord may have a no-pets policy in leased premises.” Id at 98. If a tenant harbors an unwel- come pet, it is a violation of the lease and the tenant may be evicted, forc- ing them to choose between housing and surrendering their pet. Id at 100. However, in cases where there has been open and notorious housing of animals for a period of time, some jurisdictions may allow a landlord’s no-pet policy to be “waived” in some jurisdictions. Id. New York City’s Pet Law, a statutory protection available to renters, has codi- fied this equitable waiver argument and provides: “if a tenant harbors a pet (1) open and notoriously, (2) the owner or his or her agent has knowledge of that fact and (3) the owner or agent does not commence proceeding to enforce the lease provision within three months, then (4) the lease provision shall be deemed waived”. Id at 101. Depending on where an owner lives, there will be different freedoms or regulations that accompany their choice of abode. In other words, on top of the limita- tion that most courts do not recognize the emotional bonds between people and their pets, ownership interest in pets can be further limited by statutes, regulations and rental agreements that restrict your pet’s behavior, number, species, vaccinations, housing and loca- tion. While these limitations seem vast, those planning to own pets can become educated on their local regulations and ordinances and work to avoid some of
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how S ight M agazine , J uly 2018
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