Barks Blog

The Need for a New Legal Definition of Living Property

by Niki J. Tudge

Are Pets Family?

According to The Harris Poll (2015), “nearly all pet owners (95%) … consider their pets to be members of the family.” Yet, legally, pets are still considered property or chattel. “Technically in the eyes of the law, [cats and dogs] are no different from a couch or a car” (Grimm, 2014).

The terms “property” and “chattel” may be defined as follows:

Property: Anything that is owned by a person or entity. Property is divided into two types: “real property,” which is any interest in land, real estate, growing plants or the improvements on it, and “personal property,” sometimes called “personalty,” which encompasses everything else. (The Free Dictionary, 2018).

Chattel: An item of personal property which is movable, as distinguished from real property (land and improvements). (The Free Dictionary, 2018).

Favre (2011) believes people need to reflect more on where pets fall in the world of moral and legal obligations, as well as how they deal with pets as family members in terms of their legal status and our own legal responsibility toward them. Historically, in common law, personal pets were considered separately from the domestic versus wild classification of animals, giving them a “peculiar status” (Noall, 1985). “Pets were considered to be kept for the ‘pleasure, curiosity or whim’ of the owner and of little or no value. Therefore, pets were not considered ‘property’ in the traditional sense. They were also deemed to have no economic value so were not considered property” (Noall, 1985, citing Blackstone, 1765-1769). In 1897, in Sentell v. New Orleans & Carrolton R.R. Co 166 U.S. 698, 701 at the Supreme Court of Louisiana, it was said of dogs that “they are useful neither as beasts of burden for draught nor for food” (Favre, 2011, p. 32). The trend of courts since the 1930s has been to remove this special status given to pets and treat them like other domestic animals, viewing them as property after all (Favre, 2011). Meanwhile, between 1977 and 2000, there was no organized effort to institutionalize the teaching of animal law at American law schools.

In any legal system, the concept of property is fundamental. When something is considered property, it means the owner has the right to control and direct. Across the Unites States, individual state governments control ownership under property law concepts. As such, “either the state courts or the state legislatures are fully empowered to deal with the issue of ownership of animals” (Favre, 2011, p. 30).

The Issue of Sentience

What, then, do dogs, cats, cars and chairs have in common? In states or provinces where pets are still considered movable property, it means that, according to Kinnard (2014), “from a legal standpoint, animals have no more rights than a pair of shoes, and this opens the door to inhumane practices ranging from abandonment to cock fighting.” However, The Civil Code of Québec states that: “Animals are not things. They are sentient beings and have biological needs” (Légis Québec, 2016). The European Union also recognizes animals as “sentient beings,” stating that “Union and the Member States shall … pay full regard to the welfare requirements of animals” (Official Journal of the European Union, 2012). According to Moss (2016), “[i]n 2014, French Parliament reclassified animals as ‘living beings’ instead of simply property. [In 2015], New Zealand passed the Animal Welfare Amendment Bill, acknowledging that animals are ‘sentient’ beings just like humans (New Zealand Legislation, 2013). Under amendments to animal welfare legislation in the Australian Capital Territory in May 2019, all pets were to be recognized as ‘sentient beings with intrinsic value’ (Brewer, 2019). And, in December [2016], the Civil Code of Québec granted animals the same rights as children under its laws.” But the Code also states that: “In addition to the provisions of special Acts which protect animals, the provisions of this Code and of any other Act concerning property nonetheless apply to animals” (Légis Québec, 2016).

What Need Does Pet Ownership Fulfill?

Crowell-Davis (2008, p. 423) states that people choose to own animals “for a variety of reasons.” At its deepest and most profound, however, the relationship between a human and an animal can be deeply emotional.

In its 2019­–2020 National Pet Owners Survey, the American Pet Products Association (APPA) reported that 67% of U.S. households own a pet (an estimated 84.9 million homes).

Areas of expenditure across pet food, supplies and services reflect how pets are increasingly being treated like family members. Pets often sleep in their owner’s bed, eat gourmet food, have their birthdays celebrated, receive seasonal gifts, drink bottled water, receive monthly toy and treat subscriptions, watch pet television and hold club memberships. The Harris Poll (2015) references that “… growing percentages of pet owners are frequently or occasionally buying birthday presents for their pets (45%) and cooking for them (31%), majorities of pet owners frequently or occasionally let their pets sleep in bed with them (71%) and buy them holiday presents (64%). Just over two in ten at least occasionally dress their pet in some type of clothing (22%), while just over one in ten at least occasionally bring their pets to work (12%).” In a similar vein, Saint Leo University, Florida, reporting on the results of a 2018 poll conducted to find out how much Americans planned to spend on their pets in the forthcoming holiday season, quote Waddell, a professor of social work at the university who teaches an interdisciplinary course about therapy and service animals: “We as a nation are embracing more than ever our pets as family members … Many people have substituted their animals for the choice to have children, and thus they lavish their pets as they normally would their own children.”

Some pet owners are also electing to be buried with their pets. In 2016, 56^th Governor of New York Andrew M. Cuomo signed a bill permitting the interment of pet cremated remains in not-for-profit cemeteries, meaning owners can have their pets buried with them if they so desire. The law allows for a variety of animals to be buried with their owners, including cats and dogs (New York State Department of State Division of Cemeteries, 2016).

Pets as People

Grimm (2014) observes that: “Pets aren’t just becoming more like people in our laws and homes. They’re also becoming more like people in our society. Every year, they take on more roles and more responsibilities, providing critical services in our increasingly dangerous and fractured world.”

In addition, when pets’ lives risk being negatively impacted for any reason, humans often step in to prevent them from coming to any harm. For example, in the aftermath of Hurricane Katrina in New Orleans, Louisiana, in 2005, the findings of a poll by The Fritz Institute (2006) found that 44% of New Orleans residents chose not to evacuate because they refused to abandon their pets. When Hurricane Harvey moved into the Houston, Texas, area in 2017, laws were enacted quickly to allow pets to accompany residents into shelters. A dozen years later, Katrina is viewed as a watershed moment in planning for pets during natural disasters. It changed federal and state policies and, as a result, the federal government started to encourage the rescue and protection of family pets during natural disasters. Additionally, animal advocates and experts say, it made it clear that Americans have widely embraced the idea of dogs and cats as family members (Brulliard, 2017).

In 2015, the Huffington Post published a piece by Hodgson, “Re-Classifying Dogs as Sentient Beings: It’s Time, America, It’s Time.” The author also references the aforementioned Civil Code of Québec, stating that it has “welcomed pets into the circle of ‘sentient’ beings by granting them many of the same rights as children in the eyes of the law,” and it “lifts the legal status of specific animals from mere property, i.e., inanimate objects like toaster ovens and iPhones that can be manipulated any which way, to sensitive, emotional beings that require nurturing and respect.”

States Berns (2013), a professor of neuroeconomics who completed the first fMRI scans of dogs’ brains: “Dogs have long been considered property. Though the Animal Welfare Act of 1966 and state laws raised the bar for the treatment of animals, they solidified the view that animals are things—objects that can be disposed of as long as reasonable care is taken to minimize their suffering. But now, by using the MRI to push away the limitations of behaviorism, we can no longer hide from the evidence. Dogs, and probably many other animals (especially our closest primate relatives), seem to have emotions just like us. And this means we must reconsider their treatment as property.” McDonald (2014) agrees: “If Canis lupus familiaris can be shown to have emotions, and a level of sentience comparable to that of a human child, there is a moral imperative to reassess how they are treated under law.”

The solution to a moral imperative such as this is not an easy one, however. Crowell-Davis (2008) references the Journal of Consumer Research and cites Hirschman, who “groups the reasons for pet ownership into six categories”:

1. Some people have pets so that they can perceive and relate to them as humans (i.e., the animal is a companion, friend, or family member). This is the most common reason for pet ownership.
2. Some people have pets as pieces of equipment. These animals serve a function, such as protecting, herding, or hunting.
3. Some people have pets as avocations, exhibiting or showing them. These animals are perceived as property to be bought and sold.
4. Some people have animals as status symbols.
5. Some people have animals as ornaments (e.g., koi, birds with colorful plumage). These animals are kept specifically for their esthetic value.
6. Some people consider animals to be objects in their environment that function as extensions of themselves. This relationship may be a subconscious one.

Owner vs. Guardian

Blouin (2013) studied the variations in dog owners’ attitudes toward their pets in terms of interactions and their treatment. He concludes that the relationship pet owners have with their pets is one of three orientations:

1. A dominionistic relationship where owners have a relatively low regard for their pets, seeing them only for the value they provide; a function such as protection work.
2. A humanistic orientation whereby owners elevate their pets to a status, such as surrogate human. The pets are valued for the benefits they provide to their owners resulting from a close relationship and attachment.
3. A protectionist orientation where owners have a very high regard for their pets and, in fact, all animals in general. Pets are viewed as highly valuable companions and are creatures with their own interests.

Blouin’s study reflects a wide variation in how owners consider and value their pets, ranging from having functional value to being seen as a companion who deserves to have his or her own interests protected. Indeed, if one were to ask pet owners how they would like their pets to be classified, there would most likely be a vast array of opinions varying from one end of a continuum to another.

Owner, guardian, and parent are the most commonly used terms to describe the relationship between pets and their humans, and there have been some efforts to redefine the relationship between the two parties by taking on board the term “guardian” as a replacement for the word “owner.” Pet owners “in 17 cities, one state, and two counties in California can legally refer to themselves as animal guardians” (Nolen, 2011). Yet, according to Favre (2010) as documented by Nolen (2011), “[y]ou can’t just change a word and expect the whole legal system to change.” According to Nolen (2011), citing Dennis, “the appeal of guardianship is the suggestion it will somehow result in less animal abuse and neglect.” Dennis also identifies problematic legal implications: “To lawyers, ‘guardian’ has a considerable amount of legal significance. Ownership and guardianship are not matters of semantics; they’re not interchangeable terms” (Nolen, 2011).

States Berns (2013): “One alternative is a sort of limited personhood for animals that show neurobiological evidence of positive emotions. Many rescue groups already use the label of ‘guardian’ to describe human caregivers, binding the human to his ward with an implicit responsibility to care for her … If we went a step further and granted dogs rights of personhood, they would be afforded additional protection against exploitation. Puppy mills, laboratory dogs and dog racing would be banned for violating the basic right of self-determination of a person.” However, Berns (2013) suspects society is “many years away from considering dogs as persons.”

Crowell-Davis (2008, p. 428) determines that a pet owner’s reasons for having a pet are also likely to “significantly affect his or her tolerance of various behavior problems.” If this is the case, then surely the legal determination for a pet needs to take into consideration, not just the factor of ownership, but also a degree of responsibility to their mental, physical and environmental well-being.

For owners, the concern regarding the legal classification of pets may stem largely from some, or all, of the following:

• When pets are considered property, it does not take into consideration that they are not inanimate objects, but sentient beings.
• With one’s own property, one has full rights to do with it as one pleases. This will not always be in the best interest of a pet and is entirely dependent on the decisions of the individual owner.
• If the legal status were to change and pets were universally given rights in the same way children are, then this could impact the liability issues of pet “ownership” insurance and/or pet medical insurance and may bring with it an overbearing ability for authorities to more easily remove a pet from a home or take custody of a pet without perceived due process.
• As pets are legally considered property, responsible and caring pet owners can make important and unchallenged decisions on behalf of their pets such as medical care, behavior modification and euthanasia, should it be necessary.
• As property, irresponsible pet owners may neglect the needs of a pet up to and including taking his life in what some would deem an inhumane manner.

Legal Times Are Changing

In 2000, the city of Boulder, Colorado, “made history” when it added the word “guardian” to the “section of its municipal code addressing animal ownership. It was the first instance of a city referring to the legal relationship between a person and a pet as something other than owner and property” (Nolen, 2011). The reasoning behind this change was the belief that, if residents believed they were pet guardians, it would positively impact how they treat their pets.

In the case Rego v. Madalinski (2016-Ohio-7339), where a dog was attacked by another dog, the Ohio Sixth District Court of Appeals held that, while it is “undisputed that Ohio classifies dogs as personal property … pets do not have the same characteristics as other forms of personal property, such as a table or sofa which is disposable and replaceable at our convenience.” The court also highlighted the fact that “various courts and law review articles have discussed the plausibility of reclassifying companion animals under a ‘semi-property’ classification suggesting such terms as companion property, or sentient property.”

For families that are going through any kind of separation, legal disputes may erupt over pet ownership. As a result, pets are sometimes now detailed in divorce settlements with both parties keen to remain the sole guardian of their four-legged family member, or, at least agreeing to joint custody. Given that pets are legally personal property and capable of human ownership and control, divorce courts used to always rule in favor of the human. But McLain (2009) presents that “because pets are becoming such a big part of our lives, some courts are beginning to change this analysis, and are willing to treat pets more like children. To date, this has primarily occurred only with dogs. Courts are now taking into consideration the best interest of the pets in determining who gets custody of them.” There are also cases where pet guardians are awarded shared custody and/or visitation rights, with alimony payments being made from one partner to another (McLain, 2009).

In 2017, the Illinois State House “passed a law that would force divorce courts not just to divvy pets up between their ‘parents’ in a custody battle, but to think about their well-being, too … Illinois is only the second state to adopt a law that would consider the well-being of animals in custody battles. [In 2016], Alaska became the first to amend its divorce statutes so that judges are now required to consider it in their judgments. They can also assign joint custody over an animal” (Monyak, 2018). In California, on January 1, 2019, a law went into effect requiring judges to “consider an animal’s interests in divorce proceedings and allow joint ownership of a companion animal” (Quirk, 2018). Says Assembly Member Bill Quirk, who introduced the bill: “The signing of AB 2274 makes clear that courts must view pet ownership differently than the ownership of a car, for example. By providing clearer direction, courts will award custody on what is best for the animal. I am proud that [California] Governor Brown, as a fellow pet owner, agrees that we need to alter our view of pet safety and animal welfare.” Says Favre (2018) of the new law: “Before it was an issue of who owns the dog and how you distribute the property. But pets aren’t quite the same thing as china and sofas. They’re more like children, in that they’re living beings who have their own preferences.” The California law defines a pet as “any animal that is community property and kept as a household pet” (Gregorian, 2018).

Living Property

Conventional price theory and standard economic accounts of tort and contract law assume that property rights are fixed. Merrill (2002, p. 331), in his paper on the evolution of property rights, explains that “property regimes are not static but change over time.” Given the assumption of fixed property that otherwise prevails in economic literature, this makes it very challenging to explain property rights or set new meanings to existing law around the context of property rights.

McLain (2009) suggests that, “[i]f the law is expanded in the future, questions such as which relationships and species should qualify for greater protection under the law will need to be answered.  One good starting point for discussing a solution is Michigan State University College of Law’s animal law professor David Favre’s concept of ‘living property,’ which he defines as ‘physical, movable living objects—not human—that have an inherent self-interest in their continued well-being and existence.’” According to Favre (2010) himself, “our legal system already accommodates a number of animal interests within the criminal anti-cruelty laws and civil trust laws. To make a more coherent package of all animal-related public policy issues, it is useful to acknowledge the existence of a fourth category of property, living property.”

Tischler (2012) also cites Favre, referencing his advancement of “the idea that property in an animal can be divided between legal and equitable title and the equitable title can be transferred to the animal.” Indeed, Favre (2010) asks: “What if some of the objects, some of the property, have interests independent of the humans who own them? This raises a conflict that is different from the usual individual human versus individual human or individual human versus human society conflicts with which the law most often struggles. However, this is not a universal problem with property; it arises only in the case of a special category of property, living property.”

Summary

In the past, the concept of the Five Freedoms has been considered the gold standard of animal welfare that falls under human control and has since been adopted by a number of related groups and organizations. The concept originated in Brambell’s (1965) report looking into the welfare of animals kept under intensive livestock husbandry systems in the United Kingdom, which stated that farm animals should have the freedom to stand up, lie down, turn around, groom themselves and stretch their limbs (Brambell, 1965). These Five Freedoms were modified in July 1979 under the direction of the Farm Animal Welfare Council to include animal behavior.

The Five Freedoms propose the following for the adequate welfare of agricultural animals:

1. Freedom from hunger or thirst by ready access to fresh water and a diet to maintain full health and vigor.
2. Freedom from discomfort by providing an appropriate environment including shelter and a comfortable resting area.
3. Freedom from pain, injury or disease by prevention or rapid diagnosis and treatment.
4. Freedom to express (most) normal behavior by providing sufficient space, proper facilities and company of the animal’s own kind.
5. Freedom from fear and distress by ensuring conditions and treatment which avoid mental suffering (Brambell, 1965).

Building on the Five Freedoms, Favre (2011) developed a list, which he referred to as his own “ponderings,” to help initiate discussions regarding the rights of pets. These state that pets should:

1. Not be held for or put to prohibited uses
2. Not be harmed
3. Be cared for
4. Have living space
5. Be properly owned
6. Own property
7. Enter into contracts
8. File tort claims

For the purposes of this work, we expand on each point and flesh out what we believe to be its context and purpose:

1. Prohibited Uses: Pets should not be held for or put to prohibited uses, such as blood sports, research, captivity.
2. Not Be Harmed: Pets should not have pain or suffering inflicted on them.
3. Be Cared For: A pet’s emotional, environmental and physical well-being is a priority and requires a minimum level of care to constitute being “cared for.”
4. Have Living Space: Pets should be provided with adequate space to ensure sufficient and appropriate physical and mental enrichment.
5. Be Properly Owned: If a pet is not living under the conditions of the first four points, then he may be removed from the owner.
6. Own Property: The rights for a pet to be legally gifted assets to protect his current or future well-being.
7. Enter into Contracts: Should a pet be included in a contract for breeding, sale or some other scenario, then that contract represents the best interests of the pet.
8. File Tort Claims: A pet can sue a human if the human violates one of the pet’s primary interests. This would cover a pet’s legal rights, e.g., if their guardian bequeaths them property or cash to look after them.

Nonhuman animals have “interests of their own that deserve to be nurtured and protected from human harm, both in the consideration of ethical acts and the laws that we humans implement on their behalf” (Favre, 2010, p. 1070). Further, “… those of us at the heart of the animal law movement envision a world in which the lives and interests of all sentient beings are respected within the legal system, a world in which animals are not exploited, terrorized, tortured, or controlled to serve human whims or purposes” (Tischler, 2012).

References

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Tischler, J. (2012, July 1). A Brief History of Animal Law Part II (1985-2011). Stanford Journal of Animal Law and Policy (5) 27. Retrieved January 1, 2019, from https://www-cdn.law.stanford.edu/wp-content/uploads/2018/05/tischler.pdf

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This post was adapted from Tudge, N.J., Nilson, S.J., Millikan, D.A. & Stapleton-Frappell, L.A. (2019). Pet Training and Behavior Consulting: A Model for Raising the Bar to Protect Professionals, Pets and Their People. Chapter 2: Living Property—The Need for a New Legal Definition (pp. 22–36). DogNostics Career Center Publishing. The book is available for purchase here.