How to Get a Dog Back from an Adopter
by a Rescue Attorney , 1996
What is the best way to ensure that Rescue can reclaim a dog from an adopter who is not living up to the conditions agreed for the dog's care ?
This material was posted to a dog rescue e-mail list in 1996 by a highly experienced Rescue person who is an attorney. I am using it here with the author's express permission but , by the author's explicit direction, without an authorship byline. I have also substituted R*** for the name of another rescuer who had recently sucessfully reclaimed a dog by going to court to do so. R*** then suggested to the list that a "co-ownership" clause might be the magic words to ensure the ability to reclaim a dog from an adopter who was not living up to the adoption agreement. The attorney's response below recommended a different mechanism, that of "conditional sale" as being enforceable but without the liability problems that could arise from a co-ownership.
As with any legal information, this article is NOT a substitute for consultation with a good dog law attorney. Laws vary by state and country.
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Unless you have a contract that has a "Superior Title" clause and a reservation of rights to check back on the dog you cannot get the dog back legally. The "Superior Title" clause makes you *co-owner*. A reservation of rights gives you the right to check on the dog but...you cannot just go get it without being co-owner. --- from R*** , who had sucessfully reposessed a dog from an adopter
Could you actually post us the exact "magic words" to use in your contracts? --- asked (by me) in response
Speaking as a lawyer , I doubt that the magic words are "co-ownership" [although they may well be in some States, since the laws vary so] As a general proposition, ownership, co- or otherwise, imposes some obligations and responsibilities that I don't think rescues want to have on their shoulders. What if the dog harms someone -- or someone's property -- years after you have placed it? Or if it's (real) owners ignore some important health or safety requirement?
I think the more accurate term would be a "conditional sale":
"We are turning over all ownership rights to this dog to you, Adopter, for X consideration ($) and for your promises to do the following: feed, take to a vet, do not chain outside, etc.. If you fail to do these things -- same as if your check bounces -- the transaction is null and void and we have the right to reclaim the dog. And the Adopter specifically agrees to these conditions."
So what you, the rescue, are left with is not ownership but, rather, contractual rights, which can be enforced in a breach of contract action.
Our contracts are worded -- more smoothly -- in that fashion and they contain a "right to reclamation" clause:
"We, rescue, have the right to reclaim physical possession of the dog if learn that these conditions are met."That gives some "colorable" authority for you to take one of your dogs that is chained outside, for example -- you might be told you shouldn't have but it isn't too likely you'll be charged with theft. On the other hand, if you went into the person's house to get the dog, or personally harassed them into giving it back to you, you could be violating some other laws, so go easy on the "self-help".
The best approach, I feel, is to have a stong, clear contract -- skipping the legal terms like "ownership" but being very clear about (1) what the Adopter has to do with regard to future treatment of the dog and (2) that you are conveying the dog with the right to reclaim if these things are not done.
Then, if something does go sour and the dog isn't conveniently running stray or chained out for hours on end, get some hard EVIDENCE that the conditions were violated and go to court or to the sheriff or some other legal authority and start an action to get the dog back that way -- basically breach of contract action, tho the name will be different in different states.
Possession is the key - no doubt about it. But it doesn't give the Adopter *all* the rights. Likewise, having possession is a great advantage to the rescue group, but not if other laws are violated in the process of acquiring it.
What is REALLY needed is some litigation where rescues go to court to get back an animal --- that creates precedent, if it's favorable, and tells you what else you need to do, if you lose. And given the scarcity of law on this subject, precedent (or lessons learned) from one State can be used in the courts of another -- not legally binding but some good guidance for the judge. And even if you LOSE and cannot reclaim a dog, the fact that you are willing to go to court to enforce your conditions related to the dog's future health and well-being will say volumes to others who adopt from you. Think about it -- would you get a dog from someone and feel free to neglect it if you believed that that someone would take you into court once you did? Even if you thought you might not have to give the dog back in the end, who wants to be hauled into court?
I'm willing to bet that R***'s successful fight to get a dog back (Congratulations!!!) has had a "ripple effect" and prevented the need to go to such lengths in other cases. In almost any field of law, a person's - or an attorney's - actual willingness to go to court if necessary carries a powerful, often convincing message of its own.
If R*** and others would give us some details about successful court battles -- date, court, name of the case -- then we would have some encouragement and amunition to undertake our own when it becomes necessary.
I've done research into breeder contracts and all cases I can find dealing with rescue --- and there aren't many!! Which means that some sensible, carried-through-to-the-end litigation by rescues could have a powerful role in shaping the "law" of this area. Now that we have the Internet and lists like this one, we can pool our rescources and knowlege and make it more likely that we will succeed. That's why I went on and on so about the Musto puppy mill closure ---- the more people are aware of what it takes and that it can succeed with a specific sort of evidence, or with this or that sort of contract, the more likely they are to undertake a similar effort.