Nearly every state now provides for companion animal trusts, also known as pet trusts.  We think of pet trusts as being used to care for an animal that outlives its owner.   A recent case from the federal court in Connecticut, Mittasch v. Reviczky, however, raises the question of whether an inter vivos pet trust can be used as a way to circumvent breed-specific laws or evade so-called ‘disposal orders’ calling for the animal’s euthanization.  And the case addresses the more basic question of whether inter vivos pet trusts are even valid trusts, at least under New York law.

A ‘disposal order’ was issued for Stella Blue, a Rottweiler that “nipped” a police officer during a confrontation at the dog owner’s home.  Eight months after Stella Blue was seized, the owner created an animal trust under New York law, the property of which consisted of $100 to be used for the care of Stella Blue and another of the owner’s Rottweilers.  Ten days later, the trustee of the trust sued claiming that the Connecticut statute under which the dogs were seized was “overbroad, vague, and facially and as applied unconstitutional” because it permitted the dogs to be “arbitrarily, capriciously, illegally, and unconstitutionally deprived from the Trust.”  How’d the trustee fare?

Not well.  The problem was that the trustee didn’t hold a property interest in the dogs that allowed her to sue over the Connecticut law.  All the trustee held an interest in was the $100 placed in trust for the care of the dogs.  The $100 was trust property and the dogs were trust beneficiaries.  The fact that the trust also purportedly allowed the trustee to place the dogs for adoption or bring suit did not matter because those powers do not create a possessory interest in the dogs.  Nor did the trustee’s claim that she held a “possessory interest” in the dogs pass muster because the court found that the trustee never sought to exercise dominion or control over the dogs.

The federal court also found that the trust was not valid under New York law.  The court determined that New York’s pet trust law only permits such trusts to take effect upon the death of the pet owner.  In other words, the court found that inter vivos pet trusts are not permitted under New York law.

Obviously, the validity of inter vivos pet trusts may vary based on the specific statutes of each state, but it is significant that a Connecticut federal court found that New York law does not allow such trusts, especially since the New York City Bar Association made reference to the possibility of inter vivos animal trusts when it supported a 2010 amendment to New York’s pet trust law.

Another take away from this case is that pet trusts are meant for the care of companion animals, not to hold the animals themselves as property in the trust.  Now, that isn’t to say that the pets themselves, as personal property, couldn’t be held in trust.  But Mittasch v. Reviczky gets us thinking about whether trusts can be used as a way to circumvent breed-specific statutes or ordinances, at least to the extent that those laws merely prohibit someone from “owning” a certain breed.