Replevin is proper action to be brought by an owner seeking return of his or her pet when the pet “ha[s] been wrongfully distained, or otherwise wrongfully taken or … wrongfully detained”. See 735 ILCS 5/19-101. In a replevin action, “the court shall issue an order of replevin if plaintiff establishes a prima facie case to a superior right of possession…and if plaintiff also demonstrates…the probability that she will ultimately prevail on the underlying claim of the right to possession.” Koerner v. Nielsen at 164. Thus, if one can prove ownership through adopting or purchasing a pet, or by a validly made gift, then return of the pet will be granted.
Pets are taken or wrongfully withheld from their owner in a few different situations. Most commonly, these disputes arise between people that have a prior relationship of some sort and there is a miscommunication. Often times when parties cohabitate, they do not have a cohabitation agreement in place. A cohabitation can clarify ownership of pets and who should retain ownership (sole or shared) if the relationship ends.
Procedurally, an action of replevin is used in cases where the “property” (yes, pets are considered property), can be moved, identified, and returned. In Illinois, someone initiating an action for replevin can notify the other party of the action and wait until the court makes a ruling on ownership and then request the Sheriff to recover the pet for you, or the person can ex parte (without notifying the other side) ask the court to order the Sheriff to recover your pet and later decide ownership after its return. If the later scenario, the applicant must show the court that the other party is most likely going to hide the pet, sell it, kill it, or remove it from the state unless the Sheriff acts immediately and that notifying the other party in advance of seizure will result in potential loss of the pet or make it harder to recover the pet. The applicant must post a bond if the pet is to be seized from the defendant in advance of the case being decided by the court, in case the court rules that the party claiming ownership is in fact not the owner.
This first case is about a couple who previously cohabitated and then broke up. In Koerner v. Nielsen, Defendant alleged that the dog was gifted to him by Plaintiff. The Court found that the dog was indeed a gift to Defendant which, in turn, shifted ownership of the dog from Plaintiff to Defendant. To establish that a gift was made, the Court had to find that: “(1) an inter vivos gift had occurred; (2) [the giver] had not revoked the gift prior to delivery; and (3) the burden of disproving a completed inter vivos gift lies with the party challenging the gift.” Id at 162.
The facts of this case are as follows: Plaintiff purchased the dog, Stig, in 2010 for $95. Two months later she wrote a poem illustrating her intent to gift the dog to her then-boyfriend with whom she was cohabitating. Two years later the parties broke up and Defendant took the dog with him. Plaintiff then filed an action for replevin claiming ownership of Stig.
Plaintiff asserted that she revoked her donative intent (intention to make a gift to her ex of the dog) and that delivery (a requirement for making a valid gift) of the dog to Defendant never occurred.
Defendant argued that he took “exclusive dominion and control” of Stig, which Platiniff acknowledged, and that his acceptance of the gift was assumed. However, Plaintiff’s name was still on the microchip records, veterinary records, and she paid most of the costs pertaining to the dog’s care and health.
Even with acknowledgement that the Plaintiff’s name existed on various documents, the Court clearly stated that: “[m]ere documentary title is not conclusive of ownership.” Koerner v. Nielsen at 165. While it is important, as a pet owner, to keep all documents showing title of the animal, receipts from veterinary visits, microchip registration, and the like, documents such as registration documentation create only a prima facie presumption of title. Unfortunately for Plaintiff, in the end, the Court held that Plaintiff failed to show with “clearing and convincing evidence” that the gift was revoked, and Defendant was able to keep Stig.
This second case is about a dog who was purchased from a breeder, but later boarded at the breeder who wanted to show the dog professionally.
In Buczkowicz v. Lubin, Plaintiff and her husband, who later passed away, purchased a dog from a breeder who shows dogs professionally. Plaintiff asked Defendants to board her dog while she was on vacation. While the dog was in Defendants’ possession, they realized the dog’s potential to be shown and enlisted a dog trainer and handler to prepare the dog for shows. The trainer said that he would not work with the dog unless permission was granted by Plaintiff since only owners could show dogs pursuant to the rules of the American Kennel Club.
Plaintiff agreed and, in order to effectuate the preparation of the dog for showing, she signed over the registration papers to Defendants. It was Plaintiff’s belief that she could terminate this arrangement at any time. The Defendants argued that since they registration papers are in their name, they have ownership of the dog. However, there was sufficient evidence to rebut the presumption of their ownership when Plaintiff testified that “she had no intention of transferring actual ownership of the dog…and that she had Mrs. Lubin’s name added to the registration merely to facilitate the showing of the dog.” Buczkowicz v. Lubin at 203.
These two cases show that intent of the parties is key to any replevin pet case and that the court will weigh this heavily.
Cari Rincker has extensive experience in a wide variety of animal law cases, especially replevin cases. She is also a trained mediator and available to mediate disputes involving animals.
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."