If a stray cat or dog is on my property in Virginia and I call animal control, do they have to take it away?

Plain-English summary

A stray dog wanders onto someone's lawn. The owner calls animal control. Does the officer have to come pick it up, or is it discretionary?

Delegate Robert Orrock and Senator Adam Ebbin asked the Attorney General to map the rules. Attorney General Herring's answer worked through Virginia's Comprehensive Animal Care Law one provision at a time.

The framework that emerged:

1. Mandatory seizure (Va. Code § 3.2-6562). The officer MUST capture and confine a companion animal of unknown ownership "running at large" if the animal is required to be licensed and the license fee hasn't been paid. "Running at large" includes being off the owner's property. So an unlicensed stray dog on someone else's property triggers the duty. But this only applies to dogs (4+ months old, required to be licensed statewide) and to cats in jurisdictions that have adopted a local ordinance requiring cat licensure. Other companion animals (rabbits, hamsters, etc.) are not required to be licensed in Virginia and so do not trigger mandatory seizure.

2. Discretionary seizure of dogs/cats not on their owner's property (Va. Code § 3.2-6585). For a dog or cat on someone else's property regardless of licensure, the officer "may take" the animal, notify the legal owner, and hold pending return. This is the discretionary backstop that covers licensed animals.

3. Discretionary seizure for abandonment or cruelty (Va. Code § 3.2-6569). For any animal (companion or otherwise, owned or not, anywhere) that has been abandoned, cruelly treated, or is in such a condition as to pose a direct and immediate threat to its life, safety, or health because of an apparent violation of the Animal Care Law, the officer "may" seize and impound and commence judicial proceedings.

The opinion ties the seizure power to the property-owner context. If a property owner calls about an unlicensed dog on her lawn that isn't hers, the officer must seize it. If the dog is properly licensed and obviously belongs to a neighbor, the officer has discretion but no mandatory duty.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Comprehensive Animal Care Law has been amended several times. Verify current statutes (especially the cat-licensure rule and the definition of "running at large") before relying on any specific rule mentioned here.

Common questions

If a stray dog shows up in my yard, do I have to take it in?

No. Animal control is the appropriate channel. Their duty to capture depends on whether the dog is unlicensed (which they presume if there's no collar with a license tag).

What counts as "running at large"?

The Animal Care Law defines it (in the context of local ordinances) as "roaming, running or self-hunting off the property of its owner or custodian and not under its owner's or custodian's immediate control." So being on someone else's property generally counts.

My city doesn't require cats to be licensed. What happens to a stray cat in my yard?

The mandatory seizure rule doesn't apply because the cat isn't required to be licensed. The officer can still seize the cat under § 3.2-6585's discretionary authority, but it's not a duty.

What if the animal looks injured or starved?

The cruelty/abandonment seizure rule (§ 3.2-6569) is triggered. The officer may seize the animal regardless of species, location, or ownership, and the case goes through the judicial process the statute prescribes.

What about livestock or wildlife?

The Animal Care Law's definition of "companion animal" specifically excludes agricultural animals and game species. Different rules apply.

Background and statutory framework

Virginia's Comprehensive Animal Care Law lives in Va. Code §§ 3.2-6500 to 3.2-6590. The Law authorizes localities to employ animal control officers (§ 3.2-6555) to enforce its provisions and any local ordinance enacted under it.

Three separate seizure provisions apply to companion animals:

• § 3.2-6562: mandatory ("shall") capture and confine of unlicensed companion animals of unknown ownership running at large
• § 3.2-6585: discretionary ("may take") of a dog or cat on the premises of a person other than its legal owner
• § 3.2-6569: discretionary ("may seize and impound") of any animal that has been abandoned, cruelly treated, or threatened

Mandatory licensure under § 3.2-6524 applies to dogs four months and older statewide. Cat licensure depends on a local ordinance. The Animal Care Law does not authorize licensure of any other category of companion animal.

The definition of "running at large" is in § 3.2-6538 (in the context of local ordinances): "roaming, running or self-hunting off the property of its owner or custodian and not under its owner's or custodian's immediate control." Although it's defined in the local-ordinance context, Herring read it as guiding how courts would evaluate § 3.2-6562 seizure decisions. The "absent special circumstances" caveat acknowledged edge cases.

Section 3.2-6533 establishes a useful evidentiary presumption: any dog or cat not wearing a collar with a valid license tag is presumed unlicensed. So an officer can act on the presumption without proof, subject to later challenge.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. §§ 3.2-6500 to 3.2-6590 (Comprehensive Animal Care Law)
• Va. Code Ann. § 3.2-6500 (definitions)
• Va. Code Ann. § 3.2-6503 (basic care)
• Va. Code Ann. § 3.2-6524 (dog and cat licensure)
• Va. Code Ann. § 3.2-6533 (license tag presumption)
• Va. Code Ann. § 3.2-6538 ("running at large" definition)
• Va. Code Ann. § 3.2-6543 (more stringent local ordinances)
• Va. Code Ann. § 3.2-6555 (employment of animal control officers)
• Va. Code Ann. § 3.2-6562 (mandatory capture of unlicensed at-large animals)
• Va. Code Ann. § 3.2-6569 (discretionary seizure for abandonment/cruelty)
• Va. Code Ann. § 3.2-6585 (discretionary seizure of dog/cat on another's premises)
• Andrews v. Shepherd, 201 Va. 412 (1959) (meaning of "shall")
• Bd. of Supvrs. v. Countryside Inv. Co., 258 Va. 497 (1999) (Dillon Rule)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/Orrock_Ebbin_15-016.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
October 2, 2015
804-786-2071

The Honorable Robert D. Orrock, Sr.
Member, Virginia House of Delegates
Post Office Box 458
Thornburg, Virginia 22565

The Honorable Adam P. Ebbin
Member, Senate of Virginia
Post Office Box 26415
Alexandria, Virginia 22313

Dear Delegate Orrock and Senator Ebbin:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether animal control officers in Virginia have statutory authority to remove an animal from private property in response to a complaint from the property owner.

Applicable Law and Discussion

The Comprehensive Animal Care Law (the "Animal Care Law") authorizes localities to employ animal control officers to enforce its provisions and any ordinance enacted pursuant to it. It includes one mandatory and two permissive provisions regarding the seizure of companion animals by animal control officers. The power of an officer to seize animals depends on: (i) the type of animal; (ii) the circumstances in which the officer finds the animal; and (iii) local ordinances enacted pursuant to the Animal Care Law.

In a defined set of circumstances, an animal control officer is required to seize and hold companion animals under § 3.2-6562 of the Code of Virginia. For these companion animals, "it is the duty of animal control officers 'to capture and confine any companion animal of unknown ownership found running at large on which the license fee has not been paid.'" Each provision must be met before the animal control officer is required to confine such a companion animal under this section: there must be a companion animal of unknown ownership for which licensure is required, the license fee must be unpaid, and the animal must be running at large.

The Animal Care Law provides for mandatory licensure of all dogs four months of age or older, but it requires licensure of cats only upon adoption of a local ordinance requiring the same. It does not authorize licensure of any other category of companion animal. Accordingly, animal control officers are not under a duty to exercise capture authority under § 3.2-6562 unless the animal is an unlicensed dog four months of age or older or a cat required to be licensed by applicable local ordinance. The animal control officer may presume to be unlicensed any dog of the requisite age, or any cat in a jurisdiction where cats must be licensed, so long as the animal is not wearing a collar bearing a valid license tag.

"Running at large" is not a term for which the Animal Care Law provides a general definition in § 3.2-6500. However, in authorizing localities to adopt certain ordinances prohibiting dogs from running at large, it defines running at large to mean "roaming, running or self-hunting off the property of its owner or custodian and not under its owner's or custodian's immediate control." It is reasonable to infer that this definition would guide a court's evaluation of a seizure decision under § 3.2-6562, such that only a dog (or, in an appropriate local jurisdiction, a cat) which is found "roaming, running or self-hunting off the property of its owner or custodian" would be subject to seizure by the animal control officer.

Because the central element of "running at large" is being off the owner's property, it is my opinion that, absent special circumstances, a companion animal on the property of some other person would be "running at large."

Therefore, if an animal control officer receives a complaint from a property owner of a companion animal of unknown ownership for which licensure is required on the owner's property, and if the officer determines the animal to be unlicensed, it is my opinion that he must seize and take control of the animal under § 3.2-6562.

Two other provisions of the Animal Care Law provide animal control officers with discretionary authority, but not a duty, to seize certain companion animals in certain situations. First, an animal control officer "may take" a dog or cat on the premises of a person other than its legal owner, notify the legal owner of the seizure and hold the animal pending its return to the owner. By its terms, this statute allows, but does not require, an animal control officer to seize a companion animal for which the proper licensure fee has been paid if that cat or dog is not on the premises of its legal owner.

Second, an animal control officer may "lawfully seize and impound any animal that has been abandoned, has been cruelly treated" or, because of an apparent violation of the Animal Care Law, is in "such a condition as to constitute a direct and immediate threat to its life, safety or health." Should an animal control officer receive a report of an abandoned, cruelly treated or immediately threatened animal and, after investigating the circumstances, determine the animal to be in such condition, the officer may seize the animal pursuant to § 3.2-6569 and commence the judicial process required thereunder. Such seizure done in accordance with § 3.2-6569 is, by the terms of the statute, permissive and is not dependent upon the licensure status, type of animal, ownership, or location of the animal.

Conclusion

Accordingly, it is my opinion that an animal control officer is under a duty to remove an unlicensed companion animal from a property owner's property upon complaint from the property owner, where the animal is not owned by the property owner. Removal is to be by capture and confinement. In order to be deemed unlicensed, the animal must be a dog or a cat. If a dog, the animal must be four months of age or older, and, if a cat, only if the locality has adopted an ordinance requiring licensure of cats. If the companion animal is licensed, the officer has the discretion, but not the duty, to capture and confine it. If an officer captures and confines an animal, the officer must notify the owner. If any animal, whether a companion animal or not, and whether or not owned by the property owner, has been abandoned, cruelly treated, or immediately threatened because of an apparent violation of the Animal Care Law, the officer may seize it and commence the appropriate judicial process for abandoned animals.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General