What Are The Laws Regarding Cemetery Plot Ownership?
Cemetery plot ownership laws, similar to those relating to burial and cremation, are designed for the benefit of both the deceased and the survivors. The owners of cemetery plots in Virginia should have some knowledge of these laws. It is important to know about these laws when it comes to decisions affecting burial decisions, but also for matters involving disputes over the burial, care or disposal of deceased human remains.
When a cemetery plot is purchased, two things happen. A written contract of sale is made and the relevant real estate is transferred by deed . An interment right is also granted to the purchaser and as a result of that grant, the purchaser (or his assigns) has exclusive possession of the plot for burial purposes. The Virginia Cemetery Plot Ownership Act governs the power of disposition granted by the interment right.
This act provides that no interment shall be made other than in a grave or a crypt with the written or oral consent of the cemetery plot owner or a person acting on his behalf. The act requires that the cemetery owner use ordinary and reasonable means to contact that person. It is also the responsibility of the cemetery owner to first provide any funeral director with information regarding the cemetery plot ownership.
How You Prove Ownership
Owners of cemetery plots are typically issued contracts and deeds, executed by the cemetery owner, formally recording the terms of the sale, sometimes with additional details regarding the specific location of the plot. This contractual documentation may also list the owners of the cemetery plot, and in some cases, contains certain reservations or restrictions regarding the use and care of the plot. In the absence of an explicit reservation or restriction, the owner of a cemetery plot has exclusive rights to possession and control of such property, subject only to reasonable regulations promulgated by the cemetery operator. An exception exists where a husband and wife purchase a cemetery plot, in which case, the spouse of the deceased has certain rights with regard to interring the decedent in the grave as well as making memorial decisions in the absence of certain restrictions. Despite the contractual documentation evidencing ownership, the laws of descent and distribution apply in determining the actual owner. Generally, ownership passes to the decedent’s heirs or as provided in the decedent’s will. Subject to cemetery rules, another will be permitted to be interred in an occupied grave.
A cemetery operator has a statutory duty to inter the decedent in the grave indicated in the deed and execute a certificate of burial. In order to do so, the cemetery operator must be furnished with a number of documents, including the burial permit issued by the Department of Health for that specific site.
With limited exceptions, no burial may be made in a cemetery plot that has not been paid for in full, unless the cemetery operator has given its express consent that a payment plan arrangement would be established. Such payment plan arrangements are valid only where no better proportion of the purchase price has already been made.
Transfer And Inheritance Of Cemetery Plots
It is generally accepted that when cemetery plots are purchased, the seller retains a future interest in the plot as the property of the cemetery. For this reason, when there is a sale or other transfer of a cemetery plot, proof of consent of the cemetery owner is generally required.
Occasionally, a deed will reserve an interest in the cemetery property. In that case, both the grantor (seller) and the grantee (buyer) should sign the deed, or the grantee will have to sign an agreement recognizing the seller’s (reserve) interest.
The fundamental principle is that the cemetery is ultimately responsible for the use of its property. Hence, it has certain property interests even when they are not expressly reserved in the deed.
As opposed to common private property, which may be bought and sold without reference to a reserve interest, cemetery plot reservations have been variously held to be determinable, conditional, and based on the contract itself.
At one time, New York courts held that cemetery plot reservations were in the nature of easements and that the grantors’ interests were through easements. That view has been largely abandoned and in recent cases are held to be cornered with determinable fees. Moreover, even when a cemetery plot is initially conveyed in fee simple, reservations can be created (see below). The importance of the status of the reservation can be critical. If the deed creates a fee simple, then once title vests in the grantee, the grantor has no further interest in the property other than a revertable interest. Unless the deed contains a covenant against encumbrances, he grantee is free to encumber, dispose, or otherwise alienate the property as if he were the full owner of a parcel of land.
However, if the deed creates a determinable fee, the grantor has a right of entry/reverter, which permits him to recover the property upon breach of any condition in the deed without the necessity of going to court. Providing that the disposition was not intended in any way to confer ownership, but merely to give the grantee the right to use the property, he could enter.
If the deed creates a conditional interest in the grantee, the grantor must go before a court to enforce the agreement. In this circumstance, the intent to create a transitory interest in the grantee to lapse as a matter of law is critical. If the court determines that the intent was to create a conditional interest, that interest is treated as revocable and can be lost through excessive delay in its exercise.
In order to preserve its financial interest, many cemeteries have deed reservation clauses so that when the grantee (often the decedent’s heirs) sells, transfers, or otherwise conveys the property, it must return to the seller/cemetery. This type of reservation is valid and will be enforced so long as it is uniform and clearly stated.
State Laws And Regulations
Cemetery plot ownership laws can indeed differ from state to state, sometimes significantly. While some laws may seem intuitive, others can be obscure and unexpected. For instance, for many states, the ownership of a cemetery plot is not necessarily the same as owning property in a traditional sense. For example, some state laws regarding cemetery property state that it is held in fee simple, but still subject to certain restrictions and conditions; others are freehold but subject to an easement in favor of the cemetery association; still others provide that ownership is subject to the laws of escheat.
An important principle that all ownership of cemetery property is subject to is that the cemetery has a substantial and compelling interest in the preservation and protection of burial places. In other words, the cemetery that the owner selects (whether it be a private cemetery or public) has the easiest path to challenging the deed or granting document for a cemetery plot. As such, if there is a dispute regarding genealogy or the location of lots, the cemetery owner will generally have a superior position to that of the lot/burial right owner.
Some examples of the differences in cemetery ownership rules can be seen in the following states:
New York
In New York State, the New York Cemetery Law goes into detail about the rights, responsibilities, and remedies of an owner or lot/burial right deedholder. In this state, cemetery lots are typically referred to as "plots," and the memorials a person owns is considered the "deed" of their plot. According to the general law, cemetery lots are conveyed by grant or conveyance containing the words "lot" or "grave" (New York PL § 2911). The statute is interpreted in the following way: The owner of a cemetery lot , grave or burial right may rest in peace after a judicial sale has been completed pursuant to article six of the real property action and proceedings law, and after the expiration of a period of six months after service of notice upon the owner of an easement or other restriction pursuant to section 2901 of this chapter, unless an action is commenced within such period of time to set aside the sale, or unless the cemetery institute of religion or cemetery corporation or individual selling officer shall determine that such grave, lot or burial right is unlawfully conveyed (New York PL § 2912).
New Jersey
New Jersey state law provides that any conveyance of a burial right shall be considered a deed, whereas any conveyance of a niche is called a "niche deed," and they are both subject to the laws of the State of New Jersey, allowing for cemetery companies to create general rules and restrictions that govern both burial rights and niches (NJ PL § 8:5-29a-d). New Jersey also specifically lists the rights of burial rights deedholding (NJ PL § 8: 5-42).
California
California law establishes that burial rights are property in the same manner as any real property (Cal Civil § 873.1(a)). This means that an owner has the ability to transfer their interest in the property via sale or gift. California also gives owners of burial rights the ability to have their burial rights respected and enforced by civil action against the cemetery (Cal Civil § 873.1(b). Although California statutes recognize burial rights as property, the California legislature is not always in agreement with this characterization. Additionally, the State of California has specific rights and duties of burials rights deeds and owners and the cemetery owner of the property. (Cal Civil § 873.1(c).
Disputes And Litigation
Given the importance of cemetery plots for the deceased, it is not surprising that inter-family disputes frequently arise concerning their disposition. The most common sources of cemetery plot disputes are:
The existence of multiple claims to one burial plot;
A dispute over the legal heirs to a cemetery plot; and
A dispute over the transfer of a plot after the death of the original owner.
Multiple Claims – Sometimes multiple claims to the same burial plot arise by family members who have completely different understandings of the family’s history and relationships. These disputes can usually be resolved without litigation through negotiations that explore the merits of the factual basis for the parties’ competing claims.
Disputes over Heirs – Who inherits a burial plot when a sole plot owner dies can become a highly charged legal issue. Under common law principles, the owner of a burial plot has the right to determine who gets buried there. However, once the owner dies, the right to decide passes to his or her heirs. If the decedent had a spouse and children, the spouse generally has a right to the wife’s burial plot, while the children can assert their interests in the wife’s burial plot only if they have no living parent. However, whether a spouse or child of the deceased is entitled to use the plot for their burial depends in large part on the factual circumstances of the family. For example, while children typically have the right to bury themselves or their children in funeral plots or vaults, if the decedent never had any contact with the children, the cemetery may require that the children pay for a burial.
Disputes over the Transfer of the Plot – Even if the owner of a burial plot is still alive, transfer of the plot to a third party may be challenged if the original owner had no authority to pass on such rights. To resolve such disputes, a court may be required to interpret the decedent’s will and determine whether the testator intended all of his or her children to be treated equally.
Defending Your Rights As A Cemetery Plot Owner
The stakes are high when it comes to cemetery plot ownership. Unlike other real estate holdings, plots are often owned by generations and can pose unique legal challenges when it comes to their use, sale, or inheritance. Therefore, being an informed owner is crucial when it comes to protecting your rights in a cemetery plot.
First, make sure to keep comprehensive records. All deed transfers should be stored with important family documents, such as wills and trusts. Keeping all transfer documents organized will make it easier to determine the lineage of a particular plot after time has passed. All burial permits issued by the local municipality should also be kept on file. It’s also a good idea to keep a record of any other owners of the plot, such as spouses and other family members .
Second, be sure to familiarize yourself with cemetery laws in your area. While most states have similar laws about the sale and transfer of cemetery plots, there can be substantial differences. For example, some states may have laws preventing the reallocation of plots that have been sold, while others allow for rich profit. Also, state laws can affect how the court appoints guardians for incompetent plot owners or the terms of cemetery easement agreements.
Third, seek legal advice as necessary—this is especially true if you think that a cemetery company is trying to take advantage of you. If you have any questions at all about cemetery law, especially about your rights as a plot owner, be sure to consult with a qualified attorney from a reputable firm.