Americans have a hard time dealing with dying and death and often only deal with estate planning, elder care planning and selection of funeral arrangements when they have no choice, e.g. when death is imminent or already has occurred. The result can be both frustrating and expensive as people are required to make significant economic decisions when emotionally distraught and those decisions can result in tension within the family and long term economic commitments.
Too often this writer has seen families with few resources end up spending tens of thousands of dollars for funeral or cemetery arrangements when the deceased would have protested loudly at the “waste” and no one really determined what alternatives were available. No one in the family wants to be the one to object to the cost with the rest of the family looking on and the professionals in the field, many of whom are well meaning, are certainly not going to suggest less expensive alternatives.
Selecting cemeteries, indeed, knowing how they work and are regulated, is another area few people wish to confront, but the wise family will understand both the commitment and the legal protections inherent in utilizing the services of a cemetery.
It is not only expense. Occasionally, scandalous information comes out as to failure to bury the right person in the right plot or, even worse, selling the same plot over and over, the bodies literally piled upon each other. Is that merely breach of contract? Is it a violation of the law? This article discusses those issues and more.
A cemetery is a place where dead bodies and cremated remains are buried. It is a locale set aside, either by governmental authority or private enterprise. A public cemetery is open for use by the community at large while a private cemetery is used only by a small segment of a community or by a family.
Cemeteries can be the place where the final ceremonies of death are observed. These ceremonies or rites differ according to cultural practice and religious belief. The establishment of a cemetery involves the process of formally designating a tract of land for use for the burial of the dead. It must be set apart, marked, and distinguished from adjoining ground as a graveyard.
A cemetery is not only subject to the laws of ordinary property due to their inherently different nature. Most states have established rigorous laws that specifically apply to cemeteries. Private interests in the place of burial are subject to the control of public authorities, which have the right to require the disinterment of bodies if deemed necessary.
A columbarium is a building containing niches in which urns containing the ashes of the deceased after cremation are placed.
The law contemplates generally two categories of cemeteries, public and private. A public cemetery is one used by the general community, a neighborhood, or a church, while a private cemetery is one used only by a family or a small portion of the community. However, actual public use rather than ownership determines whether a cemetery is public. Thus, a cemetery, though privately owned or maintained, may be deemed a public cemetery if it is open, under reasonable regulations, to the use of the public for the burial of the dead. A cemetery, though privately owned, is properly classified as a “public cemetery” where it consists of a great number of burial plots or sites sold and for sale to the public. Conversely, a family burying ground has been defined by statute as one in which no lots are sold to the public and in which interments are restricted to a group of persons related to each other by blood or marriage.
Note that a municipal corporation may hold property in trust for a public burial ground or in a private or proprietary character as a private corporation. The Federal government provides burial locales for military and other selected federal personnel.
In Garland v. Clark, 264 Ala. 402, 405-406 (Ala. 1956), the court held that for a place to be called a public cemetery, “…the intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his lands for such purpose, are sufficient.”
Cemeteries are normally regulated on the State level.
There are normally statutory provisions which apply to privately operated cemeteries. For instance, Section 5 of the Act of 1903, Ill. Rev. Stat. ch. 21, para. 39 (1951), provides that when a cemetery is a privately operated cemetery, as defined in § 2 of the Cemetery Care Act, Ill. Rev. Stat. ch. 21, para. 64.1 et seq. (1951), enacted by the Sixty-fifth General Assembly, then such a cemetery association shall also comply with the provisions of the Cemetery Care Act. See Union Cemetery Ass’n v. Cooper, 414 Ill. 23 (Ill. 1953).
The Cemetery Care Act enacted in that state provides that these cemeteries are required to secure a license from the Auditor of Public Accounts before acquiring care funds. In order to secure such a license, detailed information as to personnel and finances must be given and the license may be refused if certain specified conditions are not met. A privately operated and licensed cemetery must file an annual report with respect to its care funds. This report must show the income to and disbursements from the fund and list the securities in which the fund is invested. The books of such cemeteries must be open at all times to inspection. In the administration of care funds, privately operated cemeteries are subject to examination, supervision, and regulation by the Auditor who may, upon certain conditions, revoke the license to handle care funds either temporarily or permanently. Before accepting care funds in connection with the sale of a burial space, a private authority must specify in writing the nature and extent of the care to be furnished, for which it must require the deposit of a given amount based upon the sale price or the size of the burial space. Except where excused by the act, these private associations are required to post a bond to insure the proper handling of care funds. Other states have similar laws.
A state may regulate the location of cemeteries through the exercise of its police power by statute directly regulating the location of cemeteries. In California, see Laurel Hill Cemetery v. San Francisco, 216 U.S. 358 (U.S. 1910). Such police power may be delegated to and exercised by political subdivisions or subordinate public corporations of the state, including municipal corporations or health authorities. See Seale v. Masonic Cemetery Asso., 217 Cal. 286 (Cal. 1933).
With respect to governmental regulation of the location of cemeteries, aesthetic, health and property value considerations are of importance. Put simply having a cemetery next door can radically reduce the value of property since many buyers do not want to live next to cemetery. Often, the right to prohibit or limit the location of cemeteries within a certain district or area rests on the proposition that a burial within such district would be injurious to the public health. Some additional reasons for exercising the police power regarding the regulation of cemetery locations are:
- the public welfare in general.
- whether the establishment of a cemetery might disarrange the location of streets and highways and adversely affect civic enterprise.
- the prosperity of the community.
- the adequacy of existing cemetery facilities within a county.
- the character of the community in general. See Laurel Hill Cemetery v. San Francisco, 152 Cal. 464 (Cal. 1907); Alosi v. Jones, 234 Ala. 391 (Ala. 1937); Scovill v. McMahon, 62 Conn. 378 (Conn. 1892); Gordon v. Commissioners of Montgomery County, 164 Md. 210 (Md. 1933).
The right to prohibit or limit the location of cemeteries within a certain district or area often is claimed to rest on the proposition that a burial within such a district would be injurious to the public health. The regulations prohibiting the creation of new cemeteries or the interment of human bodies in established cemeteries located within a densely populated city area are generally valid, if they do not operate unreasonably or arbitrarily. However, similar regulations in sparsely settled localities have been held or recognized to be invalid, where it was not shown that the burials were calculated to impair the public health through their close proximity to housing. The permission to establish a cemetery cannot be made dependent on the arbitrary will of the officers or governing body of that particular place. The principles upon which a decision is to be made must be clearly established.
Regulations as to the location of cemeteries are valid if they do not constitute an impairment of the obligation of contract, do not constitute a violation of the constitutional guaranties of due process or equal protection of the laws, or against the taking of private property for public use without just compensation, or constitute improper delegation of authority.
Abandonment of Cemetery: Legal Effect
A property which has been dedicated or used for cemetery purposes may be abandoned so far as such purposes are concerned, apart from any rights of interested parties to have a cemetery continued as such. See Mayes v. Simons, 189 Ga. 845 (Ga. 1940). The question of abandonment can be inferred from the acts or recitals of the parties, interpreted in the light of all the surrounding circumstances. However, a cemetery is not abandoned as long as it is kept and preserved as a resting place for the dead with anything to indicate the existence of graves, or as long as it is known and recognized by the public as a graveyard. The fact that for some years no new interments have been made and that the graves have been neglected does not operate as an abandonment and authorize the desecration of the graves, where the bodies interred in a cemetery remain therein and the spot awakens sacred memories in living persons. See Dangerfield v. Williams, 26 App. D.C. 508 (D.C. Cir. 1906).
Matters going to the question of abandonment are:
- the actual condition of the cemetery,
- whether the identity of the cemetery has in fact been destroyed, and
- whether the cemetery is recognizable and known to the general public.
Where the family has ceased to visit the cemetery and they have so long neglected to care for it that the ground is no longer recognizable as a cemetery, the family burial ground has been abandoned. Merely because further interments in a cemetery become impossible, it does not lose its character.
However, a private cemetery may be considered abandoned, where through changed conditions or the passage and ravages of time, its identity is destroyed. Tracy v. Bittle, 213 Mo. 302 (Mo. 1908)
This issue can become critical for developers who wish to use the land for new purposes and confront the question as to whether they have the right to alter its use despite its past status.
There is a presumption in favor of leaving the cemetery undisturbed on an application for cemetery relocation. The governing authority must balance the applicants’ interest in disinterment with the public’s and the descendants’ interest in the value of the undisturbed cultural and natural environment. See Hughes v. Cobb County, 264 Ga. 128 (Ga. 1994).
By the claim of a burial lot owner that he/she has a freehold interest in the lot, a cemetery owner will not necessarily be prevented from abandoning its cemetery and from removing the remains of deceased persons buried therein. Petition of First Trinity Evangelical Luthern Church, 214 Pa. Super. 185 (Pa. Super. Ct. 1969). To preserve the cultural heritage of the county and the cemetery, evidence of a lack of maintenance and inappropriate surroundings will support the relocation of a cemetery site.
The right to occupy land with a cemetery and maintained as such is subject to the reasonable exercise of the police power. However, where land becomes no longer suitable for the cemetery use to which it was dedicated because of the surrounding circumstances or changed conditions, the discontinuance of such use may be required by the legislature or a municipality. As a good example, in large cities it becomes necessary to prohibit further interments in certain cemeteries on account of their menace to the public health and also to require the removal of the bodies interred therein. In the abolishment of cemeteries, the legislature has the same power as it has in their establishment. Whenever it becomes necessary, the legislature may by statute direct the discontinuance of a cemetery and the removal of the bodies. It may delegate its power to a municipality, which may enact an ordinance to effect the same result. See Masonic Cemetery Ass’n v. Gamage, 38 F.2d 950 (9th Cir. Cal. 1930).
In this regard, the police power must not be exercised arbitrarily or unreasonably. Where there is a public necessity for the discontinuance, the power to require the discontinuance of the use of a cemetery, necessarily includes the power to determine whether such public necessity exists. The determination of the legislature is conclusive upon the courts.
When the use is terminated and the cemetery abandoned, there is a reverter to the original donors or their legal representatives, free of such use. This rule applies to both statutory and common-law dedications. Reinterments in land that have once been definitely abandoned as a cemetery do not have the effect of preventing a reverter. However, a different situation exists where there is an actual conveyance of lands. In such situations, whether the land reverts to the grantor on the abandonment of the cemetery depends on whether the conveyance was absolute. If so, there is no right of reverter or it constituted a conveyance on condition that the use of the premises for a cemetery be continued. Thereafter, the grantor or one succeeding to his/her rights is revested with title on a breach of the condition.
All this necessarily means that the average family confronting the issue of the permanence of their loved one remaining in the plot face the question of what rights they really have.
Rights to Lots and Vaults
A cemetery lot owner’s rights are contractual and subject to the ordinary rules of contract law. In nearly all jurisdictions, one who purchases and has conveyed to him/her a lot in a public cemetery does not acquire the fee to the soil. He/she acquires only a right of burial therein which has been variously designated as an easement or as a license or privilege. Ebenezer Baptist Church, Inc. v. White, 513 So. 2d 1011 (Ala. 1987).
Put simply, this means you do not own the land or have ownership rights of any type to any particular land. Instead, you have an easement or license to use the land for the purpose of keeping your loved one’s remains there.
It often can only be extinguished by abandonment. When a lot is purchased, the rights of the purchaser are expressed or deemed to be subject to the charter and the rules and regulations or bylaws of a cemetery association or corporation company. However, the rules and regulations adopted by the cemetery proprietor must be uniform and reasonable. If regulations are unreasonable, a person’s agreement to be bound by the rules and regulations is ineffectual. See Hollywood Cemetery Asso. v. Powell, 210 Cal. 121 (Cal. 1930).
To confer an exclusive right to use a cemetery lot, a formal deed is not necessary. Provided the prescriptive holders use the cemetery lot exclusively, continuously, and uninterruptedly, with the actual or presumptive knowledge of the owner, an easement can even be acquired by adverse possession. A cemetery lot may be held by two or more persons in common. Provided there is burial space still available, co-tenants of a burial lot hold it with the right to be buried therein in the order in which they die. The consent of the other co-owners to the burial of their co-tenant therein is not necessary.
Although it is recognized that a stranger to the tenancy may not, as a matter of right, be buried in a lot without the consent of all the co-tenants, where an interment has been made, the courts are reluctant to order the removal of the body. Usually, a burial lot cannot be made subject to partition after bodies have been interred therein as a public policy rule. Locke v. Locke, 291 Ala. 344 (Ala. 1973)
In some jurisdictions, after an interment is made in a burial lot held by an individual owner, the lot becomes inalienable, except by specific devise, or as provided by statute. Moreover, the rules of the company may provide against alienation or subdivision, or there may be an express provision in a conveyance of a cemetery lot to the effect that it may not be transferred except with the consent of the cemetery company. However, an owner may alienate or transfer his/her rights in a cemetery lot prior to any interment therein, in the absence of any regulations, statutes, or other restrictions to the contrary. In the absence of an assignment of sites by the purchaser of a family cemetery plot before death, the lineal descendants of the deceased purchaser have an easement in the unused sites in ground dedicated to family burials. Fraser v. Tenney, 987 S.W.2d 796 (Ky. Ct. App. 1998)
Since the right of the owner of a burial lot has been designated as an easement or license, in the absence of statutory restrictions or contractual conditions to the contrary, the right is one which is devisable and inheritable. The right to devise a burial lot may be limited by statutory provisions restricting the right of alienation and providing for the descent of the lot, upon the death of the proprietor, to his/her heirs at law. A burial lot not specifically devised does not pass under a general or residuary devise, absent a statute. It passes to the heirs at law of the testator as if the testator had died intestate. If the result would be the disruption of the character of the lot as a family burial plot, the lot can be deemed not to pass by will. Robertson v. Mt. Olivet Cemetery Co., 116 Tenn. 221 (Tenn. 1906).
Where a lot is not devised, the heir takes such property right impressed with and subject to the use to which the ancestor devoted it in his/her lifetime, although the title descends to the heirs at law, each of whom takes an undivided interest and the right of sepulture therein. Thus, the heir takes subject to a trust for the benefit of the family.
A burial lot in which bodies have been interred cannot be subject to a mortgage. Moreover, an equitable lien will not be established against such a lot for the cost of materials used in improving it. In some jurisdictions, burial lots are exempt from execution or attachment by statute. United Cemeteries Co. v. Strother, 332 Mo. 971 (Mo. 1933)
Conclusion and Practicalities
Pouring through a contract relating to rights or reading the By Laws of the Cemetery Association are usually not what a grieving family wishes to do. But it is vital to note that one is not “buying land” with inalienable rights when one obtains a lot or vault. The contract and the bylaws do delineate the rights and the ability of the cemetery to be altered, to close, or to move one’s loved one.
This is not inherently unreasonable. Society changes, land use changes, families move away, needs change. Virtually every major city had many cemeteries on their outskirts that are now, due to the growth of cities, downtown, and with few exceptions, the land is needed for development and the cemeteries end up being moved.
As the population grows and land becomes increasingly scarce near cities, one can expect this process to repeat and it is unlikely in the extreme that the cemetery plot you select today will be in existence in two hundred years.
This is difficult for most people and families to confront. We all like to think that the cemetery is forever, that in a thousand years our relatives can still visit the plot, that the deceased will sleep here forever.
In practical terms, it means read the cemetery documents…all of them…and that includes understanding what rights they have to relocate, close the cemetery, etc. Find out precisely what you are buying before you buy it and if you are too upset at the time to do that, find a friend or professional to do it for you.
Many of our clients elect burial of ashes at sea precisely to avoid this entire issue. When asked how they will visit the grave, one client stated, “Every time I look at the sunset and watch the waves, I am visiting the grave. That’s what Dad would have loved in any event.”