M&P’s Branden Gross recently contributed a timely and important article on family cemetery rights to the Kentucky Land Title Association’s monthly newsletter. The following article appeared in the October issue:
With Halloween fast approaching, it is an appropriate time to discuss the dark side of real estate: the private family cemetery. According to the Kentucky Department for Local Government, there are over 13,000 identified cemeteries in Kentucky. Our rural landscape is scattered with both well-tended and long neglected private family cemeteries, and the rights associated with those private cemeteries can haunt the living decades later.
Courts have found that family cemetery rights are created as a license, privilege or easement depending upon the scope of the rights. Most purchasers have a title examination of the land run prior to closing, which would disclose any reservation of family cemetery rights in a recorded deed or plat. Unfortunately, there is rarely such a reservation found in a deed or plat signifying the existence of a family cemetery on the land. In that case, the Courts have consistently found that cemetery rights are implied, and the relatives of the deceased may have the right to visit, of access over adjacent land from and to, and to bury in the family cemetery. As long as the relatives’ use and purpose is reasonable, the purchaser has little recourse to prohibit those perpetual rights after the closing.
It behooves the purchaser to act with extra due diligence to ward off the possibility of locating a family cemetery after closing. First, the purchaser may physically search the land for a family cemetery, and the purchaser may request an affirmative representation from the seller that none exist. Second, the Kentucky Historical Society maintains a database of cemeteries in Kentucky, including identified family cemeteries, http://www.kyhistory.com/cdm/ref/collection/LIB/id/493, and the purchaser is able to search that website by county to locate any family cemeteries on, or in the vicinity of, the land. Third, some counties have cemetery preservation boards, which should maintain a list of cemeteries in the county. Fourth, the purchaser may obtain a survey of the land which meets the American Land Title Association (ALTA) minimum details for an ALTA/ACSM Land Title Survey, which would show all family cemeteries disclosed in the public records supplied to the surveyor or located during the process of conducting the survey.
Regardless, Purchasers need to ward off the possibility of private family cemetery issues prior to closing to avoid possibly being haunted for decades.