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Property Rights In Lots or Vaults

A cemetery lot owner’s rights are contractual and subject to the ordinary rules of contract law[i].  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[ii].  It can be extinguished only by abandonment[iii].  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[iv]. 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[v].

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 be acquired by adverse possession.[vi]  A cemetery lot may be held by two or more persons in common[vii].  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[viii].  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[ix].  A burial lot cannot be made subject to partition after bodies have been interred therein as a public policy rule[x].

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[xi].  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[xii].  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[xiii].  In the absence of an assignment of sites by the purchaser of a family cemetery plot before death, the lineal descendants or parentelic relatives of the deceased purchaser have an easement in the unused sites in ground dedicated to family burials[xiv].

The right of the owner of a burial lot has been designated as an easement or license.  In the absence of statutory restrictions or conditions to the contrary, the right is one which is devisable and inheritable[xv].  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[xvi].  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[xvii].  If the result would be the disruption of the character of the lot as a family burial plot, the lot is not deemed to pass by will[xviii].

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[xix].  Thus, the heir takes subject to a trust for the benefit of the family[xx].  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[xxi].  In some jurisdictions, burial lots are exempt from execution or attachment by statute[xxii].

[i] Spencer v. Flint Memorial Park Ass’n, 4 Mich. App. 157, 144 N.W.2d 622 (1966).

[ii] Ebenezer Baptist Church, Inc. v. White, 513 So. 2d 1011 (Ala. 1987)

[iii] Boyd v. Brabham, 414 So. 2d 931 (Ala. 1982)

[iv] Hollywood Cemetery Asso. v. Powell, 210 Cal. 121 (Cal. 1930)

[v] Nicolson v. Daffin, 142 Ga. 729 (Ga. 1914); Bash v. Fir Grove Cemeteries, Co., 282 Ore. 677 (Or. 1978)

[vi] Ebenezer Baptist Church, Inc. v. White, 513 So. 2d 1011 (Ala. 1987)

[vii] Anderson v. Acheson, 132 Iowa 744 (Iowa 1907)

[viii] Silvia v. Helger, 75 R.I. 397 (R.I. 1949); Mohnkern v. Gennert, 136 N.J. Eq. 86 (Ch. 1945)

[ix] McAndrew v. Quirk, 329 Mass. 423 (Mass. 1952); Lewis v. Walker’s Exrs, 165 Pa. 30 (Pa. 1894)

[x] Locke v. Locke, 291 Ala. 344 (Ala. 1973)

[xi] Masonic Cemetery Ass’n v. Gamage, 38 F.2d 950 (9th Cir. Cal. 1930); Gallaher v. Trustees of Cherry Hill Methodist Episcopal Church, Inc., 42 Md. App. 186 (Md. Ct. Spec. App. 1979); In re Estate of Turkish, 48 Misc. 2d 600 (N.Y. Sur. Ct. 1965)

[xii] Hollywood Cemetery Asso. v. Powell, 210 Cal. 121 (Cal. 1930); In re Seattle, 59 Wash. 41 (Wash. 1910)

[xiii] Spencer v. Flint Memorial Park Asso., 4 Mich. App. 157 (Mich. Ct. App. 1966)

[xiv] Fraser v. Tenney, 987 S.W.2d 796 (Ky. Ct. App. 1998)

[xv] Quesenberry v. Meginniss, 70 Md. App. 320 (Md. Ct. Spec. App. 1987); Boyd v. Brabham, 414 So. 2d 931 (Ala. 1982)

[xvi] Masonic Cemetery Ass’n v. Gamage, 38 F.2d 950 (9th Cir. Cal. 1930)

[xvii] McPherson v. McKay, 205 Ark. 1135 (Ark. 1943)

[xviii] Robertson v. Mt. Olivet Cemetery Co., 116 Tenn. 221 (Tenn. 1906)

[xix] Wright v. Hollywood Cemetery Corp., 112 Ga. 884 (Ga. 1901); Kerlin v. Ramage, 200 Ala. 428 (Ala. 1917).

[xx] McAndrew v. Quirk, 329 Mass. 423 (Mass. 1952)

[xxi] Locke v. Locke, 291 Ala. 344 (Ala. 1973); Kerlin v. Ramage, 200 Ala. 428 (Ala. 1917)

[xxii] United Cemeteries Co. v. Strother, 332 Mo. 971 (Mo. 1933)

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