Who Owns a Cemetery?

An article in the Cowley (Kansas) CourierTimes highlights a frequent question: Who owns a cemetery?

Actually, in many parts of the U.S., most cemeteries have clearly identified owners. Municipal cemeteries are owned by the town or city. The local Catholic cemetery is obviously owned by the Catholic Church and other cemeteries may be owned by other religious organizations, fraternal organizations, while some others are owned by corporations or by non-profit cemetery associations. However, there are thousands of other cemeteries where ownership is not clearly defined.

One such case is the small, rural Liberty Cemetery in Arkansas City, Kansas.

NOTE: This is confusing as the town is called Arkansas City but it is located in Kansas, not Arkansas. See https://en.wikipedia.org/wiki/Arkansas_City,_Kansas for the details.

The question of ownership arose recently at an Arkansas City Board of Education meeting when a group of people with family ties to the small, rural cemetery asked the board to take action. The cemetery is surrounded by private property and has no access road, and the district only recently discovered that it owned the property and has been struggling over what to do with it.

You can read more about the quandary in an article by John Shelman in the Cowley CourierTimes at http://bit.ly/2J8N2e7.

You can also read more about the Liberty Cemetery in the Kansas GenWeb site at: http://www.ksgenweb.com/cowley/cemetery/Liberty/liberty.html.

7 Comments

This becomes interesting in the case of a cemetery that sells plots in exchange for perpetual care. The effect of that sale is to place title to that plot in the name of the purchase and his/her descendants. In other words, the “owners” of such a cemetery would be all of the people (and their descendants) to whom a plot has been sold and the cemetery entity that would hold title to the “common areas.”

Descendants can be interred in the plot as long as there is room and as long as they can prove their line of descent from the purchaser. The cemetery takes the role of “landlord” or “community association” since the only legal title retained by the cemetery would be to the “common areas” not sold as plots.

This is an area of the law that has not been tested in the courts as far as I can tell. But it would seem that any “sale” by the entity acting as owner of the cemetery to a third party would be subject to the title of each plot holder. The cemetery “landlord” holds a fiduciary duty to the plot holders not to take any action contrary to the rights of those plot holders (and their descendants). That leads to the very interesting question whether it is even possible to sell the cemetery to a third part without getting the signature of every living representative of every plot in the cemetery.

Certainly, I would go to court promptly to defend the right of all living plot owners to be consulted about a proposed sale, as well as their right to approve or disapprove the sale, if there was a proposed sale of a cemetery where I had an ownership interest in a plot..

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    The concept of “perpetual care” appears to now be a very gray area. In my locality, Albany, NY, most of the managers and caretakers of various cemeteries express to me that perpetual care now means that they simply keep the grass mowed. I have cemetery records for some of my ancestor’s plots that show that they paid steep prices for this care; fast forward to the present day and lawn mowing is all that is done.

    Obviously most cemeteries do not have extra funds for correcting leaning gravestones and depend on grants from the State to repair/restore gravestones that are in danger of falling. I have asked about the status of gravestones that have already fallen over and I was told that if a stone has already fallen and is on the ground and not a danger to anyone, there it stays until the family hires a professional to restore the stone. Most people that I know and including myself feel that the payment for perpetual care should include this type of work. Sadly it does not today; perhaps 80 years ago it might have.

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By the way Arkansas City is pronounced: “R-Kansas” City. Most of us here in Kansas just refer to it as Ark City. My daughter lives there I will have to do a little research on the subject myself.

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This happened to me when I went to Rome, Floyd Co Georgia to do some research, when we got to the library and found out we had a family cemetery we went in search of it. No one knew where the cemetery was, we were lead in so many directions but never found it, when we got home from our trip someone on my facebook page said that the cemetery is privately owned and they won’t let anyone on the property. This person did go and take pictures of the over grown mess and did have some photos of my family tombstones. Later I learned that people were going there to clean it up as the owner either died or gave permission to go onto the property.

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    I was in the same situation as you. Looking fir the ownwers if the property wherethe Settle & Farley family cemetery was located in Lamar county Georgia. I went to the courthouse snd spoke to the Property Tax office. They informed me that no one owned the cemetery. Apparently all cemeteries in Georgia are supposed to be separately platted just to avoid access problems. Now I know I can go there without trouble and begin to clean it up.

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In the Diocese of Pittsburgh, there are Diocesean Cemeteries and Parish Cemeteries. The difference is those that are Parish Cemeteries are owned and managed by the respective parish while the others are owned and managed by the Diocese. However, in the past year, the parish cemeteries management is now under the Parish Cemetery Association of the Diocese, thereby relieving the Parish the responsibility of that function due to the merger of the parishes that will be announced in late April 2018 and implemented beginning in October of this year.

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Code of Virginia: § 57-27.1. Access to cemeteries located on private property; cause of action for injunctive relief; applicability.
A. Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; and (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both.
There are some restrictions and common sense requirements but access is guaranteed in Virginia.

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