The first burial transforms a parcel of land.
Once dedicated as a cemetery, the land becomes frozen in time, unable to be developed. The property owners cannot desecrate or change the land in a way that disturbs interred remains. Instead, the property owners are sort of like trustees holding the property for the benefit of those people buried or entitled to be buried in the property. Therefore, the property owners must allow family members to access the site.
That may sound like the end of a cemetery’s story right there. But there’s more involved if your clients are buying or selling property with at least one grave on it.
2018 Texas REALTORS® Chairman Kaki Lybbert bought and co-owns a cemetery in Grand Prairie and is knowledgeable about cemetery issues. 2014 Texas REALTORS® Chairman Dan Hatfield specializes in farm & ranch properties and has sold land with cemeteries on them. Here is information they have learned about handling final resting places.
Most of the time, this issue comes up with farm & ranch properties—large tracts of land may have old homesteads on them, and those old homesteads may have cemeteries.
“For sellers, the rule is disclose, disclose, disclose,” Hatfield says. “If you have a cemetery, no matter how old it is, you need to disclose to whoever is buying it any pertinent information. Let them know if anyone has ever asked to see the grave, because the buyer would need to grant permission for the family to access it.”
Cemeteries often show up on property surveys. Many cemeteries—even small ones—appear in online databases such as findagrave.com and billiongraves.com, Lybbert says.
For sellers, the rule is disclose, disclose, disclose. If you have a cemetery, no matter how old it is, you need to disclose to whoever is buying it any pertinent information.
– Dan Hatfield
Sometimes, property owners are surprised to learn there’s a cemetery on-site. Perhaps the owner hired someone with a bulldozer to clear brush and the bulldozer operator accidentally damaged a hidden burial site. In that situation, the owner could face legal liability, Hatfield says.
“Nothing will prevent you from being sued, but at least if your client didn’t have any knowledge at all, and the operator of the bulldozer didn’t know, their testimony can help them defend themselves,” he says.
Typically, the first thing property owners do when they find a cemetery—or when buyers purchase property with a cemetery—is to fence it off. This keeps farm animals from getting in and damaging the graves, Hatfield says.
Maybe Not Forever…?
The only way to remove a cemetery or apply any other use to the property, according to Section 711 of the Texas Health and Safety Code, is to have the cemetery dedication removed by a district court or if the cemetery is enjoined or abated as a nuisance.
“It is a real process to relocate graves: you need to contact all of the survivors, post the notice, and remove the graves and move them to another cemetery, among other tasks. For an individual landowner, you wouldn’t really do it,” Dan Hatfield says, adding the only time it happens is when there’s a project large enough to undertake the effort.
Property owners could also clean up the site by, say, cutting the grass, but they are not required to. Whatever your clients do, they cannot dismantle or destroy the graves. There are several offenses described in Sections 28 and 42 of the Texas Penal Code related to disturbing and damaging human burial sites that are punishable by fines and jail time.
Hatfield recommends that buyers learn everything they possibly can about the cemetery because they will have to grant access to the graves. “Understand who the relatives are … how often they come out there … does the family do an annual pilgrimage to the site?”
Cemeteries are not considered a benefit to a property buyer since you cannot develop that land. “It’s not a positive unless you are into Halloween or something,” Lybbert jokes.
That said, having a cemetery on a property is not a dealbreaker most of the time, according to Hatfield—just so long as everyone gets all the information they need and understands what’s required of them.
“For 95% of these transactions, there’s not an issue in the world, and most people are very respectful. It’s not a big deal. For that 5% who want unlimited access to the site and everything else, you should know what your rights are. Be very aware that there are burdens that go along with what you have to deal with.”
There are buyers who purchase properties with cemeteries to get into the cemetery business, Lybbert says. Beyond selling plots, cemetery owners can make money offering burials, urns, monuments, tents for funerals, and other services related to the ceremony.
Even a small, 6-acre cemetery like the one Lybbert owns has a lot of capacity. “You figure there’s 43,000 square feet in an acre, and a cemetery plot is about 3 feet by 10 feet … 43,000 square feet divided by 30— that’s a lot of spots, even though it’s a very old cemetery and we’ve got graves dating back to the 1870s.”
When it comes to cemeteries, can anyone be buried there, or is it only for a certain family? There are differences between public and private cemeteries a property owner or prospective buyer should know about.
Public cemeteries allow anyone to be buried there and typically have a dedicated public access by easement. Maybe the public has its own entrance to the site, or the cemetery is accessible from a public road.
Private cemeteries could be small family plots in the interior of large tracts of land. In this case, state law requires the landowner to allow access to the cemetery during reasonable hours. There are provisions outlined in Section 711 of the Texas Health and Safety Code related to allowing access.
The cemetery could be carved out of the property if the cemetery can be accessed from a road. Most of the time, the cemetery is in the interior of the property, Kaki Lybbert says.