A few years ago, my husband and I spent our weekends driving around looking for a retirement property. We wanted to relocate to the Blue Ridge Mountains for the culture, beauty, and plentiful wildlife that the area offered. On one outing, we stopped in a real estate office in Boone, North Carolina, and after talking with a realtor about the type of property we were looking for, we set out to look at a couple of properties in the area.
Our first stop was a 30-acre tract with a farmhouse and outbuildings. The house was unoccupied, but we were more interested in the lay of the land than the house, which was older and in need of updating. The realtor mentioned that most of the acreage was in the back of the property and ran up the side of a small mountain. He neglected to mention that the property came with a little something extra, tucked out of sight unless you walked the property.
We followed a rutted, narrow road—what looked to be an old logging road—that wound through the woods and up a fairly steep hill. After going a hundred yards or so, we came to a small cleared area with a falling-down iron fence around it. As we got closer, we could see that it was an abandoned cemetery. Some of the headstones had fallen over and were covered by fallen branches and brush. The burial dates we could make out were in the early to mid-1900s. We were not expecting to find an old family cemetery. When we mentioned it to the agent later, he told us, rather matter-of-factly, that it was the family burial place of the original owner, who had long since passed away.
We didn’t buy that property, but I was intrigued about what might be involved with having a family cemetery on your property—especially when it was someone else’s family. Even though the cemetery clearly wasn’t being maintained, the people buried there probably have descendants, some of whom are probably still alive and possibly living in the area. Picturing a carload of people driving through what could have been our land to visit the graves of long-lost loved ones gave me pause. I wondered if there were laws governing old cemeteries on your land.
After some research, I found out that before World War II, it was common, especially in rural areas, for families to bury family members in a corner of their property. Today, every state has its own set of laws governing the rights of family members of the deceased who are interred in private cemeteries. If you’re thinking about buying a property that hosts the remains of prior owners and their family members, it would serve you well to do some research to find out what the laws are in that state regarding family cemeteries before signing on the dotted line.
One of the core tenets of private property is the right to exclude people from unlawfully coming onto our land. Yet, in most states, the descendants of people buried on the property have what’s called an “implied easement” to visit that property. This arrangement came into play when the landowner permitted a relative to be buried on the property—doing so implied that any relative of the deceased, present or future, has the right to visit the gravesite of their family member. This right is protected by statute in about a quarter of the states, largely in the South.
The laws regarding the treatment of cemeteries on private property are all over the map, if you’ll pardon the pun. Texas may have the most onerous laws in the country governing cemeteries on private land, even if there is only one grave on the property. Elsewhere in the country, there’s a commentary on applicable regulations in Florida, a link to the laws in Missouri, a friendly, Q&A-styled version for Virginia, and a nifty handbook from South Carolina.
As with any major investment, doing your due diligence before buying a property is your best protection. The most important thing to know is that most states do not consider an abandoned family cemetery on your property to be “yours,” regardless of whether or not you hold the title. It’s also against the law in all 50 states to move any remains without going through legal channels, which can be complicated and expensive. Since rules governing this process vary around the country, it’s best to review cemetery laws at the state level.
If you’re interested in buying a property with a family burial plot, a title search of the county land records may turn up a “reservation of rights” to the cemetery in the chain of title. Such a reservation in a deed is generally not considered to convey any type of ownership—it’s more an agreement that allows family members or other beneficiaries to make burials, visit, and maintain the cemetery. The recorded reservation of rights remains in effect until the cemetery is deemed legally “abandoned” and the remains relocated.
More frequently, though, such reservations signifying the existence of a family cemetery on the land are rarely recorded. In such cases, the courts have upheld that cemetery rights are “implied,” and the relatives of the deceased may have the rights to visit, access adjacent land from and to, and be buried in the family cemetery. As long as the relatives’ use and purpose are reasonable, the purchaser has little remedy to prohibit those perpetual rights after the closing.
Having a family cemetery on your property can be a pretty cool thing—a connection to local culture and history; it can also come with its own set of headaches. Make all the ghost jokes you want, but those phantoms from the past can come back to haunt you.