Recently, I had occasion to look into (flail around) rules of law governing gravesites and cemeteries. Like most other things legal, this area of the law can get complicated.
First, Colorado has two statutes dealing with cemeteries. However, the definition of “cemetery” for purposes of these statutes excludes cemeteries owned and operated by government agencies or nonprofit organizations having some charitable purposes other than the operation of a cemetery (for example, a fraternal order or a church).
So, not all cemeteries are legally equal and many (I would even say most) are not covered by these statutes.
Next, cemeteries of whatever ilk operate under rules promulgated by a cemetery administrator. These rules can be very detailed, or not, and they invite ambiguity.
Any time you’re dealing with a cemetery or gravesite issue, it’s important to track down the cemetery administrator and be sure you fully understand the rules governing the property. The law will enforce these rules, as long as they are not arbitrary or discriminatory.
The purchaser of a gravesite does not acquire full ownership of the land in question. Rather, the purchaser receives something in the nature of an easement — a right to use the land, but with legal title to the land continuing to be held by the cemetery-owning entity.
As with all easements, usage rights are created as a matter of contract. For gravesites, use is limited to the disposition of human remains.
Cemeteries have in place endowment funds intended to cover costs of upkeep and maintenance. The money paid for a gravesite and for other cemetery services will, at least in part, go into the endowment fund.
Cemeteries are required to be platted into blocks, lots and access ways, and plat maps are to be recorded with the county clerk and recorder, just like any other subdivision of land.
Cemeteries have strict rules governing ownership transfers.
In Colorado Springs, we have two cemeteries operated as self-supporting “enterprises” by the city — Evergreen and Fairview. The person in charge of these operations has the title of cemetery manager.
These days, someone acquiring a gravesite at one of these cemeteries receives a “certificate of purchase.” A transfer of the certificate of purchase, and the usage rights it provides, requires approval of the cemetery manager and issuance of a new certificate of purchase.
The city, as the cemetery operator, has a right, but not an obligation, to buy back a certificate of purchase.
Also, if a gravesite is not used for 75 years, the city can commence an abandonment proceeding and take back the property.
A certificate of purchase for a gravesite can pass to others through a will, or to heirs under rules of intestacy.
If a gravesite has been used, it is no doubt challenging to determine where ownership has ended up. That’s because the original owner(s) are now buried at the site — perhaps long ago — and a trail of ownership may have taken many twists and turns since the time the original owner(s) took up occupancy of the site. Determining ownership will become important if, say, someone wants to add another body to the site or change the content of a grave marker.
Although there are many others, here’s one of the rules in place for Colorado Springs’ two cemeteries I found interesting: “It shall be unlawful to disinter a body … for the purpose of vacating the burial site for resale, or if removal would be contrary to the expressed or implied wishes of the interred person … . ”
Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at [email protected].