One real estate topic that sometimes causes confusion is gravesite easements. This is because a person who purchases a property that holds a gravesite technically owns the land upon which the gravesite exists, but they are required to provide the deceased person’s loved ones with visiting access to the gravesite. Even if the gravesite is never or rarely visited, the owner must still provide an easement that allows visitors to come and go to the gravesite if they wish. There are some basic laws that govern gravesite easements that all real estate agents should know and convey to their sellers and buyers.
No Ownership Rights
An easement for private property gravesite access does not mean the loved ones of the deceased have any ownership rights. The easement is a type of license that grants them permission to visit their loved one’s gravesite and to use the land to keep their loved one buried there. They do not own the soil or the ground that contains the gravesite. They simply have permission to keep their loved one buried on the property and to visit them.
Inheritable
The easement that grants loved ones permission to visit a gravesite on private property is inheritable, which means that the easement or license to visit the cemetery passes down to the owner’s beneficiaries in the event of their death. So, the owner of the property that contains the gravesite is not able to revoke the easement when the easement owner passes away. It will normally be transferred to the next of kin or the person named in their will. However, there are some exceptions to this, particularly if the property owner and easement owner have specific contractual agreements prior to the easement owner’s death.
No Mortgages or Liens
A gravesite that contains a body cannot be subject to a mortgage, so property owners cannot take out a loan on this portion of the land. Additionally, this land cannot be assessed a lien for the cost of upkeep or materials used in its maintenance. Essentially, the easement becomes a public entity that the property owner is required to grant public access to. As such, it is not calculated in the mortgage payment and the government (or other third-party) cannot file a lien against this portion of the property, even if improvements to the gravesite have not been paid for.
Easement is Implied
There is no formal document required for a gravesite easement in most southern states. Other states may require such a document, but in the South, this easement is implied whenever there is an occupied gravesite on private property. These easements are detailed in statutory laws and apply to all land that contains a gravesite. In these states, a seller who has a gravesite on their property is required to disclose that information to potential buyers so that they are aware of their obligation to honor the implied easement.
Conclusion
In the end, whether you’re a buyer or a seller, especially one in a southern state, it is vital to know whether or not there is a gravesite on the property. If there is reference to one in historical documents, make sure you locate it and verify who is buried there. This will make the easement process easier, especially when it comes to exactly who is allowed to visit the gravesite.
