Many municipalities in Michigan own cemeteries and sell burial spaces or cemetery lots. Sometimes a municipality sells a cemetery lot which, for whatever reason, has not been used by the owner many decades after the sale. This article discusses the options for municipalities to regain ownership of abandoned cemetery lots.
There are two Michigan statutes which provide a procedure for forfeiture of burial spaces. The Public Cemeteries Act, Public Act 46 of 1931, specifically applies to public cemeteries. If the owner of a burial space in a public cemetery fails and neglects to care for and maintain the burial space in accordance with the cemetery’s regulations for seven years or more, the owner of the cemetery may initiate proceedings to terminate the lot owner’s rights to the burial space. MCL 128.12.
In order to initiate proceedings, the cemetery board would adopt a resolution determining that the owner failed or neglected to care and maintain the burial space. A certified copy of the resolution must be served on the owner personally or by first class mail to the owner’s last known address. If the owner does not comply with the cemetery’s regulations, the cemetery board may file a petition in circuit court. However, in most cases, the municipality that owns the cemetery is the one who maintains the burial space, so this procedure would not apply.
The other option for forfeiture of cemetery lots is applicable to both private and public cemeteries. The Cemetery Regulation Act, Public Act 251 of 1968, provides that a person in possession of a right to a burial space is presumed to have abandoned the right if the owner or their authorized representative has not provided an updated address or affirmed possession within 60 years. The lot owner may confirm possession within the 60-year period by:
- Requesting internment
- Notifying the cemetery owner or operator of internment
- Requesting installation of a memorial
- Notifying the cemetery owner or operator of the installation of a memorial
- Transferring the burial right to another person
- Making some payment to the cemetery owner
- Making a written confirmation of possession of the burial space
The presumption does not apply if a memorial has been installed or if remains have been interred in the burial space.
The cemetery owner may certify a right to a burial space as abandoned if: the cemetery owner or operator posts a written notice of intent to certify the right to the space is abandoned on the burial space for 120 consecutive days. The cemetery owner must mail the written notice if it has an address by certified mail with return receipt requested. If it does not have an address for the owner or the owner’s authorized representative, or if the owner does not contact the cemetery owner or operator and affirm their right of possession within 60 days after the notice was mailed, the cemetery owner is required to publish the notice once a week for two consecutive weeks in a newspaper. If the owner does not respond, the burial space is deemed abandoned.
The procedure cannot be used if there is an inscribed memorial on the space, if the space is purchased with an adjoining space that has a memorial inscribed with the family name, or if the space is purchased with an adjoining space which has an inscribed memorial and in which remains are interred.
This procedure can be useful for burial spaces that have been abandoned for over 60 years. However, it requires a cemetery owner to wait for the 60-year period to elapse to begin abandonment proceedings.
Because the procedure to forfeit burial rights under state law is so stringent, many municipalities include abandonment provisions in their cemetery ordinances. Abandonment provisions in ordinances are essentially provisions of the contract between the municipality and the burial space owner when the burial space is purchased. A municipality ordinance could provide that forfeiture proceedings could begin after a shorter period of time, like 40 years. It could also require holders of burial rights to update their address so notice of forfeiture could be sent by mail instead of publication in a newspaper. It is important to note, however, that a burial right is a legal right, so such an ordinance could not have retroactive effect.
Local government officials are encouraged to contact Mika Meyers with any inquiries about adding abandonment provisions to their cemetery ordinances or for any other questions involving municipal cemeteries.