Legalities of Graveyards

With the new discovery of potential family graveyards and the possibility that headstones were removed long ago, I was curious what all the rules were regarding having an old small cemetery on your property. 

In general, a property owner has two choices in regards to an old family cemetery on their property: allow it to stay or obtain a court order to relocate the graves.  In most areas, the property owner has no obligation to maintain an old cemetery other than any duty a local zoning ordinance might impose. Because the cemeteries I'll be traveling to are in Virginia, I looked into the Virginia laws pertaining to old family graveyards.

According to the Virginia Department of Historic Resources, Virginia property owners who have an old family cemetery on their property can choose to have it relocated if the cemetery is abandoned and is not historically significant.  Relocation of an old graveyard has several steps:

Reservation of Rights- a Reservation of Rights in regards to an old family cemetery is basically an easement that allows family or beneficiaries to make burials or visit and maintain a cemetery.  A title examination needs to happen to make sure there is no Reservation of Rights for the cemetery in question.

Is It Abandoned- It needs to be determined that the cemetery is in fact abandoned.  According to Virginia code an abandoned cemetery is one where no human remains have been buried there in 25 years or more, the cemetery is in a state of disrepair and/or it has not been maintained in any way for a substantial period of time

Historical Significance- An historically significant cemetery can not be relocated.  A cemetery is not deemed historically significant unless there is a historically significant person buried there, it has a unique architectural aspect or its connect to a historically significant place or event.

Archaeologist- While not required, it is advisable to hire an archaeologist to perform a cemetery mapping to confirm boundaries of the cemetery and the location of marked and unmarked graves.

Genealogist- Also advisable to have a genealogist locate descendants of those known to be buried in the cemetery and any beneficiaries of Reservations of Rights.  At a minimum, the homeowner needs to publish notices in local newspapers and alert local genealogy and historical societies in an attempt to local descendants.  Virginia requires a reasonable and good faith effort be made to notify the family or any descendants.

The property owner can then petition the local circuit court for an order of relocation to establish the cemetery where the graves would receive proper maintenance and care.  The property owner is responsible for all relocation costs.  It's best to contact the descendants to explain the relocation process and to establish goodwill.  The property owner could ask for permission to relocate the bodies at no expense to the descendants.  

The petition must name all parties in interest so it's best to include parties unknown.  The unknown parties must be served through local newspapers, and a guardian ad litem will be appointed for this unknown parties.  It is at the discretion of the circuit court whether the relocation is appropriate.  Sometimes relocation is ordered despite the objections of descendants.  There is a 30 day appeal period after the ruling after which time a licensed funeral home would handle the relocation process.

Before a petition is filed, the property owner should be aware of the expense in relocating graves.  In most cases, it is not economically feasible to relocate an old cemetery.  The relocation can involve numerous parties and high costs.

For those who are the descendants of people buried in an old family cemetery on another person's property, here are some highlights for you:

Access- Virginia law requires landowners to allow access to cemeteries on private property for visitation and genealogical research.  Descendants must give reasonable notice and abide by any landowner restrictions regarding frequency, hours and duration of access.

Property Owner Obligations- Per Virginia law, property owners are under no obligation to maintain a cemetery on their property.  However, Virginia law also protects all cemeteries from willful and malicious  damage, so don't destroy or remove headstones or otherwise desecrate graves. 

Maintenance- If a cemetery containing your family lies adjacent to your property and you feel it has fallen into disrepair, you can petition the city or county circuit court for relief including permission to access the property and maintain the cemetery.  You can also see if there is a reservation of rights associated with the cemetery that allows family access to visit and maintain the cemetery.  Information regarding the reservation of rights can be found on property deed information.  Make sure you search as far back as possible as this information can sometimes be accidentally left out of subsequent deeds.  Beneficiaries can also waive the reservation of rights.  If you are concerned, you can also contact the circuit court to find out how to ensure that you are contacted in the event the property owner petitions for removal and relocation of the graves.  Similarly, the heirs/descendants can also file a relocation petition.

So far, it's been my experience that if you treat people with respect and kindness, they are happy to allow you access to your family's cemetery without any issue, and most people have no desire to do harm to headstones or graves.  But it's always good to be aware of what is allowable by law.