Can I sell land with a family cemetery on it?

Start on the day a listing agreement is signed for a tract that has graves on it. Nothing in Virginia's cemetery access statute forbids the sale. What the statutes on this page do is attach duties and limits to ownership of the ground, and on listing day every one of them still sits with the seller.

The central one is a duty of access, and its wording is worth reading exactly as the General Assembly wrote it, because the order of the groups and the notice clause at the end both matter.

Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; and (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both.

Va. Code 57-27.1

The same section gives the owner control over the terms of visits, a gate rule for any fence or wall that would cut the graves off, and a limited immunity from civil liability. Each is set out below at the point it passes to the buyer.

Two things are off the table for a seller getting a tract ready to show. Willfully or maliciously destroying, defacing or removing a tomb, monument or gravestone in a place of burial is a Class 6 felony under Va. Code 18.2-127, and unlawfully disinterring or displacing a dead human body is a Class 4 felony under Va. Code 18.2-126.

Va. Code 57-27.1 does not name a particular owner. It places its duty on owners of private property where graves are located, so once the buyer owns the ground, the duty and the protections that come with it sit with the buyer.

• The duty. Allowing ingress and egress to the groups the statute names, on its terms.
• The control. Designating the frequency, hours and duration of visits, and the route where no traditional route is obviously visible.
• The gate rule. A new wall, fence or other structure that would cut off the graves needs a gate or other means through.
• The immunity. No civil liability arising out of that access, absent gross negligence or willful misconduct.

One thing the access right does not include is a right to drive in. The statute says it is not to be read as a right to operate motor vehicles on the property to reach the graves unless there is a road or adequate right-of-way that permits it and the owner has given written permission. Whether a letter of permission from the seller carries any weight after closing is not something the statute addresses; the buyer's attorney reads it.

A buyer who plans to fence pasture or hang a gate across a farm lane has the cemetery gate rule to account for, and a broader question if that lane is also someone else's way in, which gating or fencing across an easement takes up.

The graves keep shaping the tract after the sale, most of all if the new owner later divides the land or wants the graves somewhere else.

When land proposed for subdivision holds a grave, object or structure marking a place of burial, Va. Code 15.2-2258 requires it to be identified on any plans or site plans the subdivision article requires; a mapped dam break inundation zone is the fact that section puts on the plat itself. Carroll County's posted subdivision ordinance, the April 14, 2014 copy, adds that in all subdivisions due regard is to be given to preserving historical and other features, including cemeteries. Because that copy is dated, the current rule, and whether the cemetery can be carved out as its own parcel, go to the county's subdivision agent, and in Carroll County the place to confirm them is Land Use and Planning.

A boundary line agreement with a neighbor is a narrower tool than it sounds. Va. Code 15.2-2201 keeps a subdivision ordinance from precluding one only when it is used to resolve a bona fide property line dispute and stays within limits on distance and acreage, so moving a line for another reason, such as putting the graves on one side of it, is a question for the county subdivision agent and an attorney.

Moving graves is not something a landowner does alone; unlawfully disinterring a body is a Class 4 felony under Va. Code 18.2-126. For an old family graveyard, the Code sets out a circuit court route. Under Va. Code 57-38.1, the owner of land holding a previously unidentified graveyard or an abandoned family graveyard, where there has been no reservation of rights (or the beneficiaries of one want to waive them) and no body has been interred for twenty-five years, may file a bill in equity in the circuit court. Everyone with an interest, known or unknown, is made a defendant. If any are unknown, the owner has to make active, good faith efforts to find them, including at a minimum a notice in a local newspaper of general circulation, a notice posted at the graveyard, and notice to and consultation with any historic preservation or other such commission and area historical and genealogical societies. The court considers the graveyard's historical significance and the wishes of the parties, and any removal is at the petitioner's expense.