I have been contacted by an eccentric individual (typical client) to perform a service I'm trying to decide how to go about. A family member is buried on the property and the current owners are looking to sell, but want to retain either an easement to the grave site and/or create a sub-standard non-conforming parcel around the grave site. I have talked to zoning and they are considering allowing the creation of the parcel with a review and approval process.
Any ideas?
Check your state law regarding cemeteries as they usually regulate and set forth what happens with them.
It is a state to state determination.
In Texas, surveyors are required to report the location of any grave or cemetery discovered that is not of record.
The last one I did was for a large family who were planning on about 20 grave sites. Grandpa passed and wanted to be buried on the ranch. Planning considers it an allowed use, even within an Exclusive Farm Zone. Used a Partition Plat, look at ORS 92 for the definition of a Partition Plat in this State, to separate the tract from the farm ground, no title passed no change in ownership, just created two units of land. I wrote an easement from a public road using the existing farm road until I spurred off and into a parking area adjacent to the cemetery, the parking area was included and made a part of the easementin.
jud
> Check your state law regarding cemeteries as they usually regulate and set forth what happens with them.<
I read all I could here: http://www.wisconsinhistory.org/hp/burialsites/law.asp
And in talking to folks at the Wisconsin Historical Society, the acreage burdened by an easement to access a burial site is tax-exempt to encourage future landowners to protect the site and not be deterred from buying.
I guess what I'm looking for are examples of easement language and how to show it on the map, in lieu of actually creating a minimum sized separate parcel.
You are working with a relative of the one in the grave and they are concerned about the continued right to visit and maintain the grave if ownership changes. Create a unique and separate tract of land around the grave site and provide for access to that tract by easement, keeping in mind the mode of travel. Get it all done before a sale. Can't write an easement to yourself, you can write an easement across one tract of land for the benefit of another if they are separate units. You are not charged by the owner with making you comfortable or limiting your services to your preferences, you are charged by him to make him comfortable and that all has been done to protect the rights to visit the grave of a family member, probably other family members that will want to visit also. Separate the grave site out into a well described unit of land and do not sell it with the remainder, control then is not compromised.
jud
Several years ago I attended a seminar on gravesites by William C. Jung, who was then the LaCrosse County Surveyor. The talk mostly focused on Indian burial sites, but Mr. Jung seemed to be very knowledgeable about the laws and regulations. It might not hurt to talk to him. His contact information is available through WSLS.
I agree with Jud that it would be best for the owners to hold the gravesite in fee if the zoning authority will permit it, which it sounds like they might.
The gravesite parcel, the easement strip, and the parcel your clients want to sell could most likely all be shown on a Certified Survey Map with the approval of the zoning authority. Of course a CSM does create separate parcels once it is recorded. Sounds like the Oregon Partition Plat works the same way.
The easement could be legally created by language on the map or in a separate document. Its legal provisions could be complicated, since it will have to last for a very long time. It might be best for your clients to get a knowledgeable real-estate attorney involved. Some of the following points might be considered. An attorney would probably think of a few more:
As Jud points out, you can't convey an easement to yourself. Your clients could convey the remainder parcel and reserve the easement. A Declaration document is also sometimes used in advance of conveyance. The owner of the entire site, acting as "Declarant", creates one or more easements "for the orderly use and development of the property." I have seen quite a few of these in Minnesota. I don't know if they are used or legal in Wisconsin.
Some easement documents allow the servient owner to relocate an access easement to a more convenient location as long as reasonably direct access continues to be provided.
The easement conveyance should state the means of access to the gravesite, i.e. by vehicle, on foot, or both. If vehicles are to be allowed, the document should also talk about where they may be parked.
Many easement documents also talk about who is responsible for maintenance of the easement area. Since your clients' use will be fairly limited, the buyers of the other parcel would probably not object to maintaining whatever part of it shares their driveway. If there is no existing driveway, it wouldn't hurt to figure out a suitable location for one.
Some kind of notice provision would be a good idea. The gravesite will most likely be handed down in your client's family for many generations. They and the successive owners of the servient parcel will need to know how to contact one another. When either the gravesite or the servient parcel changes hands, the new owner might be required to notify the owner of the other parcel and provide new contact information.
Other possible provisions would be a "no-build" restriction on the gravesite, and a requirement that your client's family keep it maintained. Such provisions would help to reassure both the zoning authority and the buyer of the other parcel.
