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In Fresno, California, a family was horrified to learn that the cemetery plot they had reserved next to their recently-buried newborn son actually belonged to someone else.  David Miranda lost his newborn son only eight hours after the child was born due to a fatal disorder discovered before the baby was born. Mr. Miranda made cemetery arrangements for his son in a local cemetery and also reserved the plot next to his son for himself and his fiancé. Mr. Miranda was given a reservation slip by the cemetery office and told his first payment would be due in mid-November. When Mr. Miranda came in at the end of October to make his first payment, cemetery officials told him that there had been a mistake. The plot Mr. Miranda reserved had actually been sold to another family three days prior. The salesperson who made the sale to the other family had recorded the sale in the cemetery’s computer system, but had failed to record the sale on the cemetery map.  The cemetery officials offered the couple two options: choose plots near, but not next to, their son or have their son disinterred and moved to another spot with an adjacent available plot.  Mr. Miranda and his fiancé are dissatisfied with both.

Buying a cemetery plot is not the same as buying other real property. The real property is still owned by the cemetery, but a purchaser gains title to use that specific plot of land for a specific purpose – burial. Many of these documents look like traditional deeds, but include a list of restrictions for what can be done on the property. The most important of those restrictions is obviously limiting its use to burial, but it can also include certain restrictions about what can be done above ground to the property in conformance with cemetery rules.

In terms of priority of property interest, California is a race-notice jurisdiction. This means that the subsequent interest of a bona fide purchaser achieves priority over a prior interest where they acquire a subsequent interest in the property for valuable consideration and in good faith and records the instrument creating the interest first. A bona fide purchaser is a purchaser who acquires a lien or title interest in good faith and for value (not a gift) without knowledge or notice of a prior interest. Assuming the recording of the interest on the cemetery map counts as recording for property purposes, had the cemetery official gone ahead with accepting Mr. Miranda’s payment and recording the interest on the cemetery map, Mr. Miranda’s rights to the plot would trump the rights of the prior purchaser. Because we want to encourage recording, race-notice jurisdictions favor the interest of the innocent subsequent purchaser who properly records their deed over the negligent prior purchaser who failed to record.

We often forget that, at the end of the day, cemeteries are real property. Although the ownership interest acquired in a cemetery plot is not the same as the ownership interest acquired by a purchaser of other real property, cemeteries are real property and those rules do still apply. While these rules did not save Mr. Miranda from this tragic situation, they could be applied to other bona fide purchasers who are able to record their interest.

Brandy Davis

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