Lifetime Transfers of Minnesota Cemetery Lots is achieved under Minnesota law like no other real property transfer.

Lifetime Transfers of Minnesota Cemetery Lots

Lifetime Transfers of Minnesota Cemetery Lots

And Abraham stood up from before his dead, and spake unto the sons of Heth, saying,

I am a stranger and a sojourner with you: give me a possession of a burying place with you, that I may bury my dead out of my sight.

Genesis 23, Verses 3-4, KJV

Lifetime Transfers of Minnesota Cemetery Lots – Real Property

Both a Minnesota cemetery graveyard, and individual cemetery lots within the cemetery, constitute real property.

However, individual cemetery lots within a cemetery are treated under Minnesota law like no other real property, and the right to make lifetime transfers of Minnesota cemetery lots are limited.

If fee (simple) ownership in real property is defined as:

  • an inheritable interest in land,
  • which represents the greatest potential legal title available under the law,

then there is no fee simple title ownership of an individual cemetery lot within a Minnesota cemetery by anyone other than the public cemetery association, or private cemetery.

In 1961, the Minnesota Supreme Court variously described an individual’s ownership rights in a Minnesota cemetery lot as:

  • a special kind of conditional estate in fee,
  • a perpetual easement, or
  • a kind of perpetual license,

Erickson v. Sunset Memorial Park Ass’n, 1961, 259 Minn. 532, 108 N.W.2d 434.

Under the bundle of sticks analogy which underlies the analysis of Minnesota real property ownership, a person other than a Minnesota cemetery association or private cemetery holds only a few sticks in an individual cemetery lot, which may include the following:

  1. The right to be buried in the cemetery lot; and
  1. The right to make a lifetime conveyance of the cemetery lot back to the cemetery association or private cemetery – whether or not part of a separate agreement to transfer the cemetery lot to another individual;

Lifetime Transfers of Minnesota Cemetery Lots – Minnesota Public Cemeteries

Initial Sale of a Minnesota Public Cemetery Lot

 M.S., Section 306.09 identifies the manner in which an initial sale of a cemetery lot is made by a public cemetery association, and the legal effect of such a sale, by providing as follows:

After the filing of a map under section 306.05

the trustees may sell and convey the lots designated on the map upon terms and conditions as they determine.

Every conveyance of a lot

  • must be expressly for burial purposes and no other and
  • must be in the corporate name of the association and signed by its president or vice-president and by its treasurer or secretary.

Every such initial sale of a cemetery lot by a public cemetery association will typically be subject to the rules and regulations of the public cemetery association – as identified in any deed of conveyance or transfer of the cemetery lot.

General Rule – Inalienability of a Minnesota Public Cemetery Lot

M.S., Section 306.15(a) identifies that after a Minnesota public cemetery lot has been sold for burial purposes, the cemetery lot is inalienable – with certain limited exceptions for lifetime transfers of Minnesota cemetery lots – by providing as follows:

When

  • a lot in a cemetery, or
  • an entombment or inurnment space in a mausoleum,

has been sold or conveyed for burial purposes,

the lot, entombment, or inurnment space is then inalienable, except as provided in this section.

In 1989, the Minnesota Court of Appeals cited the above statute, and declared that:

Once a burial lot is sold or conveyed, the lot is inalienable.

Peterson v. Hiltz, Not Reported in N.W.2d, 1989 WL 109343, Minn.App.,1989.

However, the above court decision was issued as an “unpublished” decision, and thus has no precedential value.

In addition, the cemetery lot at issue was located in a municipal cemetery.

Therefore, while the Peterson v. Hiltz decision may provide some legal analysis which is applicable to Minnesota public cemeteries, it may not be applicable to Minnesota private cemeteries – which are not subject to the provisions of M.S., Section 306.15.

While the three judges in the Peterson v. Hiltz decision cited M.S., Section 306.15(a) in support of their decision – they did not cite any applicable case law – suggesting that none exists.

Exception – Lifetime Transfers of Minnesota Cemetery Lots

 (i)      Original Purchaser May Convey to the Minnesota Public Cemetery Association

M.S., Section 306.15(b) identifies an exception to the general rule by providing that the original purchaser of one or more cemetery lots may sell or convey to the cemetery association those parts of such cemetery lots which are not actually occupied by human remains, by providing as follows:

The original purchaser of the lot, entombment, or inurnment space

may sell or convey any part of it to the cemetery

that is not actually occupied by interments or by entombed or inurned human remains.

As long as the cemetery association is willing to purchase any unused cemetery lot, the original purchaser of the cemetery lot is allowed to sell the cemetery lot back to the cemetery association.

(ii)     Persons Inheriting a Minnesota Public Cemetery Lot

M.S., Section 306.15(c) identifies an exception to the general rule by providing that a person properly “inheriting” one or more public cemetery lots – presumably by either:

may sell or convey those parts of such cemetery lots which are not actually occupied by human remains to the cemetery association, by providing as follows:

A person who has inherited the lot, entombment, or inurnment space

may sell or convey any part of it to the cemetery

that is not actually occupied by interments or by entombed or inurned human remains.

As long as the cemetery association is willing to purchase any unused cemetery lot, a person properly “inheriting” one or more cemetery lots is allowed to sell the cemetery lots to the cemetery association.

(iii)    Family Member Use of a Minnesota Public Cemetery Lot

M.S., Section 306.15(d) identifies an exception to the general rule by providing that the registered owner of one or more Minnesota public cemetery lots may sell or convey any one cemetery lot:

  • which will be used exclusively as a “family burial place”,
  • to the person so using it,

by providing as follows:

When, by the consent of the owner,

the lot, entombment, or inurnment space will be solely used by some other person as a family burial place,

the owner may convey it to the person so using it.

However, M.S., Section 306.15(e) identifies that the proposed transaction must be structured in a triangular, three party manner, by providing as follows:

There must be filed with the cemetery a copy of an agreement of sale signed and acknowledged by

the owner (and spouse, if any) and the proposed purchaser,

transferring title to the cemetery and

requesting that the cemetery issue a new conveyance of the lot or space directly to the purchaser

in consideration of the payment by the purchaser to the owner of a specified price

which must not be more than the price that would be charged by the cemetery in its sale of a similar lot or space.

Upon filing the agreement,

a reasonable transfer and service charge of not more than $15 must be paid to the cemetery and

the cemetery shall then promptly issue a conveyance of the lot or space to the designated purchaser.

The proposed triangular, three party transaction can be summarized in the following manner:

  1. the registered owner, and any spouse, of one or more Minnesota public cemetery lots would enter into a written agreement with a proposed purchaser:
  • for title to the cemetery lot to be transferred by the registered owner to the cemetery association, followed by
  • the subsequent conveyance of the cemetery lot to some other person who will use it as a family burial place – at a price not to exceed the price which would be charged by the cemetery association for the sale of a similar cemetery lot (the “Purchase Agreement”).
  1. A copy of the signed and acknowledged Purchase Agreement – which initially transfers the cemetery lot title to the cemetery association – would be filed with the cemetery association, together with a request that:
  • the cemetery association issue a deed of conveyance or other document of transfer to the proposed purchaser,
  • in consideration of the purchase price being paid by the proposed purchaser to the registered owner of the cemetery lot.
  1. The cemetery association would then issue a deed of conveyance or other document of transfer to the proposed purchaser of the cemetery lot.

Lifetime Transfers of Minnesota Cemetery Lots – Minnesota Private Cemeteries

Legal Effect of Filing a Minnesota Private Cemetery Plat

M.S., Section 307.02 identifies the legal effect of filing a plat by a private cemetery corporation, by providing as follows:

When such plat has been recorded, every donation or grant of lands therein

  • to the public,
  • to any religious corporation, or
  • to any individual,

shall be deemed a conveyance of such lands, subject to the conditions and restrictions, if any, contained therein.

Every conveyance of such lots shall be expressly for burial purposes, and

the lands designated on the plat as streets, alleys, ways, commons, or other public uses shall be held by the owner of the cemetery in trust for the uses and purposes thereon indicated.

Initial Sale of a Minnesota Private Cemetery Lot

M.S., Section 307.04 identifies permissible procedures with respect to the initial sale of a cemetery lot by a private cemetery corporation, and certain restrictions with respect to any such sale, by providing as follows:

Every religious corporation owning such cemetery may sell and convey lots therein for burial purposes only.

Deeds thereof may be executed

  • by the treasurers of such corporations, or
  • by one or more of the trustees thereunto authorized by resolution duly adopted by its board of trustees. 

Lifetime Transfers of Minnesota Private Cemetery Lots

Minnesota Statutes, Chapter 307 does not have any provision comparable to M.S., Section 306.15 regulating the lifetime transfer of Minnesota private cemetery lots – presumably because any such provision could be held to be an improper governmental intrusion upon the Constitutional rights of religious corporations to administer privately owned cemeteries in the manner in which they deem appropriate.

The Minnesota Supreme Court effectively issued such an opinion in a 1917 decision involving the Archdiocese of St. Paul and Minneapolis, in which the court decision Syllabus declared that:

The diocese is not a public cemetery association, the statutes relative to

  • the establishment of cemeteries by such associations,
  • the conduct thereof, and
  • the exemption of their lands from taxes and assessments,

do not apply.

The laws that do apply are those relative to the establishment of cemeteries by private persons, and religious corporations.

The actual text of the 1917 Minnesota Supreme Court decision provided in part as follows:

. . . the legislature has seen fit to enact

  • one set of laws for cemeteries owned and conducted by associations organized for that purpose, and
  • another set of laws for cemeteries owned and conducted by private persons or religious corporations.

In re Front Street Sewer Assessment, 138 Minn. 67, 163 N.W. 978, Minn. 1917

Therefore, any lifetime transfers of Minnesota cemetery lots after the initial conveyance by the private cemetery may be subject to only those restrictions identified in the rules of the private cemetery.

One of the cemeteries owned and operated by a Minnesota religious corporation has issued Certificates of Ownership and Conveyance with respect to burial rights in the cemetery containing the following provisions:

This conveyance and the rights recognized by this certificate are made

  • in accordance with and subject to the laws of the State of Minnesota now or hereafter existing governing cemeteries

and

  • the descent of cemetery lots, burial plots, or entombment or inurnment space

or

  • the right to burial, entombment or inurnment therein;

and

  • in accordance with and subject to the rules and discipline of the [religious corporation] and rules and regulations of the private cemetery now or hereafter existing or as decided or interpreted by the [religious corporation].

Lifetime Transfers of Minnesota Cemetery Lots – Title Records are to be Maintained by the Cemetery

Real estate title ownership records are usually maintained in the official records of the County in which the real property is located.

However, that is not the case with respect to records relating to the title ownership of Minnesota cemetery lots located in Minnesota public or private cemeteries.

M.S., Section 306.29 delegates such duties to the public cemetery association or private cemetery, by providing in part as follows:

Every cemetery association, or private cemetery, as the case may be,

shall keep a record of all deeds, conveyances, judgments, decrees, or other documents affecting the title to lots in the cemetery.

Certified Copy Evidence of any Deed, Conveyance, or Other Document

M.S., Section 306.29 identifies that a copy of any deed, conveyance, or other document affecting the title to lots in a cemetery – certified by the cemetery association or private cemetery – shall be received into evidence by Minnesota courts in event of any litigation relating to the cemetery lot title.

Application of Chapter 306 to Minnesota Private Cemeteries

Notwithstanding the general inapplicability of Minnesota Statutes, Chapter 306 to Minnesota private cemeteries, certain sections of Minnesota Statutes, Chapter 306 are specifically applicable by their terms to Minnesota private cemeteries.

M.S., Section 307.11 incorporates by reference the application of five separate statutes identified in Minnesota Statutes, Chapter 306.

M.S., Section 307.115 incorporates by reference the application of M.S., Section 306.155.

M.S., Section 306.29 – addressing the testamentary disposition of cemetery lots by the decedent’s Will, and certain testamentary trusts – appears to be applicable by implication to private cemeteries by making four references to private cemeteries.

M.S., Section 525.14 – which governs the testamentary disposition of cemetery lots in the absence of their proper disposition by the decedent’s Will and certain testamentary trusts – appears to be applicable to private cemetery lots by reason of specific references to (public) cemetery associations and private cemeteries.

Lifetime Transfers of Minnesota Cemetery Lots

Copyright 2017 – All Rights Reserved

No claim to the text of statutory provisions, administrative documents, or judicial decisions.

Gary C. Dahle – Attorney at Law

Phone:  763-780-8390   Fax: 763-780-1735

gary@dahlelaw.com

For a discussion of Minnesota probate law, see https://dahlelawprobate.com/ and http://www.dahlelawminnesota.com/ and https://dahlelaw.com/minnesota-probate/

For information on Minnesota Church Corporation law, see Minnesota Church Law.

For information on Minnesota Transfer on Death Deeds, see http://www.dahlelawminnesota.com/minnesota-transfer-death-deed/

For information on Minnesota Real Estate Law, see http://www.dahlelawminnesota.com/minnesota-title-evidence-ownership/

For information on Minnesota Guardianships, see http://dahlelawguardianships.com/

Topics of Interest – Lifetime Transfers of Minnesota Cemetery Lots:

Minnesota Probate and Cemetery Law Attorney

Gary C. Dahle – Attorney at Law

2704 County Road 10, Mounds View, MN 55112

Phone:  763-780-8390   Fax: 763-780-1735

gary@dahlelaw.com

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota cemeteries involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with legal counsel.

Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota, or North Dakota, should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

Accessing the web site of Gary C. Dahle, Attorney at Law – https://dahlelawcemeteries.com – or www.dahlelawcemeteries.com – may be held to be a request for information. However, the mere act of either providing information to Gary C. Dahle, Attorney at Law, or taking note of information provided on https://dahlelawcemeteries.com – or www.dahlelawcemeteries.com does not constitute legal advice, or the establishment of an attorney/client relationship.

Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.

If you are not a current client of Gary C. Dahle, Attorney at Law, please do not use the e-mail links or forms to communicate confidential information which you wish to be protected by the attorney-client privilege.

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Gary C. Dahle, Attorney at Law, provides the https://dahlelawcemeteries.com – or www.dahlelawcemeteries.com web sites and their content on an “as is” basis, and makes no representations or warranties concerning site content or function, including but not limited to any warranty of accuracy, completeness, or the current nature of the information.

Minnesota Cemetery Links

Minnesota Association of Cemeteries: https://www.mncemeteries.org/

Find a Minnesota Cemetery: https://www.mncemeteries.org/find-a-cemetery

Minnesota Private Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=307

Minnesota Public Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=306

Links to Minnesota Probate Records

Minnesota Department of Health – Death Records Index – 1997 to Present:  http://www.health.state.mn.us/divs/chs/osr/DecdIndex/dthSearch.cfm

Minnesota Historical Society – Death Records; 1904 – 2001: http://www.mnhs.org/people/deathrecords

Minnesota Department of Health – Birth Certificateshttp://www.health.state.mn.us/divs/chs/osr/birth.html

Minnesota Historical Society – Birth Records: http://www.mnhs.org/people/birthrecords

Minnesota Marriage Recordshttps://moms.mn.gov/

Lifetime Transfers of Minnesota Cemetery Lots