May 2008

Under currently in effect legislation The Cemeteries Act (Manitoba) ("Act"), a "cemetery" is defined to include land which is "used as a place for the burial of dead human bodies or other human remains or in which dead human bodies or other human remains have been buried".  This definition is broad enough to go well beyond what one would normally think of as a cemetery (ie. lands intentionally laid out/designed for the burial of the dead including gravestones or other markers of remembrance, tribute, respect etc., established and operated/maintained by (typically) a non-profit and/or religiously affiliated organization).  It has recently been brought to the writer's attention that outside of the larger urban areas in the province, in times past, it was fairly common for deceased persons to be buried on their own (usually farm) land.  In many (if not most) cases, the burial site would be marked in some manner, but over time, such markings have deteriorated and in some cases disappeared completely leaving no visible trace of the burial site.  It is the writer's understanding that even today, on an ongoing basis, families continue to bury their dead in rural acreages.

Because nothing in the Act requires (or even contemplates) that one's title to land must have recorded on it some notification of the fact that one or more dead human bodies have been buried beneath the surface of the land, other persons (and their lawyers) contemplating buying or otherwise taking in interest (eg. by way of mortgage security) would not usually become aware (at an early stage) of the fact that the land is a "cemetery" under the Act.  This situation may well pose a problem for someone who acquires an interest in such land, given the obligations imposed upon the owner of a "cemetery" by the Act.  Among other matters, a "cemetery" owner must erect and maintain certain fencing and ensure proper drainage of the "cemetery" land. 

There is even an unexpected benefit which would accrue to the owner of such land - although clearly not to a creditor of such owner - under Section 14 of the Act.  Section 14 provides, in effect, that a judgment creditor of a land owner whose land is a "cemetery" is not entitled to enforce that judgment - as any judgment creditor would normally be able to do - by registering his judgment lien against the title to the debtor/owner's property, and then selling that land to generate funds to pay the judgment. In other words, if I (not being the owner/operator of what is usually thought of as being a cemetery) own land under which one or more dead bodies have been buried, my creditors are barred from a remedy which they would otherwise enjoy underManitoba law.  The writer finds it hard to believe that this was the intent of the Legislature in enacting Section 14.

In some cases in some places, land owners and the relatives of a deceased have entered into informal, gratuitous and cooperative arrangements whereby a deceased's family is given access to known gravesites and the landowner will, to a greater or lesser extent, put some effort into maintaining the gravesite.  In other cases, landowners either don't currently know of the existence of any gravesites on their lands, or if they do, are less accommodating to families of the deceased.  Both types of landowners would probably object to being FORCED to fulfill the obligations normally imposed on cemetery owners under the Act.

The writer has been advised by a government official that the government is aware of this problem and is giving consideration to "updating" or "adjusting" the Act to deal with the matter of "private" cemeteries, and hopefully avoid or minimize the above-described potential problems.  Hopefully, one such adjustment will be that the Section 14 exemption from judgment realization will be limited to those properties which are used exclusively or at least substantially as cemeteries.  Similarly (and perhaps more significantly), the obligations imposed on a cemetery owner to maintain, fence, drain, etc. cemetery property would also be limited to lands exclusively or at least substantially used as cemeteries.

Even with the aforementioned changes to the Act, and certainly, if no such changes are made thereto, persons contemplating acquiring rural acreages or taking interests therein and their counsel should be alert to the possibility of the existence of one or more of the graves being located on the property.  It would be convenient if it was mandated that the title to each parcel of land on which one or more gravesites were located had to have some endorsement indicating same thereon, or, that a publicly accessible register of gravesites for the province be established.  There are however problems with this.  Firstly, in many cases, it would be very difficult to ascertain the location of older gravesites whose physical indicia has dissipated over time; in any event, the cost of conducting investigations to determine all (or as many as possible) rural gravesites (ie., other than "normal" cemeteries) would probably be prohibitive.  Secondly, many land owners with gravesites (especially those who even now aren't aware of the existence of the gravesites on their properties) would no doubt balk at the imposition of any duties imposed on them to maintain gravesites which would undoubtedly be so imposed by government in conjunction with any formal recording of gravesite particulars for the whole province.