A Spooky Tale of Cemeteries, Municipal Ordinances, and the Unknown…
Before this year’s Halloween trek to the family cemetery to summon the ghosts of relatives past, consider upon whose land the Ouija Board rests. Do you have a right to enter the land of the old family farm sold years ago? One Township in Pennsylvania decided that you do, and the rights of the public supersede property owners’ fundamental right of exclusion.
The Scott Township Ordinance at the heart of our tale, enacted in late 2012, requires that all cemeteries, whether on private or public property, set apart for or otherwise utilized as a burial place for deceased human beings, shall be kept open and accessible to the general public during daylight hours.
The ordinance effectively creates an undefined easement across the property of any landowner having a cemetery on their property. Moreover, the Township Codes Official is able to access any property in the Township for the purpose of locating cemeteries as defined by the Ordinance.
The Unites States Supreme Court recently heard argument in Knick v. Scott Township, No. 17-647, ___ U. S. ___ (20__) on October 3, 2018. The issue before the Court was not the validity of the ordinance, but whether a landowner must exhaust state court remedies before seeking just compensation for the taking in federal court. As haunting as the loss of property without just compensation may be, the implications of the ordinance burgeons other poltergeists.
An easement inherently confers a benefit upon certain persons entitled to its use. Those beneficiaries have a right to insist that the easement and rights conferred remain substantially as it was at the time the right accrued. The owner of the property which the easements transects has the right to use their property, but not the right to substantially interfere with the easement. In this case, the beneficiaries to the easements in Scott Township consist of the public at large.
Moreover, an easement is perpetual until affirmatively abandoned by the beneficiary. Then, even if abandoned, the owner of the property must have the easement cleared of record – a task made increasingly more difficult as the number of beneficiaries increases. Easements encumber title to real property. Title insurance is commonly purchased when buying or selling real estate to protect the owner. (If there is a lender involved, title insurance to insure priority of their lien is mandatory).
However, title insurance is not insurance in the traditional way we think of insurance, such as health insurance, where the policy holder is protected against unexpected future incidents. A title insurance policy insures that the owner has a certain quality of title to the property on a certain date. Title to real property is evidenced by the deed recorded at the county courthouse where the property is located. Generally speaking, all claims of ownership, liens and encroachments affecting title will be recorded. Title insurance does not insure against these recorded interests; they are ‘excepted out’ of the policy.
Easements are ubiquitous in the ever-expanding urbanized world in which we live; the roads travelled, the electric lines, sewer and water lines, the subdivision with on-lot stormwater drainage are all examples of recorded easements. Their boundaries are defined, buyers and title companies know of their existence prior to issuing the policy, and the world of real estate continues to turn. The policy does not insure against events arising after the policy has been issued.
Conversely, the easements created by the Scott Township Ordinance exist only as a result of the ordinance. The boundaries and locations are undefined. Most importantly, the ordinance instructs the codes official to locate places containing human remains for identification as a cemetery. Therefore, the public easement may arise at an indefinite point in the future when human remains are discovered on a property.
As previously discussed, easements arising post policy are not eligible for a claim. But if the cemetery has existed on the property since the civil war and the ordinance applies retroactively, does the easement predate the policy, thereby becoming a covered claim? The answer would typically be ‘no’ with a conventional easement even if unrecorded.
What could be scarier on Halloween than having to permit persons of this world almost unrestricted access to your private property?
By:Brett C. Flower, Esquire
Attorney Brett Flower is a member of the Real Estate Practice Group at Dethlefs Pykosh & Murphy. If you have any real property issue, or are interested in using our title services, please do not hesitate to contact Brett at email@example.com or 717-975-9446.