June 16, 2006
BANKRUPTCY OF A CEMETERY OWNER
By: George Coppolo, Chief Attorney
You asked who would be responsible for maintenance and upkeep of a cemetery if the entity that was responsible goes bankrupt, out of existence, or is otherwise unable to perform its responsibilities. Our office is not authorized to give legal opinions and this report should not be considered one.
By law, cemeteries may be acquired, owned, managed, and controlled only by towns, ecclesiastical societies, and cemetery associations. The law does not specify who must take over the maintenance and upkeep duties when an entity that is responsible for doing so goes out of existence, files for bankruptcy, or is otherwise unable to perform its duties. But the law authorizes towns to appropriate money for the upkeep and maintenance of cemeteries that are being neglected. It also allows towns to appoint a committee to manage perpetual care funds held in trust by the entity that went out of existence, filed for bankruptcy, or otherwise failed to perform.
The law also appears to authorize cemetery plot owners to call a meeting of a cemetery association that either ceases to function or goes out of existence and amend its bylaws and take over its operations.
We spoke with Assistant Attorney General Tom Saadi, an expert in cemetery related legal issues. He was not aware of any bankruptcies in Connecticut by cemetery associations or ecclesiastic societies. But he is aware of a few instances in which a cemetery association went out of existence. In one instance the town appointed a committee to take over the association's perpetual care trust account, and to try to find a new entity to take care of the cemetery. In another instance, the plot owners called a meeting and took over the defunct association and began fund-raising efforts.
We also spoke with attorney Neil Ossen, a bankruptcy law expert. He was also not aware of any cemetery association in Connecticut that had filed for bankruptcy protection. But he indicated that the law allows such associations to file for bankruptcy protection. In such an instance, creditors could wind up with association assets that could include unsold plots and funds that were not held in trust for the care and maintenance of the cemetery.
Following is a summary of the relevant state laws regarding (1) the ownership, management, and control of cemeteries, and (2) which people or entities can step in if cemeteries are not being maintained and kept up.
The law establishes some special additional rules for ancient burial grounds, which the law defines as any tract of land within any municipality that has been used or has been in existence as a burial ground for more than 100 years.
OWNERSHIP AND MANAGEMENT OF BURIAL GROUNDS
Ownership and Control
By law, cemeteries may be acquired, owned, managed and controlled only by towns, ecclesiastical societies, and by cemetery associations (CGS §19a-295).
Cemetery Associations Requirements, Limitations, and Oversight
The law requires cemetery associations to be organized in accordance with the non-profit corporation laws. It prohibits them from engaging in speculation in cemetery lots and property, or from operating for private gain, either directly or indirectly, of any of the association members (CGS § 19a -296(a)).
The law requires that the board of directors or board of trustees of any cemetery association hold an annual association meeting. At this meeting, the board must accept an annual financial statement that contains an accounting of association income and expenses for the preceding fiscal year and an accounting of association assets. The financial statement must be included in the minutes of the annual meeting at which the statement was accepted. The board must retain the minutes for at least 20 years (CGS § 19a -296(b)).
The law prohibits any association officer, director, or trustee from serving as an officer, director, or trustee of any company that manages or operates any aspect of the cemetery(CGS § 19a-296(c))
The law allows any interested party to petition the probate court for the district within which the cemetery is located to require disclosure of the minutes of the association's annual meeting including any financial statement required to be included in the minutes. The court may, after hearing, with notice to all interested parties, grant the petition and require disclosure of such minutes for such periods of time as it determines are reasonable and necessary if it finds that: (1) the petitioner has an interest in the minutes sufficient to warrant disclosure, and (2) the petition is not for the purpose of harassment (CGS § 19a-296(d)).
The law authorizes cemetery associations, ecclesiastical societies, or town selectmen that are responsible to take care of cemeteries, to enact bylaws providing for the care and management of all burial lots, and the protection of all shrubs, trees, fences, and monuments thereon( CGS § 19a-295).
Trust Funds for Care of Cemeteries.
The law allows towns, ecclesiastical societies, and cemetery associations to receive and hold in trust donations, the income of which is to be used wholly or in part for the care or improvement of their cemeteries and burial lots or of private lots within such cemeteries or elsewhere. It requires that all such donations be invested as the law requires for the investment of trust funds, except when otherwise authorized by the donors (CGS § 19a-299).
Funds for Care of Cemetery Lots
By law any sum of at least $100 declared by a written instrument to be intended for the perpetual care, maintenance, improvement, or embellishment of any cemetery in Connecticut, or of any lot or plot in it, may be deposited with the State Treasurer who must accept it in the name of the state. Each depositor must when making the deposit, file with the State Treasurer and the Secretary of the State a copy of such instrument. The State Treasurer must invest the money in the name of the state, in bonds or other state obligations, or other securities in which he is authorized to invest money in behalf of the state. The law requires that on February first and August first each year he must pay over the accrued interest to the treasurer of the town in which the cemetery is located. This money must be spent in the same manner as the income of funds donated directly to towns for the care and upkeep of cemeteries. The State Treasurer must inform the person to whom it is paid of its purpose, as stated in the copy of such instrument, and that person must apply it to such purpose ( CGS § 19a -300)).
Establishment and Management of Perpetual Funds
The law authorizes any cemetery association, by the vote of its directors, to set aside its surplus funds as a perpetual fund. This fund must be invested in accordance with the provisions of the statutes concerning the investment of trust funds. The fund, together with any donation received by an ecclesiastical society or cemetery association, must be under the control, management, and supervision of a committee of at least three people elected by such association or society. Such ecclesiastical society or cemetery association shall meet at least once annually (CGS § 19a-301(a)).
The society or association treasurer must be, ex officio, the treasurer of such committee, and must give bond, with surety, to the satisfaction of such committee, for the faithful discharge of his duties. He must spend the income from the fund or donation to manage, care for, and maintain the cemetery owned or controlled by such ecclesiastical society or association, or for the purpose set forth in the instrument or declaration of trust regulating the use of such donation or fund. If the instrument or declaration of trust provides otherwise, he must spend the funds in the way the society or association designates.
The treasurer must annually, on or before July first, report to the society or association, stating the income received, to whom it has been paid, the amount and condition of the fund, and how it is invested. A copy of such report must be filed with the probate court for the district within which the cemetery is located.
Any interested party may petition the probate court having jurisdiction to require an accounting by the treasurer. The court may, after hearing, with notice to all interested parties, grant the petition and require an accounting for such periods of time as it determines are reasonable and necessary if it finds that: (1) the petitioner has an interest in the fund sufficient to entitle him to an accounting; (2) cause has been shown that an accounting is necessary; and (3) the petition is not for the purpose of harassment. The court must cause notice of the hearing to be given to such parties and in such manner as it directs (CGS § 19a-301(b)).
Upon the allowance of any such account, the court must determine the rights of the parties, subject to appeal as in other cases (CGS § 19a-301(d)).
CARE OF NEGLECTED CEMETERIES.
Action by Towns
The law authorizes towns to appropriate annually whatever is necessary to maintain and properly care for public cemeteries and public burying grounds they own or control. The law also authorizes them to appropriate annually whatever is necessary to aid in the maintenance and care of public cemeteries and public burying grounds owned or controlled by ecclesiastical societies or cemetery associations (CGS § 19a-295).
The law authorizes the selectmen of any town in which there is a burial ground or cemetery containing more than six places of interment that is not under the control or management of any currently functioning cemetery association, and which has been neglected to annually clear it of weeds, briars, and bushes; repair its fences or walls; keep it in orderly and decent condition, and straighten its memorial stones (CGS § 19a -308).
If an association does not comply with its obligations regarding a perpetual fund, the selectmen of the town in which the cemetery is located must take over the care of the fund and file an annual report with the Probate Court.
The law authorizes the selectmen to appoint a cemetery committee consisting of between three and seven people who are residents of the town. The committee has all of the powers and duties of a committee of a cemetery ecclesiastical society as provided by law (CGS §19a-301).
Action by Plot Owners
The incorporators, organizers, or members of any cemetery association or, if no incorporators, organizers, or members are living, the owners of burial lots therein, by a majority vote, may, at any meeting called for that purpose, amend its articles of association or its bylaws (CGS §19a-297)).
ANCIENT BURIAL GROUNDS
The law authorizes a burial ground authority (the town, ecclesiastical society, or cemetery association) to properly maintain an ancient burial place, cemetery, or burial place. The law defines an “ancient burial place” as any tract of land within any municipality that has been used or has been in existence as a burial ground for more than 100 years.
This right to maintain includes (1) repair, rehabilitation, repositioning, or resetting of grave markers in accordance with the rules and regulations of the burial ground authority, and (2) the renovation of the ancient burial place, cemetery, or burial place as a whole(CGS § 19a -315c(a)).
But no renovation as a whole may begin until after (1) the burial ground authority has conspicuously posted within the ancient burial place, cemetery, or burial place, for a period at least 90 days, a notice that such renovation shall take place, and (2) the burial ground authority, at least 90 days before commencing a renovation, has provided written notice to the probate court having jurisdiction over the location of the burial place and to the Connecticut Commission on Culture and Tourism. The notice to the probate court must describe the renovation plans and include photographs of any area or grave marker involved (CGS § 19a-315c(b)).
Following this notice period a burial ground authority may renovate an ancient burial place, cemetery, or burial place by: (1) the removal of any or all fencing, railing, or curbing, if such removal is determined by the burial ground authority to be necessary or desirable for the proper and efficient maintenance of the ancient burial place, cemetery or burial place as a whole, and (2) the repositioning or resetting of any monument or tombstone (CGS § 19a-315c(c))
At any time before the notice period expires, the probate court may assume jurisdiction over the renovation and order a hearing, with notice of such hearing to be given to the burial ground authority, the owner, the qualified lineal descendant, the Connecticut Commission on Culture and Tourism and otherwise as the court deems appropriate, to determine whether the renovation is necessary for the proper and efficient maintenance of the ancient burial place, cemetery, or burial place as a whole. Upon notice of such hearing, the burial ground authority may not proceed with such renovation except in accordance with the order of the probate court (CGS § 19a-315c (d)).