29 October 2021

Know where the bodies are buried… what if the house I’m buying has graves in the garden?

As strange as it sounds, it isn’t unusual for country houses and estates to come with a few skeletons in the cupboard – or the garden at least. Many have graveyards or graves in the grounds, usually for previous inhabitants.

Graveyards or mausolea are occasionally retained by the descendants or their trustees, and may even be consecrated. So, what do you do if the house you are buying has graves in the grounds?

In general, people will be buried in a church graveyard (consecrated ground, owned by a Church of England body). Where they are buried on private land, that site may be consecrated too, in which case special restrictions apply. While we deal with consecrated mausolea and private chapels on some of our larger estates, most of the graves in country houses are on land that is not consecrated, and it is those cases that this article considers.

When buying a house with private graves, first, you need to check the burial complies with the existing law. The law on burials is largely drawn from Victorian times and is not as prescriptive as one might imagine. There is no restriction on burying someone on un-consecrated private property. However, the landowner does need to comply with various requirements. For instance, a landowner must:

  • Obtain a Certificate of Authority for Burial, usually obtained when the death is registered.
  • Comply with Environment Agency requirements not to pollute groundwater.
  • Not commit a nuisance, injury to neighbours, or breach any freehold or leasehold covenants.
  • Maintain a burial register pursuant to the Registration of Burials Act 1864. There is no prescribed form for the register, so a simple plan and note of who is buried, when and where should suffice. Failure to keep a register is a criminal offence.
  • If required, obtain planning permission. Permission is only required where the burial would constitute a change of use under the planning regime. Surprising though it may sound, this is simply a question of fact: broadly, a few burials in a large garden, grounds or a farm do not give rise to a material change of use, but they could well do in a much smaller garden or urban setting.
  • Permit access for the Secretary of State to inspect the burial ground if required (this is a statutory right under the Burial Act 1855). Obstructing him is a criminal offence.

Second, you need to check the location of the graves will not interfere with your plans for the property. There are various regulatory requirements designed to protect human remains where you propose to move or disturb the bodies. Complying with these regulations (including getting consent to exhume and relocate the bodies) can be an expensive and slow process, so it is critical to check that the graves are not near a potential extension or development site, and if they are, then you need proper advice before you proceed.

Finally, you need to know whether the graves affect the title. Sometimes there are rights for descendants to visit the grave. While these tend to get forgotten over time, it is essential to check whether someone could come onto your property and on what terms, and whether in practice anyone does so.

In conclusion, if you are buying a property with graves, you need a solicitor who understands the requirements and your plans for the property. Otherwise, you may have some unpleasant Hallowe’en surprises in store for you!

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