4667892v4 the law on ownership of tombstones and · pdf filethe law on ownership of tombstones...

SydneyMelbourne

BrisbanePerth

Bourke Place600 Bourke Street Melbourne VIC 3000

GPO Box 9925 VIC 3001Tel (03) 9672 3000Fax (03) 9672 3010www.corrs.com.au

Ref: RMT ACCA13908-9048833 4667892v4 (August 2008)

© Corrs Chambers Westgarth

Australasian Cemeteries and Crematoria Association (ACCA)

The law on ownership of tombstones and monuments in Australia

4667892v4

Important notes

This paper has been prepared for the benefit of the Australasian Cemeteries and Crematoria Association (ACCA) and its constituent members. Copyright in the paper remains with Corrs Chambers Westgarth and those wishing to copy extracts from this position paper (other than the ACCA and its members) should seek the permission of Corrs Chambers Westgarth.

References to the law in jurisdictions have been included by way of comparative analysis and should not be viewed as advice on the applicable law in those jurisdictions.

[Note: This paper does not consider the legal position on the ownership of tombstones and monuments in New Zealand, on the understanding that this will be addressed separately by ACCA’s New Zealand lawyers.]

4667892v4

Contents 1 The importance of determining ownership 1

2 Ownership at common law 2 2.1 United Kingdom (UK) 2 2.2 Canada 4 2.3 United States of America 5 2.4 Australia 6 2.5 Conclusion 8

3 Position under the contracts used by ACCA members 9

4 Position under legislation 11 4.1 Introduction 11 4.2 Victoria 11 4.3 New South Wales 12 4.4 Queensland 12 4.5 South Australia 13 4.6 Tasmania 14 4.7 Northern Territory 14 4.8 Australian Capital Territory (ACT) 14 4.9 Western Australia 15 4.10 Conclusion 16

5 Suggested changes to the standard contract 17

6 Conclusion 21

4667892v4 page 1

1 The importance of determining ownership The determination of the ownership of tombstones is important to the following questions:

(a) Who has the duty to repair or maintain the tombstone?

In most cases, this is separately dealt with in the contract or in legislation, with the onus being placed on the person who erects the tombstone.

(b) Who can sue for damage to and/or removal of the tombstone?

Generally, the “owner” of the tombstone would have the standing to sue for trespass, though sometimes other persons have a sufficient possessory interest.

(c) Who has liability for any damage to other property caused by the collapse of the tombstone?

The “owner” of the tombstone has the liability (in the absence of negligence by the monumental mason) but may transfer the risk to another person by contract.

(d) Do the trustees have any powers to move, remove or sell the tombstone without being sued?

If the trustees are not the owners and do not have contractual rights to do so, then any such action is a trespass.

(e) Who may remove or sell the tombstone.

Generally, this will be the owner or the person whom the owner allows to do so.

4667892v4 page 2

2 Ownership at common law 2.1 United Kingdom (UK)

In the case of Spooner v Brewster,1 Best CJ said that, while the freehold of a churchyard is in the parson, “even he has no right to remove the tombstones, the property of which remains in the persons who erected them”.2 He went on to hold that the successors of the person who erected the tombstone were able to maintain an action in trespass against persons who wrongfully removed them. However, UK legislation that deals with churchyards has been narrowly interpreted and held to exclude consecrated areas of public cemeteries.3

The decision in Hoskins-Abrahall v Paignton Urban District Council4 confirms that the legal right of a person who erects a tombstone (or his or her successors) to maintain an action in trespass extends to situations of cemeteries that are not in churchyards.5

The case of Moreland v Richardson6 (Moreland) related to claims for injunctions to prevent the desecration of a grave and monument. The cemetery owner took out a mortgage that did not permit the granting of rights to third parties without the mortgagee’s consent. Subsequent to the mortgage, the cemetery owner granted burial rights and an associated right to erect a monument to an individual. When the cemetery owner went broke, the mortgagee sought to recover the property in total. The court held that the rights of the burial right owner was paramount to that of the mortgagee as the burial right owner had exercised that right for twenty years by adverse possession. Furthermore, the court held that the mortgagee could not complain that he did not have notice of the particular grave as he was aware that the cemetery owner was in the business of conducting a cemetery and would therefore grant cemetery rights. As a consequence of the above, the court was willing to grant a permanent injunction against the removing of the remains and the gravestone. However the court did allow the mortgagee to take possession of the non-grave areas of the cemetery.

The ecclesiastical nature of the law in the United Kingdom is evident from the case of Maidman v Malpas7 where it was held that the leave of the Ordinary (a Church official) was required for both the erection of a monument and its subsequent removal. It is important to note that there are some Australian case

1 (1825) 28 Rev Rep 613 ((1825) C.P 3 Bing 131). 2 Ibid, 139. 3 Re Welford Road Cemetery, Leicester [2007] 1 All ER 426. 4 [1929] 1 Ch 375. 5 See also Reed v Madon [1989] 2 All ER 431. 6 (1856) 22 Beav 596; 52 ER 1238 and (1857) 24 Beav 33. 7 (1794) 1 Hag Con 205; 161 ER 526.

4667892v4 page 3

authorities that suggest English ecclesiastical law does not form part of the inherited law of Australia,8 although this point is unsettled.9

In Bardin v Calcott10 it was said that it is of public consequence that monuments, once built, should be preserved.11 The court held that the churchwarden therefore had a duty to encourage repair of monuments rather than hinder such repair.

As to the question of liability for the injury caused by falling tombstone, the case of Brown v Cotterill12 is of interest. In that case, a young girl was injured when visiting her grandmother’s grave when the tombstone of an adjoining grave fell on her. The tombstone fell because the materials used by the monumental mason were inadequate.

It was held that the mason, holding himself out as an expert, had a liability in negligence for injury caused by the tombstone falling. The court said that the person who commissioned the tombstone could not be liable because they had merely relied on the expertise of the mason and did not have the necessary knowledge to determine if it was safe or not.

In Re Keynsham Cemetery,13 Briden Ch, citing Brown v Cotterill,14 stated that a mason is liable in tort for injury caused by a negligently constructed monument, However, the Court also held that a stonemason is likely, depending on the terms of the agreement, to owe contractual obligations to the purchaser of the monument. In Re Welford Road Cemetery, Leicester,15 the Court suggested that the contractual obligation applies for the statutory limitation period of six years in respect of the erection or re-erection of any monument (for example after removal to add an inscription).

The English publication, “Davies’ Law of Burial, Cremation and Exhumation” by M.R. Russell Davies, discusses various aspects of the law in this area. Important points to come out of this publication are:

• cemeteries are regulated by the Local Government Act 1972 (UK) and the Local Authorities’ Cemeteries Order 1977;

• that legislation gives cemeteries general powers for maintenance of tombstones;

• an exclusive grant of burial will be read narrowly and will not grant a right to erect a monument unless it appears on its face;16

8 See, eg, Ex parte Ryan (1855) 2 Legge 876. 9 See, eg, Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273, 276 (Young J). 10 (1789) 1 Hag Con 14 11 See also Re West Norwood Cemetery [1995] 1 All ER 387. 12 (1934) 51 TLR 21 13 [2003] 1 WLR 66 at [18]. 14 Brown v Cotterill (1934) 51 TLR 21. 15 [2007] 1 All ER 426. 16 Matthews v Jeffrey (1880) 6 QBD 290.

4667892v4 page 4

• there are certain rights under the legislation to remove a tombstone erected without proper authority and to recover the costs from the person who erected it or their personal representative; and

• there is the ability under the legislation to remove or change the position of tombstones where certain legislative procedures are followed including; advertising requirements, notification to churches, notice to personal representatives, copying of inscriptions, and appropriate recording of such removal.

In summary, the English position appears to be that property in a tombstone vests in the person that erects it (and presumably thereafter to that person’s successors in law). Despite Moreland, which could be said to stand for the proposition that ordinary principles of property apply to cemetery land (eg. adverse possession, the doctrine of fixtures), subsequent cases such as Re Welford Road Cemetery, Leicester17 and Re West Norwood Cemetery18 show that UK courts will seek to preserve the integrity of the tombstone for the benefit of the erector and his or her successors.

While cemeteries may not generally be subject to ordinary rules of property, Moreland shows that the rules of property may be used to assist the consideration of a case of a person who is injured by the acts of an innocent third party (in that case, the mortgagee).

2.2 Canada In the case of May v Belson,19 it was held that there is a right of action:

“inherent in anyone having any estate or interest in any parcel of land which has been set apart and used as a burial ground…to restrain the destruction, injury or interference with the graves or gravestones or monuments.”

The court said that the action while resembling an action to recover possession of the land or an action for trespass to land, is not exactly either.

The recognition of a right to prevent desecration of a tombstone is not necessarily concurrent with a right equal to or equivalent with ownership. The law generally recognises that a possessory right is sufficient to maintain a trespass type action against all the world except someone with better title. In this case, land with a single grave contained within the estate was sold to new owners who later decided to move the grave. The heirs of the deceased were successful in an action to stop them doing so.

The right held by the heirs was a right under the contract of sale to continue to visit the grave. Hence the importance of this case was the recognition that the contractual right to view the tombstone in its existing position was paramount to the right of the owner of the land to do with the land as she or he saw fit. By

17 [2007] 1 All ER 426. 18 [1995] 1 All ER 387. 19 (1905) 10 OLR 686 (CA)

4667892v4 page 5

relying on the contractual right, the court did not test whether there may have been some other general right to preserve the tombstone at common law.

2.3 United States of America It is in America that the issue of the ownership of tombstones has been considered in some detail. Such consideration has been on a state by state basis, but the decisions seem to be broadly consistent across states.

The starting point is the notion that a cemetery, by its inherent nature, is not subject to the laws of ordinary property.20 This is because a cemetery is a public place and because it is a “holy” place in that it houses the dead.21

Consistent with the summary of Preece “The Law Relating to Burial and Cremation”, the American courts say that the right of burial in a cemetery is in the nature of (but is not actually) an easement in gross, as opposed to a fee simple interest.22 Further the rights are based in contract and are subject to the ordinary rules of contract unless there is valid public regulation.23 The right gives the holder a sufficient property interest to entitle that person to commence an action for the protection of the tombstone from invasion.24

In Brown v Hill,25 the court held that in most cases, the right of burial will carry with it the right to erect a monument, contrary to the English rule.26 However the latter right will be subject to the reasonable rules of the cemetery.

If the monuments fall into a ruinous condition, the cemetery officials may cause them to be repaired or, if that is not possible, cause them to be removed.27

The courts suggest that all monuments that are capable of being removed are to be regarded as the personal property of the lot holder or if such person is dead, that person’s heirs.28

The right to maintain an action for damage to the monument is held by the person who erects it and thereafter by the heir of such person.29 The right of action for damage extends to disturbances to the tomb or monument.30

20 State ex rel Stephan v Lone 614 P. 228 Kan 379. 21 Ibid; see also Mansker v City of Astoria 198 P. 109, 100 OR. 435. Compare this with Lower v Haskell County

Cemetary District 274 Kan. 735, 56 P.3d 235, where it was held that cemeteries should be held as non-public fora for purposes of constitutional review on the question of the right to free speech.

22 Badeaux v Ryerson 182 NW 22, 213 Mich 642; Masonic Cemetery Association v Gamage 38 Fed. (2d) 950, 71 A.L.R. 1027, Anno. 1040 (C.C.A. 9th l930.

23 Spencer v Flint Memorial Park Association 144 NW 2d 622, 4 Mich App 157. An example is a cemetery maintained for a particular religious faith; see Kitty Rogers ‘Integrating the City of the Dead: The Integration of Cemeteries and the Evolution of Property Law, 1900-1969’ (2005) 56(4) Alabama Law Review 1165.

24 Homblower v Masonic Cemetery Association of City and County of San Fransisco 214 P. 978, 191 C 83; Masonic Cemetery Association v Gamage 38 Fed. (2d) 950, 71 A.L.R. 1027, Anno. 1040 (C.C.A. 9th l930.

25 119 NE 977, 284 I11 286. 26 See also Mansker v City of Astoria 198 P. 109, 100 OR. 435. 27 Mansker v City of Astoria 198 P. 109, 100 OR. 435. 28 Partridge v Baltimore First Independent Church 39 Md. 631; Mitchell v Thorne 32 NE 10, 134 NY 536. 29 Dennis v Keillor 306 NW 2d 324, 105 Mich App 463. 30 Ibid.

4667892v4 page 6

The American case materials are the most extensive of any of the jurisdictions examined. It is clear that the American courts have set aside cemeteries as special places with special rules to ensure that ownership of tombstones within those cemeteries remain with the person who erected them, and thereafter that person’s heirs.

2.4 Australia No Australian court has covered the same ground as discussed in the English, Canadian and American cases cited above; that is, they have not had to decide the issue of the ownership of tombstones directly.

The body of law that has built up in relation to the distinction between chattels, which are separate pieces of property, and fixtures which form part of the real property may affect the result of a case if heard in an Australian court that is not bound by the overseas decisions (though we note that the law as to fixtures is also a part of the English law of property but was not considered by the English courts cited in the cases cited above). In the past, Australian courts traditionally had a high regard for English cases but less so for those of the other jurisdictions covered. However, recent High Court decisions31

demonstrate that regard will also be had to decisions of other common law jurisdictions, particularly where the state of the law is vague and uncertain or changing. The question of the ownership of tombstones is one where it seems appropriate to pay due regard to the extensive and considered nature of the law in the United States.

If a tombstone is regarded as an ordinary fixture, ownership of it passes with the ownership of the land. That is, the trustees of the cemetery (trustees)would own the tombstone even though it was paid for, erected, and maintained by others. By operation of law, the legal title of the chattel owner is extinguished and ownership is vested in the owner of the cemetery land.32 Of course, the operation of the doctrine of fixtures does not affect the contractual rights that may be held by the chattel owner. That is, if the contract, expressly or impliedly gives rights to use the tombstone (for viewing or otherwise), then those rights will continue for the term for which they are granted and this would give the grantee certain rights as against the trustee (see further section 3).

In Australian Provincial Assurance Co Ltd v Coroneo,33 the court set out the basic principles forming the distinction between chattels and fixtures that can be summarized as follows:

(a) If a chattel is actually affixed to land by means other than its own weight it is prima facie a fixture.

(b) If a chattel is kept in place by its own weight, then prima facie it is not a fixture.

31 See eg the judgments of Kirby J in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; Kartinyeri v

Commonwealth (1998) 195 CLR 337. 32 Bain v Brand (1876) 1 AC 762, at 772. 33 (1938) 38 SR (NSW) 700 at 712

4667892v4 page 7

(c) If it has been affixed to the land, it is a fixture if there is an intention that it shall remain in that position for an indefinite or substantial period rather than merely for a temporary time span.

However, in National Australia Bank Ltd v Blacker,34 the Federal Court of Australia held that there is no single determinative test of whether an item is a fixture or a chattel. In making its determination, the court will have regard to all the facts and circumstances, although the purpose of annexation and the degree of annexation remain important considerations. An item is presumed to be a fixture if it is affixed to the land, and the burden of proof lies with the party asserting that it is not a fixture. Conversely, an item is presumed to be a chattel if it is not affixed to the land but merely rests on its own weight, and the party asserting that it is not a chattel bears the onus of proof.

A tombstone would seem, prima facie, to be a fixture under these rules because the tombstone is set on foundations that are secured to the ground and together seem affixed to the land. However, this may place insufficient emphasis on the intention of the parties having regard to the unique nature of a cemetery as referred to in the UK and American cases.

For completeness, we have considered whether the procedures enacted in certain jurisdictions for dealing with unclaimed or uncollected goods could apply to tombstones where the owner of the tombstone cannot be located (ie. assuming tombstones retain their character as chattels following erection). In this regard, we think that there may be difficulties in satisfying relevant preconditions for the operation of those rules (which depend on the arrangements with the cemeteries amounting to a bailment) and, in any event, the legislation would be insufficient to deal with the range of issues of concern. For similar reasons, even if a tombstone was a chattel and could be “abandoned”,35 potentially allowing the trustees to remove it, it would not resolve the other issues of concern (eg liability for injury to third parties).

34 (2000) 104 FCR 288. 35 See Halsbury’s Laws of Australia at [315-425] for a discussion on the abandonment of personal property.

4667892v4 page 8

2.5 Conclusion The essence of the overseas law is that cemetery land is not ordinary property and that there is a public interest to the maintenance of tombstones because they are a record of the people from that society. Further, cemeteries are regarded as holy places (even if not religious) because they house the bodies of the dead and each generation seeks to ensure that there is an eternal resting place for their remains unless there is a serious need for removal of the cemetery.

The rule of law as to fixtures is subject to flexibility in cases where the results may be harsh.36 In our opinion, an Australian court confronted by the need to determine ownership would be likely to agree that the ownership of tombstones is vested in the person who had it erected and thereafter to that person’s heirs. That is, the courts would weigh the public policy considerations and lean in favour of those that relate to the sanctity of cemeteries, particularly by reference to the overseas cases.

36 See Teh and Dwyer, “Introduction to Property Law” at p. 16.

4667892v4 page 9

3 Position under the contracts used by ACCA members We have examined the sample contracts (certificates of burial containing the terms and conditions of burial etc) provided by the ACCA in relation to burial rights granted by constituent cemeteries.

The contracts related to the following cemetery trusts or organisations:

• Southern Regional Cemetery Trust, Tasmania;

• Adelaide Cemeteries Authority (Enfield Memorial Park), South Australia; and

• ACCA.

While this is a small sample, these documents generally only deal with the need for the trustee’s consent prior to erection of the tombstone (including specifications for the size and appearance of the monument), and the grantee’s duty to provide ongoing maintenance of the tombstone. It appears that each of the contracts incorporates the statutory rules and regulations applicable to that cemetery which are discussed in section 4.

These contracts fail to deal with the question of ownership, although the fact that the grantee bears the duty of maintenance would suggest that the grantee may be regarded as the owner, as maintenance is often linked to proprietary interests (ie. a lessee of goods often has maintenance obligations, whereas a mere hirer would rarely take these on).

It is clear that, subject to public policy, the courts will allow parties to alter their legal rights under a contract. That is, notwithstanding the common law rule as to ownership expressed above, the parties could agree otherwise by contract. The courts may invoke public policy in cases where a cemetery acted unscrupulously, such as taking ownership of the tombstone immediately on erection.

We therefore recommend expanding on the contractual terms with a view to mitigating the uncertainty. In this regard, our suggested contractual terms are outlined in section 5. It should be noted, however, that the ability to bind successors of the grantee to these contractual arrangements is limited due to the rules on privity of contract.37 For this reason, legislative reform (as recommended in section 4) is still preferred.

37 See generally Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107.

4667892v4 page 10

It should also be noted that other legislation, such as that dealing with heritage issues, may impact on the power of cemetery boards to deal with tombstones. In this regard, it is helpful to note the publications prepared by the Australian Council of National Trusts (“National Guidelines for the Conservation of Cemeteries”) and the National Trust of Australia (NSW) (“Guidelines for Cemetery Conservation”). While these documents do not legally bind cemetery authorities, they do provide general guidance regarding heritage issues associated with the removal and repair of monuments

4667892v4 page 11

4 Position under legislation 4.1 Introduction

In this section, we examine the statutory framework applicable in each state and territory of Australia to determine whether those statutory provisions alter the pattern of ownership at common law as discussed above.

It is important to note that we have not undertaken an extensive investigation of the rules and regulations of each cemetery around Australia. Rather we have investigated the rules of one or two cemeteries in each state and have worked on the assumption that they are more or less representative of the regulations in that state or territory. Readers should therefore ensure that there are no significant differences in the rules and regulations of the particular cemetery in which they are interested.

4.2 Victoria (a) Acts

In Victoria, the operation of cemeteries are principally regulated by the Cemeteries and Crematoria Act 2003 (Vic).

The Act has no clear statement as to the ownership of tombstones. The obligation to maintain the tombstone is clearly on the person having the burial right unless a fee is paid for maintenance to the cemetery trustee.38 However, the trustee has certain powers to remove the tombstone if it was erected in breach of the terms of the grant of the burial right or if it is dangerous and the person who has the duty to maintain it, fails to repair it.39 The trustee also has the power recover compensation for repairs to the tombstones. 40 Lastly, the Act does provide for the removal of tombstones in certain cemeteries in order to create “historic cemetery parks”.41

It is difficult to determine if the act is trying to change the pattern of ownership. The granting of powers to prosecute and recover compensation would seem to suggest that either the trustee did not have such powers (ie. implying that the person who erected the tombstone is the owner) or that no one had the power previously and the legislature wanted to ensure that someone could recover money in order to repair the damaged tombstone (implying that the person who erected the tombstone is not the owner). Given the English precedents as to trespass, of which the legislature must be taken to have been aware of, the latter contention is unlikely. We consider that the Act does not affect

38 Sections 104 and 111, Cemeteries and Crematoria Act 2003 (Vic). 39 Sections 100 and 106, Cemeteries and Crematoria Act 2003 (Vic). 40 Section 108, Cemeteries and Crematoria Act 2003 (Vic). 41 Part 5, Cemeteries and Crematoria Act 2003 (Vic).

4667892v4 page 12

the ownership position at all, but merely gives the trustee some powers which it might not otherwise have.

(b) Statutory rules and delegated legislation

The Cemeteries and Crematoria Regulations 2005 (Vic) do not provide any further indication of who owns tombstones.

4.3 New South Wales (a) Acts

A major overhaul of the statutory regulation of cemeteries occurred when the Local Government Act 1919 (NSW) was largely repealed by the Local Government Act 1993 (NSW). Under the new legislation, the running of cemeteries has been left to local councils under the general power to provide goods, services and facilities, and to carry out activities, that are appropriate to the current and future needs of the local community.42

However, there are several cemeteries expressly created, varied or closed by operation of individual statutes.43 These statutes allow the trustees (or other governing bodies) of the respective cemeteries to remove monuments (subject generally to the requirement to advertise the proposed removal).


While Councils have the power to provide, manage and control public cemeteries, there have been no regulations made in relation to cemeteries under the new Act.

4.4 Queensland (a) Acts

In Queensland, the statutory regulation of cemeteries is governed primarily by Division 10 of the Land Act 1994 (Qld). Unlike the Cemeteries Act 1986, which the Land Act partly replaced, it does not have the usual provisions as to erection of monuments, although it does give the trustees power to remove dangerous tombstones,44 subject to the Queensland Heritage Act 1992 (Qld).

42 Section 24, Local Government Act 1993 (NSW). 43 These include the following pieces of legislation: Bega Cemetery Act 1943; Botany Cemetery and Crematorium

Act 1972; Campbelltown Presbyterian Cemetery Act 1984; Camperdown Cemetery Act 1948; Christ Church Cathedral, Newcastle, Cemetery Act 1966; Coonamble Cemetery Act 1963; East Ballina Cemetery Act 1957; Gladesville Mental Hospital Cemetery Act 1960; Gore Hill Memorial Cemetery Act 1986; Gosford Cemeteries Act 1970; Lewisham Hospital and Church Lands Act 1934; Liverpool Cemetery Act 1950; Methodist Church, Rockdale, Cemetery Act 1936; Old Balmain (Leichhardt) Cemetery Act 1941; Old Liverpool Cemetery Act 1970; Old Roman Catholic Cemetery, Crown Street, Wollongong, Act 1969; Old Wallsend Cemetery Act 1953; Parramatta Methodist Cemetery Act 1961; Rookwood Necropolis Act 1901; St. Andrew’s Church of England, Mayfield, Cemetery Act 1957; St. Andrew’s Presbyterian Church, Woonona, Cemetery Act 1966; St. Anne’s Church of England (Ryde) Cemetery Act 1940; St. Anne’s Church of England, Ryde, Act 1968; St. George’s Church of England, Hurstville, Cemetery Act 1961; St. Peter’s Church of England, Cook’s River, Cemetery Act 1968; St. Thomas’ Church of England, North Sydney, Cemetery Act 1967.

44 Section 80, Land Act 1994 (Qld).

4667892v4 page 13


Schedule 11 of the Land Regulations 1995 contains a “Model by-law about cemeteries, crematoriums and mortuaries” for the use of local government authorities. This has obviously been used as the basis of local laws by some of the 106 Queensland municipalities that have local laws relating to cemeteries and crematoria.45 However, many of these delegated instruments do vary from the model by-law. For example, Aramac Shire Council permits a member of the family of a deceased person, or another person who has a proper interest in the maintenance of a memorial to a deceased person, to carry out maintenance or repair work on a memorial, subject to the approval and direction of the Sexton.46

The local laws that we reviewed are silent on the issue of ownership of headstones. Other cemeteries in each of the municipalities should refer to the applicable local law for further information.47

4.5 South Australia (a) Acts

The Local Government Act 1934 (SA), Part XXX (sections 585-596) is the South Australian legislation dealing with cemeteries. Basically it devolves all powers of management and maintenance of cemeteries to local councils. While South Australia has introduced the Local Government Act 1999 (SA), this new Act has not repealed the earlier Act or affected the provisions relating to cemeteries.


The Local Government (Cemetery) Regulations 1995 (SA) make no reference to the ownership of tombstones. However, prior to the introduction of these regulations, the Centennial Park Cemetery Trust Incorporated Regulations 1988 applied to that cemetery. These regulations specifically provided a “right…for the erection of tombstones or monuments” being a licence for a term (clause 11). While the registered licensee had the duty of repair (clause 39), no monument could be removed without the consent of the general manager (clause 38). Most relevantly, the monuments would become the property of the Trust if they were not removed within three months of the expiration of

45 These municipalities are: Aramac, Atherton, Balonne, Banana, Barcaldine, Barcoo, Bauhinia, Beaudesert,

Belyando, Blackall, Boonah, Booringa, Boulia, Bowen, Broadsound, Bulloo, Bungil, Burdekin, Burnett, Caboolture, Cairns, Calliope, Caloundra, Cambooya, Cardwell, Carpentaria, Charters Towers, Cherbourg , Chinchilla, Clifton, Cook, Cooloola, Crows Nest, Dalby Town , Diamantina, Doomadgee , Douglas, Duaringa, Eacham, Eidsvold, Emerald, Esk, Fitzroy, Flinders, Gatton, Gayndah, Gladstone, Gold Coast, Goondiwindi, Herberton, Hervey Bay, Hinchinbrook, Ilfracombe, Injinoo , Ipswich, Isis, Isisford, Jericho, Jondaryan, Kilcoy, Kilkivan, Kingaroy, Kolan, Livingstone, Lockhart River , Logan, Longreach, Mackay, Mareeba, Maroochy, Maryborough, McKinlay, Millmerran, Mirani, Miriam Vale, Monto, Mornington, Mount Isa, Mundubbera, Murgon, Murilla, Murweh, Nanango, Nebo, Noosa, Palm Island, Paroo, Perry, Pine Rivers, Pittsworth, Quilpie, Redcliffe, Redland, Rockhampton, Rosalie, Sarina, Stanthorpe, Tambo, Tara, Thuringowa, Toowoomba, Waggamba, Warwick, Whitsunday, Winton and Wondai.

46 Section 26, Aramac Shire Council (Cemeteries) Local Law No. 7. 47 See footnote 45.

4667892v4 page 14

the licence term (clause 41). This provision gives a clear indication that prior to those three months elapsing, the licensee had the property rights in the tombstones. However, these regulations no longer apply.

4.6 Tasmania (a) Acts

The Burial and Cremation Act 2002 (Tas) provides that if any monument has been erected contrary to the terms and conditions on which the permission to erect it was granted, or the cemetery manager believes the monument is unsafe, the cemetery manager may (by notice in writing) require the person who erected or placed the monument to take it down and remove it or render it safe within a reasonable time (as specified in the notice).

However, if the person fails to comply or the cemetery manager (after diligent enquiry) is unable to find the person who erected or placed the monument, the cemetery manager may take the monument down and remove it, or render it safe, and recover the reasonable cost of doing so from the person who erected or placed the monument. This would indicate that ownership is vested in the person that erects a tombstone.


Given the relatively thorough legislation in Tasmania, statutory rules and delegated legislation do not add any further detail to questions of ownership of, and liability for, tombstones.

4.7 Northern Territory (a) Acts

Under the Cemeteries Act 1952 (NT), the erection and maintenance of tombstones is a matter for the regulations.48


Regulation 27 of the Cemeteries Regulations 1967 (NT) contain very general provisions giving the trustees the power to repair or remove tombstones that are dangerous, in disrepair or unsightly. They do not deal with ownership. We are not aware of any rules created for particular cemeteries in the Northern Territory.

4.8 Australian Capital Territory (ACT) (a) Acts

In the ACT, cemeteries are regulated under the Cemeteries and Crematoria Act 2003 (ACT) but leave the control of tombstones to the regulations and codes of practice.

48 Sub-sections 40(e) and (i), Cemeteries Act 1952 (NT).

4667892v4 page 15


The Cemeteries and Crematoria Regulations 2003 (ACT) do not provide any information about the erection and maintenance of tombstones. However, the ACT Cemeteries and Crematoria Code of Practice 2007, approved by the Minister for Territorial and Municipal Services in April 2007, has the standard type of conditions as to approval of tombstones and repair when the tombstone becomes dangerous, while also providing that costs will be borne by the holder of the right of burial.

4.9 Western Australia (a) Acts

The Cemeteries Act 1986 does not contain any novel provisions dealing with the ownership of tombstones. By section 55, it empowers the Board of the cemetery to make by-laws for the protection of monuments.

It is important to note that, in Western Australia, there are a number of pieces of legislation dealing with particular cemeteries which we have not examined for this paper, but which should be consulted by persons interested in those particular cemeteries.49

The WA Department of Local Government and Regional Development undertook a review of the Cemeteries Act 1986 and published a Position Paper in January 2007.

The paper reviews the legislation in other States governing the rights of the Board to alter or remove memorials, and suggests a similar criteria to that in Victoria (disrepair, unsafe) and a right to refuse/alter a monument on the basis of safety, permanency, compatibility and compliance.

The paper also recommends that the Board must give consideration to the requirements of heritage and associated legislation, citing the Queensland Heritage Act 1992 (Qld) and Adelaide Cemeteries Authority Act 2001 (SA) as examples in other States. These issues mainly arise out of proposed redevelopments to cemeteries.

At the date of this paper, we understand that discussions between the relevant government agencies and the Minister for Local Government are still in progress regarding the proposed amendments.


As noted above, the boards of cemeteries (commonly local councils) are granted power to make by laws. By way of example, the Broome Cemetery By-Law does not contain any new provisions, but deals with consent to erection of the headstone (clause 37).

49 These cemeteries include Albany Cemetery, Albany Public Cemetery, Busselton Cemetery, East Perth Cemetery,

Mandurah Church Burial Ground, Northam Cemetery, Toodyay Cemetery and York Cemetery.

4667892v4 page 16

4.10 Conclusion Having reviewed the applicable legislation and a sample of the statutory rules and delegated legislation throughout Australia, it appears that the question of ownership of tombstones has not been dealt with comprehensively in any jurisdiction. In particular, questions posed in section 1 of this paper have not been addressed.

The ideal response to this ambiguity and uncertainty would be for ACCA to advocate for legislative reform. Given the existence of Labor governments at a Federal and State level, now may be the perfect time to seek to address this issue on a relatively consistent basis. In this regard, the Standing Committee of Attorneys General has an ongoing project regarding the harmonisation of State and Territory laws which may be the appropriate avenue for addressing this issue. We would suggest approaching the relevant Minister in one of the states to sponsor such reform. We would be pleased to assist the ACCA in this regard.

4667892v4 page 17

5 Suggested changes to the standard contract While ideally, the resolution of the question of ownership of tombstones should be left to legislation, it is invariably difficult to get governments to amend legislation when it is necessary.

Hence, we suggest the terms along the following lines be added to the Standard contract of ACCA members. These terms could then later be used to alter legislation, regulations, or by-laws as necessary.

“xx. Provisions regarding erection of structures xx.1 Application for License

The grantee of an exclusive right of burial or the legal successor of such grantee may apply for a licence to erect a headstone, tombstone, monument or other structure (structure) on the land to which the exclusive right of burial relates.

xx.2 Grant of Licence The trustees may (in its discretion) approve the issue of a licence provided that the grantee (licensee) or the licensee’s legal successor has:

(a) Paid the sum of $ .00 (which includes a maintenance fee) or the sum of $ .00 (which excludes a maintenance fee; and

(b) Submitted plans for the structure intended to be erected which comply with any rules or regulations on such structures as issued from time to time by the trustees and with any applicable legislation or statutory rules.

xx.3 Term and Rights of license Where the trustees grant a licence under clause xx.2, the term of the licence is the same as the term of the exclusive right of burial subject to the following terms and conditions. The licence shall enure to and for the sole and separate use of the licensee and the licensee’s legal successors for the term and any extension thereof. The parties acknowledge that the licensee and the licensee’s legal successors are the owners of the structure and have a non-exclusive right to access the cemetery during ordinary operational hours to view and attend to the structure during the term and any extension thereof.

xx.4 Register of licenses (a) Where the trustees grant a licence under clause xx.2, the

trustees will enter the name and contact details of the licensee and the licensee’s legal successor in a register.

4667892v4 page 18

(b) The licensee must notify the trustees in writing if the licensee’s details or legal successor change and the trustees must update the register accordingly.

(c) In the absence of a court order to the contrary, the trustees are entitled to treat the person named on the register as the legal successor of the licensee for the purposes of this agreement.

(d) The trustees may require the legal successor of a licence to sign a deed acknowledging his or her obligations pursuant to this agreement.

xx.5 Maintenance (a) Where a licensee has paid a sum under cl xx.2 that excludes a

maintenance fee, the licensee and the licensee’s legal successors are responsible for the maintenance of the structure, which is to be kept in a clean, orderly and non-dangerous state.

(b) Where a licensee or the licensee’s legal successor fails to comply with clause xx.5(a), the trustees may take all such action as required to fulfil the obligation imposed by clause xx.5(a) and to recover the costs of doing so from the licensee or the licensee’s legal successor as a debt.

(c) Where the licensee has paid a sum under cl xx.2 that includes a maintenance fee, the trustees are responsible for the maintenance of the structure during the term and any extension thereof.

xx.6 Damage to the structure The licensee acknowledges that the trustees may (but are not required to) bring an action in their own name, or in the name of the licensee or the licensee’s legal successors, to prevent any person causing any damage whatsoever to any structure erected. The licensee or the licensee’s successor will do all such things as may be necessary to assist the trustees in bringing such an action.

xx.7 Injury to Person or Property by the Structure50 The licensee acknowledges that the licensee or the licensee’s legal successors are liable for any injury caused to any person or property by the collapse of any structure erected and will indemnify the trustees for any payment the trustees may make to any other person as a result of the collapse of a structure and any associated costs.

xx.8 Duties on Expiry of Term (a) The licensee or the licensee’s legal successors must remove

the structure on the expiry of the term or any extension thereof.

50 Note: Notwithstanding this clause, the trustees should ensure the maintenance of sufficient insurance to cover

any claim brought by a third party, including for negligence.

4667892v4 page 19

(b) In the event that clause xx.8(a) is not complied with, the trustee must send notice to the last known address of the licensee or the licensee’s legal successor recorded in the register maintained pursuant to clause xx.4 and publish a notice in the newspaper circulating in the area in which the cemetery is located and a newspaper circulating nationally in Australia advising that if the licensee or the licensee’s legal successor fails to remove the structure within one month from the date of notice, the trustee will exercise its rights under clause xx.8(c).

(c) In the event that the structure is still not removed after the period stated in clause xx.8(b), the trustees will be entitled to dispose of the structure as the trustees see fit for their own benefit.

(d) Before removing the structure from the position in which it stands, the trustee must take a record including:

(i) a note of any inscription on the structure;

(ii) a note of the location of the structure within the cemetery; and

(iii) a short description of the design and materials of the structure (to the extent that it does not, to the knowledge of the trustees, offend any religious belief or faith of the deceased ).

(e) A copy of the record must be forwarded to the local council for the area in which the cemetery is situated, to be kept for historical purposes.

xx.9 Power of the Trustees to Move or Remove the Structure (a) The trustees shall have the power to alter, move or remove the

structures in any of the following circumstances:

(i) where the trustees have received the written consent of the licensee or the licensee’s successors;

(ii) where the trustees have been granted the power under a statutory enactment;

(iii) where the structure has become dangerous to person or property and is beyond repair;

(iv) where the structure was erected without a licence having been granted; or

(v) where the structure is not in accordance with the plans submitted prior to its approval for its erection being granted.

(b) Where the trustees exercise the power contained in clause xx.9(a), the trustees must comply with the notice procedure in

4667892v4 page 20

clause xx.8(b) and, if no claimant objects within one month, the trustee must comply with the recording procedure in clause xx.8(d).

xx.10 Release The licensee and the licensee’s legal successors release and hold the trustees harmless in respect of any claim arising from an act taken by the trustees in good faith in pursuance of this clause xx or under any statute or regulation concerning the management of cemeteries.”

The provisions of this clause would be in addition to a more specific clause on the requirements as to any structures to be erected, ie. dealing with height, materials, etc.

4667892v4 page 21

6 Conclusion The determination of the ownership of tombstones is important in answering a number of questions that were outlined in section 1. In Australia, because of the absence of relevant cases, the common law position is unclear. However, if we examine overseas precedents, we can determine a pattern that suggests that the ownership of tombstones is vested in the person that caused such structures to be erected (and their successors), and that this is likely to be followed in Australia (section 2). However, it is inherently dangerous to allow the common law to define the rights and duties of the trustee’s vis-à-vis the owner of the tombstone as the courts can adopt laws that unduly inhibit the rights of the trustees.

While the common law position can be altered by contractual provisions, based on our investigation of cemetery/monument contracts, none contained any relevant provisions (section 3).

Legislation can also be used to alter the common law position. However, we found that, generally, ownership of tombstones has not been clearly vested in the person that had caused the tombstone to be erected. Even where some indication of ownership is provided, the legislative provisions were inadequate to deal with all the issues outlined in section 1 (see section 4). Of particular importance is the question of what happens to the tombstones when the time for which the grave has been granted has expired.

We formulated a standard set of conditions to be included in any cemetery contract to balance the interests of both the grantee of the plot and the trustees (section 5). Naturally, it is only a precedent and should be adapted, after more specific legal advice, to the needs of the particular cemetery. In the future, when government comes to review the statutory and semi-statutory regulation of cemeteries, as recommended be considered, the standard set of conditions might provide a useful basis for altering the existing laws outlined in section 4.

4667892v4 the law on ownership of tombstones and · pdf filethe law on ownership of tombstones...

Documents