An attention-grabbing article title, yes? The WRA Legal Hotline frequently fields questions about burial sites and cemeteries. Those underlying questions are legitimate, and you might even find yourself asking similar questions in your own transactions. The hotline article this month recaps  discussions about burial sites and cemeteries. 

Burial site disclosure 

A potential seller recently asked an agent whether the seller would be obligated to disclose if someone is buried on the property. Would the seller have to disclose this? Would the agent have to disclose this?

If a seller is completing a real estate condition report (RECR) or a vacant land disclosure report, the seller is asked to answer “yes” or “no” to “Are you aware of one or more burial sites on the property?” This question is found at F20 in the RECR and E19 in the VLDR. 

If a seller was aware someone was buried on the property and did not disclose this, the buyer may have a claim against the seller for misrepresentation. Similarly, if an agent knows a person was buried on the property and it was not previously disclosed by the seller and the agent did not disclose it, not only could the agent potentially be liable for misrepresentation but also for violation of the agent’s duties to disclose material adverse facts to all parties in writing in a timely manner. 

If buyers or sellers are looking for information about burial sites, what resources can the agents provide?  

The primary source of information regarding the presence, preservation and potential disturbance of burial sites is the Wisconsin Historical Society. Private landowners, agents or potential property buyers can request information about archaeological sites and burial sites present on a parcel. The burial sites preservation law, Wis. Stat. § 157.70, applies to any property regardless of ownership or the activities conducted. It applies to a developer creating a new subdivision, or a property owner excavating for a pool or house foundation. If evidence of a burial site is found, it is important that this information be disclosed to a potential buyer. For further burial site information, contact the Wisconsin Historical Society at 800−342−7834 or visit www.wihist.org/burial-information. For ease of access, this contact information is contained within the RECR and the VLDR.

Cemetery as part of listed property   

An agent is going to be listing a church and a cemetery. Are there any legalities the agent should be aware of?

All human burial sites, including cemeteries and Indian mounds, are protected under state law, specifically Wis. Stat. § 157.70, which applies to both public and private lands. The law is administered by the Wisconsin Historical Society Burial Sites Program. 

For more information about state law related to burials, mounds and cemeteries, the agent may refer the parties to the Wisconsin Historical Society webpage at www.wisconsinhistory.org/Records/Article/CS15239. In addition, Wis. Stat. Chap. 157 addresses the disposition of human remains and includes information regarding burial site preservation. For further reading, see docs.legis.wisconsin.gov/statutes/statutes/157.pdf.

Archaeological significance  

The buyer purchased a property, and after closing, the builder applied for building permits. The builder was told the property had archaeological significance, and the permits were denied. How should the buyer proceed? 
 
It appears that the buyer has research to do, beginning with investigation and research of the property. The buyer may work in conjunction with the builder, the Wisconsin Department of Natural Resources and/or the Wisconsin Historical Society to determine what the site has in terms of archaeological significance. The Wisconsin Historical Society has programs that protect Wisconsin’s archaeological resources and maintain archaeological site records.

“Archaeological site” is defined in Wis. Stat. § 44.47(1)(b) as “any land or the bed of any stream or lake where there are objects or other evidence of archaeological interest, aboriginal mounds and earthworks, ancient burial grounds, prehistoric and historical ruins, Indian mounds, historic and prehistoric watercraft and associated objects, aircraft and other archaeological and historical features.” 

In addition, the buyer may work with an independent archaeologist regarding the matter to verify any information provided by the state. Determining what, if any, limitations there will be on property development would be critical before moving forward. Depending on the results and the possible limits on development, the buyer will consider whether to pursue the seller regarding possible misrepresentation. It will become a fact-based question to determine if the seller was aware of such archaeological significance and may therefore have liability for failure to disclose. Factually, it will need to be determined if the seller was aware of the characteristics of the site and failed to make appropriate disclosures.