N.Y. Not-for-Profit Corporation Law § 1513-a: Reacquisition of a lot, plot or part thereof by a cemetery corporation

§ 1513-a. Reacquisition of a lot, plot or part thereof by a cemetery

corporation.

A cemetery corporation may, upon application and approval by the

cemetery board, reacquire, resubdivide, and resell a lot, plot or part

thereof under the following circumstances:

(a)(i) If the records of the corporation demonstrate that the lot,

plot or part thereof was purchased more than seventy-five years prior to

the application of the corporation; and (ii) if no burials have been

made in the lot, plot or part thereof or all the bodies therein have

been lawfully removed; and (iii) if neither the owner or owners of the

lot, plot or part thereof nor any person having a credible claim to

ownership who has visited, made payments in respect of or engaged in any

other proprietary activities with respect to the lot, plot or part

thereof can be identified after a reasonable search conducted by the

cemetery corporation, it shall be conclusively presumed that the owner

or owners of the lot, plot or part thereof have abandoned their burial

rights. A reasonable search consists of a search of: (1) all cemetery

records to determine the name of the owner or owners of the lot, plot or

part thereof, their last known addresses and all information available

to the cemetery relating to any person buried in the lot, plot or part

thereof and the names and last known addresses of any persons making

inquiry about or visiting the lot, plot or part thereof; (2) a search

for the death certificates and the probated wills of the owner or owners

of the lot, plot or part thereof; (3) the posting of notice by the

cemetery at the entrance to the cemetery and in the cemetery office, if

any, of its intention to declare the lot, plot or part thereof

abandoned; (4) the mailing of such notice certified mail with return

receipt requested to the owner or owners of the lot, plot or part

thereof and each person identified during the reasonable search at their

last known addresses; (5) publication of such notice once in each week

for three successive weeks, in two newspapers of regular commercial

circulation by subscription and/or newsstand sale, to be designated by

the county clerk of the county where the cemetery is located which in

his or her judgement, given the ethnic, religious, geographic or other

related demographic characteristics of the owner or owners of the lot,

plot or part thereof and each person identified through the reasonable

search and the predominant readership of such newspapers are best

calculated to inform the owner or owners of the lot, plot or part

thereof and each person identified through the reasonable search of any

application pursuant to the provisions of this section; and (6) the

preparation of an affidavit describing the steps taken by the cemetery

corporation to ascertain the identity of and to contact the current

owner or owners of the lot, plot or part thereof or next-of-kin thereof

or any other persons identified in the course of the reasonable search

who might have relevant information and the results of such steps. After

the filing with the cemetery board of proof of compliance with the above

requirements in form and substance reasonably satisfactory to such board

and upon approval by the cemetery board, the lot, plot or part thereof

may be resold by the cemetery to any party in compliance with the

cemetery rules and regulations provided, however, that any monument

subsequently placed on such lot, plot or part thereof shall conform to

the general appearance of any existing monuments in said section of

lots, plots or parts thereof, if any.

(b) If (i) the circumstances described in paragraph (a) of this

section exist except that one or more burials have been made in a lot,

and the last burial was made more than seventy-five years prior to the

application, (ii) the lot, plot or part thereof can be subdivided to

create new graves, (iii) the bodies have not been lawfully removed, and

(iv) the cemetery submits an application to the cemetery board which

complies with the requirements set forth in paragraph (a) of this

section, it shall be conclusively presumed that the lot owner has

abandoned the right to make further burials in the lot, the lot may be

subdivided, and the resubdivided lot, plot or parts thereof which do not

contain the remains of the deceased persons may be resold by the

cemetery corporation as provided in this section. Nothing in this

section shall permit a cemetery corporation to declare abandoned a lot,

plot or part thereof, where such lot, plot or part thereof was purchased

for multiple depth burials and where one or more burials has occurred or

authorized a cemetery corporation to remove a monument or other

embellishment to facilitate the resale of such lot, plot or part

thereof, except as provided by section fifteen hundred ten of this

article.

(c) If the owner or owners of a lot, plot or part thereof can be

identified, the cemetery corporation, with the consent of the owner or

owners of the lot, plot or part thereof, the lot, plot or part thereof

may be resubdivided, and the resubdivided lot, plot or part thereof

which does not contain the remains of deceased persons may be resold by

the cemetery corporation, provided, however, if no burial has been made

in the lot, plot or part thereof, in the twenty-five year period

preceding such application, the owner of a lot, plot or part thereof has

notified his or her parents, spouse, issue, brothers, sisters,

grandparents, and grandchildren, if any, of the application to the

cemetery board, and provided further, however, if a burial has been made

in this lot, plot or part thereof during such twenty-five year period,

the spouse and issue of such deceased person are also notified, and

provided further, in either case the owner of the lot, plot or part

thereof satisfies the cemetery board that none of the persons notified

have agreed within forty-five days of notification to purchase the lot,

plot or part thereof at the price provided under paragraph (c) of

section fifteen hundred thirteen of this article.

(d) Upon the sale of a lot, plot or part thereof reacquired by the

corporation under the provisions of paragraph (a), (b), or (c) of this

section, thirty-five percent of the net proceeds shall be placed in the

permanent maintenance fund and sixty-five percent shall be placed in the

current maintenance fund. Provided, however, that if their property was

reacquired under paragraph (i) of this section, thirty-five percent of

the net proceeds shall be placed in the permanent maintenance fund,

fifty percent shall be placed in the current maintenance fund and

fifteen percent shall be placed in a perpetual care fund which the

cemetery shall establish in the name of the defunct society for the

exclusive purpose of maintenance of the grounds on which the graves were

reacquired.

(e) If the owner of the lot, plot or part thereof is subsequently

identified, the cemetery corporation shall: (i) return all unsold lots,

plots or parts thereof if any, to the owner if so requested; and (ii)

with respect to any lots, plots or parts thereof that have been sold

pursuant to this section, at the option of the owner of the lot, plot or

part thereof; either (1) provide the owner, at no cost to the owner,

with a lot, plot or part thereof comparable to any lot, plot or part

thereof that was sold by the cemetery corporation or (2) provide the

owner with the proceeds from the sale of the lot, plot or part thereof

reacquired under this section with interest thereon from the date of the

sale at six percent per annum.

(f) The provisions of this section shall not apply to a lot, plot or

part thereof whose record owner is a religious burial society.

(g) The provisions of this section shall not violate the burial

requirements of sectarian sections of cemetery corporations.

(h) Monuments to be erected on a lot, plot or parts thereof, following

the resale of a lot, plot or part thereof, shall conform to the rules

and regulations or other requirements of the cemetery corporation and

shall conform to the size, style and type of monuments in the section of

the cemetery where such resale occurs.

(i) A cemetery corporation may, upon application and approval by the

cemetery board, reacquire, resubdivide, and resell a lot, plot or part

thereof formerly owned by a nonsectarian burial society under the

following circumstances:

(1) If the cemetery corporation has received a request to make a

burial on the grounds of a nonsectarian burial society and the

provisions of paragraph (h) of section fifteen hundred twelve of this

article had to be invoked to make the burial then the cemetery

corporation may, at its discretion, commence the process of reacquiring

the unused graves on the grounds of the nonsectarian burial society,

except that any graves that have been reserved for individuals where

such reservations have been recorded on the books and records of the

cemetery corporation shall be exempt from reclamation; or

(2) If routine mailings or proxy mailings are sent to the officers of

record of a nonsectarian burial society and such mailings are returned

by the post office, the cemetery corporation may, at its discretion,

make a second mailing by certified mail return receipt requested to each

officer of record of the nonsectarian burial society as recorded on the

cemetery's books and records and, if each of these mailings is returned

by the post office, the cemetery corporation may, at its discretion,

commence the process of reacquiring the unused graves on the grounds of

the nonsectarian burial society, except that any graves that have been

reserved for individuals where such reservations have been recorded on

the books and records of the cemetery corporation shall be exempt from

reacquisition.

(j) If a cemetery corporation has decided to commence the process of

reacquiring graves owned by a nonsectarian burial society it shall:

(1) send by certified mail return receipt requested to each individual

who has engaged in proprietary activities in connection with graves on

the grounds of a nonsectarian burial society, seeking the names and

addresses of any current officers of the nonsectarian burial society and

informing those individuals of the cemetery corporation's intentions of

reacquiring the unused graves on the grounds of the nonsectarian burial

society;

(2) send by certified mail return receipt requested to each individual

who has a grave reserved or deeded to them a letter seeking the names

and addresses of any current officers of the nonsectarian burial society

and informing such individuals of the cemetery corporation's intentions

or reacquiring the unused graves on the grounds of the nonsectarian

burial society;

(3) post a notice as provided in clause three of subparagraph (iii) of

paragraph (a) of this section;

(4) publish a notice as provided in clause five of subparagraph (iii)

of paragraph (a) of this section;

(5) prepare and submit an affidavit as provided in clause six of

subparagraph (iii) of paragraph (a) of this section; and

(6) upon the sale of any grave or graves on the grounds of the

nonsectarian burial society which have been reacquired by the cemetery

corporation, the cemetery corporation shall distribute the net proceeds

of the sale as provided in paragraph (d) of this section.

(k) The cemetery corporation shall delay the sale of ten percent of

the graves it reacquires from the nonsectarian burial society for twenty

years as a reserve in the event an individual or individuals are

identified who have a valid claim for burial on the grounds of the

nonsectarian burial society.

(l) At the time the graves that have been reacquired by a cemetery

corporation from a nonsectarian burial society are sold, the contract of

sale shall contain a clause in bold type which specifies that the

monuments to be erected on such lot, plot or part thereof, shall conform

to the size, style and type of monuments in the section of the cemetery

where such graves are located.