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Written by: Kevin Weaver, Underwriting Counsel

‘Tis the season for monsters, ghosts and goblins, so what could be more apropos than a Title Tale melding the topics of title insurance and cemeteries?  It is not an ARS tale, but it is a true story from the Annals of Title Lore.

Every title agent has had that moment. The search is complete, the commitment is nearly ready, and then a single document appears that threatens to derail an otherwise routine transaction. This is the story of how a forgotten family burial ground nearly stopped the sale of a beautiful Virginia farm and how diligence and a creative solution brought everyone to the closing table.

The property consisted of approximately 85 acres that had been in the same family since the late 1800s. The current owner, who in keeping with the theme of this article we shall call Elvira, had inherited the land from her father and had finally decided to sell it to a young couple we will call Frank and Stein, who were looking to establish a quiet retreat for some of their misunderstood friends like Dr. Jekyll, Mr. Hyde, Ted Bundy, and The Creature From the Black Lagoon, to name a few (okay, it was really a horse farm but, you know, ‘tis the season). The title search appeared straightforward. The chain of title was complete, taxes were current, and no unreleased liens appeared of record.

Then it got scary.  The examiner discovered an 1897 deed containing a curious exception: “Reserving unto the Grantor and his heirs permanent access to the family cemetery located upon the northwest corner of said tract.”  The reference was repeated in several subsequent deeds, but none identified the location of the cemetery. No plat depicted it. No survey mentioned it. More importantly, neither the seller nor prospective purchasers had any knowledge that a cemetery existed on the property.

Most states provide significant legal protections for cemeteries and burial grounds, even those that have long been forgotten. If descendants retained rights of access,  Frank and Stein could acquire the property subject to perpetual visitation rights of those unknown descendants , not to mention the fact that they would have a cemetery in their backyard.  Now, Frank and Stein might not mind having a cemetery in their yard, but most purchasers would, and the lender certainly would not want an exception on its policy.

Surely, something could be done.

Rather than focusing exclusively on recorded documents, the title agent contacted the county historical society and reviewed archived maps maintained in the local library. Church records eventually revealed that the family burial ground had been relocated in the 1930s and the remains respectfully reinterred in a community cemetery.

The title agent assembled certified copies of disinterment permits, church records, descendant affidavits, a surveyor affidavit, and a recorded affidavit of facts affecting title. Together, the evidence established that no cemetery remained on the property.    After reviewing the documentation, the underwriter agreed to remove the cemetery exception from the policy, and the transaction closed successfully.

So, what can we learn from this frightful tale?  Four things (and we are especially fond of #4):

1. Old deed references should never be ignored.
   2. The answer is not always found in the land records.
   3. Documentation matters.
   4. Title agents create solutions.

Every title file tells a tale. In this case, persistence, historical research, and practical problem-solving transformed a potential deal-killer into a successful closing.

We hope you enjoyed this edition of Title Tales, and from all of us at ARS, have a spooktacular Halloween!

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