Pa State Real Estate Laws by qxt19471


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Nothing in state law prohibits a burial on private, family property. The family should check with
the local zoning or code enforcement officer. Apparently, Philadelphia and Pittsburgh have
ordinances prohibiting human burials anywhere but in an established cemetery. Local planners
are becoming more aware of this issue in light of suburban sprawl, as more and more people
move into rural areas. Section 1536 of the Township Code authorizes townships to make rules
and regulations regarding the location, operation, and maintenance of cemeteries in the township.

Some people are very squeamish in regard to the issue. Other people think it is nothing out of the
ordinary. It is not unusual in central Pa. on back, rural roads to see a little family burial plot
surrounded with a fence and sometimes having a tree in the front yard of an house or near the
road in a farm field.

Families considering a private cemetery should consider resale va lue of the property. Most
families assume they will never sell the land or that it will never pass to someone outside of the
family, but of course over time many families eventually do sell. If the family does sell, it needs
to consider having its lawyer put an easement in the deed to enable the family to have access to
the gravesite. If the family does sell, it likely should have its lawyer mention the gravesite in the
deed in any event, so future property owners do not stumble across the grave while doing
construction or other digging, especially if any grave marker disappears later in time.

The role of the Pa. Department of Health (DOH) is somewhat narrow in this subject area. In all
cases of human death, there must be a proper death certificate filed with DOH within 96 hours of
death (except when the coroner is still investigating the cause of death). [35 P.S. 450.501.] The
body cannot be disposed of until DOH, through a local registrar, issues a burial (disposition)
permit. [35 P.S. 450.504.] The death certificate and the burial (disposition) permit should
indicate the location of the burial or final disposition, with at least with the name of the cemetery
(as opposed to the exact location within the cemetery) or the address of the private property in
the case of a "home" burial. In the case of donation, the location would only show the name and
address of the crematorium or the medical school.

The burial, regardless of whether in an established cemetery, the backyard, or the family farm,
must comply with the state’s “depth-of- grave” requirements. If there is an outer case around the
coffin, the uppermost part of the outer case must be deeper than 1.5 feet from the natural surface.
[28 Pa. Code 1.21(a).] If there is not an outer case, and there is just a coffin or just the body with
no coffin, then the item buried must be deeper than 2 feet from the natural surface of the ground
[28 Pa. Code 1.21(b).] There is no “depth-to-grave” requirement for burial in a crypt. [28 Pa.
Code 1.21(c).]

If the death was not from a contagious disease, no state law requires a casket or a vault. Most
cemeteries on their own do require a vault, and most cemeteries dig the grave deeper than DOH
regulations. There are numerous reasons for this. If the cemetery uses heavy machinery to dig
graves or cut grass, etc., a vault will keep the machinery from damaging the remains. Also as
time passes, the remains and wooden coffins disintegrate, which will cause the ground above the
grave to sink such that there will be a large depressio n in the ground. Also, by reason of our
geographic location, the ground in Pa. freezes and unfreezes several times throughout the winter
season. This tends to push anything in the ground up towards the ground surface. A vault will
also protect the remains from scavenging animals. Depending on soil conditions and flood plains
the remains could also work their way to surface. During the 1972 hurricane and resulting floods
in Pa., coffins floated down the Susquehanna River. A vault tends to hold everything in place.

In the case of a body not dead of a contagious disease, burial is to occur within 24 hours of death.
Otherwise the body must be embalmed or placed in a hermetically sealed container. [28 Pa. Code
1.23(a).] The Pa. Department of State’s Board of Funeral Directors has a similar regulation
(funeral directors may also use refrigeration under strict legal standards for bodies not disposed
of within 24 hours of death). [49 Pa. Code 13.201(6).]

Nothing in state law requires a family to use a funeral director. However, a funeral director is
licensed by the state, is generally insured, is generally knowledgeable about the various laws
regarding dead bodies, and knows how to handle dead bodies so as to prevent the spread of
disease, especially when the body is dead of a contagious disease. If the family does not engage a
funeral director, the family is responsible for complying with all laws and for any problems if the
family’s handling of the body causes any harm to neighbors or others. If the family handles the
arrangements for burial, transportation of the body, and the burial themselves or with the help of
anyone who is not a licensed funeral director, such persons run the risk of violating the Funeral
Director Law, 63 P.S. 479.1 et seq., especially if such person would charge any fee or perform
such services on a regular basis

In the case of a death in an hospital, and the family does not use a funeral director but wishes to
remove the body through a family member, DOH will advise the hospital not to relea se the body
until the family files the death certificate with a local registrar and returns to the hospital with the
burial (disposition) permit in hand as evidence of the family’s having filed the death certificate.
This assumes the body is not dead of a contagious disease. If the body is dead of a contagious
disease, the Department likely would advise the hospital as a matter of public health to not
release the body to anyone but a licensed funeral director.

If the body is dead of a contagious disease, current law would require the person handling the
body to embalm and disinfect it. [28 Pa. Code 27.203] Bear in mind, there are some disease
organisms that will not survive long once the body loses heat. In other cases there are disease
organisms that could survive hours or days without body heat before losing the ability to spread
the disease. In yet other cases there are a few disease organisms that can survive decades in the
remains and the soil surrounding the remains and still maintain their potency a nd potential risk. I
note also that there is at least one disease organism (Creutzfeldt-Jakob Disease, which is the
human version of mad cow disease) that is probably able to survive the heat of cremation and
live on in the remaining ashes and pose a risk to anyone who might happen to come in contact
with the cremated remains.

The law provides the coroner or medical examiner has jurisdiction over dead bodies in certain
types or circumstances of death. [16 P.S. 1237 and 4236.]
The Cemetery Law at 9 P.S. 10 (Pollution of water by use of land for burial purposes prohibited)
provides as follows:

“It is unlawful to use for the burial of the dead any land the drainage from which passes into any
stream furnishing the whole or any portion of the water supply of any city, except beyond the
distance of one mile from such city: Provided, however, That the prohibitions of this act shall not
be enforceable against any land now devoted to burial purposes in which there shall have
heretofore been burials and sales of burial lots.”

Bear in mind this statute dates to 1895 and is not a statute under the jurisdiction of DOH. Also
bear in mind the water supply for many Pennsylvanians consists of well water. In regard to a
“backyard” burial, the family wants to make certain the burial does not affect the family’s water
supply or that of a neighbor. The only suggestion here is to check with the local sewage
enforcement office as to the distance a septic system must be from a well and apply similar
distance between the well and the gravesite. This again assumes the body will not communicate
any disease organism or radioactivity that would affect the water supply or other environment
around the gravesite.

If, after burial, the family wants to disinter the remains, the family must obtain disinterment and
reinterment permits through the local registrar. [35 P.S. 450.506 and 28 Pa. Code 1.25.] If the
next of kin were to not agree on the disinterment or if the body were to be exposed during the
disinterment, the family must obtain a court order before the permit can be issued. [28 Pa. Code

The Department of State’s Real Estate Commission has some authority over cemeteries. [9 Pa.
C. S. 101 at seq.] This authority relates primarily to cemetery companies, cemetery upkeep, and
lot sales. This statute generally does not apply to family cemeteries or cemeteries of a church or
religious group. It likely would apply if the family would sell any lot in the family cemetery to
anyone. Anyone making inquiry regarding backyard burials like ly should touch base with the
state Real Estate Commission.

The family should also be aware of the Historic Burial Places Preservation Act, 9 P.S. §211 et
seq., overseen by the Pennsylvania Historical and Museum Commission. This act relates to any
tract of land in existence as a burial ground for more than 100 years and in which no burial has
occurred for at least 50 years, and there will be no further burials. Under these circumstances
there could be restrictions under the act, such that the family far do wn the road might need
permission from the Commission or the court of common pleas in regard to moving gravestones
or doing other things in regard to the family cemetery should it end up in “historic burial place”

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