HB-4890, As Passed House, June 5, 2014

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4890

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1968 PA 251, entitled

 

"Cemetery regulation act,"

 

(MCL 456.521 to 456.543) by adding section 17.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 17. (1) A person possessing a right to a space within a

 

cemetery is presumed to have abandoned the right to the space if

 

all of the following apply:

 

     (a) During the past 60 years, the person possessing the right

 

to the space or the person's authorized representative has not

 

provided the cemetery owner or operator with an updated address for

 

purposes of contacting the person.

 

     (b) During the past 60 years, the person possessing the right

 

to the space or the person's authorized representative has not

 

contacted the cemetery owner or operator and affirmed possession of

 


the right to the space in any of the following ways:

 

     (i) Requesting a burial or notifying the cemetery owner or

 

operator of a burial under the right to the space.

 

     (ii) Requesting an installation of a memorial or notifying the

 

cemetery owner or operator of an installation of a memorial under

 

the right to the space.

 

     (iii) Indicating or requesting a transfer of the right to the

 

space to another person.

 

     (iv) Making a payment to the cemetery owner or operator

 

relating to the right to the space.

 

     (v) Affirming in writing the possession of the right to the

 

space.

 

     (c) A memorial has not been installed at the cemetery under

 

the right to the space.

 

     (d) Remains have not been interred at the cemetery under the

 

right to the space.

 

     (2) If, after a right to a space within a cemetery is presumed

 

to be abandoned under subsection (1), all of the following

 

requirements are met, the cemetery owner or operator may under

 

subsection (4) certify the right to the space as abandoned:

 

     (a) The cemetery owner or operator posts on the space within

 

the cemetery for 120 consecutive days a written notice of intent to

 

certify the right to the space as abandoned.

 

     (b) If the cemetery owner or operator has a mailing address

 

for the person possessing the right to the space or the person's

 

authorized representative, the cemetery owner or operator sends to

 

that address a written notice of intent to certify the right to the

 


space as abandoned. The notice shall be sent by certified mail with

 

a return receipt requested.

 

     (c) If any of the following conditions apply, not less than 60

 

days after mailing a notice under subdivision (b), the cemetery

 

owner or operator publishes for 2 consecutive weeks a notice of

 

intent to certify the right to the space as abandoned in a

 

newspaper in the county in which the cemetery is located:

 

     (i) The cemetery owner or operator does not have a mailing

 

address for the person possessing the right to the space or the

 

person's authorized representative.

 

     (ii) Whether or not a written notice mailed under subdivision

 

(b) is returned as undeliverable, the person possessing the right

 

to the space or the person's authorized representative has not

 

contacted the cemetery owner or operator and affirmed the person's

 

possession of the right to the space within 60 days after the

 

notice was mailed.

 

     (d) If publication is required under subdivision (c), 60 days

 

have elapsed since the cemetery owner or operator published the

 

second notice in a newspaper and the person possessing the right to

 

a space or the person's authorized representative has not contacted

 

the cemetery owner or operator and affirmed the person's possession

 

of the rights to a space.

 

     (3) A notice required under subsection (2) shall state all of

 

the following:

 

     (a) A description of the right to the space affected.

 

     (b) If known to the cemetery owner or operator, the names of

 

the person possessing the right to the space and the authorized

 


representative, if any, of the person.

 

     (c) The time frame within which a person possessing the right

 

to a space or the person's representative shall contact the

 

cemetery owner or operator and affirm the person's possession of

 

the right to the space to prevent the right to the space from being

 

certified as abandoned.

 

     (d) That, if the right to the space is certified as abandoned,

 

a person who possessed the right to the space may be entitled to

 

the remedies set forth in section 17 of the cemetery regulation

 

act, 1968 PA 251, MCL 456.537.

 

     (e) The name, address, electronic mail address, and telephone

 

number of the cemetery owner or operator.

 

     (4) After satisfying the requirements of subsections (2) and

 

(3), to certify the right to the space as abandoned, the cemetery

 

owner or operator may create, sign, and maintain a record that

 

states all of the following:

 

     (a) A description of the right to the space affected.

 

     (b) The names of any persons possessing the right to the

 

space, if known to the cemetery owner or operator.

 

     (c) That the right to the space is presumed to be abandoned

 

under the criteria set forth in subsection (1).

 

     (d) That the cemetery owner or operator provided notice in

 

compliance with subsections (2) and (3).

 

     (e) That the cemetery owner or operator has not received a

 

response to a notice under subsection (2) from a person possessing

 

the right to the space or the person's authorized representative

 

affirming the person's possession of the right to the space.

 


     (5) All of the following apply upon the signing of a record

 

created under subsection (4):

 

     (a) The right to the space is certified as abandoned by

 

persons previously possessing the right to the space.

 

     (b) A person later asserting any contractual rights to the

 

right to the space is limited to the remedies under subsection (6).

 

     (6) After a certified notice is filed under subsection (4), a

 

person with a contractual right to the space is entitled only to

 

the following remedies for any breach of the contractual right:

 

     (a) Reinstatement of the right to a space if the original

 

contractual right to a space has not been resold or otherwise

 

transferred to another person.

 

     (b) If the original contractual right to a space has been

 

resold, at the option of the person with the original contractual

 

right to a space, either of the following:

 

     (i) A different right to a space of comparable value within the

 

cemetery.

 

     (ii) Compensation in the amount the person with the original

 

contractual right to a space paid for the right or an amount equal

 

to 65% of the price for which the right was resold or otherwise

 

transferred by the cemetery owner or operator, whichever is

 

greater.

 

     (7) If a person possessing a right to a space within a

 

cemetery or the person's authorized representative is notified by

 

the cemetery owner or operator under subsection (2) and the person

 

or the person's authorized representative does not seek to retain

 

possession of the right to the space, the person or the person's

 


authorized representative may transfer the right to the space back

 

to the cemetery owner or operator for an amount as agreed by the

 

parties.

 

     (8) A contract for the sale of a right to a space entered into

 

by a cemetery owner or operator after the effective date of this

 

section shall contain a written notice of the presumption of

 

abandonment of a right to a space under subsection (1) and may

 

impose a legal duty to keep the cemetery owner or operator informed

 

in writing of a current residence address of the person possessing

 

the right to the space under the contract or of the person's

 

authorized representative.

 

     (9) A cemetery owner or operator may publish on 1 or more

 

internet websites a notice of intent to certify a right to a space

 

as abandoned under subsection (2). A cemetery owner may use an

 

internet search to attempt to identify for use under subsection (2)

 

the current mailing address of a person possessing a right to a

 

space.

 

     (10) This section is intended to advance the significant and

 

legitimate public purpose of ensuring the availability and

 

productive use of space within cemeteries and providing security in

 

contractual rights consistent with the health, safety, and welfare

 

of the people of this state.

 

     (11) Subsections (1) to (10) do not apply to a right to a

 

space if 1 or more of the following apply:

 

     (a) An inscribed memorial is located on the space to which the

 

right to a space applies.

 

     (b) Both of the following apply to the space to which a right

 


to a space applies:

 

     (i) The space immediately adjoins an inscribed memorial and

 

that side of the inscribed memorial displays a family surname.

 

     (ii) The space was purchased with another space on which the

 

inscribed memorial that displays the family surname is located.

 

     (c) Both of the following apply to the space to which a right

 

to a space applies:

 

     (i) The space immediately adjoins an inscribed memorial.

 

     (ii) The space immediately adjoins a space that was purchased

 

with the right to a space and includes interred remains.

 

     (12) As used in this section:

 

     (a) "Inscribed memorial" means 1 or both of the following:

 

     (i) A stone or other structure or item that is used for the

 

purpose of memorializing a decedent on a place of interment and

 

that displays the name of a decedent.

 

     (ii) A stone or other structure or item that identifies an area

 

of a cemetery dedicated for the interment of members of a family

 

and that displays a family surname.

 

     (b) "Right to a space" means a burial right, columbarium

 

right, or entombment right within a cemetery.

 

     Enacting section 1. This amendatory act takes effect January

 

1, 2015.