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.