HB-4890, As Passed Senate, December 9, 2014

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4890

     A bill to amend 1968 PA 251, entitled

"Cemetery regulation act,"

(MCL 456.521 to 456.543) by amending the title and by adding

section 17.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE

     An act to regulate the creation and management of cemeteries;

to provide for a cemetery commissioner and to prescribe the powers

and duties of the commissioner; to require the registration and

audit of cemeteries; to provide standards regarding the long-term

care of certain cemeteries and trusting of certain funds; to

regulate persons selling burial, entombment, or columbarium rights

and certain merchandise; to provide for qualifications for owners,

operators, employees, and transferees of cemeteries under certain

circumstances; to provide for the abandonment of interment rights;

to allow the cemetery commissioner to conduct certain

investigations; and to prescribe administrative and civil remedies

and penalties.

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

cemetery is presumed to have abandoned the right 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 in any of the following ways:

     (i) Requesting an interment or notifying the cemetery owner or

operator of an interment under the right to the space.

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

cemetery owner or operator of the 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 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 as abandoned:

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

owner or operator publishes once a week for 2 consecutive weeks a

notice of intent to certify the right to the space as abandoned in

a newspaper circulated 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 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 and 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.

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

the following:

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

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

the person possessing the right to the space and the person's

authorized representative, if any.

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

to the space or the person's authorized representative must contact

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

of the right to the space to prevent the right from being certified

as abandoned.

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

a person who possessed the right 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) A right to a space is certified as abandoned by any person

possessing the right if, after satisfying the requirements of

subsections (2) and (3), the cemetery owner or operator creates,

signs, and maintains a record that states all of the following:

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

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

immediately before the right is certified as abandoned, 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.

     (5) A person whose right to a space was certified as abandoned

under subsection (4) is entitled only to the following remedies:

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

not been resold or otherwise transferred to another person by the

cemetery owner or operator.

     (b) If the right to the space has been resold or otherwise

transferred to another person by the cemetery owner or operator, at

the option of the person whose right was certified as abandoned,

either of the following:

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

cemetery.

     (ii) Compensation in the amount that the person whose right was

certified as abandoned paid for the right or in an amount equal to

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

transferred by the cemetery owner or operator, whichever amount is

greater.

     (6) 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 wish to retain

possession of the right, 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.

     (7) 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).

     (8) 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 or the person's authorized representative.

     (9) Subsections (1) to (8) 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 applies.

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

right applies:

     (i) The space immediately adjoins an inscribed memorial and the

adjoining 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 the

right 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.

     (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

rights consistent with the health, safety, and welfare of the

people of this state.

     (11) 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" or "right" means the privilege,

license, or right of interment in a space in a cemetery.

     Enacting section 1. This amendatory act takes effect January

1, 2015.