Due to doubts about the generally held view that the deceased's estate or their heirs and successors were the owners and maintainers of the headstone or monument over the grave, Shoalhaven City Council recently declared it's position to be

3.9. Maintenance of Structures
3.9.1. The Council shall not be responsible for the upkeep, maintenance,
repair etc of any monument or structure;
3.9.2. The Council's responsibility for any structure in a cemetery is limited to its preservation as defined in the Burra Charter, ie, "1.6 Preservation means maintaining the fabric of a place in its existing state and retarding deterioration".
3.9.3. The maintenance, repair or restoration of a structure in a cemetery is the responsibility of the estate or heirs and successors of the deceased person buried or commemorated in the respective (burial) plot.
3.9.4. The Council may act to remove any structure which has become dilapidated, unsightly, is crumbling, or deemed to be unsafe by a risk assessment conducted by the Council.”
3.9.5. The Council may remove any trees, shrubs or other vegetation from any cemetery where, in its opinion, it is in the interest of the cemetery to do so.

This seems to be a reasonable position to take.

Note that no reference is made to the ownership of the headstone or monument. So who does own it?

The headstone would seem to be a fixture to cemetery land.

A fixture is a legal concept that includes any physical property that is permanently attached or fixed to real property. If the property is not affixed to real property it is considered chattel property. Fixtures are treated as a part of real property, particularly in the case of a security interest. A classic example of a fixture is a building, which in the absence of language to the contrary in a contract of sale, is considered to be part of the land itself and not a separate piece of property. Generally speaking the test for deciding whether an article is a fixture or a chattel turns on the purpose of attachment. If the purpose was to enhance the land the article is likely a fixture. If the article was affixed in order to enhance the use of the chattel itself then the article is likely a chattel. (Source: Wikipedia)

In Australia, as I read it, in the absence of agreement between the parties, the doctrine of fixtures, subject to statute, operates to resolve contests concerning title to objects.

I am not aware that there is any statute law affecting headstones,  and most of us (in local government) would not have specific agreements relating to individual headstones. Whether a policy statement is sufficient, I don't know.

Tenants may have certain rights in respect of some types fixtures, but is the applicant for a headstone a 'tenant'? Probably not.

Comments?

Comments

waverley

0

 

 

We adopt a similar system and definition, but do not enact a 'blanket' definition for every monument on the land.

ie: Monuments once placed on the land, form part of the land and therefore come under the control of the land owners (in this case the Local Authority).

On a case by case basis, differing or specific conditions may be put in place over monuments with the conservation of significant attributes being the base or starting point in maintaining certain build infrastructure. This again has room for movement in defining a significant element on a case by case basis.

eg: A white marble angel is considered to be of high significance, a failed concrete centre or cracked ledger slab is of very low significance in comparison.

While we may define ourselves as 'owners of the monument' in light of being owners of the land, we retain a reasonable expectation that the person/group who commissioned a monument (or their heirs and successors -subject to our approval) will properly provide for adequate maintenance funding when needed for the monument.

Monday 22 June 2009, 07:05

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