The Best of the Legal Hotline: Historic Properties and Burial Grounds


 Debbi Conrad  |    December 06, 2005
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The following questions were asked of the Hotline:

Do the owners of a commercial property that is considered historical need to comply with the Americans with Disabilities Act (ADA)? Does the ADA require barrier removal in historic buildings?

Yes, if it is readily achievable. However, the ADA takes into account the national interest in preserving significant historic structures. Barrier removal would not be considered ‚Äúreadily achievable‚ÄĚ if it would threaten or destroy the historic significance of a building or facility that is eligible for listing in the National Register of Historic Places or which is designated as historic under state or local law.

For example, the installation of a platform lift in an historic facility that is preserved because of its unique place in American architecture or because it is one of few surviving examples of the architecture of a particular period would not be readily achievable if the installation of the lift would threaten or destroy architecturally significant elements of the building. On the other hand, the installation of a ramp or lift in a facility that has historic significance because of events that have occurred there, rather than because of unique architectural characteristics, may be readily achievable if it does not threaten or destroy the historic significance of the building and is within appropriate cost constraints.

Can a real estate licensee sell cemetery lots? What type of forms should be used?

Every person who sells, solicits the sale, or expects to sell or solicit the sale of 20 or more cemetery lots or mausoleum spaces per year during two consecutive calendar years must register with the Cemetery Board of the Department of Regulation and Licensing pursuant to Wis. Stats. § 440.91. A cemetery salesperson registration requires the written request of a cemetery authority and the payment of a $53 fee. However, a person who solicits the sale of cemetery lots or mausoleum spaces in a cemetery organized, maintained and operated by a town, village, city, church, synagogue or mosque, religious, fraternal or benevolent society or religious order is not required to be registered.

The cemetery may have its own conveyance forms that must be used, so licensees should first check with the cemetery. The sale must be entered on the cemetery’s deeding system records (see Wis. Stats. § 157.08) and may be recorded with the register of deeds, if desired. If a cemetery has no required forms, vacant-land forms may be appropriate.

A buyer purchased a property and Indian burial grounds were found on the property. What can buyer do around the burial grounds as far as excavating and landscaping?

The buyer should contact the State Historical Society at 608-264-6502 or 800-342-7834, or online at
www.wisconsinhistory.org/hp/burialsites. Wis. Stat. Chapter 157 (www.legis.state.wi.us/statutes/Stat0157.pdf) regulates cemeteries and burial site preservation. All human burial sites, including cemeteries and Indian mounds, on both private and public lands, are protected under Wis. Stat. §157.70. The Historical Society Burial Sites Program administers the law, and has question and answer burial site information online at
www.wisconsinhistory.org/hp/burialsites/faq/index.asp.

A seller wants to list a property that may be the site of an old cemetery. How should the listing broker proceed?

The listing broker may wish to have a title company conduct a title search to see if any information about a cemetery appears of record. The owner, owner‚Äôs attorney, or the listing broker may wish to contact the State Historical Society to search their cemetery records (available online) and see if they have any other suggestions or recommendations. The property may be marketed, provided that the seller or the listing broker discloses the possible cemetery in writing to all buyers. A buyer may write an offer that includes a burial sites investigation contingency. See Legal Update 00.07, ‚ÄúBurial Sites and Historical Properties,‚ÄĚ online at
www.wra.org/LU0007 for further information.

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