Can I visit, maintain, or be buried in a family cemetery on someone else's property in Virginia?

Plain-English summary

Virginia's family-cemetery access statute, § 57-27.1, gives descendants the right to enter private property to visit and maintain ancestral graves, even when no easement is written into the deed. The AG worked through six specific questions from Senator Bryce Reeves about how far that right extends and concluded:

• Descendants may use a traditional access route by foot if it's visible on the property, even if the owner has closed it to vehicles.
• The statute does not give descendants a right to be buried in the cemetery when they die. A court might recognize that right in particular circumstances, but it's not automatic.
• Repairing existing markers is allowed as "maintenance." Erecting brand-new markers usually is not, unless the new marker replaces a destroyed or stolen one.
• Descendants may hold reasonable memorial services at the grave site, but they do not have the sole right to do so. The landowner can host services too.
• Descendants are not entitled to install extra fencing, security cameras, or padlocks on the gate. A court can grant that right in specific cases.
• Nothing categorically prevents the landowner from selling tickets and taking tour groups into the cemetery, as long as the tours are respectful.

What this means for you

If you are a descendant of someone buried on private land

Section 57-27.1 is the statute to know. It works without any reservation in the deed, and it gives you the right to walk in to visit graves, conduct genealogy research, and do basic maintenance like cleaning headstones and pulling weeds.

A few specifics worth marking:

• The landowner can refuse to let you drive on the property, but not refuse foot access along a traditional, visible route.
• "Maintenance" is narrow. Repairing or cleaning what's there is fine. Adding fences, cameras, locks, or new markers (other than replacing a destroyed one) is not, unless the landowner agrees or a court orders it.
• You can hold a memorial service, but the landowner can be there too and can host their own gatherings at the cemetery.
• Future burial is not a statutory right. If you want to be buried with your ancestors and the landowner refuses, you'd need either a written deed reservation or a court ruling, which is fact-specific and not guaranteed.

If a landowner denies you reasonable access, the opinion notes that § 57-27.1 lets you bring an action in the circuit court where the property is located to enjoin the owner from denying ingress and egress.

If you own land that contains a family cemetery

You cannot block descendants from entering by foot to visit or maintain graves. You can:

• Set the frequency, hours, and duration of visits.
• Pick the access route if no traditional route is visible.
• Refuse vehicles unless an existing road or right-of-way already permits motor access.

You can't put up a wall or fence that blocks all access. Anything you do install has to include a gate or other passage for descendants who give you reasonable notice. You also retain control of the property otherwise: you can sell tickets for tours of the broader property (including the cemetery), and the AG specifically said that does not violate the cemetery's character as long as the tours are conducted respectfully.

The opinion stresses that family cemeteries are significant cultural, familial, and genealogical resources that, once lost, cannot be replaced, and that anyone entering is liable for damage they cause.

If you are a Virginia real estate or estate planning attorney

The opinion preserves the long-standing rule from Benn v. Hatcher (1885) that informally dedicated burying grounds keep that character through subsequent conveyances. Combined with the in pais doctrine, that means a buyer who acquires land with a family cemetery acquires it subject to § 57-27.1, even if no deed reservation exists.

The opinion treats § 57-27.1 as a statutory floor: it says it does not resolve private-contract complexities, and it notes that a landowner may voluntarily consent to arrangements beyond the statute (such as future burial). Express written agreements can give descendants more than the statute alone.

If you are a genealogist or local historical society

The same statute treats you the same as a descendant for access purposes: § 57-27.1(A) extends ingress and egress rights to "persons engaging in genealogy research." Notice to the landowner is still required, and your purposes are limited to visiting, maintaining, or researching, not adding new physical structures.

Common questions

Q: Does Virginia law guarantee me the right to be buried in my family's cemetery on private property?
A: No. The AG concluded that § 57-27.1 limits access purposes to visiting, maintaining, or doing genealogy research, and burial isn't on that list. A Virginia court could recognize a right to future burial in specific cases, especially if there's evidence the land was dedicated as a family burying ground or if the deed reserved that right, but it's not automatic.

Q: Can a landowner deny me vehicle access to a family cemetery on their land?
A: Generally yes. The statute lets the landowner refuse vehicle access unless there's already a road or right-of-way that permits motor traffic and the landowner has given written permission. Foot access along a visible traditional route is required.

Q: Can I put up a fence or install a security camera at the cemetery to protect it from vandalism?
A: Not under the statute. The AG read "maintenance" narrowly, so it covers repairs and preservation but not adding new structures. You can ask the landowner for permission, or go to court and ask a judge to order it. Some Virginia circuit courts (like in Turner v. Turner) have permitted fencing where there was specific evidence the land was being desecrated.

Q: Can the landowner put up a fence around the cemetery?
A: Yes, but the fence has to have a gate or other means for descendants to enter. A landowner cannot install a structure that blocks all access. Anything that prevents ingress and egress entirely violates § 57-27.1.

Q: Can the landowner sell tickets and bring tour groups into the cemetery?
A: Yes. The AG found no Virginia law that prohibits cemetery tours as part of a broader property tour. The tours have to be conducted respectfully, and visitors who cause damage are liable for it. Descendants cannot exclude the landowner or their invitees.

Q: I'm fixing a worn headstone, am I allowed to install a brand-new replacement?
A: It depends. If the original is destroyed, damaged beyond repair, stolen, or a safety hazard, a replacement is considered "maintenance" and is allowed. The AG recommended the new marker match the old one in size and style. Adding a brand-new marker to a previously unmarked grave, or supplementing a still-readable one, generally is not covered.

Q: Can the landowner host memorial services for the deceased without the family's permission?
A: Yes. The AG was clear that descendants do not have sole or exclusive control over memorial events. The landowner has the same access rights, and § 57-27.1 also extends rights to genealogy researchers and cemetery plot owners. Everyone with access has to behave reasonably and avoid unreasonably interfering with the others' rights.

Background and statutory framework

The opinion explains that the General Assembly reenacted § 57-27.1 to ensure that descendants have access to their ancestors' burial grounds when a family cemetery sits on another person's private property. The right exists even where no reservation appears in the deed.

The statute coexists with a separate body of common law that has developed in other states recognizing implied easements for cemetery access. Virginia courts haven't formally adopted that common-law doctrine, but in Benn v. Hatcher the Supreme Court of Virginia recognized dedication in pais (by conduct, not writing) and held that subsequent conveyances of land containing a dedicated cemetery don't extinguish family rights. The AG signaled that Virginia courts could eventually adopt broader common-law access rights, but they haven't yet.

The opinion also notes that outside law, particularly local law regulating burials on private property, can affect particular properties. Such a law could preclude a court from authorizing future burial, or a landowner from agreeing to it, even where the property owner would otherwise consent. The opinion does not fully examine that outside law; it flags it as a factor in any given case.

Citations and references

Statutes:

• Va. Code Ann. § 57-27.1 (cemetery access)
• Va. Code Ann. § 54.1-2310 (definition of cemetery)
• Va. Code Ann. § 18.2-127 (damaging cemetery)

Cases:

• Benn v. Hatcher, 81 Va. 25 (1885) (Supreme Court of Virginia): dedication in pais of family burying ground; rights survive subsequent conveyances.
• Morris v. Whitley, 50 Va. Cir. 320 (Nelson Cnty. Cir. Ct. 1999): ordered partial fence removal to permit descendant access via state highway.
• Wintergreen Homestead LLC v. Pennington, 76 Va. App. 69 (2022): interprets "traditional access route" under § 57-27.1.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/22-053-Reeves-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

March 4, 2024

The Honorable Bryce E. Reeves
Member, Senate of Virginia
Post Office Box 7021
Fredericksburg, Virginia 22404

Dear Senator Reeves:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask several questions regarding the rights of descendants to access a family cemetery in which their ancestors are buried when the cemetery is located on others' private property and no reservation exists in the deed to the property. Primarily, your questions relate to the descendants' means of access to the cemetery, as well as the scope of the activities descendants may conduct in the cemetery.

Your particular questions are as follows:

1. When a traditional access route to the cemetery is obviously visible by a view of the property, but that route has been closed to traffic by the landowner, is the landowner required under § 57-27.1 to allow ingress and egress to descendants by that route;

2. Whether descendants have the right, subject to available space, to be buried in the cemetery when they pass away;

3. Whether descendants have the right to repair existing grave markers or to erect new markers;

4. Whether descendants have the right to hold memorial services at the cemetery, and if so, whether they have the sole right to organize and conduct such memorial services at the cemetery;

5. Whether descendants have the right to secure the cemetery from damage or vandalism by (i) installing additional fencing, walls, or gates, (ii) installing additional security cameras, or (iii) by placing a lock on the gate.

You also ask whether the landowner is authorized to sell tickets and take members of the public into the cemetery as part of a tour of the property in which the cemetery is located.

Applicable Law and Discussion

Each of your questions implicates restrictions on a landowner's rights when a cemetery exists on his land. It is well established that the right to property is one of the most essential rights in our society. Both the Virginia and federal constitutions affirm that "the right to own and possess private property is a fundamental right," and "[the] respect for, and protection of, private property has been a cornerstone of our Nation's liberty and prosperity." Nevertheless, the right to property, like other fundamental rights, is not absolute. In certain instances, the right is limited when countervailing interests require accommodation in the law. Limitations on property rights often arise in areas of special public concern, or where tradition or custom has given rise to certain permissive uses of land.

Unique limitations on property rights apply when land contains a cemetery. Cemeteries are afforded special status under the law because they are the resting places of the dead and typically are held in deep veneration by the community. As one court observed, "[t]he peculiar use to which a cemetery is dedicated and the sanctity that attaches justify excluding it from the ordinary rules of ownership." When land has been set aside or dedicated as a cemetery, the nature of the land changes: while the fee may be conveyed, the subsequent owner holds the land subject to its use as a cemetery, and it cannot be used for purposes inconsistent with that use. In Virginia, dedication of a cemetery need not be in writing, but may be by acts in pais, i.e., unwritten conduct evincing the owner's intent to dedicate the land for cemetery purposes.

Consistent with the principle that cemeteries are not subject to the ordinary rules of ownership, the General Assembly reenacted § 57-27.1 of the Code of Virginia to ensure descendants have access to their ancestors' burial grounds when a family cemetery is located on another's private property. Section 57-27.1(A) specifically provides, with respect to descendants, that

Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by[] family members and descendants of deceased persons buried there..., who ha[ve] given reasonable notice to the owner of record or to the occupant of the property or both....

The provision affords cemetery plot owners and persons engaging in genealogy research the same right of access. In conferring this right, § 57-27.1 expressly permits "[t]he landowner [to] designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by a view of the property." Although a landowner is prohibited from "erect[ing] a wall, fence or other structure or device that prevents ingress and egress to the cemetery or grave," such structures otherwise are permitted when they "ha[ve] a gate or other means by which ingress and egress can be accomplished by persons specified" in the statute.

Section 57-27.1 further provides that

(B) The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research....

(C) Any person entering onto private property to access a gravesite or cemetery shall be responsible for conducting himself in a manner that does not damage the private lands, the cemetery or gravesites and shall be liable to the owner of the property for any damage caused as a result of his access.

The right of access granted by § 57-27.1 exists irrespective of a reservation in a deed; and "[a]ny person denied reasonable access under the provisions of this section may bring an action in the circuit court where the property is located to enjoin the owner of the property from denying the person reasonable ingress and egress to the cemetery or gravesite."

Although the statute sets forth certain specific rights of access, descendants may have additional rights under common law (i.e., case law). Several state courts outside Virginia have held that family members or descendants have a right to access graves located in cemeteries on private property. This right, which appears relatively well-established in American common law, usually is characterized as an easement that arises upon dedication of the cemetery. The right is not contingent on the existence of a reservation in the deed; rather, the reservation is said to be implied, creating a right of access for purposes of visitation and maintenance. Some courts also have recognized additional rights, such as the right for relatives to enclose the cemetery, or to be buried there themselves.

In Virginia, circuit courts have granted cemetery access rights under certain factual circumstances. Moreover, in recognizing the doctrine of dedication in pais, the Supreme Court of Virginia has indicated that any rights relatives may have arising from such dedication are not affected by any subsequent conveyance of the parcel occupied by the cemetery, although those conveyances may be without reservation. It therefore seems possible, perhaps even likely, that Virginia courts could embrace broadly the concept of the common law right of access, particularly given its longstanding status as part of the larger American common law. It is also possible that a Virginia court might find that additional rights in the cemetery exist in particular circumstances.

With this background in mind, I will address each of your questions in turn. Although I will address your questions mainly in the context of § 57-27.1, the primary authority in Virginia pertaining to the rights of descendants, I also will address the possibility that a Virginia court could recognize rights in addition to, or more detailed than, the rights set forth in the statute.

1. Descendants' route of ingress and egress

You first ask whether the landowner is required under § 57-27.1 to allow ingress and egress to the descendants by the traditional access route, when the route is obviously visible by a view of the property but has been closed to traffic by the landowner. Section 57-27.1(A) provides that a landowner may designate the access route "if no traditional access route is obviously visible by a view of the property." The clear import of this language is that if a traditional access route is obviously visible by a view of the property, the landowner must allow access by that route.

Nevertheless, reading § 57-27.1 as a whole reveals that the descendants' right to access the cemetery by a traditional access route is not unlimited. For instance, per § 57-27.1(B), the statutory grant of access "shall not be construed to provide a right to operate motor vehicles on the property... unless there is a road or adequate right-of-way that permits access by a motor vehicle and the owner has given written permission to use the road or right-of-way of necessity." Accordingly, a landowner is not required to permit the use of motor vehicles on a traditional access route, even if the route otherwise is capable of accommodating motor vehicle traffic.

Conversely, it follows that a landowner generally must permit descendants to use a traditional access route by foot, regardless of whether the route is otherwise closed to traffic. Nevertheless, § 57-27.1(B) further sets out the overarching principle that the descendants' "right of ingress and egress... shall be reasonable." Accordingly, if there is no reasonable way to provide access by the traditional route, the landowner is permitted to designate an alternative route.

In sum, § 57-27.1 generally requires the landowner to permit descendants' access by the traditional route when a traditional access route is obviously visible by a view of the property. Although the statute does not require a landowner to permit the use of motor vehicles on the route, it does require the landowner to permit use by foot wherever such a use is reasonable. Whether the landowner has a reasonable way to provide descendants with access by this route, notwithstanding its general closure to traffic, is a question of fact that will depend on the attendant circumstances.

2. Right of future burial

Next, you ask whether descendants have the right, subject to available space, to be buried in the family cemetery when they pass away. In providing a right to access to a cemetery, § 57-27.1 limits that right "to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research." This language is plain and unambiguous and admits of no additions. Because the statute limits the rights of descendants to the stated purposes, it does not provide descendants with a right to future burial in the cemetery.

In the absence of statutory authority, a right to future burial would need to be recognized by a court or deed. As noted above, Virginia has little case law regarding the rights of descendants with respect to family cemeteries on private property. Nevertheless, in Benn v. Hatcher, the Supreme Court of Virginia indicated that land informally dedicated for use "as a burying-ground for the family and their descendants" retains such character regardless of any subsequent conveyance. Moreover, in Morris v. Whitley, the Circuit Court of Nelson County held that the descendants of Van Buren and Mary Ellen Mays had acquired by adverse possession a right to burial in the family cemetery located on private property, even where "no [apparent] reference" to the cemetery could be found in the property's chain of title. Some state courts outside Virginia also have recognized a right to future burial in certain circumstances.

It is therefore possible that a Virginia court could find that descendants have a right to future burial in particular circumstances. Much may depend on the scope of the dedication, to the extent it can be ascertained. I further note that there is nothing that would prohibit descendants from seeking consent from the landowner to conduct future burials, whether in a specific case or more generally. Such consent would be voluntary on the part of the landowner.

The foregoing analysis, however, presumes the absence of any outside law, particularly local law, regulating burials on private property. Where such a law exists, it could preclude a court from authorizing future burial, or a landowner from agreeing to future burial on his land. A complete examination of such outside law is beyond the scope of this Opinion, except to note that it may be a factor in determining whether future burial is possible in any given case.

3. Repair and preservation of existing grave markers, or the installation of new markers

You next inquire whether descendants have the right to repair and preserve grave markers, or to install new markers. As noted above, § 57-27.1 permits descendants to access a family cemetery on private property for limited purposes, including the "maintenance" of gravesites or the cemetery generally. The root term "maintain" means "[t]o keep up," "[t]o keep in an existing state," or "[to] preserve." It signifies the support of what is already in existence, as opposed to its alteration. While "maintenance" includes making necessary repairs or replacements, it does not encompass the introduction of new elements in other circumstances.

In my opinion, the repair or preservation of a grave marker clearly constitutes "maintenance." The installation of a new marker, on the other hand, may or may not constitute "maintenance" depending on the circumstances. The installation of a new marker to replace one that becomes destroyed, damaged beyond repair, or stolen generally would constitute "maintenance." Likewise, the installation of a new marker to replace one that constitutes a safety hazard would constitute "maintenance." However, the installation of a new marker in other circumstances, such as to supplement an existing marker, or to mark an unmarked grave, typically would not constitute "maintenance." It is further my opinion that, in cases where installation of a new marker is permissible as "maintenance," the new marker should be similar to the previous marker in terms of size and, if possible, style. The authority to carry out "maintenance" as provided in § 57-27.1 is limited generally to the preservation of an existing state, rather than the alteration or improvement thereof. Nevertheless, irrespective of § 57-27.1, it is possible that a court might permit the installation of new markers in other circumstances.

4. Memorial services

You also ask whether descendants may conduct memorial services at the cemetery. One of the purposes of § 57-27.1 is to provide an avenue whereby family members and descendants may commemorate the dead by "visiting graves." There is no language in the statute prohibiting such commemoration on a collective basis, and one means of commemorating the dead is by holding a memorial service. As such, it is my opinion that descendants are authorized to hold reasonable memorial services at the cemetery. What is reasonable will depend on the particular facts and circumstances, and the statute imposes no duty on the landowner to allow services that are unreasonable in any relevant manner, including size or scale. Moreover, absent permission from the landowner, the right afforded under § 57-27.1 extends only to the authorized parties named in the statute. These factors likely will limit memorial services to those that are small and intimate in nature in most cases. Although I am not aware of any Virginia case law on point, it is possible that a court might authorize additional parties to attend, or otherwise set forth the parameters of what is "reasonable" in particular circumstances.

You further ask, if descendants have the right to hold memorial services at the cemetery, whether they have the sole right to do so. Under fundamental principles of property law, descendants do not have the right to exclude others from the landowner's property; and a right of access does not include a right to exclude others' access. The landowner himself, or his invitee, remains free to conduct a memorial service at the cemetery, and § 57-27.1 affords the other specified classes of persons the same access rights as descendants. It is therefore clear that the descendants do not have an exclusive right to organize and conduct memorial services at the cemetery.

Nevertheless, all parties who hold the right under § 57-27.1 to enter the cemetery to conduct a memorial service must refrain from "unreasonably interfering" with the rights of one another to exercise it. The landowner, of course, must be a party to any efforts to coordinate access to the cemetery by those wishing to hold memorial services.

5. Protection against damage or vandalism

You next ask whether descendants are authorized to secure a cemetery from damage or vandalism by (1) installing additional fencing, walls, or gates (herein, "fencing"), (2) installing additional security cameras, or (3) by placing a lock on the gate. Because you reference "additional" fencing and security cameras in your request, I assume you refer to scenarios in which some fencing and security cameras already are in place. Similar to your inquiry above regarding grave markers, the analysis here hinges on whether such installations constitute "maintenance" for purposes of § 57-27.1. Because the term "maintenance" refers to the preservation of an existing state, as opposed to the addition of new elements, it is my opinion that descendants are not authorized under § 57-27.1 to install additional fencing or security cameras, or place a lock upon the gate of the cemetery.

A court could, however, grant such a right in particular circumstances. In Turner v. Turner, the Spotsylvania County Circuit Court suggested that it might permit descendants to erect fencing around a graveyard if there was evidence that the property owner was "desecrating the graveyard or... allowing their livestock or domestic animals to desecrate the graveyard." Additionally, some courts outside Virginia have recognized that descendants may install fencing in certain circumstances, and it is generally acknowledged that fencing may be valuable to protect a cemetery from grazing livestock, heavy machinery, and motor vehicles. Nevertheless, there is no categorical right in Virginia case law to install fencing. Further, I am not aware of any cases that have authorized the use of locks or security cameras. Permanent installations of the kinds you describe constitute significant incursions on private property and must be authorized by a court or agreed to by the landowner.

Although there is no statutory authority for descendants to install the mechanisms you describe, I am mindful of the fact that cemeteries are susceptible to damage or vandalism. Family cemeteries in Virginia represent significant cultural, familial, and genealogical resources that once lost, are not capable of being replaced. Descendants may request permission from the landowner to install the types of mechanisms you describe. Although granting permission is not required, the landowner may be willing to accommodate descendants' requests in some cases.

6. Tours of the cemetery

Lastly, you ask whether the landowner is authorized to sell tickets and take members of the public into the cemetery as part of a tour of the property on which the cemetery lies. I am aware of no authority that would categorically prohibit such a practice. As the owner of the property, the landowner is authorized to permit entrance to individuals of his choosing. Although the grounds of a cemetery, once dedicated, cannot be used for purposes inconsistent with its purpose as a cemetery, a tour of a cemetery is an acceptable cemetery purpose. Tours should be conducted in a respectful manner; and visitors can be held liable for damage they cause. Furthermore, a court may prohibit tours of a cemetery carried out in an unlawful manner.

Conclusion

Accordingly, it is my opinion that:

1) When a traditional access route to a family cemetery is obviously visible by a view of the property, but that route has been closed to traffic by the landowner, the landowner is required under § 57-27.1 to allow ingress and egress to descendants by foot whenever reasonable;

2) Descendants do not possess a right under § 57-27.1 to be buried in the cemetery when they pass away, although a court might recognize such a right in particular instances;

3) While descendants are authorized under § 57-27.1 to repair existing grave markers, they may only erect new markers in limited circumstances constituting "maintenance";

4) Descendants are authorized to hold reasonable memorial services at the cemetery, but they do not possess the sole authority to do so;

5) Descendants are not authorized under § 57-27.1 to install additional fencing or security cameras, or a lock on the gate, and any such authority must be granted by a court.

Finally, no categorical prohibition restricts the landowner from selling tickets and taking members of the public into the cemetery as part of a tour of property on which the cemetery lies, provided tours are conducted with respect, and in accordance with applicable law.

The analysis and conclusions herein are intended to be general in nature. As such, this Opinion does not address all complexities that might exist with respect to private contracts; nor does it address the impact of any applicable zoning law, historic preservation law, or other outside law that might affect particular properties. As suggested throughout this Opinion, cooperation between property owners and descendants is strongly encouraged in order to ensure the best results, but to the extent a descendant thinks he has been denied access to which he is entitled, he may seek judicial relief.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General