Section A - Introduction
This Focus Note is to be read in conjunction with the Burial Ground Guidance, the Sale Guidance for Managing Trustees and/or the Sale Guidance for Solicitors and the Burial Ground Template Clauses. It provides information on the Methodist requirements for sales of disused burial grounds. More general information on burial grounds is found in the Burial Ground Guidance.
Managing Trustees will understand that any changes to a burial ground can be contentious and are likely to cause distress to those who have relatives buried in the grounds and the local community in general. The Managing Trustees will be anxious to ensure any disposal is dealt with sensitively.
Section B - First Steps
B1 Closure of the burial ground
If the burial ground being sold is still open, the Managing Trustees should take steps to close it before proceeding any further. Sales of open burial grounds are only considered in rare cases such as on disposal to a local authority. Please refer to the Burial Ground Guidance for guidance on closing burial grounds.
Please also ensure that the burial ground records are up to date and complete. The records must be handed to the Methodist body to whom managing trusteeship is delegated following the sale and kept safely should any enquiries be raised in the future. Both the records themselves and responsibility for dealing with any enquiries lies with the Methodist managing trustees and cannot be passed to the buyer.
The sale of a disused burial ground must be by way of the grant of a long lease. This is because specific restrictions (covenants) must be placed on the buyer/tenant’s use of the burial ground and the Methodist Church must be able to enforce these restrictions.
The procedures set out in the Schedule to the Disused Burial Ground (Amendment) Act 1981 must be followed before any works are carried out at Methodist burial grounds. “Works” includes moving headstones or memorials and any activity that renders graves inaccessible or disturbs remains. The Methodist Church must be indemnified by future owners of the burial ground if these laws are broken.
It is also important to ensure that future owners are obliged to keep the graves neat and tidy, to allow relatives to access graves and to fulfil the other obligations set out at paragraph 8 of the Burial Ground Lease Template Clauses. The fulfilment of such obligations helps to safeguard the memory of the burial ground and to show respect to the deceased and their relatives. This is important to both the Methodist Church and the local community. To this end, burial grounds are disposed of by way of the grant of a long lease. The freehold must be retained.
Please note that it is now a requirement that, if a burial ground is disposed of together with the adjoining Sunday school or chapel (or any other land or buildings); the burial ground only should be disposed of by way of a long lease and the rest of the property should be transferred freehold i.e. a “normal” sale. There is a risk that the burial ground covenants could become redundant if a qualifying tenant of a lease comprising a converted chapel (and an adjoining burial ground) was able to exercise a right to buy the freehold under the Leasehold Reform Act 1967 (as amended).
It is important that Managing Trustees provide their surveyor with a copy of this Focus Note, the Burial Ground Template Clauses and the Burial Ground Guidance when they instruct him/her to prepare the QSR. The surveyor’s further advice is also required on the points set out in Section C2 of this Focus Note.
The property should not be marketed for sale or negotiations entered into before TMCP has approved the QSR. Whilst this is always a requirement, it is particularly important with burial grounds, as problems arise when potential buyers start negotiations believing that they can buy the freehold and are then informed that they can only acquire a long leasehold interest.
Section C - Charity Law and Methodist Law, Policy and Best Practice Requirements on Sales of Burial Grounds
C1 Logging the sale on the Property Consents Management System
The sale of the burial ground should be logged as a “sale”. If the sale includes the sale of a burial ground together with other land i.e. an adjoining chapel or Sunday school then two separate “sale” projects will need to be logged, one for the sale by way of the grant of the long lease and one for the freehold sale. You may need to create a specific property record for the burial ground to enable you to log the separate projects if the whole site is currently recorded as one property. Please contact the Consents Team if you are unsure of the process of logging the projects.
Once the sale of the burial ground completes, TMCP Legal will mark the project to show that the freehold is being retained. This will ensure that a record is kept of the fact that the Methodist Church is retaining the freehold interest in the burial ground.
The Managing Trustees are required to obtain a QSR under section 119 of the 2011 Act and to submit this to TMCP for approval as set out in Section B2 of the Sale Guidance for Solicitors. As mentioned in Section B3 of this Focus Note, please ensure that the surveyor is provided with a copy of this Focus Note and the Burial Ground Template Clauses when first instructed to prepare the QSR. The way in which Methodist burial grounds should be disposed of may affect the valuation and the surveyor’s advice in relation to the proposed sale.
In addition to the requirements of the Charities (Qualified Surveyors’ Reports) Regulations 1992, the Managing Trustees' surveyor’s advice should be sought on:
- the length of the long lease term – how long should the term of the lease be?;
- whether any additional lease terms are required ;
- if the sale is of the burial ground together with other land, how the sale price should be apportioned between the freehold and leasehold elements; and
- if the sale is of the burial ground together with other land, whether rights will be required over the adjoining freehold property to enable the Landlord and relatives to exercise their rights under the lease i.e. to enter onto the burial ground. Alternatively the surveyor may suggest that a new point of access should be created onto the burial ground direct from a public right of way and if so, who should pay for this.
The Managing Trustees' solicitor must also be provided with a copy of the QSR so that they can ensure that the lease is drafted in accordance with the surveyor’s recommendations.
C3 Approval of documents
The lease must be approved by TMCP Legal together with the contract and any freehold transfer (if the burial ground is being sold together with other property) before TMCP can approve exchange of contracts.
This Section D of the Focus Note provides guidance specifically for Managing Trustees' solicitors to help them to prepare the lease. Please ensure that your solicitor has a copy of this Focus Note and the Burial Ground Template Clauses.
Managing Trustees' solicitors are asked to note the following when preparing the burial ground lease:
D1 Lease – Burial ground covenants
The lease must include the burial ground covenants set out in the Burial Ground Template Clauses and any appropriate corresponding reservations. These covenants and the indemnity must be enforceable against future owners of the former burial ground and Managing Trustees' solicitors should ensure that the lease includes any additional clauses they feel are necessary to achieve this.
D2 Lease – General provisions
As far as the Methodist Church is concerned the lease should be drafted so that in practical terms, it is equivalent to a freehold transfer of the burial ground subject to enforceable obligations relating to the graves. TMCP’s requirements as regards repair, alterations and use are limited to the obligations under the template burial ground clauses, please refer to paragraph 8 of the Burial Ground Template Clauses. Solicitors should take instructions from the Managing Trustees and their surveyor on any specific requirements as to other lease clauses.
Managing Trustees' solicitors should ensure that all liability for the property lies with the tenant. The tenant will be responsible for complying with any legislation applying to the property, for insurance (which should note the Board and Managing Trustees' interest as landlord and include appropriate public liability insurance cover) and for meeting all outgoings including utilities and taxes. Managing Trustees' solicitors should ensure that, as far as possible, the Landlord has no ongoing liability for the property.
D3 Lease – Execution clauses
The lease will be signed and sealed by two TMCP Board Members and signed by two Managing Trustees duly authorised by a resolution passed by the Managing Trustee body under Section 333 of the Charities Act 2011.
D4 Transfer – Reservation of rights to enable the Landlord to exercise rights reserved by the lease
If the sale is of the burial ground together with other land, the Managing Trustees' solicitors should consider whether it is necessary to reserve rights over the freehold property to enable the Landlord and relatives to exercise their rights under the lease i.e. to enter onto the burial ground (as discussed in Section C2).
Managing Trustees' solicitors should ensure that their client, the Managing Trustees, will be able to exercise the rights reserved to them in the lease.
Please note that this document is to provide guidance and assistance to Managing Trustees and their professional advisers. This guidance note is general in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of any particular matter.
Also note that nothing within the documents and guidance notes provided by TMCP nor any receipt or use of such information, should be construed or relied on as advertising or soliciting to provide any legal services. Nor does it create any solicitor-client relationship or provide any legal representation, advice or opinion whatsoever on behalf of TMCP or its employees.
Accordingly, neither TMCP nor its employees accept any responsibility for use of this document or action taken as a result of information provided in it.
Please remember that Managing Trustees need to take advice that is specific to the situation at hand. This document is not legal advice and is no substitute for such advice from Managing Trustees' own legal advisers.
If you have any queries in relation to burial ground sales please contact TMCP Legal for further guidance.