Right to use graves

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The right to use a grave is a right to use a grave site.

Germany

The right to use the grave is a legal relationship under public law, unless, in exceptional cases, a design under private law is to be assumed. In Germany it concerns the right of use at the grave site. According to this, disputes about the existence and content of grave usage rights and the obligations associated with such regulations (including disputes about the permissible design of the grave site) are generally disputes under public law within the meaning of Section 40 (1) VwGO . This also applies to church cemeteries.

In Germany, the right to use the grave site is limited to the relevant rest period . The corresponding laws in Germany are the law of the federal state. The burial is a mandatory task of the municipality under sovereign law, which is regulated according to the respective funeral law. The legal basis for the approval and use of the cemeteries are the cemetery laws . On this basis, the municipalities and religious communities issue their statutes, the cemetery regulations. This regulates how and how long grave sites may be used, the usage fees and additional stipulations due for the municipality or community are made in the cemetery regulations or in separate fee schedules. For the execution of the burial and in particular the care of the grave site, a user entitled to care enters into a public-law usage relationship with the respective cemetery owner. This special right of use is justified under public law by an administrative act requiring cooperation. It comes about between the willing beneficiary and the cemetery owner.

A person entitled to inheritance is not necessarily the successor; even if the inheritance is rejected, a descendant can be called upon to bear the costs . No funeral can take place if there is no user. The user can be specified by a pension contract. In an emergency, if no relatives or acquaintances take over the right of use, in particular to bear the costs, the authority steps in. Depending on the municipal structure, this can be the public order office or the health department . The right of use can be transferred with the consent of the cemetery holder by means of a declaration of intent by the predecessor and the successor or in accordance with the local cemetery regulations. The legal basis for the right of use are the funeral laws, in some cases the cemetery laws of the respective federal state. The details such as duration, usage costs and the right to renewal are specified in the cemetery statute. The statute contains the local, community or communal stipulations within the framework of the state laws.

There are conditions for the tree burials that must nevertheless be subject to state law. The same applies to the other new forms of burial.

Bavaria

In Bavaria, the municipalities are obliged to provide the necessary funeral facilities (Art. 149 Para. 1 BV , Art. 7 BestG). Only legal persons under public law can be responsible for cemeteries (Art. 8 2 BestG). Churches and religious communities can maintain their own cemeteries, but are not obliged to do so. Compulsory use for communal facilities may not be imposed at the expense of a church facility (Art. 24 Para. 3 GO). In the case of church monopoly cemeteries, the burial of people of different faiths is also permitted in the forms customary for them (Art. 149 Para. 2 BV, Art. 8 Para. 4 BestG).

Berlin

The Funeral Act is the basis for burials in Berlin . In Berlin, the total of 245 cemeteries are used by the respective provider. For the state-owned cemeteries of Berlin , these are the district administrations on whose territory the cemetery is located. The local peculiarities are, however, regulated by the law on the state-owned and non-state-owned cemeteries in Berlin, which is centrally issued by the Senate. The graves of honor and the war cemeteries are administered by the Senate on the basis of the Graves Act. However, the local districts are responsible for maintenance and implementation. The cemetery law is the basis of the cemetery regulations and the fee schedule for the state-owned cemeteries in Berlin.

The resting time for the graves in Berlin is a uniform 20 years. Earth and polls election can be extended ask after the 20 years. The right to extend can be used six months before it expires. If no extension is requested, the grave sites can be cleared six months after the expiry. Row graves and burials in community facilities cannot be extended. If the authorized user does not make a claim, the tombstone and other grave equipment become the property of the State of Berlin after the period of use has expired. The deadlines and the change of ownership are regulated in the Berlin Cemetery Act. Since 2004 the user fees have to be paid in advance for 20 years. The right of use is not acquired at the grave site, but at the burial; with each new burial, this basic fee is due for 20 years, even in multiple places. Due to frequent relocation of the beneficiary descendants, the annual payments were often no longer traceable. This basic usage fee was intended to cover the administration's expenses in order to keep the area in a dignified condition, to ensure the safety of the paths and to cover the costs of supplying the authorized users with water and waste disposal. Any disposal of the tombstone by the administration is also included, unless the user has made a claim. With this advance payment for 20 years, the costs are covered, on the other hand, the question of care is clarified if the offspring are unable or unwilling to do so. With the right of use, there is also the legal obligation to give the burial place a dignified appearance and to be responsible for the safety of the tombstone and to eliminate the consequences in the event of a coffin break. According to § 4 of the Cemetery Act, the duty of public safety is the responsibility of the cemetery owners as a public law task, as long as the danger does not come from the grave site under the law of use.

The church sponsors have the right to issue their own cemetery regulations within the Berlin Cemetery Act. This regulates the usage costs, rights and obligations and provisions for the extension of the usage right. The stipulations are made by the responsible municipality. In order to keep the administrative effort within limits, associations of Protestant parishes have been formed. The Catholic cemeteries are determined by the ordinariate across Berlin, the Jewish cemetery by the Jewish state community.

Religious communities in Berlin are somewhat more free to design terms of use for newer forms of burial. The district cemetery administrations for the state's own cemeteries are always bound by the text of the state fee and cemetery regulations.

Austria

The responsibility for granting the right to use a grave lies with the

Vienna

The administration of the 46 municipal cemeteries in Vienna with their more than 600,000 grave sites lies with Friedhöfe Wien GmbH , which emerged in 2008 from the municipal department 43 ( municipal cemeteries ).

The purchase of a grave is not possible, only the right to use a grave is acquired.

Only one person can appear as authorized user who thus combines all rights and obligations of a user. The right of use can only be passed on to one's spouse, partner, parent or child through inheritance or renunciation.

The term of the right to use the grave varies depending on the type of burial site:

  • normal burial grounds: usually 10 years
  • Grave with grave cover plate: for the first time 20 years
  • Crypt or urn wall niche : 60 years

It should be noted that a ten-year right to rest , the so-called minimum waiting period from the day of the burial, must be granted for every buried dead person or, in the case of a cremation of his ashes . The organizer of the funeral must ensure compliance with this deadline.

The service life of the grave can be extended as often as required, from a year before to a year after the expiry date for a period of five or ten years. If no application is made to extend the service life of the grave during this period , the cemetery administration can freely dispose of the grave site and the grave equipment , in particular the tombstone , from one year after the end of the service life of the grave . Graves threatened by decay in the city cemeteries are identified by a marking on the tombstone or a reference is made to the grave site search on the Internet , where the end of the grave life can be seen.

The fact that there is no individual communication in Vienna and that the tombstone disappears from the grave site the next time you visit the cemetery leads to frequent anger among relatives. It is not possible for the cemetery administration to keep the data of the holder of the right of use up to date between payments.

Web links

Individual evidence

  1. ↑ generally on this BVerwG , judgment of July 8, 1960, Az. VII C 123/59; BVerwGE 11, 68 (69) of December 16, 1966, Az. VII C 45/65; BVerwGE 25, 364 (365) of March 8, 1974, DÖV 1974, 390 (391) and BVerwG, decision of December 20, 1977, Az.VII B 188/76 - Buchholz 408.2 No. 6 and BVerwG decision of October 28 1980, Az.VII B 224/80 - Buchholz 408.3 No. 4.
  2. ↑ BayVGH , judgment of June 7, 1989, No. 4 B 86.02596, BayVBl. 1990, 152 f.
  3. ↑ Berlin Cemetery Act, Section 4 (PDF; 61 kB).
  4. ↑ Graberwerb website of the Federal Chancellery , accessed on July 20, 2016
  5. ^ Friedhöfe Wien GmbH - Friedhöfe