2007-10

South Carolina Court Administration

South Carolina Supreme Court
Columbia, South Carolina

MEMORANDUM

The Legislature recently enacted South Carolina Code of Laws § 27-43-310 which became effective June 27, 2007.  This legislation provides for injunctive relief to a party seeking access to a cemetery, burial ground, or grave which is located on private property.  This legislation further provides that the magistrate court shall have the authority to issue such injunctions. 

Court Administration has developed forms and guidelines to assist the magistrate courts in carrying out this responsibility.  Forms 680-683 have been created for this purpose and a copy of each is attached.  Forms 680 and 682 are Petitions which may be filed by the family member/descendant or landowner respectively when seeking relief.  Forms 681 and 683 are  Orders to be used by the court. 

The following guidelines have been created for use by the court and its staff in assisting the public with this new procedure. 

Procedure for family member/descendent to seek ingress/egress to a cemetery, burial ground or grave on private property.  § 27-43-310; $80 filing fee required.

1.	Family member / descendant must first provide to the landowner or occupant a written request for access to the cemetery, burial ground or grave for one of the following purposes as provided § 27-43-310 (B):
	visiting a grave(s) maintaining the gravesite or cemetery lawfully burying a deceased person in a cemetery or burial plot by those granted rights of burial to that plot conducting genealogy research
2.	Landowner/occupant is allowed 30 days to respond to the written request for access.  If no response has been made within the 30 days, petitioner may file a Petition and Motion for Access to Cemetery, Burial Ground, or Grave (SCCA 680) with the magistrate’s court having jurisdiction over the property on which the cemetery, burial ground, or grave is located.
3.	The magistrate’s court shall charge a filing fee of Eighty ($80.00) Dollars.  After the Respondent has been served, a hearing shall be scheduled.  As this is an action for injunctive relief, there is no right to a trial by jury.
4.	The Respondent is entitled to at least 10 days notice prior to the hearing.
5.	Magistrate court must hold a hearing, notifying all parties concerned (landowner/ occupant of property, petitioner/family member or descendent) and make a determination on the petition.
	a. Magistrate court should first determine whether the petitioner has jurisdiction to seek relief through the court [27-43-310(A)]. b. Magistrate court shall then determine whether the court should grant or deny access, as well as the terms of reasonable ingress and egress including the frequency, hours, and duration of access.  c. Magistrate court shall then issue an Order (SCCA 681) granting or denying access and, if granted, setting the terms and conditions for such access.
6.	The court may order costs to the prevailing party in these actions.

1.	Landowner/occupant may petition the magistrate court if the family member/descendent fails to agree to reasonable terms of ingress/egress to the cemetery, burial ground, or grave located on the property.
2.	Landowner/occupant must file a Petition and Motion for Access to Cemetery, Burial Ground, or Grave (SCCA 682) with the magistrate’s court having jurisdiction over the property on which the cemetery, burial ground, or grave is located.
3.	The magistrate’s court shall charge a filing fee of Eighty ($80.00) Dollars.  After the Respondent has been served, a hearing shall be scheduled.  As this is an action for injunctive relief, there is no right to a trial by jury.
4.	The Respondent is entitled to at least 10 days notice prior to the hearing.
5.	Magistrate court must hold a hearing, notifying all parties concerned (landowner/ occupant of property, petitioner/family member or descendent) and make a determination on the petition.
	a.  Magistrate court shall determine whether the court should grant or deny access, as well as the terms of reasonable ingress and egress including the frequency, hours, and duration of access.  b.  Magistrate court shall then issue an Order (SCCA 683) granting or denying access and, if granted, setting the terms and conditions for such access.
6.	The court may order costs to the prevailing party in these actions.

 If you have any questions concerning this procedure or the statute, please feel free to contact me at 803-734-1800.