A Seasonally Spooky Scenario
As Halloween rolls around, thoughts sometimes turn to things buried beneath the surface - secrets, skeletons, and perhaps even… the odd relative.
It may sound like an urban myth, but at Dott & Crossitt we occasionally get asked:
“Can you legally bury someone on your own property?”
“And if so - do you have to disclose it when you sell?”
The answer, like most things in property law, is: it depends.
Can You Bury a Person on Private Land?
Across Australia, burial laws are tightly controlled by state legislation. Generally speaking, human remains must be interred in a public cemetery - but some exceptions exist for rural or large private properties.
- New South Wales: Under the Public Health Regulation 2022, a private burial may be permitted with local council approval if the land is at least 5 hectares in size.
- Victoria: The Cemeteries and Crematoria Act 2003 allows private burials only with written approval from the Secretary of the Department of Health.
- Queensland and Western Australia: Such approvals are rare and granted only in exceptional circumstances.
- Tasmania: Permitted with the consent of both the local council and the Director of Public Health.
In every case, the burial site must be properly recorded and mapped..
What Does That Mean When Selling the Property?
If your property contains a private burial site (human or otherwise), it must be disclosed to prospective buyers.
In practice:
- Title notation: In some jurisdictions, private burials require registration and an accompanying notation on the title. This ensures the presence of the grave is a matter of public record.
- Vendor disclosure: Even if not formally noted on the title, a known burial site would be considered a material fact under the relevant state conveyancing laws - particularly if it might influence a purchaser’s decision to buy.
For example, in NSW, the Material Fact Guidelines (NSW Fair Trading) require vendors to disclose information that could affect a buyer’s decision - and that could include a private grave.
Failure to disclose such a fact might expose the vendor to:
- Claims of misrepresentation;
- Rescission of the contract by the purchaser; or
- Potential compensation claims if the buyer later discovers what’s underfoot.
In short, a burial plot is not the kind of “hidden feature” a seller can quietly ignore.
What About Pets?
Pet burials are generally allowed on private property, subject to local council regulations. There’s no requirement to register or record a pet’s burial site, and in most cases, it would not need to be disclosed in a contract for sale - unless it is something extraordinary or extensive (for instance, a small pet cemetery on rural land).
Still, good practice suggests mentioning anything that could reasonably affect a buyer’s enjoyment or use of the property.
Practical Advice for Property Owners
If you are considering, or already have, a private burial site on your property:
- Confirm the approval - Ensure all relevant consents and registrations are in place with your local council or health department.
- Check your title - A private burial approval may be recorded on the land title, which means it automatically forms part of any disclosure to buyers.
- Seek advice before selling - Speak with your solicitor or conveyancer about how to properly disclose the site in your contract for sale.
- Be transparent - Even if the burial is decades old, disclosure protects you from later disputes or claims.
A Final Word
Burial on private land might sound quaint or traditional - but from a legal and conveyancing standpoint, it’s a matter that follows the property long after the headstone fades.
If you’re unsure whether something on your land needs to be disclosed in a sale contract, our team at Dott & Crossitt Solicitors can help ensure your contract is both compliant and ghost-free.
By Dott & Crossitt Solicitors – Halloween Edition
