ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2004
(By Delegate Amores, Spencer, Capito and Ashley)
[Passed March 13, 1999; in effect ninety days from passage.]
AN ACT to amend article five, chapter thirty-five of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto two new sections, designated
sections seven and eight; to amend and reenact section five,
article five-b of said chapter; and to further amend said
article by adding thereto a new section, designated section
nineteen, all relating to cemetery contracts generally;
itemization of costs and services in a cemetery contract; and
abandoned interment rights.
Be it enacted by the Legislature of West Virginia:
That article five, chapter thirty-five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto two new sections, designated sections seven and eight; that section five, article five-b of said chapter
be amended and reenacted; and that said article be further amended
by adding thereto a new section, designated section nineteen, all
to read as follows:
ARTICLE 5. CEMETERIES.
§35-5-7. Requirements for cemetery company contracts.
(a) Any cemetery company contract shall:
(1) Be written in clear understandable language and printed in
easy-to-read type, size and style;
(2) Include the name and address of the seller, the contract
buyer and the person for whom the contract is bought if other than
the contract buyer;
(3) Contain a complete description of the property, goods or
services bought, including an itemization of the retail price of
the property, goods or services bought and, specifically, the
retail price of the monument, marker, installation, foundation, the
opening and closing of the grave site and any other charges.
Failure to provide this information is a violation of subsection
(f), section one hundred two, article six, chapter forty-six-a of
this code, relating to unfair methods of competition and unfair or
deceptive acts or practices;
(4) Clearly disclose whether the retail price of the property, goods or services bought is guaranteed;
(5) Provide that when the particular property, goods or
services specified in the contract are unavailable at the time of
delivery, the seller shall furnish property, goods or services
similar in size, style and equal in quality of material and
workmanship, and that the representative of the deceased has the
right to reasonably choose the property, goods or services to be
substituted; and
(6) Be executed in duplicate and a signed copy given to the
buyer.
(b) For purposes of this article, the following words and
phrases have the following meanings:
(1) "Cemetery company" or "seller" means any person,
partnership, firm or corporation engaged in the business of
operating a cemetery or selling property, goods or services used in
connection with interring or disposing of the remains or
commemorating the memory of a deceased human being.
(2) "Cemetery company contract"
means a contract for the sale
of real and personal property, goods or services used in connection
with interring or disposing of the remains or commemorating the
memory of a deceased human being
.
§35-5-8. Abandoned interment rights.
(a) A cemetery company contract may include a provision
whereby interment rights that are not used for a period of seventy- five years or more shall be deemed abandoned if unclaimed and shall
revert to the cemetery company if the procedures in subsection (b)
are followed.
(b) (1) Prior to deeming an owner's interment rights
abandoned, a cemetery company shall send notice of such intent to
the owner of record, his or her heirs or assigns or any next of
kin, by a registered letter, return receipt requested, at the
owner's last known address requesting the owner's current address
or the names and addresses of the heirs or assigns of the owner of
record. If a written response is received, then the records of the
cemetery company shall be amended accordingly and the interment
rights shall be maintained for seventy-five years from the date the
written response was received by the cemetery company.
(2) If the registered letter is undeliverable or if no
response is received within thirty days after the registered letter
was sent, then the cemetery company shall advertise a notice of its
intent to declare the interment rights abandoned in a newspaper of
general circulation in the county where the cemetery is located and
also in the county of the last known address of the owner of
record, which notice shall contain the name and business address of the cemetery and the name of the last owner of record. If no
response to the newspaper notice is made on behalf of the owner of
record or his or her heirs or assigns within one hundred twenty
days, then the interment rights shall be deemed abandoned and shall
revert to the cemetery company. Upon the reversion of interment
rights to the cemetery company, the cemetery company shall amend
its records accordingly and maintain these records for thirty
years. If a written response is received, then the records of the
cemetery company shall be amended accordingly and the interment
rights shall be maintained for seventy-five years from the date the
written response was received by the cemetery company.
(c) If, within thirty years after the interment rights have
been declared abandoned, the owner of record or his or her heirs or
assigns can prove to a cemetery company or a court of competent
jurisdiction that he or she would be entitled to the interment
rights of the owner of record if those rights had not reverted to
the cemetery company as provided for by this section, then the
cemetery company shall, at no cost, provide a right of interment
similar to the one that was deemed abandoned.
(d) The provisions of this section shall take effect on the
first day of July, one thousand nine hundred ninety-nine, and shall
not be construed to apply retroactively.
ARTICLE 5B. PRENEED CEMETERY COMPANY PROPERTY, GOODS AND SERVICES;
RELATED CONTRACTS.
§35-5B-5. Requirements for preneed cemetery company contracts.
A preneed cemetery company contract shall:
(1) Be written in clear understandable language and printed in
easy-to-read type, size and style;
(2) Include the name and address of the seller, the contract
buyer and the person for whom the contract is bought if other than
the contract buyer;
(3) Contain a complete description of the property, goods or
services bought, including an itemization of the retail price of
the property, goods or services bought and, specifically, the
retail price of the monument, marker, installation, foundation,
opening and closing of the grave site, and any other charges.
Failure to provide this information is a violation of subsection
(f), section one hundred two, article six, chapter forty-six-a of
this code, relating to unfair methods of competition and unfair or
deceptive acts or practices;
(4) Clearly disclose whether the price of the property, goods
or services bought is guaranteed;
(5) Provide that if the particular property, goods or services
specified in the contract are unavailable at the time of delivery, the seller shall furnish property, goods or services similar in
size and style and equal in quality of material and workmanship,
and that the representative of the deceased has the right to
reasonably choose the property, goods or services to be
substituted; and
(6) Be executed in duplicate and a signed copy given to the
buyer.
§35-5B-19. Abandoned interment rights.
(a) A preneed cemetery company contract may include a
provision whereby interment rights that are not used for a period
of seventy-five years or more shall be deemed abandoned if
unclaimed and shall revert to the cemetery company if the
procedures in subsection (b) are followed.
(b) (1) Prior to deeming an owner's interment rights
abandoned, a cemetery company shall send notice of such intent to
the owner of record, his or her heirs or assigns or any next of
kin, by registered letter, return receipt requested, at the owner's
last known address requesting the owner's current address or the
names and addresses of the heirs or assigns of the owner of record.
If a written response is received, then the records of the cemetery
company shall be amended accordingly and the interment rights shall
be maintained for seventy-five years from the date the written response was received by the cemetery company.
(2) If the registered letter is undeliverable or if no
response is received within thirty days after the registered letter
was sent, then the cemetery company shall advertise a notice of its
intent to declare the interment rights abandoned in a newspaper of
general circulation in the county where the cemetery is located and
also in the county of the last known address of the owner of
record, which notice shall contain the name and business address of
the cemetery and the name of the last owner of record. If no
response to the newspaper notice is made on behalf of the owner of
record or his or her heirs or assigns within one hundred twenty
days, then the interment rights shall be deemed abandoned and shall
revert to the cemetery company. Upon the reversion of the interment
rights to the cemetery company, the cemetery company shall amend
its records accordingly and maintain these records for thirty
years. If a written response is received, then the records of the
cemetery company shall be amended accordingly and the interment
rights shall be maintained for seventy-five years from the date the
written response was received by the cemetery company.
(c) If, within thirty years after the interment rights have
been declared abandoned, the owner of record or his or her heirs or
assigns can prove to a cemetery company or a court of competent jurisdiction that he or she would be entitled to the interment
rights of the owner of record if those rights had not reverted to
the cemetery company as provided for by this section, then the
cemetery company shall, at no cost, provide a right of interment
similar to the one that was deemed abandoned.
(d) The provisions of this section shall take effect on the
first day of July, one thousand nine hundred ninety-nine, and shall
not be construed to apply retroactively.