Changes could be coming to burial site preservation law

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Changes could be coming to the sort of information that must be disclosed by anyone seeking to sell a house standing on a burial site.

The state’s Legislative Council Study Committee on the Preservation of Burial Sites has spent this summer considering possible changes to state laws meant to protect burial sites. The committee was formed after Republicans proposed legislation last session that would have let quarry owners excavate Native American mounds.

Among the changes being considered is one that would require that sellers inform buyers when a contemplated real estate transaction is likely to involve a burial site. Wisconsin law now calls on sellers of both homes and vacant land to tell buyers about any condition that could lower the value of a property that is up for sale. The same requirement applies to conditions that might affect the health or safety of occupants or the durability of a property.

Information of that sort is now usually reported using forms called real estate condition reports. The documents contain no section, though, that a seller can use to note the presence of a burial site, said Tom Larson, vice president of legal and public Affairs for the Wisconsin Realtors Association.

Speaking at the meeting Wednesday, Larson said there are also no civil penalties or fines for failing to write down information that is supposedly required. That said, he added, sellers who neglect to make proper disclosures are exposed to civil liability and can later be sued by buyers. Also, if a seller fails to provide the form, a buyer may back out of the sale.

State Sen. Jon Erpenbach, D-Middleton, suggested modifying the disclosure forms so they have a box set aside specifically for sellers of homes.

“Shouldn’t it be spelled out that there is or is not a cataloged or not cataloged burial mound on the property?” Erpenbach said.

The Wisconsin Historical Society estimates there are 9,700 burial sites in the state. Of those, 1,400 have been cataloged, meaning their existence has been recorded by the Wisconsin Historical Society.

Larson said members of the Wisconsin Realtors Association have supported changes to the disclosure form in the past. However, he said Erpenbach and other committee members might be overestimating how much information sellers and real estate brokers can actually supply.

“They are only required to disclose what they know,” Larson said. “They have no duty to investigate.”

He suggested that the Wisconsin Historical Society might let buyers access its database of burial site information. He noted, though, that the historical society is not subject to the state’s public records laws.

“At least direct them as to where they can gather information,” Larson added.

The committee will meet again on Nov. 10. Follow @erikastrebel