Archaeological sites and Real Estate.
Question: Should archaeological sites be registered on property title?
As one whose interest in
archaeology started when I was still practicing real estate, I have always been
curious as to why archaeological sites are not automatically registered on a property’s
title papers.
As an archaeologist, I see
part of our job as acting as custodians of the past, protectors of
archaeological sites and educators of the public about the footprints of
history that lie beneath their feet.
When I have asked this
question before, the real estate agent in me would say “would this registration
not have an impact on property values, and what about property rights? Would
those be limited?
When I have reflected on this
as an archaeologist, I say, “So what?”
As a real estate agent with an
increasing knowledge of archaeology that includes the location of sites within
my area, I found myself conflicted. I was bound by real estate law to fully
disclose whatever I knew or had been made aware of about any property that I either
listed or sold. As an archaeologist, there is an unwritten code of secrecy when
it comes to revealing site locations and municipal planning authorities are
strongly discouraged or forbidden to reveal the location of sites within their jurisdiction
unless a development plan proposal has been put before them.
This process seems a little
ass-backwards to me. If a developer sees a property within a designated growth
area or they choose to speculate on rural property on the edge of town, they
may put in an offer of purchase and then approach the planning authorities with
a draft plan. That property purchase, along with the costs incurred for the
preparation of a draft plan and a possible zoning change will require a
significant financial investment on behalf of the developer.
It is only at this point that
an environmental assessment is triggered, and as part of the process, an
archaeological assessment may also be required.
As a real estate professional
who was aware of archaeological sites being located on properties listed for
sale, did I have the obligation to disclose this information? What would be the
ramifications of either informing or not informing my clients of knowledge that
I had about the property? Am I opening myself up to a lawsuit?
Archaeological surveys and
site report have been made available to municipalities in my area since the 1890s,
yet my experience has been that most, if not all, of the planners that I met
were unaware of, and frankly somewhat disinterested in the existence of, let
alone, the content of these reports. They believed that the checklist indicating
whether a property had archaeological potential was all that they needed. They
were not interested in, or felt the need for, an inventory or list of sites
within the municipalities they worked for.
Back to the potential for a
lawsuit. As that conflicted licensed real estate agent who also held an
archaeological license, I was waiting for the day when a developer sued a municipality
for negligence for failure to disclose pertinent information that could render
their development plan useless or less profitable than anticipated. The
developer not only faced the cost of the assessment, but he may also be
informed that a significant portion of the land that he had purchased could not
be built on. His claim would be that the municipality failed to disclose
information that they knew or “should have known” prior to his purchase of the
property. Fortunately, the only lawsuits that I was threatened with came from a
developer who did not want me informing residents of sites within that
development and a CRM company that did not want me to divulge information about
potential ossuaries within their contracted area that they had chosen not to
investigate or report, even though they had been indicated in a site survey and
a previous CRM stage 2 report. As a result, I lost my avocational licence for allegedly
interfering with a CRM professional contract, but I felt vindicated when one of
those ossuaries was dug up in the process of grading a lot for a home, and the other
noticed and brought to my attention by a property owner, who attended a public
meeting, who was curious about a strange depression in a greenbelt area not 20 ft
from the back of their yard.
So, in conclusion, for the
sake of full disclosure and our desire to protect sites, I would like to
suggest that we as archaeologists, through whatever organizations we belong to advocate
for archaeological sites to be placed on property title. They do it for dump
sites and contaminated soil sites, but not for ossuaries or other sites that we
and others see as important markers of sacredness and history.
