When Archaeological Sites Are Offered For Sale

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.