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[Comment: The issue of property ownership has become a hot one because of the challenges coming down the road of parishes who wish to separate themselves from their diocesan connections in one way or another. Some parishes are already telling their bishops that they will not allow the bishops to come to the parish to preach or celebrate the Eucharist. When a bishop from the outside comes without the local bishop's permission, the local bishop can begin action against the local priest and perhaps the local parish. The courts almost always side with diocesan ownership of property because of our "top-down" episcopal structure. Each diocese ought to enact a canon which clearly specifies that the local parish owns its own property, so that the courts would not have an ambiguous situation to deal with. The following came from the Internet.
See other articles under Property Rights in the Church. E. Fox.]
To the question I raised about Canon law governing property ownership, the following response was posted by a friend who is a Canon law professor.
It seems a prudent and urgent thing for any and all non-revisionist parishes to do is to obtain a title search of their real property. As noted below: "In order to ascertain the current ownership of a particular piece of real property, a title search should be requested from a national title company, preferably the title company which issued the Owners Title Insurance Policy when the property was acquired. In most jurisdictions, a preliminary title report may be purchased for a few hundred dollars."
"......there is simply no single answer. Any parish, etc., confronting this issue should first obtain a title search of its real property, then consult with counsel familiar with state real estate and trust law."
The Canons of the Episcopal Church and Property Issues
The ownership of church property, i.e., land, buildings, trust res, and
funds, are generally not subject to the same common law, statutory, and
constitutional prohibitions against secular court intervention. In most cases,
the law of the particular state wherein the property is located will control.
This is also the same with regard to any trusts established for the benefit
of a church. Property issues are dependent on the actual transfer or contractual
grants whereby the property came to be used by a church. It is not possible
for any body, be it The Episcopal Church, a labor union, or a department
store to, by fiat, acquire ownership to hundreds of pieces of real property
and the corpus of thousands of trusts located in some 50+ states and territories.
The law of each state is different as to the treatment of title to land,
buildings, and trust corpus. The answer is that each granting document, as
well as the terms and conditions of each trust, as well as a title search
for each piece of real property, must be individually reviewed to answer
the questions of ownership, transferability, etc. There is no one answer
Canon I.7.3. No Vestry, Trustee, or other Body, authorized by Civil or Canon law to hold, manage, or administer real property for any Parish, Mission, Congregation, or Institution, shall encumber or alienate the same, or any part thereof without the written consent of the Bishop and Standing Committee of the Diocese of which the Parish, Mission, Congregation, or Institution is a part, except under such regulations as may be prescribed by Canon of the Diocese.
Canon I.7.4. All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission, or Congregation is located. The existence of this trust, however, shall in no way limit the power or authority of the Parish, Mission, or Congregation otherwise existing over such property so long as the particular Parish, Mission, or Congregation remains a part of, and subject to, this Church and its Constitution and Canons. [NOTE: In my opinion, this draconian Canon is simply not effective to, by fiat, transfer title to all Parish, Mission, or Congregation property into a trust with some form of reversionary interest in The Episcopal Church nationally. Each piece of property must be analyzed separately as to date of ownership, form of ownership, i.e., in trust, by purchase in fee simple, conditions and reversionary interests, if any, in the grantor, etc.]
Canon I.7.5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.
Canon II.7.1. No Church or Chapel shall be consecrated until the Bishop shall have been sufficiently satisfied that the building and the ground on which it is erected are secured for ownership and use by the Parish, Mission, Congregation, or Institution affiliated with this Church and subject to its Constitution and Canons.
Canon II.7.2. It shall not be lawful for any Vestry, Trustees, or other body authorized by laws of any State or Territory to hold property for any Diocese, Parish or Congregation, to encumber or alienate any dedicated and consecrated Church or Chapel, or any Church or Chapel which has been used solely for Divine Service, belonging to the Parish or Congregation which they represent, without the previous consent of the Bishop, acting with the advice and consent of the Standing Committee of the Diocese.
Canon II.7.3. No dedicated and consecrated Church and Chapel shall be removed, taken down, or otherwise disposed of for any worldly or common use, without the previous consent of the Standing Committee of the Diocese.
Canon II.7.4. Any dedicated and consecrated Church or Chapel shall
be subject to the trust declared with respect to real and personal property
held by any Parish, Mission, or Congregation as set forth in Canon I.7.4.
B. Diocesan. The canons of each diocese must be reviewed to ascertain
the treatment of "property" according to diocesan canons.
PECUSA Canon Law does not control or preempt the property laws of the various states and territories, nor does it control state legislatures or judges. If a person [clergy or lay member of PECUSA] "violates" canon law, that individual is subject to the DISCIPLINE of The Episcopal Church. Title to property cannot be decided by The Episcopal Church. Certainly it may assert a trust interest pursuant to the above referenced canons, as well as applicable diocesan canons. However, any such assertion would be set forth in state court wherein the rules of property, trust law, and religious institutions law would all be at issue.
In order to ascertain the current ownership of a particular piece of real property, a title search should be requested from a national title company, preferably the title company which issued the Owners Title Insurance Policy when the property was acquired. In most jurisdictions, a preliminary title report may be purchased for a few hundred dollars.
Given the wide scope of state laws, and the date and origins of acquiring hundreds or thousands of pieces of Parish, Mission, Congregation, and Institution real property, this is a matter wherein it is probably better to be a defendant rather than a plaintiff. Of course, a title search and preliminary state law research should be completed prior to any Parish, Mission, Congregation, or Institution taking any precipitous action.
See other articles under Property Rights in the Church.
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Date Posted - --/--/20008 - Date Last Edited - 07/07/2012