PCUSA aggressively defends and enforces its property trust
By John H. Adams, The Layman Volume 38, Number 1, April 12, 2005
The Presbyterian Church (USA) has – and aggressively enforces – a constitutional property trust law, which allows presbyteries to require that congregations forfeit their property or pay cash settlements after they have voted to leave the denomination.
The heart of the church law is G-8.0201, a 77-word paragraph in the Book of Order:
- “All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (.SA), whether title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (USA).”
The entire eighth chapter of the Book of Order is about church property. If you want to know the denomination’s interpretation of that chapter, another document is important. It’s the property section of the “Legal Resource Manual for Presbyterian Church (U.S.A.) Middle Governing Bodies and Churches.” It is available on the PCUSA’s Web site at www.pcusa.org/legal/Property/index.htm.
The manual begins with a significant caveat: “Almost all property matters are governed by state law. An attorney familiar with your state’s property law should be used.”
The legal manual describes the PCUSA trust clause as virtually an essential tenet of faith and reflects a firm commitment to enforcement: “This clause is central to Chapter VIII and, in many respects, the life of the Presbyterian Church (USA). It establishes, as all Presbyterians know, that our church is not congregational in its structure.”
The manual “strongly advises” that local congregations acknowledge the denomination’s ultimate ownership of all local church property, but asserts that “the absence of a [congregational] trust clause in a conveyance instrument in no way mitigates or compromises the obligation of the particular church or other church agency to the presbytery, other governing body of jurisdiction, or denomination as a whole.” To strengthen the denomination’s law, a top-down dictate, the manual asks local congregations to record bottom-up concurrence through a legal agreement on deeds of sale of property for local church use.
It provides the suggested text for such an agreement: “The premises herein conveyed shall be used, kept and maintained by the grantee for Divine Worship and other purposes of its ministry as a particular church belonging to the Presbytery of _________________ (or its legal successors), subject to the provisions of the Constitution of the Presbyterian Church (USA) (or its legal successors).”
Even without the congregation’s written agreement, the manual says, “secular courts have upheld the right of denominational units to succeed to the title on the implied trust theory … It is extremely important to understand that, although title to the property may be held by a particular church subject to the provisions of the Constitution, the title is merely held in trust for the denomination by that entity.”
Furthermore, the manual says, “This determination does not depend on the majority vote within a particular church” – even if a congregation votes 100 percent in favor of leaving the denomination.
The manual confidently states that “most civil courts ruling on Presbyterian Church property disputes will recognize and enforce the property trust set forth in the Constitution.” Also, the manual adds, the courts will consider church polity that says “a higher governing body has the right to review and control over a lower governing body.”
Although state courts often uphold denominational property trust clauses, two recent rulings by appellate courts in Maryland and California concluded otherwise. Those appellate court rulings held that local congregations that had voted to leave their denominations could retain their property because they had never agreed to an irrevocable trust. They said congregations that decided by majority vote to leave their denominations could rescind their submission to a trust clause adopted by the denomination.
The manual recognizes that not all state courts have upheld denominational trust clauses. However, it says those rulings “do not reflect the free exercise of religion by respecting the polity and structure a church has chosen for itself. Presbytery officials and their legal counsel must be wary of these rulings.”
The legal work on property issues in the PCUSA is done by lawyers on the staff of the Office of the General Assembly, which is headed by Stated Clerk Clifton Kirkpatrick. The detailed and aggressive policies set forth in the legal manual are in sharp contrast to the staff’s unwillingness to enforce other constitutional requirements, including the prohibition against ordaining practicing homosexuals.
The manual provides presbyteries with state-specific resources to deal with property disputes and “some funds to assist presbyteries in civil litigation when a church is in schism or its property is being used contrary to the Constitution” – up to 50 percent of a presbytery’s costs in a civil property dispute.
Chapter 8 of the Book of Order also requires that no local congregation be allowed to “sell, mortgage, or encumber its real estate without the permission of presbytery.”
“Generally, these provisions ensure that the presbytery will be involved when the particular church begins a significant real estate project,” the legal manual says. “… Because of these provisions in Chapter VIII, as well as other provisions vesting the presbytery with authority, most lenders require the presbytery to guarantee loans to the particular churches.”