Reasons to clarify property title apart from wanting to leave PCUSA
By Lloyd J. Lunceford, November 27, 2006
For many months I have read numerous letters to the editor offering suggestions to churches that may be considering leaving the PCUSA or churches concerned about retaining or clarifying ownership and use of local church property. Many of the suggestions have been very insightful. Some of the suggestions, however, though well-intentioned, may not accomplish their stated purposes. Indeed, some of the suggestions could have unintended, adverse consequences. As legal counsel advising several churches around the country, and as one who recently negotiated a court judgment to which both local church and presbytery agreed and jointly submitted for court approval, I’d like to offer a little food for thought.
First, I think consideration should be given to whether it might be appropriate in some circumstances to de-link the issue of property rights from denominational affiliation/disaffiliation. Resolving the issue of property rights does not always have to take place in tandem with, or in the throes of, debating over whether to leave the denomination. It can be helpful to “divide the question” and address those two issues at separate times and in separate venues. There are important reasons to clarify property title apart from whether one wishes to stay with or leave the PCUSA. A bank won’t lend money to a local church if there is a question about whether the borrower has clear title to the property which is serving as the collateral securing the loan. Nor will some potential large donors give to a local church capital campaign if similar questions are present. For these reasons alone, wholly apart from the separate issue of staying with or leaving the denomination, a local church may need to obtain a declaratory judgment from a civil court. As explained below, de-linking these two issues can have important practical consequences in litigation and negotiation.
A mere private agreement between a presbytery and a local church is not a sufficient substitute for a civil court decree. Just as one Congress cannot bind a future Congress, so one presbytery meeting cannot bind a future presbytery meeting. What a presbytery can give it can later take away. Property titles need to be secure; clear chain of title often needs to span multiple generations. A definitive court judgment filed into the local mortgage and conveyance records has the needed legal authority in the civil arena of property rights. No amount of presbytery resolutions, overtures or PJC decisions can do this.
The ideal scenario would be a suit for a declaratory judgment filed in the local civil court jointly by the presbytery and local church acting together, accompanied by a proposed, jointly agreed-to judgment worked out in advance based on a common understanding of the law and the facts at hand. If that is not possible, due to the potential threat of an administrative commission that makes advance discussions with the local presbytery too risky, a local church could unilaterally seek a declaratory judgment, accompanied by an injunction to stay the appointment of an administrative commission. Such an injunction might well be unopposed by some presbyteries because it may have the ancillary effect of keeping the synod at bay.
With the playing field made level by the issuance of a restraining order or injunction, sufficient time can then be carved out, through a court-approved scheduling order, to permit the local church and the presbytery to amicably explore a mutually acceptable resolution that could be submitted for court approval in the form of a joint motion for a stipulated ( consent) judgment.
The approaching presence of deposition dates and a trial date can act as healthy incentives to keep the negotiations moving forward. Another important incentive for amicable negotiations can be the de-linking, as mentioned above, of property rights from the question of continued denominational membership. So long as it is perceived by a presbytery that there is a chance, however great or small, that the local church and its financial and human contributions might stay within the denomination, the presbytery will be more motivated to avoid burning any bridges. This might especially be so when the local church that is seeking clarification of its property rights is a significant contributor to the life of the presbytery. A local church may thus not want to suspend its presbytery portion of per capita prematurely. It is usually better to retain that option if possible negotiations are on the horizon.
Some churches have reportedly followed a different sequence – suspending all per capita ( including the presbytery portion), voting to leave the PCUSA, and then filing suit to obtain clear title or remove a cloud on the title. In a given situation there may be reason for doing things that way. I don’t mean to criticize those who have followed this course. In most circumstances, though, such a sequence substantially reduces the chance of the property issues being negotiated successfully while the litigation is pending. The local church, especially a large or particularly active one, has already dispensed with much of its leverage.
Naturally, a presbytery may be concerned that if a local church obtains by litigation and negotiation a judicial declaration of its property rights, it will then subsequently vote to leave the denomination. Many presbytery officials, and no doubt many folks in Louisville, Kentucky, have thought,”Once the threat of property confiscation is removed, there is nothing left that will keep an unhappy local church tethered to the denomination.” But just as a parent must be willing to let a child leave the nest in the hope that the love that has been sown will prompt return visits, a presbytery by its conduct during litigation and negotiation may sow seeds of good will that could cause the local church, after obtaining clear title, to stay within the PCUSA, at least for a while longer, to see if further efforts at denominational reform will yet bear fruit. At a minimum, the good will engendered by the presbytery in its equitable recognition (when circumstances warrant) of local property rights may prompt a departing-but-grateful local church to voluntarily continue some or all of its per capita or other presbytery giving during a transition period – as a free expression of its love and appreciation.
The problems that beset the PCUSA are usually not of a local presbytery’s making, and a departing local church would have no desire to punish the local presbytery if a respectful relationship has been cultivated by both sides even while litigating and negotiating through a difficult issue. There is a huge difference between, on the one hand, a voluntary gift freely given by a local congregation to the presbytery as an expression of love and appreciation and, on the other hand, a payment extracted by a presbytery as a condition of its recognizing the ownership by a local congregation of property which may already be exclusively titled in the congregation’s name.
Effective negotiations also require that the attorney for the local church and the attorney for the presbytery, and the clients themselves (as personified in the board of trustees for an incorporated local church and the General Presbyter and his response team or Council), act reasonably and with an understanding of the facts and the law. That brings me to my next point.
All sides want a fair solution to their particular situation, and because what is fair depends on the facts there is no one size fits all answer. I have seen many different sets of property facts. Ownership arrangements vary widely. I have had to tell more than one local church in the U.S. that the facts of their particular property situation, as reflected in their deeds, articles of incorporation, financial records or other documents, and /or the laws of their state, put them in a very weak litigating and negotiating position. I have counseled that they not file suit. Other local churches in the U.S., however, have been pleased to learn that the laws of their state and the facts of their case put them in a far stronger position than they ever imagined.
Either way, it is important that the local church and the presbytery both examine this issue dispassionately. Religious disputes too easily become heated, and intemperate language can cause necks to stiffen when open lines of communication between local church and presbytery are needed if litigation is to have a chance for a negotiated end. In drafting pleadings, well researched facts will speak for themselves and be more persuasive to the other side and to the court than will inflammatory adjectives. In states that have adopted, or may adopt, some form of the “neutral principles” method for resolving church property issues, the legal outcome is not determined by whether the denomination has strayed theologically. Nor is the legal outcome determined by what the Book of Order asserts. The necessary starting point in properly examining one’s position is to fully research the local property facts and the state law that governs, and then evaluate the application of that law to the particular facts at hand in a clear-eyed manner. Both sides will benefit from this reality check.
Such an approach stands in contrast to the “Louisville Papers” with its across-the-board, take no prisoners approach and its we-are-not-a-heirarchical-church-but-for-litigation advantage-let’s-contend-that-we-are ( wink wink) strategy.
I don’t pretend to have all the answers. There are a lot of bright minds thinking about these issues. These thoughts are offered, though, by one having some modest, real world experience in wrestling with these issues. I hope they are helpful.
Lloyd J. Lunceford, a Baton Rouge, La., attorney, is the general editor of A Guide to Church Property Law. He is an elder at First Presbyterian Church in Baton Rouge.