Tag: church property


Typically, denominational authorities include in their denominational control documents, or even in the titles of the local churches, reversion provisions that prevent local churches from going rogue or otherwise fleeing with the real property.  These provisions are generally intended to protect the generations of members that contributed to the equity owned by the local church by preventing the current generation of members, or some vocal part, from “strip mining” the local church real estate asset.  Sometimes these provisions provide leverage to the denomination to enforce unpopular ecclesiastical positions.  Rightly or wrongly, the reversion provisions are enforced by secular courts and courts will rarely if ever look to the underlying dispute to deny enforcement.

In Saint James Mission Church v African Methodist Episcopal Church, Slip Op. (La. App. 2017), some of the local church members tried to use an eviction docket to evict the denomination after they were locked out.  The split with the denomination raged through the eviction proceeding, a federal trial court proceeding, a federal appellate court proceeding, and finally the state appellate court proceeding.  It took at least six years.  The legal expense was likely significant.  But, in the end, the federal courts ended up on the side line, the state trial court dismissed the eviction proceeding, and the state appellate court affirmed.  The state appellate court held that the eviction docket had a dedicated purpose and the enabling statutes did not allow the proceeding to be expanded into an “ordinary proceeding.”  Thus, dismissal was appropriate.

The attempt to expand the eviction docket was clever but ultimately, if this is the final round in this war, an expensive failure.  It was a stretch to characterize the denomination as a “lessee.”  Limited purpose court dockets are rigid because otherwise they could not serve the limited purpose that birthed them so the rebelling local church members probably knew this was a long shot.  Knowing that, they funded the effort.  Litigating about litigating is always expensive and never reaches the merits of the dispute.


To escape from the confines of the hierarchical church governing rules and documents a local church will often allege all sorts of things.  In Alpine Methodist v New Jersey United Methodist Church, Slip. Op. (Sup. Court NJ App. 2017), the plaintiff alleged it pre-existed the existence of the denominational authority and therefore was not subject to the property reversionary requirement in the denominational manual.  However, the Court found there was no evidence to explain that after the denominational authority was established the plaintiff had acted as anything other than a full member for many decades.  The plaintiff also alleged that a retired pastor was guilty of misappropriation of funds.  The denomination heard the allegation and refused to proceed with a disciplinary action.  The plaintiff alleged that the failure to act left the plaintiff with no forum or relief.  But, the Court held the refusal by the denomination to engage a disciplinary process was ecclesiastically binding.

Interesting in the case was that the Plaintiff, the local church, engaged a private investigator to conduct an inquiry into the alleged financial misconduct.  The evidence of financial misconduct did not lead the local church to seek a criminal charge or to engage in its own disciplinary complaint with the denomination.  Instead, the church sought relief in court.  Interesting, too, was that the private detective admitted that the local church was subject to the denominational manual.

Retention of a licensed private detective, who in this case was also a retired police officer, was probably a good call in order to document what happened to the money.  The best practice would be to have the detective report to the church legal counsel and work under the supervision of counsel.  A certified public account should also have been consulted to review the opportunities for financial misconduct inhering in the church’s financial system and suggest reforms.  If criminal charges, a collection action, or a disciplinary proceeding are not preferred, one or all three should only be deferred if the wrongdoer signs a written admission of all of the known facts about the financial misconduct.  Wrongdoers are usually gone, dead or insolvent, so collection actions are typically pointless.


After a fire destroyed the church building in 2013 and insurance paid $1 million, the denominational authority had to decide whether to rebuild the building.  In order to make the decision, the denomination decided to first test whether the congregation was viable.  The congregation had stopped paying dues to the denomination, stopped attending synods, and stopped obtaining approval of elected board members of the local church.  When the denomination asked the congregation how many dues paying members it had, the congregation could only identify “twenty seven and one half” dues paying members rather than the number required to prove viability, which was fifty.  The Plaintiffs sued to try to stop the denomination from ending the existence of their congregation and seizing the church property and accounts.  St. Cyrillus v Polish National Catholic Church, Inc., Slip Op. (Superior Court, NJ, 2017).

The St. Cyrillus opinion was issued by a New Jersey trial court in which the court granted summary judgment to the denomination based on the reversionary clause in the denominational documents.  (In many states, trial courts do not have staff attorneys and do not write opinions so this opinion represents a rare opportunity.)  It was alleged the denomination in correspondence referred to the St. Cyrillus congregation as that “peruvian congregation.”  The argument was that the reference to nationality or ethnicity was pejorative.  It was argued it showed a “bad motive” by the denomination to reach the decision to close the congregation and gather the assets.  The trial court held the mere mention of the congregation by that label did not in isolation indicate the term was used pejoratively.  In any event, the court held the congregation could not prove it was viable.

There are not many reversionary clause cases extant.  Those that are almost always find the denomination, if the congregation was a member, has the right to exercise the reversionary clause.  The St. Cyrillus congregation was an active member of the denomination from 1937 until 2010 and therefore its membership in the denomination was not effectively contestable.  The denomination tracked the participation of the congregation in synods over several decades.  Correspondence from pastors of the congregation going back forty years demonstrated acknowledgment of membership.  The congregation was incorporated before it joined the denomination but that gap in the documents was insufficient to negate the other abundant evidence.  The lesson regarding the need for quality denominational documents and document retrieval was well made.


In a single church building, two factions formed and irrevocably divided the congregation.  One faction was led by a presiding vicar appointed by a metropolitan and the other faction was led by another presiding vicar appointed by a different metropolitan.  The metropolitans were from two different nations.  The two factions shared the church building for several years while their litigation for ownership proceeded.  But, one faction tired of awaiting the judicial outcome and locked out the other.  The locked out faction sought an injunction to resume sharing the building and it was granted.  An appeal followed.  The faction that sought to lock out the other claimed they were changing the locks because their metropolitan ordered that sacraments be offered in the building only once per Sunday.  The faction that changed the locks claimed that their action was ecclesiastical because they were obeying an ecclesiastical order.  The appellate court affirmed the injunction because it was a preliminary and temporary order meant only to preserve the status quo.  St. Mary’s Knanaya Church, Inc. v Abraham, Slip Op., Commonwealth Court PA, 2017.

The Court certainly did not accuse anyone of trying to game the system with an “ecclesiastical” order.  Nevertheless, it is hard not to wonder if that was the strategy.  It would have been a clever ruse but like most “trick plays” it had no lasting impact on the score.  Regardless, the amount of money the competing factions are expending on legal fees to protect their respective ownership rights in the building would likely have comfortably relocated one of the factions.

The primary legal lesson from this opinion might be that a preliminary injunction designed only to preserve the status quo will receive greater tolerance even if it tends to intrude into ecclesiastical matters.  Also, because this is at its core a dispute over real estate, neutral principles would allow disposition without consideration of ecclesiastical orders delivered solely to resolve the land dispute.


West of the Mississippi the word “megachurch” brings to mind a church complex serving thousands of people.  Contrast that to Maryland where apparently a “megachurch” is a 31,500-square foot sanctuary building, which would afford seating for 1,000 people, classrooms for religious education, a nursery area, a warming kitchen, offices, parking and a “fellowship hall” which would also serve as a gymnasium all on 16.6 acres.  At least, it is a “megachurch” in Maryland if certain evangelical denominations are involved.  Such a “megachurch,” in Maryland, may threaten the watershed, threaten the traffic pattern, and otherwise endanger the peace of the neighborhood so zoning laws can be invoked to stop its construction.  Little did the Marylanders realize that West of the Mississippi such a church would be at best considered medium in size.

In Hunt Valley Baptist Church, Inc. v Baltimore County, Memorandum Opinion (USDC, D. Maryland, 2017), the Plaintiff outgrew its original location and facilities and bought 16.6 acres that was approved for a housing subdivision but only contained two single family residences.  The zoning powers simply stopped the development of the entire 16 acres by the church.  The parking lot proposed was too porous, even though it was identical to the parking lot at the church next door.  The church building proposed might use a third of the land and threaten the watershed but the golf course next door had no environmental impact.  The zoning board was especially afraid of the fellowship hall that might double as a gymnasium even though five other churches in the same zoning tract were approved for such facilities and the zone was automatically by statute open to school construction.  Based on such facts, and many others, the Court in its 76 page opinion refused to dismiss the church’s lawsuit brought to enforce its rights provided by the Religious Land Use and Institutionalized Persons Act of 2000, 42 USC §§2000cc, et. seq. (“RLUPIA”).  One board member was quoted in the news media as saying, “I don’t think a church of this scope was envisioned.”  The Court noted it in passing but it seemed to explain the inconsistencies in application of the zoning laws.  This decision meant only that the church got to proceed to try to prove their allegations.

What seemed clear from the opinion was that the church invested enough in its legal representation to make a viable fight against “city hall.”  While the outcome remains to be determined, the opinion is a relatively good blueprint of what a church zoning challenge may entail.  Typically, such challenges are factually byzantine because wide discretion is permitted, and the statutes often do not limit the exercise of discretion in a material way, no matter how many elements are in the statute.  Also, the record of the reasons for decision available from such proceedings is often very thin.  Indeed, in this case before the zoning board, no expert witnesses were engaged by the city to counter the expert witnesses called by the church during seven hearing sessions scheduled during a year.  Only in public hearings before the city council were experts for both sides deployed.  That means the church hired expert witnesses to testify before the zoning board, before the city council and will have to do so before the court.  The costs have been and will be staggering.  In federal court, the experts, if they have not already done so, will have to write reports compliant with the federal rules, testify at deposition, and if they survive that gauntlet testify at trial.


Reported in a prior posting on this website was the United States Supreme Court opinion in Trinity Lutheran Church of Columbia, Inc. v Comer, 137 S. Ct. 2012 (2017).  In Comer, Missouri disallowed payment of a grant to a church to install a rubber surface on its otherwise concrete playground.  The Supreme Court held that the neutral purpose, safeguarding playing children, was not a violation of the Establishment Clause.  Indeed, the Supreme Court went on to point out that excluding an applicant just because the applicant was a religious organization was discriminatory.  That decision was relied upon in Taylor v Town of Cabot, 2017 VT 92.

In Taylor, the Supreme Court of Vermont tentatively upheld a municipal vote that approved an award of $10,000 of building repair and restoration funds for repair of an “historic church” building against the Vermont equivalent of an Establishment Clause challenge.  The decision was a reversal of a preliminary injunction issued by the trial court before Comer was issued.  Thus, the case was returned to the trial court for further proceedings which still could eventually result in a decision against the church and in favor of the tax protestors.

While the decision might seem to be favorable to the church, and the Town of Cabot may have been defending the case, at some point someone may decide this much litigation over $10,000 is simply too much and the church might return the money.  Indeed, the Vermont Supreme Court held that if the trial court on remand again decided the award violated the Vermont constitution the money might have to be repatriated by the church.  Churches that take governmental money of any kind run such a risk.  Historically important church buildings might not be economic to preserve.  Nevertheless, just because an applicant for governmental funds is a church by itself should not result in denial as long as the funds have a secular purpose not reasonably related to establishment of worship.


In late 2016, and summarized in a post here March 11, 2017, in the case of Church of God in Christ, Inc. v L.M. Haley Ministries, Inc., Slip. Op. (Tenn. App. 2016), the Plaintiff was attempting to assert hierarchal control over church property of one of its daughter churches when the local church leadership “went rogue.”  The founding Pastor of the church died and the presiding bishop installed a “speaker – rotation” system to prevent “dissension among those vying” to become the new Pastor.  But, two years later the presiding bishop died and a new presiding bishop was appointed.  The new bishop had the authority to appoint a new Pastor and appointed himself to be Pastor.  But, when the new bishop in the role as the new Pastor tried to assume control of the church assets he was blocked by local church leaders.  The opinion does not explain the motive.  Because the church had not withdrawn from the denomination, and the denomination had not declared the church withdrawn (or excommunicated) prior to the dispute, the courts determined the dispute was internal and further court intervention was barred by the ecclesiastical abstention doctrine.  The court would not declare the denomination’s rights to the assets of the affiliated church and the court would not confirm the new bishop as the new Pastor pursuant to the denomination’s governing documents.

On September 21, 2017, the Supreme Court of Tennessee opinion was issued reversing the intermediate appellate court and trial court, holding that the ecclesiastical abstention doctrine did not foreclose application of neutral principles of law.  The Plaintiff denomination, pursuant to its control documents which were adopted by the local church prior to the dispute, was awarded control of the assets of the daughter church including its real property.  It was interesting to note that the Supreme Court of Tennessee was careful to explain that the result would be the same if either the deed or the hierarchical control documents contained reversionary clauses, but that both were not required.

The better practice is for hierarchical churches to maintain reversionary clauses in both the denominational control documents and the local church deed.  But, in some if not by now most states, failure to put the language in the deed does not impair denominational enforcement of the reversionary clause.  Also, strategic (or fraudulent) related party transfers of the deed that attempt to strip the reversionary clauses of their impact are ineffectual.