On Property and “Mission”

(Or, “Who could get your home if you take your home to Rome?”)

There has been considerable discussion on this and other blogs concerning property rights under the recent Apostolic Constitution. Specifically, there have been questions raised as to whether the soon-to-be (or, perhaps, currently) former Anglicans will be able to retain their parish property without interference from “Mother Church”. After all, this is a particularly touchy point for traditional Anglicans whose litigation over the last 30 years with the formerly-Christian sect variously known as PECUSA, ECUSA and TEC has read like the Wreck of the Hesperus. There should be an even deeper concern given the ongoing level of litigation concerning sexual misconduct by Roman Catholic clergy, again reaching fever pitch here in the States (Delaware) and across the pond (Ireland), and the concomitant fire sale of properties in various dioceses around the United States and the world.

We should be clear at the outset. In the U.S. the Catholic Church collects revenues totaling around $7.5 billion annually. Even more impressive are its vast property holdings, which include everything from cathedrals and schools to beachfront retreats, mansions, golf courses and even television and radio stations. And this is just at the diocesan and archdiocesan levels, and does not account for the holdings of religious orders, societies and the like. For example, the diocese covering Stockton, California operated the wholly-separate Roman Catholic Welfare Corporation, worth an estimated $400 million. Each of the 178 Roman Catholic dioceses in the U.S. organizes its affairs separately; nearly all employ a highly complex and decentralized legal structure.

As litigation has intensified, the dioceses and organizations have sought new ways to protect their assets from the claims of the molested and abused. In the case of one option gaining popularity among a range of Catholic communities, some schools and parishes have established corporations to give themselves complete independence, even from their local diocese. Ironically, the hierarchical RCC is taking positions with respect to church property ownership far more lax than that of the U.S. Episcopal Church! Predictably, this has been met with challenges, particularly in the ongoing Delaware litigation in which the diocese asserted that parishes own their own property, and the few sole assets amenable to judgment to the abused were the diocesan headquarters and residence.

Who Owns Rome’s Homes

According to canon law, Catholic Church property belongs to the juridic person that lawfully acquired it. (c. 1256) A physical person, such as a bishop or a parish pastor, cannot lawfully, according to canon law, own church property; however, physical persons are the administrators of church property. A “juridic person” is the canonical equivalent of a civil law corporation, though not precisely equal to it in nature. In the 1983 code, a juridic person is an equity that is the subject of law, rights and obligations. For example, a diocese is a juridic person.

An administrator is a canonical office that confers specific powers including the power to alienate or change ecclesiastical property on the incumbent. Church property, known in the code as ecclesiastical property, is any property or goods owned by a juridic person. It includes land, buildings and their contents, and sacred vessels. It consists of anything that has value.

Juridic persons come into existence by a decree, either explicit or implicit, issued by Church authority competent to do so. The main juridic persons under consideration here is the “Ordinariate” being formed under the Apostolic Constitution.

In case anyone missed it, the pope, as the incumbent of the Holy See, is the supreme authority over the entire RCC. However, the Holy See does not own the church property of all Catholic entities subordinate to it. However, because the pope has universal jurisdiction over the entire Church, he has form of eminent domain over church property that belongs to subordinate bodies. This means that, while the pope cannot claim ownership of local churches, he has the jurisdiction or power to sell them (c. 1273).

The means whereby church property is held depends on the regulations of the Code of Canon Law, the nature of the property in question, and the civil laws and customs of the place where the property is located. In the United States, church property has been mainly held over the past two centuries in three ways: Parish Corporation, Corporation Sole, and in Fee Simple.

Authority over church property rests with the administrators who are given a variety of powers in the code concerning administration. One of the primary acts of power is the alienation of church property. Alienation is the sale, gift, long-term loan or mortgage, or any action that weakens or eliminates control over the property by the juridic person that holds dominion or ownership.

When Rome Doesn’t Need a Home

There are specific norms in canon law for alienation. An administrator of church property (bishop or pastor) cannot simply sell or otherwise alienate any church property under his authority. Depending on the nature of the property and its value, he is required to seek permission. Basically, a bishop cannot alienate any church property whose value exceeds $5 million without the explicit permission of the Holy See through the Vatican Congregation of Bishops.

In order to retain control over church properties in the United States, all forms of civil tenure somehow involve a diocesan bishop. In their book Church Property, Church Finances and Related Church Corporations, Adam Cardinal Maida and Nicholas Cafardi stated that Corporation Sole was the preferable civil law means for diocese to hold church property. Thus, each diocesan parish would be a corporation with one member, the diocesan bishop. In other methods of incorporation, the bishop would be an ex-officio member with other members chosen from the diocesan consultors and often including the pastor in parishes.

While it is not precisely true to say that the diocesan bishop or the diocese, as a separate juridic entity, owns the church property of each parish, it is true that the bishop, as the sole agent of the diocese, has administrative control over each parish. Were a bishop to create separate corporations for each parish with a board totally distinct from the diocesan administration, significant problems would arise if a parish community, through its board, were to challenge his decision to close a parish, or if itself were to close a parish or otherwise dispose of significant parish holdings.

Tom Kyle, “Ownership of Church Property”.

When You Give Rome Your Home

Where does all of this leave the continuing Anglican folk who take their property to Rome? Let’s be blunt: the Roman Catholic Church did not sign the Affirmation of St. Louis. Novel legal theories to avoid pedophilia and sexual abuse judgments notwithstanding, absolute ownership by the laity has not been the historic method of ownership for RCC parishes in the United States or elsewhere. Will the Apostolic Constitution be “special” in this regard? Well…

First, the recognition of an entity as a juridic person in canon law does not abrogate the principle of hierarchy. Although the parish is a separate juridic person with the right to private property (dominum or proprietas), it remains part of the diocese and subject to the authority (imperium) of the diocesan bishop.102 Section 1 of Canon 1276 requires that the “Ordinaries must carefully supervise the administration of all the goods which belong to the public juridic persons subject to them . . .” Coughlin, O.F.M., Rev. John J., "Church Property: The Unity of Law and Theology" (February 1, 2007). Notre Dame Legal Studies Paper No. 07-23. As the Ordinary of the diocese, the bishop incurs the obligation to supervise the administration of all the assets of the parishes and other juridic persons under his authority.

Consistent with Vatican II’s theology of the particular church, the juridic personality of the parish does not constitute it as an autonomous unit which may acquire, administer oralienate its property without regard to the authority of the diocesan bishop. Id. The parish is a part of the diocese, and the bishop has both the responsibility and right to exercise the power of governance over it. Section 1 of Canon 381 recognizes that the bishop exercises ordinary, proper and immediate power with the jurisdiction of his diocese. This includes power over any of the temporal goods that belong to the parish.

The hierarchical principle is particularly evident in Section 2 of Canon 515 establishing that only the diocesan bishop may erect, suppress or alter parishes. When a parish is entirely suppressed, Canon 123 requires that the property of the now extinct juridic person be distributed in accord with the suppressed parish’s statutes. (Presumably, the parish statutes and by-laws are drawn in such a way as to insure that the property passes to the diocese, although continuing church parishes routinely have non-conforming organizational documents with respect to their own canons, and these would be subject to review by the RCC.) Now, here’s the rub, in case that the parish statutes provide for the distribution of its property upon extinction, Canon 123 provides that the property reverts to the diocese.

Finally, the ecclesiastical property of a juridic person remains an integral part of the "mission of the Church". All ecclesiastical property is dedicated to the mission of the Church, and serves communities by advancing the mission under the supervision of the appropriate hierarchical figure. Coughlin, Church Property, 36. Any given piece of church property must always be available to serve the common good in light of the gospel ideals of common ownership, apostolic mission, and poverty. Parish property is part of the mission of the diocese as the particular church within the universal Church. The ultimate authority in the diocese with regard to the church’s mission is vested in the diocesan bishop.

Based on Vatican II’s theology of the “particular church”, diocesan bishops retain the right to direct the property under their canonical jurisdiction in accord with what “best advances the mission of the Church.” Id. “It would be an error about canon law if a pastor, parishioner, or group of persons concluded that the diocesan bishop lacked the authority to direct parish property in accord with the Church’s mission.” Id.

Does the Apostolic Constitution Toss You a Bone?

Nothing in the Apostolic Constitution negates or alters this essential principle. It is true under the A-C that, “Each Ordinariate possesses public juridic personality by the law itself (ipso iure); it is juridically comparable to a diocese.” I. §3. It also is true that, under section IV of the A-C, “A Personal Ordinariate is entrusted to the pastoral care of an Ordinary appointed by the Roman Pontiff.” However, the power of the ordinary of the Ordinariate “is to be exercised jointly with that of the local Diocesan Bishop, in those cases provided for in the Complementary Norms.”

And what of the Norms? Article 3 provides that, “The Ordinary [of the Ordinariate], in the exercise of this office, must maintain close ties of communion with the Bishop of the Diocese in which the Ordinariate is present in order to coordinate its pastoral activity with the pastoral program of the Diocese.” The norms are silent as to property matters and in no way modify the 1983 Code of Canon Law on questions of property.

The bottom line: to meet “the mission”, the administrator of the juridical person that is the Ordinariate can deal with property as needed, whether this means being sold as redundant, merged, or offered up to satisfy judgments. One really has to ask the question whether the small properties that comprise most continuing church parishes which actually own property would be needed at all, or would the proceeds of these properties better serve the “mission” of the Ordinariate or the larger RCC? Further, in a season of litigation, might these properties provide tasty morsels to meet the “mission” of satisfying judgment creditors rather than sell properties that would affect established Roman Catholic constituencies?

These are fair questions that cannot be ignored, particularly in light of the bitter history of traditional Anglicans and their parish property. As the Roman Catholic faithful in Boston, Cleveland and so many other places now understand, where differing notions of “mission” clash, it is the ordinary who prevails. And for those who haven’t yet heard, e-bay® is a dandy place to pick up the remnants from the sales of those homes once part of Rome.