A Matter of Property

When the possibility of becoming part of an Ordinariate became a reality, like many others we had questions about some of the more practical issues, especially matters relating to property.  Our Lady of the Atonement Church was founded nearly twenty-seven years ago, and when we were received into the Church the parish had very little property at all – just a modest rectory where my family and I were living.  It had very little value, perhaps thirty thousand dollars or so.  Nonetheless, it was listed with the archdiocese as our parish property, and the archbishop's name went on the legal documents.   Over the years the assets of the parish have steadily increased, and now our total property is listed at something over 23 million dollars, all with the Archbishop of San Antonio listed as the "owner," but canonically the property of Our Lady of the Atonement Parish.  Was there going to be any problem in having our property and parish assets transferred to an Ordinariate?  I spoke to our archbishop, and he left no question whatsoever about his cooperation in doing whatever is necessary in both civil and canon law to complete the transfer when the time comes.

This did raise the question of property in my own mind, however.  There will no doubt be parishes and communities becoming part of an Ordinariate, and they may have questions about the status of their property after they become Catholics.  I asked Charles Wilson of the St. Joseph Foundation for a synopsis of the Church's canon law, when it comes to this issue.  He wrote me the following letter, which should be of interest to many who are preparing to act on the Holy Father's offer in Anglicanorum coetibus.

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The Saint Joseph Foundation
11107 Wurzbach, Suite 601B
San Antonio, Texas 78230-2570
(210) 697‑0717 (Voice)
(210) 699-9439 (FAX)

cwilson@st-joseph-foundation.org

Charles M. Wilson
Executive Director

February 26, 2010

Rev. Christopher G. Phillips
Our Lady of the Atonement Catholic Church
15415 Red Robin Road
San Antonio, Texas 78255

Dear Father Phillips:

I write in response to some questions that have been asked about the status of property now owned by groups of Anglicans or former Anglicans and how that status might change if the groups should come under the jurisdiction of a personal ordinariate erected according to the norms of the Apostolic Constitution, Anglicanorum coetibus (AC).

When the Apostolic Constitution and Complementary Norms (CN) were released on November 10, 2009, the first questions asked of the Saint Joseph Foundation came from members of existing Anglican Use Catholic parishes. The primary interest was whether these parishes would be part of a new personal ordinariate and whether their members, even those not of Anglican background, would be able to remain as such. Now we are hearing from current and former Anglicans who wish to be received into the Church; and a special concern among those who are part of local communities that own property is to insure that they maintain control over its disposition. I understand that some have even expressed fear that their property could be sold by the diocesan bishop to satisfy obligations arising from abusive conduct by Catholic clergy. Such a concern is certainly understandable; but we need to recognize some canonical barriers that would significantly reduce the chances of such an injustice actually taking place.

As we know, neither AC nor CN have anything to say about parish property. This is not surprising because secular law on religious property varies from country to country and from state to state in the United States. The authorities in Rome apparently foresee that detailed norms will be contained in the particular law of each ordinariate. And because no personal ordinariates have been erected, there is no such legislation to which we can refer. However, existing law does contain restrictions on the practice of selling the assets of a diocesan parish for any purpose other than for the benefit of that parish; and I am confident that these restrictions, as well as other norms on temporal goods will be reflected in the laws of future personal ordinariates.

We must acknowledge that, in the wake of the clergy sexual misconduct scandal, some diocesan bishops did indeed sell parish property in order to pay damages or settle with accusers before lawsuits were filed. Some bishops have used this opportunity to merge parishes, close an existing church edifice, and sell it for diocesan profit. In similar scenarios, some bishops have simply told a pastor that a piece of property owned by the parish (a convent, school, house, etc.) would be sold and the money used by the diocese; but I would view such acts as blatantly unlawful. While a bishop may hold civil title parish property and is free to dispose of it according to secular laws, he does not own it under canon law. A parish is a separate juridic person and it owns patrimony distinct from the diocese. The pastor is the proper administrator, and his obligations are those of a steward (cf: canon 1284, §1).

In a decision made in 2006, the Congregation for Clergy (prot. no. 2006/0481) provided some much appreciated clarification of key points about parish and parish patrimony. First, the Congregation makes it absolutely clear that when we speak of a parish, we are speaking about people and not a “thing.”  Quoting from canons 369 and 515, a parish is recognized as a community of God’s faithful. The letter goes on to note, “While the parish church and the parish physical plant may be closed, and the name of a particular parish extinguished, the spiritual needs of the portion of the Faithful which once constituted that parish must continue to be provided for in accord with their rights in law.”  With this in mind, the Congregation clearly notes that the assets of a parish MUST be used for the sake of the people who constitute that parish. And, if the parish is merged with another parish, the assets must be given to the parish or parishes that now provide pastoral care of the faithful who previously made up the extinguished parish. In other words, a diocese cannot close a parish and keep its assets. An exception, which would not apply to parishes of personal ordinariates, can be made for personal parishes erected to serve a certain ethnic or national group in cases where that group has become dispersed.

The legal points and argumentation found in the Congregation’s letter are very similar to those used by the St. Joseph Foundation in previous cases that predate the clergy sexual abuse crisis. As those who have challenged a bishop’s decree of parish suppression know, the chance of winning such cases is very low. However, it is refreshing to see the expressed intentions of the Holy See on this point. If we apply the principles, we must accept the fact that the assets of a parish are held in trust under canon for the good of the parishioners. In recent cases from New England, the Vatican has revoked decrees issued by bishops who sought to dispose of parish assets to benefit their dioceses. In practice, parish assets can no longer be viewed as a source of funds to satisfy diocesan obligations and I believe that the same rule would probably apply to the ordinary of an “Anglican Use” ordinariate.

The possibility of a diocesan bishop attempting to sell the assets of the parish of a personal ordinariate that happened to be located in his diocese has also been mentioned. My opinion is that such an act would be ultra vires and that a bishop would not be able to do it any more than he could sell the assets of a parish in a neighboring diocese.

One remaining question concerns how parishes are structured according to civil law. (As you know, I am not an attorney and claim no expertise in the field of bankruptcy law. Moreover, the Foundation does not provide legal services, even though some of our staff and consulting canonists are civil as well as canon lawyers; so whatever I say here is not to be taken as legal advice.) While parishes and dioceses are separate entities according to canon law, this is not always true in secular law. Over time, in the United States dioceses and parishes have been structured under state law in several ways. This remains true today and, for the purposes of this discussion, these structures fall into two broad categories. The first is known as the corporation sole, with a single civil corporation with the diocesan bishop as its sole “member” holding civil title to all the property of the canonically separate parishes. The other is called the corporation aggregate, which follows the pattern of canon law more closely. Each parish is a separate corporation, usually controlled by five trustees: the bishop, the vicar general, the pastor and two lay trustees chosen by the first three. If ordinariate parishes were structured in a similar way, the articles of incorporation or by laws might include a requirement that the dissolution of the corporation or the sale of any real property would require a unanimous vote of the trustees. I believe that this would probably be consistent with canon law. The details of the canonical and civil structures will, of course be decided by the competent ecclesiastical authorities with the assistance of canonical and civil counsel.

The preceding observations should be regarded as personal opinion. Please let me know if you have any questions or need further assistance.

Sincerely,

Charles M. Wilson

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About Fr. Christopher Phillips

Fr. Christopher G. Phillips is the pastor of Our Lady of the Atonement Catholic Church in San Antonio, Texas, where he has served for the past twenty-eight years. He is the founding pastor of the first Anglican Use parish, erected in 1983 under the terms of the Pastoral Provision. Fr. Phillips was ordained as an Anglican for the Diocese of Bristol, England, in 1975. After serving as Curate for three years at St. Stephen Southmead, he returned to the United States and served in two Episcopal parishes in the Diocese of Rhode Island. In 1981 he left the Episcopal Church and moved with his family to Texas, where he was subsequently ordained as a Catholic priest in 1983. Fr. Phillips and his wife, JoAnn, have been married for forty years. They have five children, all grown and married, and three grandchildren.

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