Skip to comments.Legal Fiction [TEC]
Posted on 01/20/2007 5:46:58 PM PST by sionnsar
In its letter declaring that eleven parishes had been "abandoned," the Episcopal Diocese of Virginia cited the following three diocesan canons as justification for its action:
All real and personal property held by or for the benefit of any Church or Mission within this Diocese is held in trust for The Episcopal Church and the Diocese of Virginia. (Canon 15.1)
No part of the real property of a Church, except abandoned property, shall be alienated, sold, exchanged, encumbered or otherwise transferred for any purpose without the consent of the congregation [and] the Bishop, acting with the advice and consent of the Standing Committee of the Diocese. (Canon 15.2)
[W]henever any property, real or personal, formerly owned or used by any congregation of the Episcopal Church in the Diocese of Virginia for any purpose for which religious congregations are authorized to hold property under the provisions of the Code of Virginia or any amendment thereof, has ceased to be so occupied or used by such congregation, so that the same may be regarded as abandoned property by the Executive Board, which shall have the authority to declare such property abandoned and shall have the authority to take charge and custody thereof, the Executive Board shall take such steps as may be necessary to transfer the property to the Bishop (Canon 15.3)
In an outstanding backgrounder on the current situation, Captain Yips found two Virginia statutes which would seem to be more than relevant to this situation.
A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the courts civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.
B. If a division has heretofore occurred or shall hereafter occur in a congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society, a majority of the members of such congregation, entitled to vote by its constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom, may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court, and if approved by it, shall be so entered as aforesaid, and shall be final as to such right of property so held.
I am, of course, no lawyer so this is mere speculation on my part and any lawyers out there should feel free to tear this idea apart. But did Virginia declare those parishes "abandoned" precisely so those Virginia statutes couldn't be applied? After all, how could there have been a legally valid "vote of a majority of the whole number" of a parish to "determine to which branch of the church or society such congregation shall thereafter belong" when there was no one in the parish(canonically speaking)?
I presume that they (the parishes) are working under paragraph A. Paragraph B doesn't seem to apply.
I believe it is "A" that I've seen quoted elsewhere...
Oh, I know, I know the Denis Canon and all that. Still, the tradition goes back to colonial Virginia. As long as the parish has the keys to the building, the church is not vacant, abandoned, or otherwise empty. So what happened in Connecticut with the changing of the keys... it's really a bigger deal than appears in typeset. The diocese *changed* the keys so they could claim the parish abandoned - i.e. the parish no longer had the keys to the building. IT really is an underhanded and cheap way to get what you want. IT is really stealing. It smacks of the tactics used in organized crime.
(We ain't in Vegas anymore toots!)
You have an superb point here! As Senior Warden of my church, I did my part in that ceremony a year and a half back (and was at once both proud and happy to do so). At least in our province it is clear, including through our canons, that it is the parish giving the keys to our new rector.
If I were in the vestry of any of the new CANA churches, I would propose (along with a good burglar alarm) to reinforce (or perhaps replace) the locks to a kind locksmiths would have great difficulty trying to re-key or replace....
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