Attorney General Opinions

RELIGIOUS AND CHARITABLE MATTERS; CEMETERIES: CHURCH PROPERTY; BENEVOLENT ASSOCIATIONS AND OBJECTS - PROPERTY HELD FOR RELIGIOUS PURPOSES.

Virginia nonstock corporation is not required to obtain circuit court approval to convey property held by it as hierarchical body, as opposed to property held for benefit of local church congregation.

Mr. Gordon F. Saunders
County Attorney for Bath County
April 4, 1996

You ask whether the conveyance of property owned by a Virginia nonstock corporation is subject to § 57­14 or § 57­15 of the Code of Virginia.

You state that Bath County intends to purchase property formerly owned by Lexington Presbytery, Inc., a Virginia nonstock corporation. I assume, for purposes of this opinion, that the corporation, in fact as well as in form, is not a church.¹ When the corporation conveyed the property to the present owner, it did not obtain court approval.²

Article 2, Chapter 2 of Title 57³ relates to the acquisition, holding and transfer of church property. Such property is held in trust for the benefit of the members of the church. Accordingly, §§ 57­14 and 57­15 require court approval for the sale of church land.⁴ Section 57­14 authorizes any member of the church, in his own name and on behalf of the other members of the church, to prosecute a suit to convey such land.⁵ Section 57­15 authorizes the church trustees in whom is vested legal title to the land to file a similar petition in the circuit court, asking leave to sell the land.

The provisions of Article 2 relate to property held "for the benefit of any church, church diocese, religious congregation or religious society."⁶ While these terms are not defined, the Supreme Court of Virginia has held that Article 2 encompasses property held for the benefit of a local congregation, as opposed to property held by a larger hierarchical body.⁷ Moreover, Article IV, § 14 of the Constitution of Virginia (1971) prohibits the granting of "a charter of incorporation to any church or religious denomination."⁸

Based on the Supreme Court's construction of the meaning of "church" in Article 2 and the constitutional prohibition against the incorporation of churches, it is my opinion that a nonstock corporation is not required to obtain court approval pursuant to § 57­14 or § 57­15 to convey property held by the corporation.

¹Opinions of the Attorney General, while entitled to due consideration, are not binding on courts and do not operate as a substitute for a judicial determination regarding the validity of title to land should there be facts in dispute. See Barber v. City of Danville, 149 Va. 418, 141 S.E. 126 (1928); 1992 Op. Va. Att'y Gen. 113, 116.
²You do not question whether the present owner is required to obtain court approval to convey the property to the county.
3Sections 57­7.1 to 57­17.
⁴See Globe Furniture Co. v. Jerusalem Church, 103 Va. 559, 561, 49 S.E. 657, 658 (1905) (trustees who hold legal title for benefit of congregation may not "sweep away" congregation's house of worship, and they "have no power of their own volition" to sell property); see also Cain v. Rea, 159 Va. 446, 452, 166 S.E. 478, 480 (1932) (statutes provide convenient method for encumbering church property).
⁵It is lawful for the circuit court to order the sale of the land once it has determined that the governing body of the church or the congregation has assented to such sale and that the rights of others have not been violated by the sale. See § 57­14.
⁶Section 57­7.1 (emphasis added).
⁷See Presbytery v. Grace Covenant Church, 214 Va. 500, 506, 201 S.E.2d 752, 757 (1974); Moore v. Perkins, 169 Va. 175, 181­82, 192 S.E. 806, 809 (1937) (both cases construing meaning of words "church," "religious congregation," "religious society"); J. Rodney Johnson, Virginia Laws Affecting Churches-Restated, 17 U. RICH. L. REV. 1 (1982); see also § 57­16 (providing for transfer of property held by ecclesiastical officers rather than by church trustees).
⁸See Maguire v. Loyd, 193 Va. 138, 149, 67 S.E.2d 885, 892­93 (1951), aff'd on rehearing, 194 Va. 266, 72 S.E.2d 631 (1952) (legislature historically has been hostile to religious incorporation and accumulation of wealth and property); see also § 57­12 (limiting amount of land that church trustees may hold at any one time in locality).