BY: FR. FRANK MORRISEY, OMI, Ph.D., JCD
Fr. Morrisey is professor of canon law, Saint Paul University, Ottawa, Ontario.
When religious institutes deal with the sale of property or the contracting of debts, one question that usually arises is whether this transaction is subject to the canonical rules governing alienation. It should be noted the rules apply only to what is known as stable patrimony.
The patrimony or temporal goods of a public juridic person in the church, such as a religious institute or one of its parts, is usually classified either as "free" or "liquid" capital, or as "stable" capital or patrimony. Stable patrimony is that which is destined for the long-term security of the members (in the case of a religious institute) and of the sponsored works.
In general, it can be said that stable patrimony consists of lands and buildings, of certain other types of property (such as a specialized library, historical or cultural items), long-term investments and endowments, and restricted funds set aside for a specific purpose.
Of course, not every building or piece of land operating under the auspices of a religious institute is necessarily part of its stable patrimony. The most obvious example is a medical office building built on the property of a sponsored hospital, but which is merely a commercial undertaking to provide for the hospital itself. Likewise, an institute could receive land and buildings through a legacy, but does not wish to retain them.
Cash on hand or readily available in banks is not considered to be stable patrimony. It is used for the day-to-day maintenance of the juridic person. Likewise, funds that have simply been earmarked for a future project, but without having been definitively set aside for this purpose are not considered to be "stable." Goods which quickly become obsolete are no longer considered to be stable. The example of computers immediately comes to mind, as do certain machines and pieces of major equipment in hospitals and other health care centers which must be replaced regularly.
Property becomes stable by legitimate designation or assignment. Although such designation is usually explicit — that is, when the decision to purchase or acquire it is made, it is determined whether it will or will not be part of the stable patrimony — it can also be implicit. An implicit designation would consist in treating the property (land, building, etc.) as stable and acting accordingly to protect it from various forms of loss. A period of 30 years, sufficient to establish a canonical custom, could be used as a benchmark in this regard. Normally, a verification of the council minutes would give some indication as to the original intention of the administrators of the public juridic person.
It is not always easy years later to determine whether a given piece of property was intended to be part of the stable patrimony or not. Canon 1283 calls for the preparation of a detailed inventory of all property. The canon mentions three categories of items to be listed: immovable property, movable objects which are precious or of cultural value, and other goods. The canon also provides these goods are to be described and appraised. It often happens that we already need such an appraisal is needed for insurance purposes, and major items today are accompanied by photographs helping to identify them. Such an inventory can easily distinguish between those goods which are part of the stable patrimony, and those which are not. Goods administered by a public juridic person, but are not owned by it, would not be part of the stable patrimony. A common example is an extended care home operated by a church entity under contract, but which is owned by another entity.
The distinction can be important. Goods that are not part of the stable patrimony of a juridic person are not subject to the rules of alienation. However, this does not mean that the administrators are free to do with them what they will. Such goods can still be considered to be ecclesiastical goods, and thus would be subject to the norms on administration, whether these be the general norms of Book V of the Code of Canon Law, or the particular internal rules of the sponsoring institute. In particular, certain actions are considered to be acts of extraordinary administration and thus require special consent before they can be carried out. In some religious institutes and dioceses, acts of extraordinary administration are determined by a maximum specific value, over which the act becomes extraordinary. In others, it is the act itself which is considered extraordinary (such as the purchasing of real estate) without reference to a monetary value; still, in others, it is a combination of the two. Thus, we see that several distinctions need to be made.
The Code of Canon Law has strict rules governing the alienation of ecclesiastical goods; but not all such goods are subject to these norms. Only those that have been made part of the stable patrimony of the juridic person are subject to them. On the other hand, the church's law also has many provisions relating to the proper administration of ecclesiastical goods; these apply to such goods, whether they are part of the stable patrimony or not.
Copyright © 2008 by the Catholic Health Association of the United States.
For reprint permission, contact Betty Crosby or call (314) 253-3477.