Legal Services for Religious Organization

Real Estate Legal Issues as They Relate to the House of Worship
What is the most valuable item that a house of worship owns? For many if not most, it is the real estate on which it rests. Religious homes are not generally subject to state and municipal taxes from their real estate ownership in the same manner that might (according to the jurisdiction) be applicable to a private homeowner. Moreover, many houses of worship that were originally built in rural areas can, decades later, find themselves in the middle of an urbanized neighborhood, surrounded by valuable properties that have likewise rendered the house of worship highly valuable. This can engender all sorts of complex legal issues, such as

• disputes over the real property ownership between the denominational organization and the individual house of worship’s trustees;
• the legality under the deed and other applicable documents of encumbering the real estate with a mortgage;
• recording supplemental documentation to clear up any ambiguities in the deed and otherwise ensuring that the chain of title is clear;
• renting out space in the physical facility to create a source of revenue;
• addressing the legal liability for failing to maintain the HVAC, snow removal and other undertakings attendant to keeping the facility in a safe and habitable condition; and
• analyzing any restrictions under the applicable governing documents concerning the disposition of funds stemming from the sale or encumbrance of the house of worship.

Employment Law as it Relates to Houses of Worship
This is a highly technical area of the law. It touches upon a number of items for which legal representation (in coordination with the institution’s accounting firm) is absolutely essential. This can range from drafting employment agreements and manuals to handling discrimination claims and presenting internal training for the legal aspects of management. The Nissenbaum Law Group has handled many such matters that reside in the convergence of employment law and the legal aspects of running religious institutions. This includes

• the sensitive issues inherent in setting reasonable, market-based compensation for the religious leadership and administrative staff in accordance with federal law and regulation;
• the special rules that relate to record retention for houses of worship; and
• the legal issues raised when the ministerial or lay leadership engage in political speech from the pulpit and/ or undertake lobbying efforts in furtherance of a spiritually-based, political agenda.

Church Versus State: Litigation on Behalf of Religious Institutions
The irony is that while religious observance in the United States is incredibly diverse—Christian, Jewish, Buddhist, Hindu, Muslim and so many others—the legal protections are fairly uniform; they generally don’t change based upon the beliefs of the religion in question. A good example is the federal law known as the Religious Land Use and Institutionalized Persons Act which prohibits discrimination against all individuals, houses of worship and other religious institutions in how land use laws (such as zoning ordinances) are enforced. Another example is the fact that the First Amendment protection from the encroachment of government into religious matters also protects the right to be an atheist and/or advocate in opposition to organized religion. Our constitution gives us the legal right not to be religious.

A basic principle of common law is that where there is a right, there should also be a remedy. That remedy often places houses of worship in the unfamiliar territory of complex litigation. In order to obtain the remedy that accords with those rights, a house of worship will sometimes need to resort to litigation. The Nissenbaum Law Group has undertaken a number of such hotly contested cases through the court system—from the trial courts to the Supreme Court of New Jersey.

Some examples of legal claims the Nissenbaum Law Group has handled for religious institutions are

• discrimination claims relating to a municipality’s efforts to keep a mosque from being built in a residential neighborhood;
• defamation claims relating to internet posts that concerned the house of worship;
• challenges to court intervention in the house of worship’s administrative affairs based upon the religious autonomy doctrine; and
• claims for injunctive relief relating to disclosure of the house of worship’s private internal records and digital communications.

The Legal Aspects of Financial Transactions Concerning a House of Worship
The diminishment of religious observance in the United States has had a negative impact on the very viability of many religious institutions. There has been a retrenchment of financial resources (fewer members generally means less fundraising revenue) and in volunteers ready to step up and provide lay leadership. In short, as membership plateaus—and in many cases, retracts—houses of worship have been forced to do more with less. That turmoil has likewise created a host of legal issues, including

• restrictions on the means by which a house of worship may legally obligate itself for a bank loan;
• controversies with the local municipality over whether a house of worship can reduce or eliminate its real estate tax burden stemming from property it owns that is not currently being used for religious purposes; and
• disputes over the disposition of assets from the sale of church property that is claimed by both the immediate congregation and the denomination itself.

The Legal Aspects of Managing the Assets of a House of Worship
All of this highlights the need for proactive legal representation; a law firm must see down the road and help its spiritually-based clients avoid the legal quagmires that often lay ahead. In that regard, the Nissenbaum Law Group has handled a number of transactional legal matters for its house of worship clients that include

• negotiating fair and reasonable commercial leases between the house of worship and its landlord;
• preventing intellectual property infringement with respect to trademark rights for the name by which the house of worship is known to the public; and
• forming and running a separate, nonprofit charity that is linked with the house of worship.

Mergers and Acquisitions Involving Churches and Their Denominations
One of the most sensitive issues confronting any house of worship is the legal relationship between itself and its parent organization, such as its denominational hierarchy. While all sides may agree on the prevailing spiritual precepts—though that is not always the case—issues relating to everything from board governance to compliance with newly-issued edicts and policy statements can cause tremendous disputes and even the possibility of a breakaway. Often, it is up to the attorneys involved to provide a means of bridging the gap. This includes examples such as

• controversies over by-laws and other governance documents that the local house of worship may be required to implement;
• fundraising conflicts in which the local house of worship and the larger organization governing it are seeking donations from the same family of members;
• the use of intellectual property, such as trademarks and copyrighted liturgical texts and pamphlets; and
• disputes concerning changes to religious education and spiritual dogma.

The Nissenbaum Law Group welcomes the opportunity to represent houses of worship in contending with the unique legal challenges that confront them. It has a large breadth of experience in that regard, having represented numerous churches, eastern temples, humanist liberal religious institutions, an ecclesiastical regional governing body and a religious nonprofit set up by a statewide organization of houses of worship to engage in legislative advocacy. Indeed, Mr. Nissenbaum has even published a book on implementing social action initiatives in a religious institution.