Sale of Church Real Estate
West Virginia - Western Maryland Synod
19 April 2024

This page is not intended as a definitive guide to selling church real estate. A congregations should contact its solicitor and/or real estate agent for detailed information, especially with respect to deed and title, liens, reversion clauses, and any applicable laws.

This page does address polity matters affecting the sale of church real estate.

Common ELCA Polity

Assuming your congregation's constitution conforms to the Model Constitution for Congregations of the Evangelical Lutheran Church in America—check your congregation's constitution to be sure it does—you will find the following required provision.

*C5.03(i) [Only such authority as is delegated to the Congregation Council or other organizational units in this congregation’s governing documents is recognized. All remaining authority is retained by this congregation. This congregation is authorized to:] sell, mortgage, lease, transfer, or otherwise dispose of its property by any lawful means.

Depending upon the age of your constitution, the numbering may be slightly different. If your congregation does not have this provision, contact the Synod Office.

The Model Constitution also includes the following recommend provision.

C12.05(b). The Congregation Council shall not have the authority to buy, sell, or encumber real property unless specifically authorized to do so by a meeting of this congregation.

As C12.05(b) is not a required provision, your congregation's constitution may or may not include this provision.

If your congregation has *C5.03(i) but does not have C12.05(b) or anything of similar effect...
If your congregation has *C5.03(i) and does have C12.05(b) or something of similar effect...
Only the Congregation Meeting can act on the sale of Church real estate.
The Congregation Council can act on the sale of Church real estate within the parameters set by the Congregation Meeting.

If the Congregation Meeting has not authorized the Congregation Council to act on its behalf, only the Congregation Meeting can act on the sale of Church real estate.

Special WV Issue

WV is the only state in the union that prohibits the incorporation of congregations. Some few congregations may have incorporated during the short window in which the Secretary of State was permitting the incorporation of congregations. For those WV congregations that are not incorporated (which should be most), Chapter 35, Article 1, of the West Virginia Code governs sale of church real estate. Congregational leadership should review the article.

Trustee form

WV Congregations: Electing/Appointing and Filing Your Trustees with the County

For said congregations, trustees will be required. We traditionally recommend three trustees. These can be elected/appointed by whatever mechanism is outlined in your congregation's governing documents.

You will find under §35-1-5 of the West Virginia Code the material related to appointment and removal of trustees. Under §35-1-6 you will find the material related to properly recording trustees at your local office of the clerk of the county court. For your convenience, we've provided a form that should be acceptable to most clerks of the county court: download the form here.

Trustees Act at the Direction of the Congregation Meeting and/or Congregation Council

Trustees act at the direction of the Congregation Meeting and/or Congregation Council. this is outlined in §35-1-9 of the West Virginia Code.

Advice

It is advisable to periodically review your filing of trustees. If there is a possible sale of church real estate in the congregation's future (whether it is land that the church building sits on, a house or other property inherited by the congregation, or some other piece of real estate), being sure that all your trustees are still alive, members of the congregation, competent, and available to sign the required instruments to complete the sale is a very good idea.



[ Go to Homepage ]

West Virginia-Western Maryland Synod, ℅ St. Paul Lutheran Church, 309 Baldwin Stee, Morgantown, WV 26505
304-363-4030  +  Porter@WV-WMD.org