I recently became aware of two court decisions that might be of interest to you. In the case of
Crocker v Bar 367 SE2nd 471 (S.C. App. 1988), a church member sued an unincorporated church when he was seriously injured in a fall from the church's attic onto a concrete floor while attempting to repair a speaker system at the request of the church board.
The court concluded that the injured member could not sue either the church or the board members in their official capacity.
The church stated the general rule that members of an unincorporated association are engaged in a joint enterprise, and the negligence of each member in the prosecution of that enterprise is imputable to each and every other member.
Thus, the member who has suffered damage to his person, property, or reputation through the tortious conduct of another member may not recover from the association for such damage, although he may recover individually from the member actually guilty of the tort.
The court acknowledged that some states have passed statutes allowing persons to sue unincorporated associations directly.
However, those statutes expose only the assets of the association to liability.
In another case entitled Calvary Baptist Church v Joseph, 522 NE 2nd 371 (Ind. 1988, the Indiana Supreme court held that a member who had been seriously injured while repairing a church roof when he fell off a ladder that had been negligently positioned by another member, could not sue the unincorporated church for damages resulting from the other member.
The court stated that the majority of jurisdictions follow that reasoning, which was similar to the reasoning stated in the South Carolina case that I cited above.
The court ruled for the unincorporated church even though Indiana has passed a law providing that unincorporated associations can be sued directly. The court indicated that the new law "did not change the general rule in Indiana, still adhered to by most jurisdictions, that members of an unincorporated association cannot sue the association for tortious acts of one or more of its members."
The Indiana court gave the impression that the individual members may be lift without any legal remedy at all.
This is different from the South Carolina case where the indication was that the member who was guilty of negligence could be sued.
We think that our attorney has provided us with some valuable information. However, we do not promote the concept of the unincorporated association, for such an entity is not a true unregistered local church
We believe that because of Ephesians 1:22, Colossians 1:18 and the First Amendment of the U.S. Constitution, that the local church is under the direct Lordship and Sovereignty of Jesus Christ and cannot submit to the dictates of government without also surrendering that Lordship.
We have been asked on a number of occasions how an unregistered church can hold property, and what process should be used in placing church property and assets in the Lord's name. Let us express this without being exhaustive:
1. The termination of the corporation, any name change of the church, a change in phone numbers, elimination of the tax-exempt number from the IRS, and any withdrawal of funds from the bank should all be made effective on the same date. Such action should erase the name of the church from all government files.
2. The date the church becomes effectively unincorporated, a new quit claim deed should be filed at the county Register of Deeds office. The Register of Deeds might give a pastor problems who attempts to file it in this manner but each of you may feel free to use our deed to prove that it is a lawful deed and is being filed this way in Michigan and other states around the nation.
3. The senior pastor becomes the associate of the Lord Jesus Christ and may sign all legal documents for the church. This is in line with Titus 1:7 which states that the pastor is the steward of God.
An affidavit should be drawn up by the leaders of the church indicating that the pastor named is indeed responsible for overseeing the property and assets of the church. This affidavit should be notarized, but it should not be filed with the county clerk! Why?
Because if for any reason the church finds itself in court, the pastor and any witnesses whose names appear on that affidavit will be considered trustees and therefore responsible for any fines imposed on the church (such as the $5,000 a day fine from the EPA!)
Let us say finally, that things would be a lot easier if we did not have properties at all and we believe the day in coming in the not do distant future that this will be a reality
Editor�s Note: The Plumbline is published by the Michigan Coalition of Unregistered Churches, Kirk Coffia, Chairman.
Their address is:
P.O. Box 27
Rapid City, Michigan, 49676
LETTER FROM A READER AND MY ANSWER:
A House Church Leader
I recently came across your website. I've been richly blessed by the wisdom and insight that the Spirit of God has given to you to share with the body of Christ.
By the Lord's gracious & merciful hand, a house church was born in my house in 2000. During ups and downs, all for the sake of the body of Christ, the group grew to 77 people in two years, as the Holy Spirit led us in evangelism, and discipleship. In 2002 a church in the area, that disbanded, gave us their property. One of the church members of that church heard about our house church and visited us. We knew nothing about their church happenings.
To make a long story very short, We had our first "house church" assembly on June 6, 2002 on that property. Since that time the Lord has blessed.
My question is: Now that we have this property, we need to know what to do with it as good stewards unto the Lord. We are not incorporated, nor are we 501c3, though the pressure to conform is hitting us from all sides. When we were given this property, the church wanted me to leave my job, and become their pastor "full-time." After much prayer, I agreed. However, I am not THE pastor. There are several men, in our church, that together with me are leading the church. In order for me to leave my job, back in 2002, the believers agreed to help us by taking up love offerings regularly to support my family. At that time, they were taking care of our immediate needs: rent, utilities, etc; and my wife continued to work part. I had no part with the money.
Two other men were handling any monies that were given. Now that we have this property, some want to incorporate, others don't care what we do, and some say unless we set up some "written" form of church governing structure, etc; they will no longer continue to fellowship with us. We really want to honor the Lord, and do "all things decently and in order" (I Cor. 14:40). We want to operate with the utmost INTEGRITY and yet there seems to be so much that we don't know about these issues.
We have been told to seek "legal" council. Other pastor's, in the area, keep telling us we need to incorporate as soon as possible and apply for tax exempt status. In all honesty, I sense the Holy Spirit telling us not to do so. I've read some of your material on this issue, but need specific wisdom, especially because we already filed for an EIN number, and any monies that the church gave to me, I claimed as income on a 1099 form this year. We put a hold on all other plans to go ahead with > incorporating, tax exempt status, etc. etc.
Can you help?
First of all, "church" is a legal and very old designation in the USA. Though 99% of pastors, and many lawyers, think you HAVE to incorporate, you do NOT. Before the tax exemption and nonprofit laws were enacted, there was nothing but a "church" to legally describe a local church.
When we unregistered in Michigan we only handed a notarized paper to the County Clerk indicating we were a church, we had trustees who were holding the deed, and we gave our name. This established that we were indeed a church, and it put our name on record and safe from duplication in at least our county.
We went to the bank and opened a non interest bearing account like two or three families would do if they shared a well and wanted an account to show expenses and payments to maintain the well. If the account does not bear interest the bank does not need to tell the Feds about it, and they do not need to report interest.
The Lord's Church has done well without a church constitution and by-laws since the days of Paul. When churches have other documents, the following often take place:
1. These documents call for voting, which is not biblical. Thus, the church is often divided and must do this forever.
2. If there is ever a legal issue in the courts, they will brush the Bible aside and demand to deal with only your man made documents. If you can honestly say that you have ONLY the King James Bible as your guide, they will often dismiss the case because they have to mix religion with justice in using the Bible as a legal code.
3. If you are nonprofit and have a church constitution, the IRS and courts will claim that you gave legal authority to their demands that you incorporate.
4. Weak Christians will demand that the man made documents take higher authority than the Bible.
5. You will be more open to liabilities from the wicked based on human documents.
A lot more sorrow is caused by having legally binding paper on hand than on having none. You just do not need to add anything. In early America nothing was anticipated lawfully in courts or in government than the Bible. These man made documents have been fostered by obsessive democracy and the IRS.
By moving into a special building and leaving the home, you have given place to notions of institutional church to people who are not totally weaned from the traditions of men. You may simply have to invite them to leave. You will not ever have peace in this until you have one mind in Christ.
If you or others have become dependent on the cash flow of the offering plate, you are now part way in even deeper. The personal gifts to the teacher in the home are now ancient history in some people's minds. They will soon demand a budget and Faith Promise giving will be suggested. It is a disease that grows and grows.
So, teach from the Epistles, and show the saints that the Bible is the ONLY guide of church life, and every decision you make should be to keep you AWAY from the forms and practices of modern churchianity.
Be sure to use compassion and respect, but you will soon be forced to deal with division in the assembly. When that happens you will need to decide what is right to do and press forward. If some cause sorrow for the assembly by demanding their way, they must be sent away at once. You need to understand that Satan can fill the hearts of the most sincere seeming saint to destroy your fellowship and peace. If you go on with the legally binding documents and devices of man, these same people will use them to destroy the church later.
God bless as you serve him.
Steve Van Nattan