Parish Leadership 2014: Real Estate


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  • Temporal (ie. secular as opposed to ecclesiastical) administration Church Temporalities Act – Churchwardens shall be a “corporation with perpetual succession” under the name of:
    “The Churchwardens of the Church of_______in the_______, to represent the interests of the Church of which they are so elected or appointed, and of the members thereof, and shall and may sue and be sued, answer and be answered unto, in all manner of suits, actions and proceedings whatsoever, for and in respect of such Churches and Churchyards, and all matters and things appertaining thereto.”
    Canon 15(3)(1) “sue and be sued”
    Canon 15(3)(3) - Inc. & C/W act jointly concerning the use of the church buildings and grounds
  • Property is inherited from previous generations and held in trust; we must therefore exercise good stewardship of these assets.
  • Canon: Rule of ecclesiastical law (corporate bylaws)
    Encumbrance: a claim, lien or liability attached to property. Registered judgments & lites pendentes.
    - Diocesan solicitor @ Osler, Hoskin & Harcourt LLP
  • Synodically Governed: no one person can say ‘yes’ or ‘no’.
    Ask for permission vs. beg for forgiveness
    Canon 6 prescribes “Special Vestry and Notice”
  • Protect the Churchwardens by giving them a clear mandate to proceed.
    Moved and Seconded by each Churchwarden; no proxy voting.
    No loans from parishioners.
  • License: A personal privilege or permission with respect to some use of the land; revocable at the will of the landowner.
    Lease: An agreement whereby one party, the Landlord, relinquishes his or her right to immediate possession of property while retaining ultimate legal ownership (title). (Lease is difficult to terminate).
    A License does not create any right or interest in the land itself and does not confer a right to exclusive possession of the party.
    All recurring outside user groups, including parking rentals. Tel. Site Agreements (TSA’s). One-time events (ie. birthday party, reception etc.). Fee is irrelevant.
    2 adult rule – ‘every now and then’ presence
    At least 70% of income should come from freewill offering. We are not commercial landlords.
    Insurance: Group program; parishes obtain comprehensive coverage that they wouldn’t otherwise be able to afford. Mandated by Diocesan Council in Jan. 2010 – not optional. Sexual Misconduct claim/D & O void – responsible for own legal fees & award of damages (personally by CW’s); always keep your old policy documentation for reference.
    St. Aidan, Toronto – movie crew; slip & fall; no License Agreement
    St. Luke, Ptbo. – needed patch for inadequate coverage; no coverage for period prior to patch
    St. Paul, Coulson’s Hill – sexual misconduct allegation, inadequate D&O coverage not with Marsh Cda., no abuse coverage, CW’s are personally liable.
    St. George, Allandale – AA slip & fall.
    - Plaintiffs are quick to seek retribution when aggrieved.
  • Survey costs approx. $1,500.00 - $3,000.00; always know what you own.
    Adverse possession: “open, actual, exclusive, continuous and notorious”. Send an annual letter. Isolated acts of trespass committed from time to time do not constitute adverse possession.
    Valuations x 3; expectation is that you then list property with one of the realtors.
    “Arms-length” professionals (not relatives or parishioners)
    “As Is, Where is”/HST/D.C. Approval
    Sale: Parish can receive any % of the dividend; some should be reinvested to maintain real estate “market value” if a new rectory is needed. Parish should maintain market value of Fund for rectory purchase (ie. reinvest a portion of the dividend)
    Mortgages require audited financial statements. Parish is the client, not the Diocese.
    “Surplus” as determined by the College of Bishops
    MAF = 1) Real estate 2) Congregational growth 3) New forms of ministry
  • Inspections: Carson Dunlop, Dalton, contact the local school board for a referral. HVAC, roof, structure etc. Budget cost estimate/timeframe for repairs in the inspection report. Not the same as Ecclesiastical ‘Risk Management Report’.
    - Vacancy inspections – as per Marsh
    Greening Initiatives:
    Solar thermal: converts solar energy into thermal energy (ie. heat).
    Photovoltaic: solar energy into electricity (MicroFit – version 2 launched in July 2012; rules, app. procedures, tariffs)
    Architect/Engineer re: structural implications, Legal re: contract, insurance & liability, tax implications, maintenance and repair for the roof and panels, aesthetics, noise & vibration?, will the power authority purchase?, building codes, by-laws, ESA
    HR vs. property component (see HR portion of Diocesan website for resources)
    make reasonable efforts – grandfathered – new construction & renovations must comply
    no significant undue hardship whether it be physical or financial
    installation of ramps, lifts, accessible washrooms etc. – Trillium funding
    no cost/low cost initiatives – ie. Braille signage, larger font size in the parish bulletin, microphone systems etc.
    Ministry of Consumer and Social Services (website)
  • Does anyone operate a cemetery?
    Highly regulated - FBCSA – as of July 1, 2012 – combination of Cemeteries Act & Funeral Directors and Establishments Act
    C&M Trust Fund; only interest income can be paid out for upkeep not capital.
    Plain language guides to the Act and Regulations – Ministry of Consumer Services
    FBCSA November 2012 workshop video (Senior Legal Counsel)
    Ashes should be interred in a freestanding columbaria (ie. fire, sale of building)
  • Public Benefit Test: charitable status under the Income Tax Act (ITA) as determined by CRA. Organization must show that:
    its activities and purposes provide a tangible benefit to the public
    those people who are eligible for benefits are either the public as a whole, or a significant section of it, in that they are not a restricted group or one where members share a private connection, such as social clubs or professional associations with specific membership
    the charity's activities must be legal and must not be contrary to public policy
    Social enterprise
  • Parish Leadership 2014: Real Estate

    1. 1. REAL ESTATE (2014) administration/real-estate/
    2. 2. Statutory Framework  Re lig io us O rg aniz atio ns’ Lands Act (Ontario) R.S.O. (1990) c. R.23  Ang lican Church o f Canada Act (Ontario) S.O. (1979) c.46  “The Church Te m po ralitie s Act”, given Royal Assent on December 3, 1841, and as later enacted pursuant to “An Act re spe cting Churchwarde ns in the Dio ce se o f To ro nto ”.
    3. 3. Anglican Church of Canada Act (Ontario) S.O.(1979) c. 46  1.-(2) The parson or other incumbent of the church for the time being and the churchwardens thereof shall, for the purposes of The Re lig io us O rg aniz atio ns’ Lands Act, 1 9 7 9 be deemed to be trustees within the meaning thereof.  2.-(1) Land shall not be sold or leased, mortgaged or otherwise encumbered under the powers conferred by The Re lig io us O rg aniz atio ns’ Lands Act, 1 9 7 9 except with the consent of the vestry of the church or congregation interested therein and of the bishop of the diocese and the executive committee of the synod of the diocese, and the consent of the vestry given in accordance with the rules and canons of the church shall be deemed to be the consent of the congregation.
    4. 4. Canon 6 The following all require Diocesan Council permission:  Purchases & Sales  Building or Structural Alterations (requiring a Building Permit)  Mortgages &/or encumbrances  Loans/financial obligations (not expected to be liquidated within one (1) year)  Licenses  Leases (both Residential and Commercial)
    5. 5. Procedure Pursuant to Canon 6  Area Bishop support  Vestry approval (please see next slide for motion templates)  Project Review Committee meeting (“PRC”)  Executive Board (Canon 3) & Trusts Committee (Canon 5) recommendation to Diocesan Council (Canon 2)  Diocesan Council two-phase approval (‘in principle ’ & ‘finalappro val’)  Renovations & Capital Improvements: estate/church-property/renovationscapital-improvements-2/  For significant capital improvement projects requiring building permits.
    6. 6. Vestry Motions - Templates i. “That Vestry authorizes the Churchwardens to proceed with the {insert the project name or descriptor}, in accordance with Canon 6, at a total estimated cost not to exceed ${insert the total estimated cost including an appropriate contingency} to be funded through a combination of {outline all of thesources of funding, includingspecific amounts, that equal thetotal estimatedcost}.” ii. “That Vestry authorizes the Churchwardens to take out a {insert the type of facility– ie. loan, line of credit etc.} with {insert the name of the institutional lenderie. CIBC, TD, BMO etc.}, in the principal amount of $___________for a term of _________at an interest
    7. 7. Facility Rentals: License/Lease  estate/facility-rentals/  Do not modify the clauses or execute (ie. sign); Fill-in “”  Obtain Ce rtificate o f Insurance from Licensee or Lessee (risk assessment - $2m or $5m?); Tenant’s package ≥ $2m.  ‘AllSpo rt’ coverage is available for purchase (Marsh Cda Ltd.)  Submit: unsigned License/Lease, plus Ce rtificate o f Insurance for Trusts Committee & Diocesan Council approval  Renewals must be re-approved; diarize expiry date. 
    8. 8. Purchase & Sale  estate/church-property/purchase-and-sale/  Obtain current survey & confirm title (ie. Parish or Diocese)  3 Vendor clauses (ie.“As is, where is…”)  Always retain appropriate ‘arms-length’ professionals  Funds always payable to the Incorporated Synod of the Diocese of Toronto  If rectory, funds must be deposited to a Rectory Fund in the CTF. Dividend on capital paid quarterly to parish for housing allowance.  If ‘surplus’ property  50% to MAF & 50% to parish as per the CapitalRe de plo ym e nt Po licy.
    9. 9. Maintenance/Inspections/Greenin g  estate/church-property/building-inspections/  Rectory inspection every 5 yrs by professional, home inspector; annually by Churchwardens or upon vacancy  Church inspection every 10 yrs by professional, commercial building inspector (see 2008-2017 schedule by Deanery)  Parish Pro pe rty Mainte nance Che cklist  Greening: solar thermal, photo voltaic, wind systems legal, structural, tax, insurance, repair etc. status ( estate/church-property/greening-initiatives/)  Acce ssibility fo r O ntarians with Disabilitie s Act (Ontario) S.O. (2005) c.11.
    10. 10. Cemeteries & Columbaria  estate/church-property/cemeteries/  Same procedures under Canon 6 (see also Canon 15.6)  Fune ral, Burialand Cre m atio n Se rvice s Act, 2002, S.O. 2002, c.33  Care & Maintenance Trust Fund - CTF  Cemeteries Regulation Unit  416‑326‑8393/1‑800‑889‑9768   Co lum baria Po licy & Parish Le ade rs’Manual
    11. 11. Resources   Parish Le ade rs’ Manual(“PLM”)  Ecclesiastical Le g alCo nne x Service (1-866-263-0256)  Canon 6  Landlord & Tenant Board (  Marsh Canada Ltd.  Canada Revenue Agency (CRA)  The Le g alGuide fo r Canadian Churche s – Blaikie & Ginn - Novalis 2006 (  Whe n No t to Build – Bowman & Hall - Baker 2003