Our good friend Richard Hammar, attorney and co-founder of Church Law & Tax, is a leading authority on legal issues facing churches as well as religious and educational organizations. His many years of studying and categorizing relevant court cases provide important insights into the top five reasons churches get sued (we encourage all our readers to subscribe to Richard Hammar’s “Church Law & Tax,” which is the best source of legal information published anywhere):
#1: Sexual abuse of a minor.
Sexual abuse of a minor is a serious crime and if facts show that church leaders knew about the abuse and failed to stop it, they may have committed crimes as well. Even if a prosecutor doesn’t pursue criminal charges in connection with an abuse claim, the victim may pursue civil litigation to recover compensation for the suffering he or she has endured.
The church itself is likely to be sued if the abuser was a member of its staff or one of its volunteers, or if the abuse occurred on church grounds or at a church-sponsored event. In many cases of sexual abuse, a church typically failed to take adequate precautions to screen its employees and volunteers, or failed to control their interactions with children.
Churches can take steps to prevent abuse problems within their organizations by:
- Taking complaints seriously. Not believing the victim is a classic mistake that leads many organizations into trouble.
- Adopting an anti-abuse policy that the congregation will see and discuss.
- Knowing if your staff or volunteers have a criminal background or are listed on the state’s sex offender list. People with these red flags may need to be monitored more carefully than others.
- Talking to a lawyer any time an allegation of abuse is raised.
#2: Property disputes.
One of the most complicated problems that may arise for a church that owns land is uncertainty about the land’s ownership. This can be especially true for churches that have a long history. If title problems aren’t resolved, selling land or using it as collateral for a loan may prove impossible.
Churches should make sure to know precisely what their real estate titles say. If the church is the owner, confirm that the church’s organization is properly described in the property deed. This can be especially important if the church has changed its legal form over time. One significant reason that a church might choose to incorporate is to assign the church’s real estate to the corporation, which then owns all of the obligations associated with the land along with the land itself.
For churches that lease worship space, landlord disputes may arise over issues dealing with maintenance, trouble with other tenants, or a change in property ownership or policies. If the lease agreement does not give the church an option to get out of a lease in response to a decision by the landlord that adversely affects church operations, the church might need to take action to force the issue.
#3: Personal injury.
A church or religious organization that controls, owns, or possesses a property (such as a church’s ownership or control of the building where it holds meetings) owes a duty to exercise reasonable care to prevent injury to visitors to the property. If someone suffers a significant injury while on church property or acting as an agent of the church, the church may face a personal injury lawsuit.
There are some guiding principles that can help a church examine its potential risks when fulfilling its duty to exercise reasonable care:
The foreseeability of harm. Good maintenance practices can go a long way toward mitigating the risk of a premises liability lawsuit. If a condition exists on the property that causes an injury that in hindsight was readily foreseeable, the church is more likely to face liability for any resulting injuries.
The seriousness of the defendant’s conduct. Whether a landowner will be held liable for premises liability depends in part on how it behaved with respect to the cause of the plaintiff’s injury. For example, if the church was aware of a cracked sidewalk but failed to correct it, that would weigh against it in a case where someone is injured by tripping on the loose stones. On the other hand, if the stones came loose only after the plaintiff stepped on them, the church might escape significant liability.
The nature of the activities taking place on the property. A church needs to evaluate the risk of injury in light of the kinds of activities happening on its property. Routine religious services might involve a different degree of risk from, for example, an exercise class.
Third party actions. Premises liability can sometimes apply in cases where a visitor hurts another visitor on the property, even if the injury was caused by mistake. The extent to which a church is required to intervene to prevent these kinds of injuries will depend on the details of the case.
The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits zoning laws that discriminate against churches and other places of religious activities. Under RLUIPA, it is unlawful for most localities to adopt zoning laws that “substantially burden the religious exercise of churches or other religious assemblies or institutions absent the least restrictive means of furthering a compelling governmental interest.”
Before making a land purchase, it is important for churches to examine existing zoning laws. In some cases it may be necessary to pursue an exemption or change to existing rules to allow for the full scope of a church’s planned activities. For example, a special exception may be needed if the church wishes to operate a Sunday school, but a zoning regulation prohibits any form of childcare. A church that finds itself faced with problematic changes to zoning laws that will affect its ability to operate in its current location, and potentially harm the value of its real estate, may have options for opposing the measure.
#5: Insurance coverage disputes.
Disputes between churches and their insurers generally involve coverage exclusions or the duty to notify. A general liability insurance policy will typically not include coverage for a claim alleging sexual misconduct by a church employee or volunteer. A church will need to obtain additional special coverage to defend against these types of claims. Insurance policies also typically contain a specific provision on how soon a church must notify the insurer of a potential claim. If deadlines are missed, the insurer will probably deny a claim. The best way to avoid this is to be sure that church management is familiar with all the provisions in the church’s insurance policies and adheres to them.
The Church Law Center of California advises churches and other nonprofits on how to protect themselves from risk while furthering their mission. Call us today at (949) 245-3177 or reach out to us through our contact page.