Several experts underline the legality of immatriculation by the Church

The immatriculations of property by means of ecclesiastical certificate and the 2015 reform of the mortgage law, and the review of a preliminary draft of the Spanish Historical Heritage Law, are some of the issues discussed at a conference on immatriculations organized by the Canon Law Section of the Madrid Bar Association.

Rafael Miner-April 7, 2022-Reading time: 8 minutes
cathedral valencia immatriculations

Photo: Valencia Cathedral. ©Hasmik Ghazaryan Olson

The conference was entitled "The immatriculations of the Catholic Church by means of an ecclesiastical certificate". Mónica Montero and Irene Briones, the two co-presidents of the Canon Law Section of the Bar Association, moderated a panel of professors of State Ecclesiastical Law, Remigio Beneyto and Ricardo García, together with the vice-secretary for General Affairs of the Spanish Episcopal Conference, Carlos López Segovia, and the assistance of a good group of jurists, online and in the room.

Throughout the debateProfessor Remigio Beneyto warned about two issues. On the one hand, the fact that the law 13/2015, reforming the mortgage law, abolishes for the Catholic Church the special procedure of immatriculation. "The consequences that are already being raised are already going to be terrible, especially for those ecclesiastical entities that have not registered their assets, because it is going to be a real ordeal, when it was much easier to do it through a certificate for immatriculation." (To immatriculate, as it is known, is to register for the first time a property in the Property Registry, and to do so, it is necessary to prove the property title, or to carry out a domain file, or by means of a certificate).

Similarly, in the course of the conference, the academic Remigio Beneyto referred to the circulation of a draft bill, "now stopped", in which the Spanish Historical Heritage Law was modified, and in which "the competences of the state administration and the autonomous administration were not respected, with a restriction of the faculties of the right of ownership". A text that, in his opinion, "if it goes ahead would generate a problem, because it is emptying of content the right of property, and can fully affect all the large properties of the Church". At the end of this article there is more information on this matter.

Properties immatriculated between 1998 and 2015

First of all, it is useful to situate the context of the Bar Association Day. A couple of months ago, the President of the Government, Pedro Sanchez, visited the headquarters of the Spanish Episcopal Conference (CEE). They had just finished the work on the immatriculations of the Church that had been carried out by the mixed Commission between the Church and the government, dating back to February 2021, when the then vice-president Carmen Calvo delivered in Congress the list of the goods immatriculated by the Church by certification between 1998 and 2015.

Minister Carmen Calvo then stated that the immatriculations carried out by the Church were in accordance with the law, and invited the institutions to review the list of immatriculations in case they found errors affecting ownership. The Church studied the nearly 35,000 records on the list to check for errors. The delivery of the results to the president of the government, at the headquarters in Añastro, was a significant part of that meeting, noted the CEE.

In the process, the government did not make any specific claims by the State on the list made public. In fact, according to the report, which can be viewed here here, most of the list is correct, and includes the properties immatriculated by the Church as requested by Congress.

Some of the controversy generated can be seen in the articles written by the Vice-Secretary for Economic Affairs of the EEC, Fernando Giménez Barriocanal, by the Vice-Secretary mentioned above, Carlos López Segovia, who intervened in the Conference of the Bar Association, and by the Director of Communication of the EEC, José Gabriel Vera Beorlegui, as reported in the same website of the EEC. The sowing of suspicions about whether the Church could have immatriculated and registered any property that did not belong to it and, in general, about the legal system of immatriculation by means of a certificate, was a topic of the Conference.

A legitimate process

"The legitimacy of the property of the Church with respect to the goods immatriculated by certificate has been questioned. It is forgotten that this system was born with the Land Registry itself in the late nineteenth century, was maintained by the Second Republic and was extended with successive modifications until its definitive suppression for the Church in 2015", Carlos López Segovia had written. Well, in the Conference of the Bar Association he reiterated and developed it again, together with other speakers.

Remigio Beneyto Berenguer, professor of Ecclesiastical Law at the CEU-Cardenal Herrera University of Valencia, and corresponding academic of the Royal Academy of Jurisprudence and Legislation, said in the debate: "I have to tell you that I find the subject tiresome, because it has been solved for a long time. I wrote a small book on the subject in 2013, and this goes on and on".

In his opinion, "the Church has always acted in accordance with the law," concluded Remigio Beneyto. "If in any case it has not been so, whoever alleges otherwise, must prove it, and the Church must act accordingly, assuming the consequences of its decisions. But personally, I am getting tired of a general suspicion that it has acted culpably or maliciously. I don't know where the problem lies.

The lawyer and moderator, Mónica Montero, asked the panel if they shared this point of view. Carlos Lopez stressed the point: "Yes, since the origins of this Registry, in the 19th century, the more registrations and immatriculations, the better, because if the properties were not registered in the Land Registry, the Registry would be insecure. If too rigid a system was set up, all the properties of which there was no ownership, could not be registered, which made it insecure. And if the registration system was too easy, it was also insecure, precisely because more properties would be registered than should be registered".

"So, this is the fish that bites its own tail. We arrived at an intermediate point in which the system of immatriculation and registration was double: by means of certification for those institutions that were the State and the Church, which had real estate prior to the constitution of the State, and a system for those that enjoyed dominical ownership. It is not a mystery, nor is it of great importance. Moreover, it could be said that in a certain way the Church cooperated in making the Land Registry a secure legal institution. And how did it cooperate? By registering the properties that it could, at least at that time".

"However," he later added, "when reading the beginnings of the Land Registry from the perspective of the 21st century, it is often wrongly and unjustly asserted that the Catholic Church has appropriated something that is not its own, by using the only legal system of immatriculation that it could use for many of its properties, and one tends to forget that immatriculation and registry registration is not constitutive of the right of ownership over the registered properties, but merely declarative of the registry content."

"If the Church had not immatriculated any property, it would still be the owner of those unregistered properties. But the Church cooperated and acted diligently, complying with civil regulations at all times, thus facilitating the work of the Administration," recalled the deputy secretary, Carlos López.

Achieving legal certainty

In the same vein, the professor and academic Remigio Beneyto, explained: "Everything comes from the Mortgage Law of 1861. The aim was to achieve maximum legal certainty and encourage the maximum incorporation of properties into the newly created Land Registry, but what happened if there was no written title of ownership, and therefore the inability to promptly immatriculate the property? Well, it was thought convenient to admit the certification as a title for the immatriculation".

"It was the royal decrees of November 6, 1863 and November 11, 1864 that gave a solution to a pressing problem. What was it? The access to the Property Registry of those ecclesiastical goods exempt from disentailment and lacking a written title of ownership".

"Thus, article 3 of the same royal decree exempted from registration the temples destined for worship. We will see later what the reason was. But it is clear that the reason was not the confessionality, as it is claimed now, nor the privilege, but to solve a problem: how to immatriculate in the Registry those entities that have a patrimony but lack a written title that accredits it, but it is evident that it is theirs".

"The 1909 Mortgage Law continued with the same thing. In 1944 follows the reform of the Mortgage Law, and then comes the 206 that we all know". (This article 206 allowed the Church to immatriculate the temples, thus overcoming "a discrimination" existing "since the beginning of the Registry and until 1998": "the Catholic Church was the only religious denomination in Spain that could not immatriculate its places of worship", explains the website of the Episcopal Conference).

After another brief historical review, Professor Beneyto alluded to the fact that "finally, the Royal Decree of September 4, 1998 appears, in which it is said that the prohibition to register temples destined to Catholic worship is suppressed as unconstitutional".

"It was not really a prohibition, but article 5 of the mortgage regulation was inclined to the non-necessity of inscription, due to the notoriety of the Catholic temples. Let's see: the cathedral of Valencia, who owns it? Does it belong to the city of Valencia? No. It belongs to the archbishopric of Valencia. That is to say, the notoriety of the Catholic temples and their common use, of open access to the plurality of the faithful, made their inscription unnecessary", he added.

A visit to the Mosque-Cathedral of Cordoba

Another aspect that was addressed during the conference was the question of who owns the temples, the hermitages, and the real estate property immatriculated by the Church.

In the course of one of his speeches, Ricardo García, Professor of State Ecclesiastical Law at the Autonomous University of Madrid, referred to the fact that "there is a history behind the subject, more than consolidated", and referred to an anecdote related to the mosque-cathedral of Cordoba.

"Recently, with students of Tourism of the Autonomous University we were making a visit to the mosque-cathedral of Cordoba. We were attended by a priest, Don Fernando, who told us: The Catholic Church has done the most for the Islamization of the Mosque-Cathedral of Cordoba. Indeed, within this historical-artistic heritage, we could see all the evolution that had taken place in what is, by the way, the first industry of Cordoba".

"Having said this, returning to the principle of equality, which is not the same as egalitarianism", added Ricardo Garcia, "it must be understood that when a temple such as this one is being immatriculated, what is being exercised is a right. This property right must be relativized with the application of Article 16 of our Constitution, and international texts, because the maintenance of this building has been done by those who consider themselves Catholics".

"This refers to the fact that the property could belong to the Catholics, who are the ones who have been contributing when it has been necessary to fix the roof, or any other problem (...) In this case, the property becomes a non-fundamental right, but a constitutional right that has protection, even if the owner is the Catholic Church. What happens is that, sometimes, it is very beneficial to criticize the Catholic Church, and criticizing about bricks is especially easy, and profitable, I would say".

The properties of the Church, of the "People of God".

Going further into the matter, Carlos López Segovia added: "I am commenting on something that I have reiterated on occasions when I am asked. So, the properties that the Church has immatriculated belong to the citizens? I add: yes, of course, of those who call themselves Christians and call themselves Catholics. Let us not forget that a diocese is a 'universitas personarum'. This has been very clear since the Second Vatican Council. It is a group of people living in a territory, a portion of the People of God that has a legal representative, who is the bishop. I do not know of any member of the faithful who, when going to pray in a cathedral, has not been able to enter".

Preliminary project at a standstill

It was said at the beginning that more information would be provided on the "stalled" bill that could modify the Spanish Historical Heritage Law. Two questions. Professor Remigio Beneyto expressed his "great concern" at the Conference, because "according to one of its articles, the declaration as a cultural property of world interest can be made excluding the owners of the properties themselves" - "this is madness", he said- , "and a board of trustees is created, which is the governing body of a legal entity, of a foundation, in which the autonomous and local administrations participate, which will be attached to the Ministry of Culture, which will always have the majority of votes of the organ or ....", among other issues.

The latest news on this draft was announced by the Minister of Culture and Sport, Miquel Iceta, on March 16. The text on Heritage has been "strongly questioned" by the autonomous communities because, "perhaps, at the time of drafting it, the zeal to preserve the heritage had made to circumvent the autonomous competences of the moment", said the Minister of Culture, according to several agencies.

As for deadlines, there is a "very open process" with the autonomous communities to "find a meeting point.". "Right now the thing is green, and I doubt very much that it will be this year," he pointed out.

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