Can a ancient law dating back to the reign of King Henry VIII still cause problems for home owners in 2013?
Since 2003 Chancel Repair Liability, has become a bête-noir in the Conveyancing process.
Back then, a Mr. and Mrs. Wallbank lost an appeal in the House of Lords against a demand to repair the Chancel of a medieval church in nearby Aston Cantlow, under an archaic and arcane law known as Chancel Repair liability.
The rather sad end to the story was that in 2008 Mr and Mrs Wallbank were forced to sell their farm in order to fund the Chancel repair.
I have posted, on my now specialised subject of Chancel Repair Liability a few times over the last couple of years (Mastermind, here we come)
I now attempt to pull everything together in one definitive guide or the full Monty of the title.
Back in the day (900 AD or thereabouts), much of England and Wales was owned by parish churches –about 4,000,000 acres.
Every parish had its own vicar or rector.
A contribution known as a tithe was taken from parishioners in return for using land owned by the parish
Tithes were split into 'great tithes' and 'small tithes'. Commonly, great tithes were paid to the rector for the area and small tithes to the local vicar.
The rector or vicar also earned income from 'glebe lands' which were local tracts of land to be used for their benefit.
The Rector used the income from the tithe to fulfil one of his responsibilities, namely maintenance of the Chancel of his Church
Over the years, further rectorial land (and thereby a responsibility to repair the Chancel) was created through the conversion of tithes into land by Enclosure Acts.
Unfortunately, although Parliament eventually abolished tithes, nothing was done to abolish Chancel Repair liability until it was included (and even then as an afterthought) in some catch all legislation passed in 2002 (see below)
2. Legal Background
“Overriding interests” are third parties' interests in land that can bind a purchaser of that land even though the rights are not mentioned in the register of title kept by Land Registry, or in the title deeds if unregistered land, and even though the purchaser does not know about them.
Chancel Repair liability is classed as an overriding interest.
3. What is a Chancel:
The Chancel is the roughly the area (including the altar and the choir stalls), which accounts for pretty much the east end of the Church, or 25% of the total area of the Church.
4. How does Chancel Repair Liability arise?
It can arise in four sets of circumstances:
(a) Ownership of Glebe Land
(b) Ownership of Land acquired in lieu of tithes under local Enclosure Acts
(c) Ownership of tithes created by local Enclosure Acts
(d) Ownership of tithes created by the Tithe Acts 1836
5. Does every church have the right its Chancel repaired by parishioners?
No, it is confined to churches in existence prior to 1536.
6. What happened in 1536 to change everything?
In 1536, Henry VIII (as a result of his spat with Rome) set about dissolving (or privatising as we would say now) the monasteries.
The monasteries owned vast tracts of land which included rectorial land.
As church or rectorial lands passed in to private hands, so too did the responsibility for upkeep of the Chancel.
A new breed of owners called Lay Rectors was created.
7. How many properties are affected by Chancel Repair Liability?
It is estimated that as many as 5200 parishes may be the subject of Chancel Repair Liability, although some 1200 will be the responsibility of the Church Commissioners and Deans of Oxford, Cambridge and Durham Universities as well as the colleges of Winchester and Eton.
8. What is the standard of Chancel Repair required: Is it unlimited?
It was thought to be nothing more than keeping the Chancel watertight and maintain essential fittings.
There was no obligation to provide repair which was purely ornamental and decorative. This seems to be no longer the case as in the Wallbank’s case it seems that improvements can now be factored in to the cost
9. What is the main law which now governs Chancel Repairs?
The 1932 Chancel Repair Act transferred jurisdiction from the Ecclesiastical Courts to the County Court.
The main issues are contained in the 1936 Tithes Act
10. Will the Chancel Repair Liability show up on my Title Deeds?
Not necessarily; it may be an overriding interest (see above)
Where your property is unregistered and specific reference is contained in your title deeds to the Chancel Repair liability, the liability will be noted on the title when your property is sold.
11. Will the Title to my Property at the Land Registry show any Chancel Repair Liability?
No, the same still applies.
However, if there is no entry placed against your title at the Land Registry by 2013 (because of legislation passed in 2002) then the liability cannot be enforced against you.
Chancel Repair Liability loses its status as an overriding interest at midnight on 12 October 2013
12. A Worrying "Loop Hole" in the Chancel Repair Legislation
Where a piece of land is not yet registered but subject to potential Chancel Repair Liability, the land will remain subject to that potential liability even after 2013 cut off point up until the eventual sale of the property.
If this is the case, an option may be to voluntarily register your property at the Land Registry, or more cost effectively seek Chancel Repair Liability Insurance now if you can. Speak to your Conveyancing Solicitor, as each case will not be the same.
13. Who can enforce Chancel Repair Liability?
It is the responsibility of each Parochial Church Council (PCC) to enforce the liability rather than the Church as a whole
14 Why would a PCC want do this in this day and age?
Money is tight, and in the most recent case, the PCC were refused a grant from English Heritage because “they had failed to exhaust other avenues of finance” i.e. Chancel Repair Liability.
However, since then Peter Luff MP has received an assurance from English Heritage that the "failure to exhaust other avenues of finance" will not be used as a reason to restrict funding. Unfortunately, the Government did not go as far as abolishing Chancel Repair Liability as you can read in my post "Government Rejects Chancel Repair Liability Reform"
15 Will my house be the only one liable?
In all cases the liability will be “joint and several” which means one property alone might pay for all the repairs – as happened to Mr and Mrs. Wallbank.
The PCC could choose to pursue whom it liked.
Although that person in turn would be able to claim a contribution from all other liable parties (that would be easier said than done).
16. How far away from the Church does my house have to be?
Next door or in sight of the Church is not exhaustive.
It depends on ancient parish boundaries. The Wallbanks were a quarter of a mile away, but you could still be liable 30 miles away.
17. Is there anywhere where such maps could be inspected?
Not really. The National Archive at Kew has the most information. But only in relation to ownership of tithes
18 Are there any property name clues in the title which might give the game away?
Yes, there are a few telltale signs.
Anywhere with the following should be investigated carefully; Rectory, Glebe, Vicarage and Parsons.
The name of the Wallbank's farm was “Glebe Farm” - but most Glebe land is not affected by Chancel Repair Liability
Indeed, a property is less likely to have a liability with Glebe in the title and the Wallbanks farm can be seen as an exception to this general rule.
19 Are properties in Wales affected as well as in England?
Yes, but to a lesser extent, as Wales was subject to specific legislation in 1920
20. What about the Human Rights Act and if my religion is not Church of England?
The human rights angle was used in the Wallbanks case. The Court rejected the argument that the liability was “an unfair and arbitrary tax” as the PPC is not a public body but a charity, and church repairs were a private matter.
21 Will the knowledge of the liability have an effect on the value of my house?
Yes, if it known. It will be very difficult to sell as the Chancel Repair Liability is unlimited
It might be possible to remove the liability under the Ecclesiastical Dilapidations Measure 1923.
This may well prove quite costly and the removal will be at the discretion of the PCC and its Diocesan Dilapidations Board approves.
No, if it is not known.
Your Conveyancing Solicitor may (but by no means always, for the reasons already explained) be able to advise you from his or her knowledge of the area
22. If there is any doubt, can I insure the property against future liability?
Yes, you can. A number of insurance companies will cover the risk for you.
A search is also possible at a cheaper fee but will not reveal much. The best option is to insure without the search
Your Conveyancing Solicitor will insure for the full amount of the purchase price.
Most general legal indemnity insurers will provide cover based on the value of the property.
23 Is It expensive to insure against Chancel Repair Liability?
No, the cost of insurance is normally between £100 to £200 plus VAT, but may be slightly less depending on circumstances.
An example of such a transfer without consideration would be under the terms of a Will.
25. Chancel Repair Liability: Update 26th July 2013
I am indebted also to my Twitter friend and Chancel Repair Liability expert Grey Yerbury. It appears that Chancel Repair Liability which was registered against some parishioners in the parishes of Barlow and Brayton in Yorkshire have been withdrawn due to adverse publicity when the story was published in the local press.
This is also what happened in St Eadburgha's in Broadway after public reaction and a social media campaign in which I was actively involved led to a withdrawal of previously registered notices at the Land Registry.
The good news is that, for the vast majority of people, Chancel Repair Liability has in most cases a definitive shelf life.
The bad news is that until then the liability could bite you firmly on the backside and a few instances of late registration by PCCs are coming to light.
The further good news is that you can safely insure where you are in doubt.
The best advice is to speak with your Conveyancing Solicitor.
If you like what you have read then we at Clutton Cox would be delighted if you were to choose us as your Conveyancing Solicitor
Image: via Flickr