The Government yesterday decided against tidying up the current mess of Chancel Repair Liability.
Peter Luff MP for Mid Worcester, who secured the debate in Westminster Hall, has been helping some of his constituents directly affected by the consequences of the archaic law of Chancel Repair Liability.
Brief History of Chancel Repair Liability
Chancel Repair Liability is a relic and unintended consequence of King Henry VIII’s decision to “privatise” the monasteries back in 1536-1540 (read my post Chancel Repair Liability: The Full Monty for a quick guide)
The responsibility for upkeep of medieval churches on monasterial land was transferred to lay rectors who became responsible for the upkeep of the Chancel: the bit at the east end of the church which includes the altar.
The liability does not extend to churches built after King Henry VIII’s reign.
Some purchasers back then survive today, such as, Eton and Winchester Colleges and Oxford and Cambridge Universities. Other lay rectors sold their property and over time, mention of Chancel Repair Liability was omitted from their title deeds.
In essence, Chancel Repair Liability had lapsed in practice, but remained in law.
All Change with the Wallbank’s Case
The question of abolishing Chancel Repair Liability gathered pace after a House of Lords case involving Mr. and Mrs. Wallbank and the church of Aston Cantlow.
The House of Lords reversed a judgment of the Court of Appeal that Chancel Repair Liability was unenforceable and Mr and Mrs Wallbank were lumbered with the bill for maintaining the chancel of the Aston Cantlow church
The Chancel Repair Liability Debate 17th October 2012
Peter Luff in yesterday’s debate concluded that the then Government was probably right not to order abolition, even though, public opinion was firmly in favour of outright abolition.
Peter Luff’s contention was the then government sought the line of least resistance and used the wrong method to deal with the issue, by tacking it on to existing legislation.
The Land Registration Act 2002 legislation imposed a cut off date of 13th October 2013 for registration of liabilities over land, which Peter Luff described as “the ultimate long grass manoeuvre”
How Many People Affected by Chancel Repair Liability?
No one really knows, but Peter Luff estimated that in 500 or so parishes which may be affected some 15000 or so private individuals may be responsible for upkeep of various chancels
A Perfect Storm for Parochial Parish Councils
Peter Luff described the perfect storm now faced by many PCCs, including the Broadway PCC with responsibility for the mediaeval church of St Eadburgha, which dates back to the 12th century.
A parochial church council that did not register the liability could be held in charity law to be in breach of its duty to maximise the income due to the charity.
Failure to do so would make individual churchwardens and PCC members personally liable for the cost of chancel repairs.
To make matters worse, English Heritage, showing what Peter Luff described as “a regrettable lack of understanding” said that it would not provide funding for the repair of historic churches whose PCC had declined to enforce the liability.
Peter Luff argued that“PCCs generally do not want to enforce the liability against their neighbours and friends. If they enforce the liability for the first time in living memory, they incur the wrath and indignation of the householders and landowners who were living in happy ignorance of their liability. If they do not, they become personally liable for he repairs and lose all grant aid from English Heritage”
The St. Eadburgha’s “Solution”
“If enforcing the Chancel Repair Liability was an obligation imposed on the PCC as trustees, would it also not be true that, if to enforce the liability was demonstrably un-Christian, that too would put the PCC in breach of its charitable responsibilities? “
The Charity Commission can under Section 110 of the Charities Act 2011 confirm that, on a case by case basis, (with no general precedent set) a PPC can be deemed to have behaved responsibly as trustees if they decide not to enforce the Chancel Repair Liability.
The Broadway PCC put together a compelling case outlining the ways in which registration of the liability would work against their fundamental duties and the Charity Commission agreed that the Broadway PCC was free not to enforce the liability and the PCC members would not be held personally liable.
The PCC has since withdrawn its applications at Land Registry for registration of Chancel Repair Liability on the 30 affected properties in Broadway.
Peter Luff commended the Charity Commission for putting together some excellent advice to PCCs, which is available on its website.
That should have been that, but 3 problems remain.
3 Problems with Chancel Repair Liability
Peter Luff believes there are 3 problems which remain.
1. Many parishes are unaware of their liability and there is no satisfactory means of discovering whether the liability will affect their homes
2. Parochial Parish Council decisions to not seek to register Chancel Repair Liability will not bind future PCCs who may change their minds ( for registered properties which are unsold)
3. Time: there is a limited time with a deadline looming of 13th October 2013 for PCCs to research and make reasoned decisions on the facts.
Where a property has had a Chancel Repair Liability registered against it, that property would be either at worst unsaleable or at best unable to achieve proper market value.
The Chancel Repair Liability Solution
Peter Luff proposed a simple solution to the problem.
Any decision by a PCC not to register a potential for Chancel Repair Liability should be binding in perpetuity on future PCCs.
The Government’s Response
There was no need for any change.
Helen Grant the Minister with responsibility for general land law in England and Wales argued that existing rights and methods of redress were available for private individuals facing a potential Chancel Repair Liability.
I think and no doubt Peter Luff would concur, the Government is wrong.
Here are my responses to the Minister’s arguments:
#People could still challenge the registration of Chancel Repair Liability at the Land Registry.
I have actually seen the Land Registry letter to the parishioners at St. Eadburgha’s and the legal argument supporting the application was well researched and in my opinion water tight.
There would have been no argument against registration of the liability by the Parishioners had not the Church Commissioners approved the case for withdrawal of the Chancel Repair Liability notices
#Section 52 of Ecclesiastical Dilapidations Measure 1923
This section gives parishioners the right to buy out or commute the potential liability by paying a lump sum to the Church.
The liability is archaic and unfair an historical anomaly that in politicians' speak “no hard working family” should have to endure. As Peter Luff commented that too is an “arbitrary and unfair tax”
#People will be made aware of the liability when they by buy by their solicitors
Yes, this is now standard practice, but only over the last few years since the Wallbank case.
The data is but an approximation of whether a property may be liable.
There is no definitive data and is not entirely based on proximity to the church, which in some case may be 30 miles away
As the liability is joint and several, the PCC need only register the liability against one property and there is no need for a universal application.
TIP: Don’t fall out with the Chairman or Chairwoman of your local PCC!
#Insurance is available
Yes, this is true but as is common with all defective title insurance policies, the wording is vague and circumstances where a pay out may be appropriate yet to be determined.
People claiming under insurance policies could face years of uncertainty.
Insurance will not be available for properties where the Chancel Repair Liability is already registered.
#The House of Lords decision should not be overturned
It is a function of Government to right unfair decisions of the Courts. Government makes the rules, courts follow them.
Again, the Minister drew no distinction in the Wallbank's case where the Chancel Repair Liability was actually noted in the title deeds.
The whole point for everyone else is that there will be no notification of Chancel Repair Liability on their title deeds.
# No new liabilities have been created
The Minister’s argument that it was ever thus (but, mutated by Henry VIII in 1536) was somewhat crass.
Church and State have long since been separated.
Keeping archaic laws in tact in favour of landed institutions is so sixteenth century not even so last century.
Light at the End of the Tunnel
At the very least the debate yesterday has raised awareness of the anomalies of Chancel Repair Liability.
The Church Commissioners have softened the legal impact for PCCs in respect of personable liability where a legitimate application is made under Section 110 of Charities Act 2011.
English Heritage is no longer the stick held at the heads of PCCs by its implacable decision not to fund without an attempt to enforce Chancel Repair Liability.
Decisions will now be made by the Heritage Lottery Fund which has already told Peter Luff that it will not require church communities to register the liability to receive grant funding“
Peter Luff will keep the pressure on the Government.
The Government Minister stated that she will “of course, keep the matter under careful review”. How likely that is, is anyone’s guess.
For people buying a home Chancel Repair Liability will now be flagged by their conveyancing solicitors.
For those of you already in your home, in close or not so close proximity to a medieval church and whether in the country or in an urban setting, you may have to consider taking out Chancel Repair Liability insurance.
It’s a pity, Peter Luff’s solution was not adopted.
Chancel Repair Liability may still be a ticking time bomb.
If you are in doubt consult your conveyancing solicitor.
Post Script: I am indebted to Rev Greg Yerbury ,Team Rector of Penkridge and his very detailed blog on Chancel Repair which you can access here