Property owners may be liable for church repairs
Magdalene Haywood looks forward to the end of a mediaeval liability that is causing problems for home owners and parochial church councils, and was once described as “wholly capricious” and “unsuited to our modern society”.
18th Oct 2012
Few people had heard of chancel repair liability before 2003, when Andrew and Gail Wallbank owners of Glebe Farm, hit the headlines. They had been ordered to pay nearly £187,000 for repairs to the church in which they had married to the local Parochial Church Council (PCC) under a law dating back to mediaeval times when the church owned most of the land in England Wales.
The rector of a parish church was responsible for maintaining the chancel (the eastern end of church containing the altar and choir stalls). In 855 King Ethelwulf authorised the rectors to receive payments or tithes from parishioners to be used for church repairs. Following the split from Rome in 1536, the debt ridden Tudor administration of Henry VIII seized church land and sold it to private landowners. In addition to taking ownership of former church land, the new owners (known as lay rectors) took over liability for the repair of pre-reformation church chancels.
Nearly four centuries later, about 5,200 parish churches still benefit from the right to demand financial assistance for church repairs from lay rectors, such as Andrew and Gail Wallbeck, despite the General Synod of the Church of England in 1982 favouring a phased withdrawal of the liability and in 1985 the Law Commission recommending its abolition.
To make matters worse, property owners do not necessarily know if their land is subject to the liability or not and finding out is not straightforward. Parish records are incomplete and records held at The National Archives in Kew are inconclusive. The physical location of a property does not assist. Some properties in Fulham on former monastic land are subject to the liability; so not just rural land near to mediaeval churches is at risk as one might expect. It is estimated that 3.5 million acres of land in England and Wales remain potentially subject to the liability.
Purchasing a property
When acquiring a property, your lawyer will normally make a search which shows, as best possible given the state of the historical information, whether it is within a parish where the potential for chancel repair liability still exists. If a positive result is returned, insurance against this liability can be obtained at a modest premium. Some lawyers recommend obtaining this type of insurance without even making a search.
The proposed solution
Significant reforms of the system of land registration in England and Wales were implemented in 2003 following the Land Registration Act 2002. One of the main objectives of these reforms was to create public registers of land which provide a complete record of interests affecting registered titles which can be viewed on-line.
PCCs, which are the bodies now benefiting from chancel repair rights, were given 10 years, until midnight on 12 October 2013, to register notices of these rights on titles to affected land or lose the rights forever.
With one year to go, there has been little activity in the way of mass registration reported so far.
However, on 31 July 2012 The Telegraph reported under the headline 'Thousands of families could be caught by church bills as archaic rights revived':
"…..The issue has reached a head in the 12th Century Cotswold parish of St Eadburgha, Glos, where 30 villagers, many of them elderly, have received letters from the Land Registry warning them of their unexpected legal obligations and giving them just two weeks to lodge a legal objection". The action of the PCC in Broadway in seeking to register chancel repair liability against these 30 properties was described by the local vicar as an "unchristian" burden on local people, but PCCs are in a difficult position.
As charity trustees, members of the PCC are regulated by the Charity Commission and are responsible for maximising and protecting the assets of their church. Chancel repair rights are an asset of the church. Any failure on the part of the PCC to safeguard a potential source of funding for church repairs (by registering chancel repair rights against affected properties before the deadline) could be construed as a breach of their duties as charity trustees and result in action by the Charity Commission.
Furthermore the policy of English Heritage, the current grant awarding body for repairs to listed buildings, is to refuse grant aid where other sources of financial assistance are available.
Fortunately for the 30 residents of the village of Broadway, Peter Luff MP for Mid Worcestershire, contacted the Heritage Lottery Fund (the Fund) which takes over funding for repairs to listed places of worship on 1 April 2013 to seek assurances. In response the Fund stated that:
"…we……will ensure we do not encourage the PCC to pursue Chancel Repair Liability where it is evidently unreasonable for them to do so". In parallel, the Charity Commissioners ruled that it was reasonable for the PCC of St. Easburgha, not to pursue the residents of Broadway.
The combined effect of the ruling of the Charity Commissioners in the Broadway case and the assurances obtained by Peter Luff from the Fund may cause PCCs to think carefully before rushing to meet the deadline for registration. Last month the Charity Commission published guidance to PCCs in the form of a set of principles that should inform their decision-making when considering whether to register their rights, and it lists some relevant factors that are likely to have general application. PCCs will also be mindful that an application to the Land Registry is likely to provoke local and indeed national hostility and could alienate the very community the parish church seeks to serve. Either way, it is a difficult call.
The good news is that if you acquire a property for its full value on or after 13 October 2013 and chancel repair liability is not registered on its title that is an end of the matter. The bad news, for those already owning property on 13 October 2013, is that the PCC can still register chancel repair liability even after the deadline has passed until the affected property is next sold on the open market.
Existing owners should therefore check the chancel repair liability risk of their property with their lawyer (if they have not already done so) and consider obtaining insurance against any potential liability now. Once the church's rights have been registered, or an application has been made for registration, it is unlikely that the risk will be capable of being insured on the basis of the relatively cheap standard polices currently available in the market.
On any analysis, 13 October 2013 marks the beginning of the end of unexpected chancel repair liability. That however is no consolation to Mr and Mrs Wallbank. In October 2009 they were forced to sell Glebe Farm to discharge their liability to Aston Cantlaw PCC. With legal costs and interest their liability to the church cost them nearly £600,000 and 15 years of heartache.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.