As we near the end of 2016 you may or may not have noticed it’s all gone a bit quiet on the Chancel Repair Liability front.
Gone are the headline-grabbing tales of a couple of years ago of unfortunate homeowners foisted with bills to repair their old local church.
But, if you’re a homebuyer in England, although the headlines may have abated, the consequences still lurk.
You may still have to stand the cost of a search or insurance protection when they buy your new home.
The Story So Far...
We first highlighted the problem in 2009.
The best (or should that be least) we can do now is to bring you the most comprehensive, all you need to know, all-in-one place up-to-date post we can muster.
We’ll condense our many posts for you and add invaluable and curated content and other resources we’ve found from around the web to give you a one-stop-shop.
So, gather around and make yourself comfortable.
It all began a long, long time ago in a land near, near away.
So what exactly is Chancel Repair Liability?
The Chancel is the area (including the altar and the choir stalls), which accounts for pretty much the east end or 25% of the total area of a Church.
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.
The responsibility was unwittingly broadened (as part of what we would now call privatisation) when Henry VIII ordered the dissolution of the monasteries.
When Henry VIII sold off the monasteries, he also sold off the liability with the lands. In most cases, institutions took on the responsibility of the rector’s liability. However, in some cases, this could also be the person who assumed the liability handed down with the land through the generations and a a new breed of “lay rectors” was created.
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.
Why all the fuss?
In modern times, it was extremely rare for any home owner or home buyer to come across the Liability.
That changed in 2008 when it became a bête-noir in the Conveyancing process. In that year, a Mr. and Mrs. Wallbank lost an appeal in the House of Lords against a demand to repair the Chancel of a medieval church near their farm in Aston Cantlow, Warwickshire.
Mr. and Mrs. Wallbank faced a bill of between £250,000 to £400,000including legal costs and were forced to sell their farm in order to fund the repair.
Ancient and medieval Churches now had a new potential avenue for funding repairs. This was especially so as in that case English Heritage refused a grant because “they (the PCC) had failed to exhaust other avenues of finance”
Personal liability under Charity law might also follow members of PCCs who had failed in their fiduciary duties not to seek to impose the liability.
Cue: Conveyancing alarm bells ringing.
Homebuyers (and more particularly their Conveyancers) became concerned that the purchase of a new home could unwittingly come with a potentially expensive liability to fund the Chancel of their local church.
9 Frequently (and less frequently) Asked Questions about Chancel Repair Liability
We’ve added and improved the list over time and updated again for easier reference:
(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
2. Does every church have the right its Chancel repaired by parishioners?
No, it is confined to churches in existence prior to 1536.
3. How many properties are potentially affected by the Liability?
It is estimated that as many as 5200 parishes may be the subject of the 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.
4. What are the main Acts of Parliament?
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
The Land Registration Act 2002 created a mechanism to deal with the liability without fully abolishing it. More below.
5. Who can enforce it?
It is the responsibility of each Parochial Church Council (PCC) to enforce the liability rather than the Church as a whole
6. Will my house be the only one liable?
A PCC could choose to pursue one or many properties.
7. Was there anywhere where historical maps could be inspected to confirm the liability?
Not really. The National Archive at Kew has the most information. But only in relation to ownership of tithes
8. Are there any property names 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 Wallbanks farm was “Glebe Farm”
9. 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.
5 Often Heard Chancel Repair Liability Myths
That bloke down the pub has added to the rich mythology. Here’s a few:
1.Chancel Repair Liability doesn’t show up on my Title Deeds so I’m in the clear?
The liability was noted on the title deeds in the Wallbanks case, but this is rare.
But, for most properties with potential liabliity, there will be no mention with the deeds or title to the property.
2. My property is too far away to be liable
Next door or close to 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.
3. If a PCC decides not to register that’s final.
Not true. A future PCC would not be bound by an earlier decision not to enforce.
4. The Seller will always pay for Insurance?
This has always been a bargaining matter between parties.
Seller, Buyer or equal contributions depending on circumstances.
However, if you are in the process of selling your property now or later, it should be for your Buyer to pay for the insurance.
5. An Act of Parliament in 2002 Abolished Chancel Repair Liability on 12th October 2013,
Yes, the Land Registration Act was passed in 2002 and has had an effect, albeit as an afterthought.
The Act ensured more certainty about rights or interests in land which were unwritten in the title deeds of property in England and Wales.
PCCs had until 12th October 2013 (or so it was thought) to register such “overriding interests” as they are known, to be enforceable against a property. An entry would be made at the Land Registry for registered land or a notice if the property is unregistered.
But, the story did not end on 12th October 2013.
What is the Position After the Deadline?
Unfortunately, it is still possible despite the lapsed deadline to register a notice for registered land and a caution against registration for unregistered land after 12th October 2013.
The process differs for registered and unregistered land.
The Land Registry states
Even if the interest has not been protected by the entry of a notice in the register the land will remain subject to it. But, unless such a notice is entered, a person who acquires the registered estate for valuable consideration by way of a registrable disposition after 12 October 2013 will take free from that interest28. Until such a disposition is registered the person having the benefit of the interest may apply to protect it by entry of notice.
What does that mean in plain non-legal English?
Well, properties that were purchased and registered before 12th October 2013 will still remain vulnerable to a registration of a notice of Chancel Repair Liability – until the property is next sold - that could be a matter of months but possible still many years ahead.
And by the way, making a gift of the property will also not count.
Over to the Land Registry again:
Where any of the interests the subject of this guide have not been protected by notice or caution against first registration before 13 October 2013, they do not automatically cease to exist on that date. The position is as set out below.
The courts have still to consider if and when it may be possible after 12 October 2013 for the holder of the interest to have the register altered so that a notice is entered where the registered proprietor has taken free of the interest following first registration or following the registration of a disposition for valuable consideration. They have also still to consider whether indemnity may ever be payable where the register cannot be altered in this way.
Translated again into plain English, chancel repair liability will continue to exist in the same way as registered land. On a future sale of unregistered land, the new owner will simply not be responsible for any chancel repair liability which is not protected by a notice or caution at the time of first registration.
Examples: How Chancel Repair Liability affected Broadway in Worcestershire and Edingale in Staffordshire
The PCC of St. Eadburgha's church in Broadway, Worcestershire sought to register the liability against 30 or so owners of property in its parish.
The BBC’s One Show scheduled a programme on the plight of the 30 parishioners (with me and others speaking to camera)
But, a rethink ensued.
A couple of days before the scheduled broadcast of the One Show, St. Eadburgha's PCC appealed to the Charity Commissioners who gave permission to withdraw its application to register the liability against the homeowners. The One Show’s original piece was pulled and a foreshortened one broadcast in its place. By way of an aside our website had the biggest spike in its history that evening
The Broadway PCC had put together a compelling case outlining the ways in which registration of the liability would work against its fundamental duties.
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.
Other PCCs which may had registered also came to reverse their decisions.
Edingale and Compounding
The BBC’s Rip Off Britain made a programme on the decision by the PCC of Holy Trinity church in the village of Edingale in Staffordshire to enforce the liability against a few homeowners in the village.
I know that case well as I was rolled out as the legal expert for the programme to discuss the background to the liability.
I even filmed in the charming village Edingale itself.
In that case a compromise or compounding of the liability was eventually reached . The PCC accepted a sum £45 from a householder to extinguish her liability.
Chancel Repair Liability – A Game of Snakes and Ladders
We would understand all this information is still confusing and far from crystal clear.
So, we put the ramifications for you into a snakes and ladders board format.
If you would like our PDF you can access it here.
But, if an infographic does not float your boat take a look at our Slideshare below:
So, where are we now?
It’s not going away. There is no current legislation pending.
The Church’s Position
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.
Decisions will now be made by the Heritage Lottery Fund which has confirmed that it will not require church communities to register the liability to receive grant funding.
The Church, judging by the lack of recent reports, may have come to the conclusion that the adverse publicity certainly outweighs the benefit of registering the liability.
What Does Chancel Repair Liability Mean For Buyers and Sellers?
Annoyingly, it will still be standard practice for your Conveyancing Solicitor to recommend a Chancel search and/or take out insurance.
Many parishes are unaware of their liability and there is no satisfactory means of discovering whether the liability will affect their homes.
Parochial Parish Council decisions not to seek to register Chancel Repair Liability will not bind future PCCs who may change their minds, unless, that is, the previous purchase of the property was after 12th October 2013 (see Snakes and Ladders above).
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, it may be worth considering taking out insurance now.
Remember as each year goes by, properties sold for the second time after 2013, will have no liability where no registration or caution is noted against the title.
But, in the meantime, the line of least resistance will to to insure.
You can insure against the liability (based on the value the property) and generally the premium is a one-off and inexpensive.
A search is also possible at a cheaper fee but will not reveal much. The best option is to insure without the search. The cost of insurance is normally between £20 to £100 plus VAT.
If you do have any enquiries I am happy to help but by email only to paul[at]cluttoncox.co.uk.
Finally, I list below some resources and some of most recent articles I could find. And. And an especial thank you to the Rev. Greg Yerbury a Chancel Repair detective and sleuth for all his help with my enquiries on behalf of people affected or who may have been affected.