Introduction
Frequently Asked Questions
What steps should a PCC take?
The liability of some landowners to contribute to the cost of repairing the chancel of a parish church has become a ‘live’ legal issue in recent years for several reasons. First, the decision of the House of Lords decision in the case of Aston Cantlow PCC v Wallbank [2003] UKHL 37 made it clear that this historic liability could still exist, and could impose a very significant cost on landowners in some cases.
Secondly, following a review of the law by the Law Commission in 1985, which recommended that liability of landowners to contribute to chancel repair costs should be abolished after 10 years, the Land Registration Act 2002 (as amended by the Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003) has clarified and amended the law. Parochial Church Councils (PCCs) whose churches may benefit from existing obligations on the part of local landowners to contribute to the cost of chancel repairs should be aware of the changes introduced by this legislation.
The liability to contribute to the cost of chancel repairs does not affect every parish, or every landowner. The liability attaches to land which has been ‘rectorial’ property at some stage in the past. This included glebe land and tithes, which were property held by the rector of a parish to support himself and out of which he was to discharge his liabilities, including his liability to keep the chancel of his church in repair. In many cases this type of property passed into lay ownership following the Dissolution of the Monasteries by Henry VIII under the Suppression of Religious Houses Act 1539. Other property became rectorial property, or property to which chancel repair liability attached, later on, sometimes through an award made under an Enclosure Act, or through compositions of liabilities to pay tithes under the Tithe Act 1836 or later Tithe Acts, or through the operation of the Tithe Act 1936, which extinguished various classes of tithe rentcharge. Under each of these provisions, liability may have become attached to land.
The way in which that liability is shared out between affected landowners depends on the way in which it was created. In some cases the liability may be joint and several, so that any one affected landowner can be made liable for the whole of the cost of any repairs. For liabilities created under the Tithe Act 1936 there is a complicated method of apportioning the liability between affected landowners.
The liability to contribute to chancel repair costs is currently what lawyers call an ‘overriding interest’. This means that it passes automatically with the land, so that when the land is sold or passed to a new owner, the new owner assumes the liability with the ownership of the land.
The Land Registration Act 2002 (as amended) will end the ‘overriding’ status of chancel repair liabilities at midnight on 12 October 2013. If land which carries a liability to contribute to chancel repairs is sold after that date, the chancel repair liability will be extinguished unless a notice has been registered on the title of the land at the Land Registry (or a caution against first registration, in the case of unregistered land) to indicate that the land is subject to chancel repair liability. Land Registry guidance on this subject is available at Land Registry Practice Guide 66
Does Chancel Repair Liability affect land in our Parish?
There is no central register of parishes where Chancel Repair Liability may exist, but research done by the Church Commissioners in the early 1980’s suggested that somewhere between 4,000 and 6,000 parishes might be affected, or about a third of the total number.
It is possible to conduct a search through a number of search companies to identify whether a particular piece of land may be affected by chancel repair liability. Searching against ‘Chancel Repair’ on an internet search engine such as Google or Yahoo should give the names of several search providers.
I am thinking of buying some land – what steps should I take?
You should ask your solicitor or conveyancer to advise you on the question of whether the land may be affected by chancel repair liability. Your solicitor can organise a search to check this as a part of the conveyancing process. If the search suggests that the land may be affected by Chancel Repair liability, you could consider insuring against this liability. Your solicitor or conveyancer can advise you about this and about an appropriate level and type of cover.
I own a small house – could this be affected by Chancel Repair liability?
Yes. Chancel Repair liability may attach to a small property as well as to a larger property such as a farm. Even if you are buying a house, you should ask your solicitor or conveyancer to check whether it may be affected by this liability. If you own a house and are concerned about the possibility of chancel repair liability, you can still arrange a search and insurance.
Does Chancel repair liability only affect individual landowners?
No, it does not matter whether the landowner of affected land is an individual, joint owners or a company or other type of corporation.
In June 2008, the Archdeacons and the Diocesan Registrar published a note of advice on the subject of Chancel Repair Liability. A copy of this note is available from the Diocesan Registry.
If there is no land in the parish which may be subject to chancel repair liability then the PCC need take no action.
If there is land in the parish which may be subject to chancel repair liability, the PCC should consider carefully whether it wishes to take steps to identify that land and to register a notice or caution against the property to ensure that if the property is sold after 12 October 2013, the chancel repair liability will continue to run with the land. In relation to land which is unregistered a caution against first registration can be registered. In relation to registered land a notice would need to be registered.
However, this may not be the automatic choice for a PCC for the following reasons:
Notwithstanding these considerations, it may be prudent for the PCC to seek to protect its rights to recover contributions to chancel repair costs by registering appropriate notices at the Land Registry. A PCC wishing to take this step will need to take legal advice to ensure that satisfactory evidence is available to support Land Registry applications.
As a minimum, to ensure that the members of the PCC discharge their fiduciary duties properly, each PCC should probably consider and minute its conclusions on the following questions before 12 October 2013
Where a PCC knows that land is affected by chancel repair liability, and is faced with a bill for chancel repairs, the PCC should consider very carefully the benefits and disadvantages of pressing landowners to make a contribution to chancel repair costs. On the one hand, by recovering part or all of the cost from a local landowner or landowners, the PCC will be assisted financially, and may be able to complete urgent repairs more quickly than would otherwise be the case, or to maintain funding for other important projects. On the other hand, however, enforcement of this type of liability may alienate parishioners and could be unhelpful to the wider mission of the church. It may therefore be better to seek ‘voluntary’ contributions to repair costs, rather than relying on strict legal rights.
What costs can be recovered under Chancel Repair liabilities?
First, the liability relates only to the chancel, not to other parts of the church, such as the nave or tower.
The liability goes beyond paying for the chancel to be made just wind- and weathertight, and includes putting the fabric and structure of the chancel into good repair. It does not extend, however, to the cost of decorations or furnishings. The amount recoverable in any particular case will depend on a variety of factors, including the way in which the liability arose, the number of landowners identified as having a liability, and their ability to meet that liability.