Ten-minute topic: chancel repair liability

Simon Sinnatt and Rebecca Nash examine the ancient law of chancel repair liability, how the field has evolved since the enactment of the Land Registration Act 2002 and the current prospects for reform. Chancel repair liability first arose in around 855. At this time, a great deal of England and Wales was owned by parish churches. The churches would charge a contribution, known as a tithe, from the people of their parish for using the land owned by the church. The church’s rector would then use these tithes to maintain the chancel of his church (ie the part of a church near the altar). By the 16th century, many monasteries had acquired rectorships with all the property and liabilities that went with them, including the liability to maintain the chancel. In the 1530s, Henry VIII dissolved the monasteries and took over all the church’s property. Henry then sold off this property with its chancel repairing liability. The new owners of the land became known as lay rectors. For many years there was no focus on chancel liability until the House of Lords case of Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another [2003] UKHL 37; [2003] PLSCS 150. Here, the House of Lords upheld the church’s claim to the costs of repairing its chancel from lay rectors Andrew and Gail Wallbank. As a result, Mr and Mrs Wallbank were forced to sell their inherited farm house in order to pay for the chancel repairs. Many commentators feel that the enforcement of archaic laws is unjust and, since this case, there have been calls for reform. Many hoped that the coming into force of the relevant provisions of the Land Registration Act 2002 (the 2002 Act) in October 2013 would provide this reform. Although it has gone some way to dealing with the issue of chancel repair liability, the liability still exists and is able to be enforced by the church. So what did the 2002 Act do? Before it came into force, chancel repairing liability was an overriding interest. This meant that it continued to be enforceable even if a property owner was unaware of it and it was not registered on the property’s title or mentioned in the property’s deeds. The 2002 Act changed the status of chancel repairing liability so that it was no longer an overriding interest. Therefore, basically speaking, the system should now work so that if a property is transferred for value and there is no registered notice in relation to registered land (or no caution against first registration in relation to unregistered land), a genuine purchaser for value should take free of the liability. However, if there is no transfer for value, the church can still register a notice or a caution and enforce chancel repairing liability even if it has not yet been registered. Potential pitfalls ■ It is very difficult to identify with any great certainty if a property is or is not subject to chancel repairing liability. Unfortunately, there is no central register. The National Archive at Kew has the largest amount of information but it does not contain all the records that may be required to definitively confirm that liability exists. The parochial church councils (PCCs) also have historic records and parish records can often show a history of payment. Sometimes the chancel itself provides evidence (eg a memorial to a lay rector of the past). Some search providers offer what is generically called an initial search that will reveal the likelihood of a property being in an area affected by chancel liability. If this search reveals that there is a likelihood that the property is within an area where chancel liability exists, insurance is usually offered in the form of a one-off premium payment to cover the costs of repairing the chancel. Search providers also offer a more detailed search, which is commonly a search of the National Archives at Kew. However, this search is not definitive and, if this is carried out, the offer of insurance generally becomes limited, if offered at all. ■ The liability to pay for the costs of repair is personal and several. This means, where there are a number of lay rectors, along with asking for a contribution from all, the PCC can alternatively choose to issue proceedings against a single lay rector for the entire amount. In that situation, the claim could be for tens of thousands of pounds (or even hundreds of thousands), leaving the defendant lay rector to seek a contribution from the other lay rectors by way of proceedings if such contributions cannot be agreed. ■ The liability is unlimited. However, the lay rector need only pay for works that are necessary to keep the chancel wind and water tight and to ensure that essential fixtures are maintained. There is no obligation to repair purely ornamental or decorative fittings, nor is there an obligation to pay for the enlargement or improvement of the chancel or, for that matter, any other parts of the church which historically were paid for and maintained by the congregation. ■ Arguably, lay rectors should ensure that the chancel is insured with a comprehensive buildings insurance policy as, if it is not and damage is done to the chancel, they may need to pay for repair works to be carried out themselves. ■ Your property does not need to be next door to a church to be liable. It all depends on the historic parish boundaries of the church in question. ■ A person who acquires a property as a genuine purchaser and has paid value and the purchase is one that should be registered at the Land Registry after 12 October 2013 will arguably take free from chancel liability. However, until the purchase is registered, the church can still register a notice. Post 13 October 2013, the Land Registry still seems to suggest that they will continue to register a chancel repair notice against a title even where it has been transferred for value after that date. Therefore, the Land Registry will not look into the validity of the notice and the property owner will need to challenge it. The same applies to unregistered land. An owner of unregistered land, where the chancel liability is not protected by a caution against first registration or a notice, will not be bound but, up until a sale for a premium to a genuine purchaser, a caution/notice can be registered. Therefore, there is a risk between exchange and completion, where contracts have been exchanged on a property that has no mention of chancel repairing liability on its title but a notice could be subsequently registered by the church before completion. Legislative context To enforce the liability against the lay rectors, the PCC must follow the procedure laid down by the Chancel Repairs Act 1932 (the 1932 Act). The 1932 Act transferred jurisdiction from the Ecclesiastical Courts to the County Courts in relation to chancel repairing liability and is the main legislation in relation to chancel liability. The 1932 Act sets out a statutory procedure as to how the church should enforce chancel liability. The PCC must serve a notice to repair on anyone liable to repair the chancel. The notice must be in a prescribed form and then there is a strict timetable to be followed before commencing any work. The process enables the lay rector to have the opportunity to do the works themselves or pay the PCC for doing the works. Without following the statutory process, the PCC will not be able to recover any sums incurred. If the PCC serves the requisite statutory notice and it has not been complied with after one month, the PCC may issue court proceedings to obtain judgment for the payment of a sum which, in the court’s opinion, is necessary to repair the chancel. There is a procedure by which the lay rector may “buy out” or “compound” his liability by paying a sum for all future repairs that settles his or her liability once and for all. Again, there is a formal process for doing this under the 1932 Act and often PCCs are willing to compound the liability where the ongoing liability affects ordinary residential property. However, they are less likely to be inclined to do so where the affected land is owned by an institution. Reform Lord Avebury’s Chancel Repairs Bill 2015 had its first reading in the House of Lords in June 2015 and proposed an end to chancel repair liability. However, there has been little movement since. Main image: © Ian Murray/imageBROKER/Rex/Shutterstock Simon Sinnatt is a barrister at Crown Office Row and Rebecca Nash is a managing associate in the property dispute resolution team at Cripps LLP