Chancel Repair liabilities

Last Updated on Monday, 13 May 2013 15:41

Chancel Repair Liability

The Charity Commission have amended their website advice. See:

Charity Commission Guidance on Chancel Repairs

As you will see, it largely refers to the Legal Advisory Commission opinion and confirms that PCCs are free, having taken proper advice and considered the relevant factors, to decide not to register or enforce the liability; and may seek, but do not have to seek, confirmation of their decision by the Charity Commission.

The Legal Advisory Commission has decided to make no changes to its Opinion which is at:

Legal Advisory Commission Opinion

The updated Legal Office Q&As on the subject can be found at:

Legal Office Q&As updated Oct 2012

NB: insurers of churches may still wish to enforce their subrogation rights, i.e. their right to enforce the liability if they pay out on a claim.

Background

An article appearing in the Daily Telegraph (1 August 2012) draws attention to the Land Registry Act of 2002 that set a ten year deadline for the registration of all land liabilities which includes chancel repair liability.

http://www.telegraph.co.uk/property/9441645/Your-church-needs-you.html

Chancel repair liabilities date back to the Dissolution of the Monasteries when those who took over what had been monastic land also by law took on the responsibility for repairing the chancel in the local church. In many cases the ownership of land which formerly belonged to a rectory still carries with it the burden of repairing the chancel. Those who now live on these lands may still be responsible for chancel repairs.

The House of Lords decision in the case of Aston Cantlow PCC v Wallbank [2003] UKHL 37 and the provisions of the Land Registration Act 2002 and the Land Registration Act 2002 (Transitional Provisions) (No.2) Order 2003 are of importance to Parochial Church Councils ("PCCs") as the Aston Cantlow case affirmed that a PCC can take proceedings to recover the cost of chancel repairs from a lay rector (someone who has a legal obligation to meet the cost of repairs to the church chancel).

No diocese will have a definitive register of lay rectors responsible for chancel repairs. When, in the past land carrying the liability has changed hands, there has not been any legal obligation to inform the purchaser that they are now liable for repairs to the chancel. However, the liability for chancel repairs has always been what lawyers call "an overriding interest", which means that it has not been necessary to protect such a right or interest by registration.

From October 2013 chancel repairs will no longer be regarded as overriding interests (i.e. binding without the need for registration) under the Land Registration Act 2002, which came into force on 13 October 2003. The Land Registration Act 2002 (Transitional Provisions) (No.2) Order 2003 provides that chancel repair liability will continue to be an overriding interest for a period of just ten years from 13 October 2003. After that period, the liability will only be binding on a purchaser of land registered at the Land Registry if the liability is referred to in the Register.

With effect from October 2013, if a PCC does not register the liability, then it will die and this would raise the question of whether PCC members were negligent.

Action to be taken by Parochial Church Councils

Therefore, PCCs who believe that a liability for chancel repairs attaches to any land should seek advice from their solicitors about registering at the Land Registry a caution against first registration of the land (if the land affected by the liability is unregistered) or registering a notice (if the land is already registered), in order to alert a prospective purchaser to the liability. Otherwise the result of not registering will be that the right to recover the cost of chancel repairs will be lost in the event of the transfer of the land after the ten year period to a purchaser without notice of the liability.

The Legal Advisory Commission has produced an Opinion concerning the registration and enforcement of chancel repair liability by PCCs, and also a list of Questions and Answers. PCCs should also take note of a Statement by English Heritage concerning grant aid for repairs to chancels where there is known to be a Lay Rector liable for chancel repairs.

Enforcement of Chancel Repair Liability

Jonathan Goodchild of the Church Building Council (CBC) has pointed out that registration of the liability should be seen as neutral, though acknowledges the local tensions this may cause. Whether or not it is enforced is a matter for circumstances when a problem with the chancel arises. Advice from the CBC legal office is clear that there are circumstances where, because of hardship, it might not be enforced. But then a PCC could run into the problem, as at Aston Cantlow, where English Heritage (EH) refused to give a grant because there was a lay rector who, in theory, should have been approached for funding repairs to the chancel prior to the application of any grant.

Currently the Heritage Lottery Fund (HLF)/EH repair grants for places of worship require a church to declare on the application form whether they have chancel repair liability. When HLF takes over the administration of the new grant scheme from April 2013 it won't specifically require a chancel repair liability to be declared but will be interested in the general financial circumstances of a church before awarding a grant.

Researching Chancel Repair Liability

No diocese will have a definitive register of lay rectors responsible for chancel repairs. When, in the past, land carrying the liability has changed hands there has not been any obligation (and it has naturally not been in the interests of the acquiring party) to inform anybody that they are now liable for repairs to the chancel. However, the liability for chancel repairs has always been what lawyers call "an overriding interest", which means that it has not been necessary to protect such a right or interest by registration.

From time to time, Diocesan Registrars receive enquiries from solicitors acting for purchasers of property as to whether any particular property carries with it a liability for chancel repairs. For the reason already given, that there is no definitive diocesan register, it is unlikely that a Registrar can, without a good deal of research, give a categorical answer one way or the other as to whether there is any person or body liable to meet the cost of repair of the chancel of a church, unless the Registrar happens to have documentary evidence in the Registry that the liability exists in a particular case.

The Registrar cannot give any guarantee as to the accuracy of the information provided. The absence of any relevant information does not guarantee that no liability exists. Nor does the inclusion of an alleged lay rector guarantee that such lay rector ever was or remains liable. The results simply reflect the knowledge or belief of the Churchwardens at the time. A solicitor or the purchaser of a property, who is concerned as to whether any liability exists and affects a particular property, should have a search carried out by a company specialising in chancel repair liability searches. The Registrar can provide the names of companies which do such work.

For those wishing to research chancel repair liability, there is a very helpful book by James Derriman, entitled Chancel Repair Liability - How to research it (Revised Edition) ISBN 9781898029847. Published by Wildy, Simmonds & Hill, Lincoln's Inn Archway, Carey Street, London WC2A 2JD. Price £19.95.