GUIDANCE NOTES ON CHANCEL REPAIR LIABILITY

With 5,200 Parishes in England and Wales having some land within its Parish the subject of Chancel Repair Liability, and the likelihood that the Liability is going to be more vigorously pursued by the Church of England in the period up to 13th October 2013, we produce an Update on what this Liability is. It has been called by the highest Court in the Land “anachronistic,  even capricious”. Yet it is estimated that the best part of 30% of all churches are medieval and that therefore come within the ambit of their Parochial Church Council being able to demand a chancel repair liability from the modern day owners of land which were formerly rectorial.

The Law Commission Report on the subject called Chancel Repair Liability “ a relic of the past (which) is no longer acceptable”. However Chancel Repair Liability remains and Legislation has given the Parochial Church Councils an opportunity to register their entitlement against the land, which if successfully registered at the Land Registry before 13th October 2013, will be conclusive as binding the land owner, to pay the Liability.  

To fully understand what Chancel Repair Liability is, it is important that one fully understand both the Definitions of certain words and the Background

Definitions

1.1    Advowson- The Right affixed to a parcel of land, which allowed the Owner of the Land to appoint a Rector

1.2     Benefice- Property held by an Ecclesiastical Officer

1.3    Chancel- The eastern part of a Church reserved for carrying out of the Eucharist

1.4    Glebe Land-  a parcel of land going with the Clergyman’s Benefice

1.5    Parochial Church Council- an Ecclesiastical Corporate Body responsible for supervising the care, maintenance, provision and insurance of the fabric of the Parish Church. Importantly despite forming part of the governance of the Church of England, it is neither a “core” Public Authority nor carrying out functions of a Public Nature. It is regulated by Parochial Church Council (Powers) Measure 1956 agreed by the then National Assembly of the Church of England (the latter is now known as the General Synod)

1.6    A Public Authority- a Body which is the subject to the European Convention on Human Rights and it is unlawful for a Public Authority to act in a way which is incompatible with a Convention Right- .

1.7    Rector-  The Spiritual Incumbent of a Parish who was entitled to a Tithe and owned the Glebe Land

1.8 Lay Rector- the land owner who is not a spiritual Rector but who has acquired the Glebe Land or a Tithe over another person’s land, formerly owned by the Rector

1.9 Rectorial Land- the Glebe Land and Tithes which were a proprietary interest of the Rector. 

1.10 Tithe-  a payment of a tax  to a recipient, equivalent to one tenth (1/10th) of the value of the produce grown on a parcel of land

1.11 Vicar- An Incumbent of a Parish, where the Tithe had belonged to a third party, 

Background

  1. We have to go back to medieval times where a Parish had an Incumbent called a Rector. A Rector was entitled to receive the profits from the Glebe Land and Tithes. This Income was used by the Rector for the upkeep of the Chancel. The Parishioners were responsible for the upkeep of the Aisles, Nave, and Pews in the Church
  2. The appointment of the Rector lay with a Landowner whose Land included as a Proprietary Interest an Advowson. Many of these Advowsons were acquired by the Monasteries (“the Great Religous Houses”) in the 14th, 15th and early 16th Centuries. A Monastery would appoint itself as the Rector of a Parish, and therefore acquire both the Glebe Land within that Parish and the Tithe. The Monastery would then appoint a deputy called a Vicar to manage the Parish who would use the profits from the Glebe Land and Tithe for the upkeep of the medieval Parish Church.  This is key to understanding how Chancel Repair Liability has evolved. The Glebe Land and Tithes owned by the Rector became the Income Source for the funding of the upkeep of the Chancel to the Parish Church.  
  3. The dissolution of the Monasteries between 1536-39 under the auspices of Henry VIII at the same time as the Monarch made himself the titular head of the newly established Church of England (“the Reformation”) resulted in the Advowson, Glebe Land and entitlement to receive a Tithe held by the Great Religious Houses being appropriated by the State and sold. The Purchasers of such proprietary interests themselves became “ Lay Rectors” as defined on page 1 of this Guidance, and therefore liable to pay the Chancel Repair Liability. With the disappearance of the Rector where the position had been held by a Great Religious House, the Vicar who had been the deputy, became the Incumbent of the Parish in his own right (use of the masculine reflects the fact that the Ordination of Women, is a more recent development). The Vicar could look to the Lay Rectors to pay for the upkeep of the Chancel. The Lay Rectors were not just individual wealthy land owners but also some of the big University Colleges.    
  4. In many cases, the part of the Income Stream comprising the Tithe was in the 18th and 19th Centuries converted to Land under The Inclosure Acts. These were called “Awards of Land”, usually what had been Common Land.  Such Land owned by the Lay Rector itself still carried with it an obligation to pay Chancel Repair Liability, in the same way as the Tithe had been before.  In many cases the Lay Rector rented out the land and part of the Income Rental would be paid to the Vicar towards the Chancel Repair Liability when it was required.
  5. Those Tithes not converted to Land became Tithe Rent-charges from 1836, the Lay Rector becoming entitled to receive a Tithe Rent-charge from the owner of the land which had been the subject of the Tithe. In 1936 under The Tithe Act, the Tithe Rent-charge was abolished, the recipient being entitled to Government Stock, as a source of Income, in place. Part of this Income was to be paid to the Diocesan Authority where the Land the subject of the former Tithe Rent-charge was located.  Where a person owned both the Rectorial Land the subject of the Tithe Rent-charge and the Tithe Rent-Charge itself, the Act provided that though the rent-charge came to an end, the obligation to pay Chancel Repair Liability continued

The Wallbank Decision

The highly publicised decision of The Parochial Church Council of Aston Cantelow and Wilmscote and Billesley v Wallbank runs to 173 Paragraphs. A brief synopsis of the facts are this

  1. The Wallbanks owned the Freehold to Glebe Farm Aston Cantelow, which consisted of a farmhouse and 179 Acres of land. This included five fields amounting to 52 acres called Clanacre.
  2. The PCC alleged that Clanacre was and remained former Rectorial Land and that the owner was liable for the cost of repairs to the Chancel at St John The Baptist Church. In 1996 these costs were assessed at £95,260.00 and PCC launched proceedings for the recovery of this sum as a Civil Debt against the owners, having previously served Notice requiring payment under Section 2 of the Chancel Repairs Act 1932
  3. Under an Award made in 1743 for Aston Cantelow under the 1742 Inclosure Act the Common Land in the Village was awarded to Lord Brooke. This included Clanacre, which crucially (and perhaps untypical) was clearly defined in the Award. He was also the owner of tithes and Glebe Land in the village. These tithes were ended by the Award of Land
  4. Later Title Deeds to Glebe Farm made a clear reference to the Property being subject to  and “charged therewith to the repairs of the Chancel of Aston Church”. This included in the two Deeds (Deed of Gifts) vesting the land in the Wallbanks.
  5. The Wallbanks raised a Human Rights Defence arguing the imposition to pay, infringed the  European Convention on Human Rights which had been passed into English Law on 2nd October 2000, namely “an unlawful deprivation of their possessions”(Article 1 of the First Protocol)  by the PCC which was a Public Authority. It was also said that it breached Article 14 as the liability discriminated against certain land owners. The House of Lords rejected the view that a PCC is a Public Authority and therefore rejected the operation of the Defence.
  6. Chancel Repair Liability is incidental to the ownership of land arising from its history.
  7. The amount to be paid in Chancel Repair Liability is assessed as a sum as appears to the Court to represent the cost of putting the chancel “ in a proper state of repair”.

The Current State of Play

  1. It has become settled Law, that the owner of Rectorial Land (land which had been Glebe Land or Land where the Owner was entitled to a Tithe Rent-charge) remains liable to pay on demand a sum towards the maintenance, repair and insurance of the Chancel to the local Parish Church. The liability is not simply to keep the chancel of the church “wind and water tight” but can also cover the cost of major renovations and repairs”.
  2. Who is likely to be liable
  • Bodies who acquired Tithe Rent-Charges in the 19th Century- Examples include The Church Commissioners, The Dean and Chapter of Cathedrals, Colleges at Oxford, Cambridge, Durham
  • Land which was included in an Award under the Inclosure Acts in place of any existing tithe
  • Land which formed part of the Glebe to the Parish acquired by the Monasteries prior to dissolution of the Monasteries and was sold on Dissolution to Lay Rectors
  • Landowners who owned both the Tithe Rent-charge and the land which was subject to the tithe. The Tithe Act 1936 stated that where the tithe merged with the land, Chancel Repair Liability incidental to the land remained  and was determined by the Tithe Redemption Commission in a Record of Ascertainments   
  1. The Land Registration Act 2002 (Transitional Provisions) (No2) Order 2003 provides that where it can be proven that land is rectorial, the Church have 10 years from 13th October 2003 to protect their entitlement to Chancel Repair Liability as a Charge against such Land. The means of protection, (there is no Charge to the Church in so doing) are
  • Where the title deeds to the land is unregistered at the Land Registry ( a minority of title deeds still remain in this form) the registering of a Caution against the First Registration of the Land at the Land Registry or
  • Where the title deeds to the land have already been registered at the Land Registry ( the majority of titles have now been registered) registering the Charge at the Land Registry by way of Unilateral Notice

Anyone acquiring land before 13th October 2013, will buy subject to the risk that the  land  remains subject to Chancel Repair Liability, because the Liability comes within a class of proprietary interests called “An Overriding Interest”.  This will continue notwithstanding that a landowner owns the land beyond the 12th October 2013- the Church would have to pay a fee to register their claim from this date.

Anyone buying land after 12th October 2013 where there has not been a registration of a caution where the land is unregistered or a Charge where the land is registered, will acquire the land without any risk that it could be the subject of Chancel Repair Liability.

1. The Parochial Church Council are trustees and therefore owe a duty to protect the rights of the Incumbent of the Church to receive funds for the maintenance and improvement of the Chancel.  English Heritage which can provide funding for Church Repairs, have a Policy that funding will usually only be provided where the PCC has exhausted all their own means to raise funds itself.

2. Where land is found to be liable to Chancel Repair Liability, it is the present day land owner who is responsible for paying it as and when required by the PCC. This clearly “stigmatises” the Land and would in nearly all cases make the land un-marketable. Section 52 of the Ecclesiastical Measures Act 1923 does allow a landowner to apply to the Diocesan Authority in conjunction with the PCC to “consolidate” the liability. Consolidation means paying a sum to cover

  • The likely future costs of repairs
  • The capital necessarily when invested to provide Income to pay the Insurance
  • Capital to be applied to the improvement of the Chancel

3. Problems still exist in determining what the extent of the liability would be, especially as in most cases the original Rectorial Land has been sold off into many different parts. To what extent can the owners of each individual part be liable for the total cost of the Chancel Repair Liability?  There are two opposing views

  • The liability is limited to the value of the profits made by the Lay Rector from the Rectorial Land
  • It is unlimited because the Charge is “personal” to the Land  and that a Lay Rector’s obligation is not limited to the amount of their profit (in terms of Income) from the land .

Although the issue has not been decided conclusively (the House of Lords will need to consider this as and when the Issue comes before them) previous Judgements have provided that liability is personal and that the Lay Rector can be made liable for the total cost of the maintenance, repair, notwithstanding that the Lay Rector does not own all of the original Rectorial Land and notwithstanding that the cost exceeds “the value or fruits of the benefice”.

A crumb of comfort for modern day owners of former Rectorial Land is the following paragraph given by Lord Scott in the House of Lords decision of Aston Cantelow

“ Is it really the case that on every disposition of any part of former rectorial property no matter how small and no matter what may be the intention of the parties express or implied , regarding the assumption by the Transferee of chancel repair liability, the transferee becomes willy-nilly by dint of inflexible legal principle a lay impropriator {a Lay Rector} liable to chancel repairs? I doubt it.”

  1. The following further questions exist

a) Unlike in the Wallbank Case, how many of these old Awards will provide a description of the Land the subject of the award which is clearly identifiable for the 21st Century?

b) Unlike in the Wallbank Case, how many Title Deeds will contain such a clear reference that  Land is subject to a specific obligation to repair the chancel of a nearby Church?

c) How far would it be fair for a PCC to apply the Liability to just one or few owners of land which forms only a proportion of the original Rectorial Land the subject of Chancel Repair Liability?

d) Why are individual Diocesans taking different approaches to the enforcement of the issue? Perhaps it is because to many, there is a perception that damage could be caused to the Church’s Mission by imposing this liability on private individuals who for many their residence is their only investment- compare  the land owned in the Wallbank Case with the standard residential house.

ACTION BY YOU

Despite the historic nature of this liability which dates back to the maxim “ he who has the profits of the benefice, should bear the burden”, it is quite clear that those who no longer have an active involvement in enjoying the profits of the benefice , are still liable for the burden of paying Chancel Repair Liability because of the historic ownership of the land and what it has been used for. Where we have carried out a Chancel Search to establish whether the Property you are buying comes within a Parish with Land the subject of a Chancel Repair Liability and the search reveals that it does, there are two Options which you should consider

  1. Instructing us to  making a search  at the Public Records Office to establish whether there is in fact a liability- this is costly and time consuming
  2. Taking out a defective title indemnity policy to cover the risk that the property is liable for chancel repair liability and a bill is demanded. Such Policies are relatively cheap. The adequacy of such a Policy has not though yet been tested in a Court of Law
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