UK: Chancel Repair Liability

Originally published in Property Law Journal, March, 2007

The latest stage in the saga of a couple’s fight against liability for repairs to the chancel of a church in Warwickshire has been much reported recently.

In 2003 the House of Lords ruled against them in that this liability did not contravene the European Convention on Human Rights. The cost of repairs stood at £95,000 then but now they have been told they have to put the chancel into "substantial repair without ornament", rather than simply wind and watertight, so the cost will be about £200,000. The liability arose because they are "lay rectors".

The ancient common law determines who can be a lay rector.

Before the Reformation, with very few exceptions, the chancel of the church (the part over the altar where the service is celebrated) was the legal responsibility of the local parish priest, or rector, while the parishioners were responsible for the remainder of the building.

To help fund the chancel repairs, the rector and his successors were endowed with land known as" rectoral glebe" and given the right to receive tithes. Tithes were a tenth part of the product of land or livestock paid as a kind of tax by the parishioners. Together, these endowments were known as the "rectory".

As time went on many such rectories were acquired by monasteries which took the tithes as part of their own income providing a priest to serve the parish known as the vicar.

At the Reformation the monasteries were dissolved and their rectories were seized by the Crown. The Crown then granted or sold the rectories to individual laymen or to other institutions. This meant that the rectoral glebe land and the right to take tithes, originally intended for the use of the rector, were then vested in a large number of "lay rectors". Those lay rectors who received tithes of the parish or glebe also acquired the rector’s liability to keep the chancel of the church in repair.

No one today is entitled to receive or liable to pay tithes. The Tithe Act of 1836 replaced tithes with annual tithe rentcharges which were themselves extinguished by the Tithe Act 1936. This created tithe redemption annuities which were extinguished in 1977.

Chancel repair liability benefits more than half the pre Reformation churches of the Church of England and the Church in Wales – some 5200 in all, covering 3.7 million acres. Therefore the larger area of land concerned the greater the risk of chancel repair liability. It is a common misconception that it is more likely to exist if the property is close to a church, even a modern church, or appears to have been owned by the Church.

Sometimes liability for chancel repair is clearly evident from title deeds. However liability can attach to land even though there is no evidence of it in the title documentation. After 12th October 2013, if no entry relating to liability for chancel repair has been made in the title of a property, a purchaser will not be subject to it. This will not prevent anyone owning the land before 12th October 2013 continuing to be potentially liable for chancel repairs after that date, even if no entry has been made. So it will remain of concern to some people for some time. Church authorities are being encouraged (and indeed have a duty) to investigate if any properties could be liable for chancel repair and to apply for entries to be made in the relevant titles.

It seems that the owner of only part of the affected land can be liable for the whole cost of repairs – although he can probably recover a contribution from others who own other parts.

This means that registration against one "lay rector" will enable the whole cost of chancel repairs to be recovered.

A Law Commission Report in 1985 identified 5 classes of person who may be held liable:

The main reason for land becoming subject to chancel repair liability was the operation Enclosure Awards made during the 18th and 19th centuries. Enclosure Acts during this time provided for Commissioners to be appointed to award open land to landowners and other inhabitants so that it could be enclosed. If a lay rector was entitled to tithes from land to be enclosed, he often agreed to give up the right to tithes in exchange for one or more allotments of the land concerned. The land allotted to him in exchange for tithes therefore became the property of a lay rector and subject to liability for chancel repair. In this way tithes were extinguished but the area of land subject to liability for chancel repair was increased. In order to ascertain if land was affected by this process it is essential to see the Enclosure Award which will often be held locally.

The National Archives at Kew have two books, (W.E Tate’s Domesday of English Enclosure Acts and Awards (1978) and J Chapman’s Guide to Parliamentary Enclosure in Wales) (1992) which provide a guide to the present location and date of English and Welsh enclosure awards and maps. There is also an online catalogue of enclosure maps available from http://hds.essex.ac.uk/em/index.html .

Chancel repair liability continued to attach to land owned by lay rectors whose entitlement to tithe had not been extinguished during the enclosure process. The 1936 Tithe Act set up the Tithe Redemption Commission which compiled a document called the Record of Ascertainments. This recorded the proportionate liability for chancel repairs which was to be borne by the people whose tithe rentcharges were being extinguished. The National Archives at Kew have 108 volumes of Records of Ascertainments.

Owners of glebe land which fell into lay hands on dissolution of the monasteries.

The Law Commission said that the chances of a piece of land being identified as within this class are fairly remote unless it is still in the hands of the original lay rector (such as an Oxford College) and the details of the acquisition are known.

Persons and bodies entitled to "corn rents" in lieu of tithe which were allotted to them under an Enclosure Award instead of land.

And

Persons who owned certain rentcharges immediately before the extinction of such charges by the Tithe Act 1936.

This category includes The Church Commissioners, ecclesiastical corporations, such the Deans and Chapters of Cathedrals, Oxford, Cambridge and Durham Universities, Winchester College and Eton College.

These last two categories do not have land against which liability can be registered at the Land Registry so should not be of concern to conveyancers.

There does not exist anywhere a comprehensive register of chancel liability to search. There are two main suppliers of conveyancing searches neither of which can provide a conclusive result.

One type of search is based on information contained in Study No. 4348 "Historic Parishes of England and Wales an Electronic Map of Boundaries before 1850 by Professor Roger Kain and Dr Richard R Oliver University of Exeter " This source is available to buy on CD Rom via a website http://hds.essex.ac.uk and identifies the ecclesiastical (not civil) parish in which the property was situated at the time of the commutation of the tithes under the Tithe Act 1836 and the tithe maps applicable to it. Although the result states whether or not the land concerned is in a parish where there is a potential charge for chancel repair the information upon which it is based seems insufficient to establish whether there is a significant risk.

The other search result is derived from an academic study of historical parish boundaries, the Records of Ascertainment at the National Archive at Kew and third party data relating to Cathedrals educational establishments and the Church Commissioners. A positive result states whether the property lies within a parish which has continuing liability for chancel repair but does not say whether or not liability attaches to it. Although this search is relevant in assessing the risk a negative result will not cover the possibility that the land may have been allotted to a lay rector in lieu of tithe under the Enclosure Acts.

It is possible to carry out personal searches of the various historical records which should ultimately establish whether or not any particular property is affected. However, such investigation is bound to be time consuming and expensive.

This is an unsatisfactory situation for property owners and the Law Society is campaigning for the abolition of chancel repair liability. The Church of course has a different perspective. Insurance is often recommended and policies are on offer from most of the general title indemnity insurers. Conditions imposed often are that no approaches must have been by those involved with the church, no contact is made with anyone connected with the church to discuss the matter and the existence of the policy is not disclosed. Loose talk about this subject in the local pub therefore could invalidate the insurance.

Howard Kennedy is a London-based law firm with 76 partners. The firm offers national and international clients a broad range of legal services including aviation, banking, company and commercial, employment, licensing, litigation, media and entertainment, private client, project and trade finance, property, property finance and tax. The firm combines the benefits of size and expertise with a high degree of personal care and attention.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.