Chancel Repair Liability - Going, Going.. Not Gone!

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Chancel Repair Liability - Going, Going.. Not Gone!

Most buyers of residential or commercial property are unaware of a medieval financial liability that may still affect them as a property owner, which in modern times is referred to as 'chancel repair liability'. This liability dates back to the English Church's entitlement to receive tithes for the use of Church land, which was first granted by King Ethelwulf in 855. Tithes were an entitlement for the Church to claim a share of produce such as harvests, livestock, wool, wood, etc. and were used in part to maintain the chancel of the local church (the chancel being part of the church building).

So how does something that you would expect to have been consigned to the history books still have a part to play in modern day property law? Somewhat surprisingly it transpires that the liability for owners of property situated on former church land to pay for repairs to the chancel of the local parish church is still legally enforceable, unless the liability in that parish has been specifically abolished by statute or substituted for an annual payment. Not only that, but the liability has been deemed by the Courts to be 'joint and several', which means that the Church does not have to pursue payment from all persons who are liable but can pick and choose to claim the full payment from one or any number of liable property owners. The persons facing such a claim would be legally entitled to claim contributions from other liable property owners in the parish, although that could prove to be a long and difficult process in practice.

The issue of chancel repair liability became a hot topic following the case of Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank, 26 June 2003 (House of Lords). The case revolved around the owners of a farmhouse , Mr & Mrs Wallbank, who in 1994 were presented with a demand for a sum in excess of £95,000 by the Parochial Church Council for repairs to the chancel of their local parish church. The Wallbanks refused to pay and the matter went to Court. The High Court found that the Wallbanks were liable to pay the sum demanded but the couple then successfully appealed the case in the Court of Appeal on the grounds of infringement of the provisions of the Human Rights Act 1998. Unfortunately for the Wallbanks the case did not stop there, as the PCC were allowed to appeal to the House of Lords. The law lords ultimately found in favour of the PCC on the grounds that chancel repair liability does not contravene the relevant provisions of the Human Rights Act. Their reasoning was that the liability is not a tax and is a matter of private law rather than outside intervention by the state with rights of property ownership.

In 2013 it was suggested that the days of chancel liability were numbered when new law was introduced with the intention of making enforcement more difficult. On 13 October 2013 chancel repair liability lost its status as an 'overriding interest' under the Land Registration Act 2002, which meant that it is no longer automatically enforceable against property owners and their successors in title. However, this new status is only a half-way house because:

  1. The Church can still protect their right to enforce chancel repair liability by registering a notice at the Land Registry against affected properties. Once it is registered, the right is protected forever.
  2. The right to register a notice still subsists after 13 October 2013 but only against properties where there has been no change in ownership since that date.
  3. Even if a notice has not been registered at the Land Registry, the chancel repair liability still binds the owner of the property post 13 October 2013 until such time as the property is sold 'for value' to a new owner (when the liability then falls away). The term 'for value' means that transfers of property by way of gift, inheritance, divorce settlement, at undervalue, etc may not qualify for exemption.

Given the above provisions, it is apparent that post 13 October 2013 the number of properties potentially affected by a chancel repair liability unprotected by a Land Registry notice will gradually diminish as the years go by and properties change hands for value. It is estimated that on average only around 5% of the UK property market changes hands per year. Therefore, by any reckoning, without further statutory intervention, the issue of chancel repair liability will be with us for at least the next couple of decades.

So how do you establish if a property is potentially affected by chancel repair liability? Your solicitor can carry out a 'chancel check' search for you with companies that specialise in checking historical records to establish whether or not the property is situated within a parish which has a right of enforcement. If a potential liability exists then the usual advice is to obtain indemnity insurance from a reputable insurer, the cost of which is usually a one off premium of less than £100. That is arguably a small price to pay for peace of mind against an unexpected large bill for chancel repairs arriving through your letterbox!

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