One of the law reforms I would like to see is finally to lift the burden of chancel repairs from the shoulders of home owners.
The recommendations of the Law Commission in its 1985 report
should now be implemented.
This could include relieving the Church Commissioners of their existing liabilities to parishes for chancel repairs, and those of Oxford and Cambridge colleges, and Winchester and Eton Schools, based on their receipt in 1936 of the compensation stock from the Government, on the extinguishment of tithe rentcharges by the Tithe Act 1936. I understand the compensation stock was not sufficient to cover the cost of all future chancel repairs. The Church Commissioners would be able to arrange to make grants for church repairs on a more rational basis than historical accident.
The extent of the Church Commissioners’ liabilities (and by extrapolation, the size of the whole problem) can be judged from the Church 2010 AGM Pastoral Committee report which can be found on http://www.churchofengland.org.
It is was not enough that the Government made chancel repair liability an “overriding interest” only until 12 October 2013. The generally accepted wisdom is that it only affects existing property owners who bought before 13 October 2013, and those who buy when notices of the liability have been registered at the Land Registry. The Land Registration Act 2002 and the Chancel Repairs Act 1932 need be amended to state that owners whose registered title has priority over the chancel repair liability, will have a defence to any claim. But the Government has not expressed any willingness even to consider making any such change, or any change at all, to this legislation. Chancel repair liability does not, to my mind, fall within the meaning of the undefined expression “any other interest or charge which subsists for the benefit of, or is a charge on, an interest the title to which is registered” which is used in section 2 of the Land Registration Act 2002 to define the scope of land registration. This means registration is unnecessary and pointless.
The Land Registry should stop registering notices of chancel repair liability, and should cancel all the notices.
The Land Registry has said it has assumed chancel repair liability is an interest in land, because it was made an overriding interest in the 1925 Land Registration Act , and also for 10 years after the 2002 LR Act came in. But it no longer is an overriding or any kind of interest in the land of the lay rector. It could have been said in 1925 that under the Law of Property Act 1925 section 1(2) tithe rentcharge was mentioned as one of the “interests or charges in or over land which are capable of subsisting or of being conveyed or created at law”. Chancel repair liability was a charge on the tithe rentcharge which the lay rector received. As the tithe rentcharges gave the lay rector a special interest in the land out of which they were payable, and the chancel repair liability was a charge on that interest, so the PCC had a charge on an interest in land.
This changed with the Tithe Act 1936 as the words “tithe rentcharge” in section 1(2) of the Law of Property Act 1925 were repealed by the 1936 Act.
A similar argument can be used in a case where the liability is based on the land having been allotted in lieu of tithe under an Enclosure Award. Since the tithe does not exist as a recognised interest in land – it has not simply merged in the land; due to legislative changes it is no longer recognised as an interest in land – so the concomitant chancel repair liability (if it still exists at all) cannot be a charge on the tithe merged in the land. No judge has ever weighed this argument and accepted to rejected it. The argument has not been attempted, so judges have assumed that the old common law of chancel repair liability has not been fundamentally affected by the various legislative changes over the past two centuries. It is up to those representing lay rectors in the courts and tribunals to move the law forward into the 21st century, as Parliament is unlikely to do so.
The Government refused to do anything about it when the Law Society made it clear in its Submission submission_ChancelRepairLiability 6 years ago that Solicitors generally felt the liability was an anachronism that caused unnecessary expense in conveyancing and no longer served any practical purpose.
We now know that, in some parishes, the church authorities have been looking for properties to register the liability against. A case in point is Broadway in Worcestershire, where the PCC has actually applied to register chancel repair liability notices against the titles of 30 people, who are alleged to own land which was allotted to the Earl of Coventry as lay rector under an enclosure award of 1771. They are all entitled to object and will be advised by their solicitors how to do so. The Bishop of Worcester and the PCC argue that all this is having a damaging effect on the mission of the Church, but they seem to have been intimidated by someone into thinking they have to register unless the Charity Commission agrees otherwise. This is really no business of the Charity Commission. The Charity Commission supported the decision of the PCC of Broadway not to pursue its applications.
Mark Hill the well known ecclesiastical lawyer has argued in Church Autonomy in the United Kingdom by Mark Hill that the Church of England should have autonomy. However, privileges come with duties and one is surely to observe the human rights of parishioners.
Andreas Whittam Smith, the Church Commissioner, has stated publicly that the Church should be more hard-nosed in managing its investments, so abandoning the ethical investment principles which were defended by Lord Harries when he was the Bishop of Oxford. Harries v The Church Commissioners for England (1993)
There has been no recent debate in the General Synod.
The General Synod of the Church of England debated this in 1982 and accepted the report of its standing committee, calling on the Government to phase out the liability over 20 years. This would have meant that property owners would not longer be liable for chancel repairs. Most of the liability passed to the parochial church councils in 1936, as the Government paid compensation to the Churches when it ended tithe rent-charge, under the Tithe Act 1936.
The remaining liability is an anomaly and an unnecessary complication to the conveyancing process for home buyers.
The standing committee report General Synod Standing Committee – Chancel Repair Liability – Report GS 515 is clear about the reasons why the Synod wanted Parliament to abolish the liability.
The debate on the report in the General Synod also makes interesting reading -Transcript of Proceedings of General Synod 18.2.1982.
It is the parish churches, rather than the Synod or Church Commissioners, that in theory might gain from the liability, but in practice hardly anyone in the parishes wants to know.
I have submitted a paper on this to the Ministry of Justice and the Law Commission. You can read an abridged version of it hereCHANCEL REPAIR LIABILITY LAW COMMISSION SUBMISSION 18.03.2011
Repeal of the Chancel Repairs Act 1932 would simplify conveyancing, and make the law fairer to everybody, including the churches.
Chancel repair liability is a complicated subject, as you can see from some of the case reports I have looked at:
Bishop of Ely v Gibbons
Walwyn v Awberry
Wise v Metcalf
Representative Body of the Church in Wales Case
Chivers v Air Ministry
Duke of Rutland v Bagshaw
PCC of Aston Cantlow v Wallbank:
Aston Cantlow PCC v Wallbank  Court of Appeal EWCA Civ 713
How our forebears tied themselves in knots over this ludicrous law!
The Law Commission has decided not to include chancel repair liability in its 11th review programme last year. The Law Commission will only consider proposals for law reform if government ministers are at least willing to look at implementing its recommendations. The Law Commission’s 12th review programme may include a review of the Land Registration Act 2002, which the Land Registry has asked for. This will give the Law Commission an opportunity to include in its proposals for a new Bill a clause making it clear whether chancel repair liability is within the scope of land registration. If it is made clear that it is, owners whose titles are free of any notice referring to chancel repair liability will be able to be sure that it does not affect them.
The Legal Advisory Commission of the Church of England has given advice to PCCsLegal Advisory Commission advice on chancelrepairliability that members of PCCs could become personally liable (presumably to the PCC itself) if they decide not to enforce the liability. But the PCC is independent of the Church of England’s central institutions and neither they or the Charity Commission can in reality interfere with a genuine decision of the incumbent and PCC made on the basis of Christian charity and good neighbourliness.
The Legal Advisory Commission itself recognised the serious pastoral difficulties which could result from a divisive legal case in which the Church took certain individual parishioners to court, who had no particular moral obligation to the Church.
A Westminster Hall Debate on Chancel Repair Liability 17.10.2012 debate on this subject took place on 17 October 2012 in Westminster Hall – the informal debating chamber of Parliament.
Any letters from campaigners on this subject should be addressed to Lord Edward Faulks QC, Ministry of Justice, 102 Petty France London SW1H 9AJ, or your MP. In the debate Helen Grant (the Under-Secetary of State who took over from Jonathan Djanogly) helpfully promised to keep this matter under review. I hope that Lord Edward Faulks QC (who is responsible for Civil Law under the Lord Chancellor and Secretary of State for Justice Christopher Grayling) will be prepared to introduce legislation.
If the Government is not prepared to abolish chancel repair liability outright, for fear of infringing the human rights of the church, it is possible for it to be reformed so that it is fairer. Last year I sent some notes and a draft a Bill or Measure to Helen Grant, which could be passed either by Parliament or the General Synod and these are my notes and draft Bill or Measure. The Case for Reform 2013
19 March 2014
A further update: there seems to be a good deal going on and the various local campaigns to persuade church PCCs not to enforce Chancel Repair Liability locally are bearing fruit. For example in Braughing, Hertfordshire, as the Mercury reported
If you receive a letter from the Land Registry saying that the a Church PCC has applied to register a notice of chancel repair liability against your title, it is advisable for you to consult a solicitor or barrister immediately. There are in general objections that can be made to these applications. Nothing in my blog is to be contrued as legal advice.
21 March 2014
I have given some further consideration to the argument about whether Chancel Repair Liability could, or should, be abolished without the Government paying any compensation to churches affected. I believe it is quite true that this would be contrary to the human rights of the Church and that the Church could apply to the European Court of Human Rights for compensation, but only if the legislation had retrospective effect, to halt any court proceedings which were already pending before a court, following service of court proceedings, after a notice of claim under the Chancel Repairs Act 1932 had been served on a lay rector and not complied with. The jurisprudence of the European Court of Human Rights shows that the right to make claims for money in the future is not a right protected by Article 1 of the 1st Protocol.
In Lindheim v Norway (2009) the ECtHR held that Norway was liable to pay compensation to landlords who had been deprived of their possessions by a law giving leaseholders the right to an indefinite lease at a very low rent.
The Government would have to reach agreement with the Church through the Church Commissioners on some compensation. The Government already gives substantial support to Churches and places of worship of all religions which care for listed buildings, through the Listed Places of Worship Grant Scheme. Clearly the Government will not be prepared to pay any compensation, but perhaps once the Land Registry is privatized, it will have a more commercial approach and find a way of relieving itself of the administrative burden of chancel repair liability. In the meantime, its actions in continuing to register notices of chancel repair liability, regardless of whether a purchaser for value has priority under section 29 of the Land Registration Act 2002, will be challenged in the 1st Tier Tribunal or by Judicial Review.
16 May 2014
There has been more in the Law Society Gazette about chancel repair liability and the registrability or otherwise of CRL. No one has disagreed with my comment on the article suggesting that CRL should not be registered and that registration or non-registration are of no legal consequence.
I have also looked again at the UPPER DENTON AND NETHER DENTON ENCLOSURE AWARD FINISHED of Upper and Nether Denton in Cumbria (1800), where the Earl of Carlisle was the lay rector, and the Rector of Nether Denton was The Reverend Thomas Ramshay. I typed this out from a copy of the original supplied by the Cumbria Archives. It gives a clue to how Enclosure Awards were written and gave rise to Chancel Repair Liability. I have learnt from the very interesting UK Human Rights Blog on Bad and Very Bad Judges that there was a Judge Ramshay in 1850 whose father and grandfather had been land agents to the Earl of Carlisle. I wonder if the Rector was also a land agent or perhaps it was a brother of his.
16 July 2014 BREAKING NEWS FROM PARLIAMENT!
A Bill to make provision for ending the liability of lay rectors for the repair of chancels.