Abolition of Chancel Repair Liability – News January 2015

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

Smallbones v Edney and Lunn 1870_60 JCPC

HauxtonPCCvStephens

Wickhambrook[1]

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:

http://www.bailii.org/uk/cases/UKHL/2003/37.html

Aston Cantlow PCC v Wallbank [2001] 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!

Chancel Repairs Bill [HL]

First Reading

3.54 pm

A Bill to make provision for ending the liability of lay rectors for the repair of chancels.

The Bill was introduced by Lord Avebury, read a first time and ordered to be printed.

Explanatory notes

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0038/en/15038en.htm

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0038/15038.pdf

Grand Committee Debate

On 15 January 2015 the Grand Committee of the House of Lords debated a question from Lord Avebury:

To ask Her Majesty’s Government what steps they are taking to abolish the liability of private householders and others for chancel repairs”.

The Bishop of Derby took part in the debate.

The February 2015 Synod Agenda

At the meeting in February Synod will debate gs1980 the Report of the Simplification Task Group.

The terms of reference of the Task Group were:

“To consider concerns raised about the constraints caused to the mission and growth of the Church of England by existing canons, legislation, regulations and procedures and to bring forward options and proposals for simplification and deregulation, and to report back to Archbishops’ Council and the Board of Governors of the Church Commissioners by November 2014”

The Simplification Task Group called for evidence of ‘constraints caused to the mission and growth of the Church’ by the legislation affecting the Church, and given the incomprehension and ill-will generated by the outdated law of Chancel Repair Liability, it is surely an obstacle to mission that needs to be dealt with.

 There is no mention of Chancel Repair Liability in that paper, or anywhere on the Synod Agenda: it is a subject which has hardly been debated in Synod since 1982 when the Synod accepted a report recommending phasing out of the liability.

Past Synod Debates

In July 2011 there was the following question and answer:

Mr Robin Lunn (Worcester) asked the Presidents of the Archbishops’ Council:

In view of the resolution of the General Synod in 1982 supporting the phasing-out of chancel repair liability and its eventual extinguishment, which has still not been reflected in changes to the law, what steps does the Church intend to take to encourage an Act of Parliament to tidy this matter up once and for all?

 Mr Andrew Britton: In February 1982, the Synod was informed that chancel repair liability operated in a way that was arbitrary and inequitable and that the Law Commission intended to recommend legislation. The Law Commission reported in November 1985, recommending that certain types of chancel repair liability should be abolished in 10 years. Parliament did not implement the recommendations. However, in 2003 the Government legislated so that chancel repair liability would cease to apply to land purchased after 12 October 2013 unless the liability was expressly recorded on the registered title of the property. That will mean that, in a little over two years’ time, anyone purchasing property will know definitively whether it is affected by chancel repair liability. Concerns that the liability might operate in an arbitrary and inequitable way have therefore been addressed, albeit in a different way from that envisaged by the Synod nearly 30 years ago.

 Important Note:

It is a common misconception that the Government “legislated so that chancel repair liability would cease to apply..”. No amendment has been made to the Chancel Repairs Act 1932 to relieve from liability those who purchase the property which is subject to unregistered CRL after 12 October 2013. CRL is not mentioned in the Land Registration Act 2002 as it now stands. It is not within the definition of an ‘interest in land’ but it exists, irrespective of whether it is an interest in land or not. The Land Registration Act 1925 in identifying CRL as an overriding interest was stating a fact, that CRL is not required to be set out in title deeds (a deed of covenant by each lay rector being unnecessary) so the repeal of that Act, and its replacement by an Act which now makes no mention of CRL, has had no effect in law.    

 PCCs and Deanery Synods Act

 Many PCCs have decided not to register or enforce CRL, and those that have decided to register, have mostly decided not to enforce it anyway, or only to enforce it against large estate owners or farmers rather than ordinary residents. As reported in the Church Times on 8 March 2013 the PCC of Saffron Walden has agreed to waive any liability:

PCC waives liability tax

THE PCC of St Mary’s, Saffron Walden, in Essex, has decided not to register chancel-repair liability (CRL) against households in the parish, writes Ed Thornton. It was thought that collecting the tax ran “contrary to Sharing God’s love”. The Saffron Walden Reporter reported last week that the PCC’s decision had been accepted by the Charity Commission. The Government has passed legislation that requires PCCs to register liability, where it exists, with the Land Registry, by October this year (News, 12 October). St Mary’s has no plans to make repairs to its chancel roof before that date. The Rector of St Mary’s, the Revd David Tomlinson,said: “Looking to this outdated law to finance some remedial work on the church building would run contrary to our aim to share God’s love and to serve the people of Saffron Walden. “Hence, I am delighted that we have been able to clarify this matter, and to let all the residents of Saffron Walden know that there is no need to take out insurance against this historic liability. “St Mary’s is a magnificent parish church, there for everyone, and

I am sure that the parochial church council, along with all those who love and value it, will be determined to maintain it in good condition for successive generations.”

The Hereford Deanery Synod passed a motion on 21 May 2013:

Chancel Repair Liability:

 The following motion was proposed by Christopher Whitmey and seconded by Reverend Rob North and passed unanimously:

“This Synod invites the Diocesan Synod to debate the following motion, ‘As no meaningful progress has been made since 1982 when General Synod agreed to phase out chancel repair liability, this Synod asks that a Measure, equivalent in effect to The Compulsory Church Rate Abolition Act 1868, be introduced forthwith to enact that Chancel Repair Liability is a voluntary matter and not compulsory’, and if passed to forward it to General Synod.”

 Is Lord Avebury’s Bill not a welcome as a long overdue modernisation and simplication of the law?

The Bill should be welcomed as it will relieve the Church Commissioners, and Deans and Chapters of Cathedrals of liabilities. The Church Commissioners and the Cathedrals will still be free to make grants to churches out of the money they save. However if the Synod wishes to retain the liabilities of the Church Commissioners and ecclesiastical and educational bodies under the proviso to section 31(2) of the Tithe Act 1936, Lord Avebury is willing to amend his Bill to make an exception for those liabilities. He recognises that there is no strong argument for the abolition of non-land-based CRL. If the Church Commissioners, Deans and Chapters and other ecclesiastical and educational bodies wish CRL to be abolished, they should, perhaps, pay compensation to the PCCs affected, as the received compensation stock from the Government for the extinguishment of their title rentcharges under the Tithe Act 1936.

The remaining liability is on those generally small fragmented parcels of titheable land (only a small proportion of the original titheable land) which belonged to lay rectors, so that the tithe rentcharges merged in the land; much of this is no longer in agricultural use, having been sold for housing or commercial development, so the tithes would have ceased to be payable, if they had not been converted to tithe rentcharges under the Tithe Acts (which are not related to the value of the cereal produce of the former farmland).

There is also land allotted to a lay rector under an Enclosure Award in lieu of tithes of the common fields. Who ever paid tithes of the common fields? They were vested in the lord of the manor, who was usually the lay rector, and he would not pay tithes to himself. The existence of these tithes was theoretical. The land allotted may have remained in use as common land and the tithes may not have been paid, so this ‘paper only’ allotment of land in lieu of tithes would have had no legal effect, and it is uncertain whether the allotment of land in lieu of tithe always resulted in additional CRL being imposed on the owner of the land. He would still have received tithes – as not all the tithes ceased, as only some of the common land, not all the land in the parish, was covered by the Enclosure Award. The lay rector would have continued to receive tithes from previously enclosed tithed land. CRL in theory payable on the former common land may never have been collected and so have lapsed and would be treated in law as abandoned, or would never have existed.

The Secretary General has said that CRL is not an ecclesiastical matter but a matter of the common law of England, which is for Parliament rather than the General Synod to legislate on.

The Lord Bishop of Derby nevertheless intervened in the debate, and intimated that PCCs could seek compensation from the Government for the abolition of CRL, as abolition without compensation would (he said) infringe their human rights under Article 1 of Protocol 1 of the European Convention on Human Rights. This however does not apply to the future income which may be claimed under legislation if it is not repealed in the meantime, when there is no legitimate expectation that the law will not be changed.

For example, if Parliament legislates to reduce the amount of child support maintenance that can be claimed by a parent with care from an absent parent, the parent with care cannot take the Government to the European Court of Human Rights. Similarly the Government may reduce welfare benefits. What Parliament gives, Parliament can take away.

Under the doctrine of the supremacy of Parliament, there is no enforceable right to future income which may be payable under legislation, if it is not changed. Such legislative change is within the ‘margin of appreciation’ enjoyed by national legislatures, recognised under European Human Rights law.

He said: “..in my own diocese in Derby, one of the former Dukes of Devonshire had quite a lot of liability in a number of parishes of which he was a patron. Years ago he commuted this responsibility in return for a financial payment, and he now has no liability at all”.

 It is a good thing, of course, that members of the aristocracy are wealthy enough to be able to afford to contribute to church repairs, and that they are able to provide large lump sums to commute the liability. But most of those who are in theory liable have not the means to make such payments: they receive no tithes.

The Ecclesiastical Dilapidations Measure 1923 does not provide a fair system of apportionment and compounding. There is limited apportionment under the Tithe Act 1936 and no apportionment under Enclosure Awards. Since then the Synod has on several occasions amended the law relating to CRL so it cannot be said that it has no legislative competence.

The Bishop seems not to accept the competence of Parliament in this matter, as he has intimated that PCCs may make a complaint to the European Court of Human Rights and claim compensation if Parliament legislates to abolish CRL. PCCs are independent charities and that they have a heavy burden of responsibility in maintaining their churches, with little Government funding, and that the Archbishops’ Council could not prevent

PCCs from making a complaint to the European Court of Human Rights if they were so minded, but it would be a misuse of charitable funds and they would have a difficult task to show that the legislation is not within the ‘margin of appreciation’ enjoyed by national parliaments. The right to property which is protected by the ECHR does not include the possible right to future income, and the 1982 decision of Synod means that there is no reasonable expectation that CRL will not be abolished.

It would not be reasonable given the considerable support which the UK Government already provides to churches, not least the Listed Places of Worship Grants Scheme, under which the VAT on church repairs is remitted, the VAT on nave and tower repairs as well as chancel repairs. If the chancel is 20% of

the church building the Government is in effect already paying for all chancel repairs. There is also the current grant of £15m for church roofs announced by the Chancellor in his October statement.

There should be a fair system of apportionment and compounding and it must be recognised that the Ecclesiastical Dilapidations Measure 1923 does not provide this. Apportionment under the Tithe Act 1936 is only down to the tithe field level, and there may be introduced an amendment to the 1923 Measure to provide a fair system of compounding and apportionment. There is no statutory provision for Enclosure Award liability to continue under the Tithe Act 1936 and doubts therefore exist on whether that form of liability has not already been legislated out of existence, although the argument was not made in the Aston Cantlow case due to concentration on the human rights issue.

The ending of the overriding status of CRL under the Land Registration Act 2002 seems to have made no difference – insurance is still necessary and it provides no cover against the blight of CRL notices, which can be registered unilaterally, without evidence as the law stands. Many have been registered incorrectly. The Chancel Repairs Act 1932 does not give a lay rector a defence to claims based on the lack of any registration at the Land Registry. It is very strange that many solicitors do not seem to understand this simple but important point.

Is it not time for a debate in the Archbishop’s Council and also in the Synod on this?

Compensation

 The Lord Bishop of Derby expressed the view that there must be some kind of compensation for the abolition of CRL, as some people (such as the Duke of Devonshire) had commuted their liability and paid compensation, and he said: “It is a well known constitutional principle that Parliament does not deprive a subject of a right in the nature of property without providing compensation… It would be fair to give parishes notice and some kind of recompense for having to take on an even greater burden of the maintenance of buildings. It is just a question of how it is done… We are fully behind this… There is a very strong case that there needs to be some element of compensation to be fair to all concerned”.

How was the compensation calculated when under the Tithe Act 1936, tithe rentcharges were extinguished, and related chancel repair liability transferred to PCCs? Cannot the same system be used today?

The tithe rentcharges which were not extinguished were those which were payable by lay rectors to themselves – that is those that were merged in the lay rector’s own land. The Records of Ascertainment the Seventh Schedule of the 1936 Act refers to these rentcharges as follows:

“…the [Tithe Redemption] Commission shall ascertain the amount of those rentcharges which:

(c) was so vested between the twenty-sixth day of February, nineteen hundred and thirty-six, and the appointed day as to render the provisions of section twenty-one of this Act applicable thereto; [Provisions as to tithe rentcharge vested in owner of land charged].

(d) was merged or extinguished under the Tithe Acts in land to which the provisions of section one of the Tithe Act, 1839, apply;   [“where any tithes or rent-charge shall have been or shall hereafter be released, assigned, or otherwise conveyed or disposed of under the provisions of the said Acts, or any of them, or of this Act, for merging or extinguishing the same”]

and shall ascertain, as respects each of those rentcharges, the proportion (in this Part referred to in relation to that rentcharge as “the appropriate proportion”) which the amount thereof bears to the apportionable amount of rentcharge liability.”

So each parish with CRL arising from merged tithe rentcharges has a Record of Ascertainment held in the National Archives, which states the amount of any tithe rentcharge merged in the land of the lay rector under paragraph (c) or (d) above, and the total amount of the apportionable rentcharge liability.

It might be thought somewhat illogical and unfair that those lay rectors who owned land out of which tithe rentcharges were payable, were not compensated for the extinguishment of their tithe rentcharges; though they were not required to pay tithe redemption annuities, they were left with CRL, indefinitely, while others who had been receiving tithe rentcharges payable out of land not owned by them, were both compensated for the loss of the profit element of those tithe rentcharges, and relieved of CRL immediately.

Those who had been receiving tithe rentcharges from other property owners received compensation stock for the extinguishment of their tithe rentcharges (after the deduction of “the sum required for repairs” – such an amount “as may be reasonably sufficient, having regard to the condition of the chancel or building at the appointed day, to provide for the cost of future repairs thereof and to provide a capital sum the income of which will be sufficient to insure it for a sum adequate to reinstate it in the event of it being destroyed by fire”. They were not required to pay tithe redemption annuities – it was the tithe-rentcharge payers who paid tithe redemption annuities instead of tithe rentcharges, until 1977.

To rectify this unfairness the owners of land in which tithe rentcharges merged (that is those who are now lay rectors with land based CRL under the Tithe Act 1936) should notionally be credited with the capital sum which they should have received as compensation stock, and debited with the tithe redemption annuities which they would have had to pay (based on the amount of the tithe rentcharges merged in their land), if they had not been treated differently. The amount of any excess should be paid to the Diocesan Authority, in return for the release of the lay rector from CRL. That is, the excess amount, by which the value of the compensation stock exceeded the net present value on the appointed day (2nd October 1936) of the tithe redemption annuities which would have been payable in place of those tithe rentcharges, until 2nd October 1977 including the double payment on 1st October 1977 provided for in section 56 of the Finance Act 1977, which reads as follows:

“Section 56 Annuities under Tithe Acts 1936 and 1951.

 The amount payable on 1st October 1977 on account of any annuity under the Tithe Acts 1936 and 1951 shall be double what it would be apart from this section; and as from 2nd October 1977 all annuities then charged under those Acts shall be extinguished”.

Any lay rector who has paid chancel repair costs to the Church since 2nd October 1936 (or his heirs and assigns) should have the present value of those payments refunded to him, out of any such excess, before the balance is paid to the Diocesan Authority. The Diocesan Authority should not receive both compensation for the loss of chancel repair rights and payments in respect of chancel repair costs for the same period.

However, since the calculations would be complex and time consuming to carry out, it may be questioned whether it would be useful to do so. The Chancellor of the Exchequer (Denis Healy) stated in 1977 that the tithe redemption annuities received, together with the interest earned on them, were more than sufficient to cover the cost which had been incurred by the Government in 1936 in issuing the compensation stock in 1936 for the extinguishment of the tithe rentcharges. They cancel each other out. Therefore it would have been fair to relieve from liability those remaining lay rectors (who had not received compensation stock and had continued to be exposed to the risk CRL) with effect from 2nd October 1977, the date on which Denis Healy should have done so.

If anyone can do these calculations I would be very interested to hear. To inform the debate, it would be useful to have information such as:

  1. What was the total amount of the compensation stock paid out by the Government to tithe rentcharge owners under the 1936 Act?
  2. What proportion of this was paid to tithe rentcharge owners?
  3. What proportion was paid to Diocesan Authorities in respect of chancel repair and insurance costs?
  4. What proportion was paid to ecclesiastical and educational bodies under the proviso to section 31(2) of the 1936 Act?
  5. What is the present value of the original compensation stock – if it has been redeemed, what would it have now been worth if it had been reinvested in similar Government stock?
  6. How much has been paid each year since 1st October 1936 by lay rectors in respect of land-based chancel repair liabilities?
  7. How much has been paid each year since 1st October 1936 by ecclesiastical and educational bodies for chancel repairs in discharge of their CRL liabilities?
  8. How much has been paid by Governmental bodies for chancel repairs each year?
  9. How much has been paid each year by PCCs for chancel repairs which was not claimed from lay rectors who were in theory liable?

 If this information were available I believe it would show that Diocesan Authorities and PCCs have voluntarily relieved most lay rectors of their liability, and they have received very little from lay rectors for land-based CRL, and they and the Diocesan Authorities have been well compensated for the loss of tithe rentcharges under the 1936 Act and that the amounts they received then for chancel repairs if prudently invested would have more than covered the costs they have incurred in carrying out chancel repairs which were originally the responsibility of lay rectors whom they have not voluntarily relieved.

9 February 2015

I have tried to work out a formula for compounding

If compensation has to be paid I would suggest it is calculated as follows:

It is to be assumed (in the absence of better evidence) that half of the tithe rentcharge would have been required for chancel repairs and the other half would have been retained by the tithe rentcharge owner. Where he was also the payer of the tithe rentcharge, he simply retained that half. The other half, his own money, he used to pay for the chancel repairs. Other tithe rentcharge payers had to pay tithe redemption annuities for 40 years until 1 October 1977. Therefore he should be charged 40 years purchase – a capital sum representing the present value of a payment of half the tithe rentcharge for 40 years at say 5% interest.

This is calculated as follows:

PV = present value

A = half the amount of the tithe rentcharge merged in the land of the lay rector (adjusted for inflation)

r = 0.05

R = 1.05

n = 40

Formula:

PV = A ((R^n) – 1)

(R^n) x r

The present value of £1 per annum for 40 years with interest at 5% is £17.16. So a lay rector whose merged rentcharge was worth £2 in today’s money, would pay £17.16. The value of £2 in 1936 is approximately 1/60th of its present value. So this would apply to a rentcharge in 1936 of 3.33p, or 8d.

It would be useful to check Records of Ascertainment where acreages are given and the related tithe rentcharges to get an idea of the average rate of tithe rentcharge per acre. This could then be used to produce a formula for general use. As cereal production became mechanised it is clear that the relative value of cereal reduced – in the 19th century it was relatively far more expensive than it is today or was in 1936.

Now of course in some cases the lay rector’s individual property may only be part of the tithe field identified on the tithe apportionment map, out of which an apportioned tithe rentcharge was payable, so he could at the same time relieve all the lay rectors owning part of that tithe field, or request further apportionment. A substantial landowner with a large liability might well wish to do so.

Where tithes ceased to be payable under an Enclosure Award, as land was allotted to a lay rector in lieu of them, if it could be proved that the tithes were paid before the Enclosure Award and that afterwards the land was enclosed by the lay rector and used for agriculture, and did not remain common land, it would be fair to assume that the amount of the rentcharge which would have been payable if the tithe had not been extinguished would have been charged at a similar rate per acre. However it would not be fair for Parliament to legislate further, as the liability of the owners of such land is highly debatable, and has never been debated in Court, and it would infringe their human rights for Parliament to impose an arbitrary new tithe rentcharge on them, if they and their predecessors have never before been charged for CRL. It is very unlikely that Parliament would see fit to pass any such legislation.

Based on a Record of Ascertainments on which is stated the acreage of the land affected by an amount of tithe rentcharge, making adjustment for inflation I believe that a tithe field of one acre (4,840 sq yds) would have a tithe rentcharge on it of about £11 per annum in today’s money, and converting this to the equivalent in metric hectares (10,000 sq metres) the tithe rentcharge per hectare would be (10000/4046.9) x 11 = £27.18, say £27. The present value of this annual amount for 40 years with interest at 5% is £463.32. The present value of an acre of agricultural land averages at £8,500 according to Savills survey (2013) so £21,003.73 per hectare, or £2.10 per square metre.

The compounded sum to extinguish a tithe rentcharge should therefore be say 5p per square metre, which is about 1/42nd of the value of the land. So a typical house plot measuring 30m x 10m would have to pay £15.00 to get rid of the liability. Such a formula would make it easy to calculate the amount payable to compound. I do realise that this would not actually cover the cost of repairing the chancel, but taken together with the compensation paid in 1936 it should in theory do so. Fairness dictates that lay rectors whose liability survived the 1936 reforms should be treated the same as the tithe payers who were relieved of tithe redemption annuities in 1977, and in these calculations I have tried to replicate what was done for the tithe rentcharges in 1936.

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About michaeljameshall

I live in Orpington and am a semi-retired solicitor and a property lawyer. I am also a Liberal Democrat campaigner, interested in democracy, human rights, legal affairs and law reform. I am a member of the Liberal Democrat Lawyers' Association.
This entry was posted in Chancel Repair Liability, Law Reform and tagged , , , , , . Bookmark the permalink.

33 Responses to Abolition of Chancel Repair Liability – News January 2015

  1. Christopher Whitmey says:

    In February 1982 I was a member of the General Synod. I wholeheartedly supported the motion “for the gradual phasing out of the chancel repair liability and its general extinction.”. It was overwhelmingly carried – so much so that no count was required: see Report of Proceedings vol. 13 no.1 p.223.
    I have read Michael Hall’s an abridged version of it here CHANCEL REPAIR LIABILITY LAW COMMISSION SUBMISSION 18.03.2011. It has much to commend in it.
    Like him I cannot see why General Synod cannot pass a measure (primary legislation) to remedy the matter. The only parties who could ‘suffer’ would be some Parochial Church Councils: who are already subject to various measures.
    In the Herefordshire parish church, where I am a PCC member, Hereford Cathedral carries the chancel liability. Neighbouring PCC’s have to meet their own chancel repair liability. Hereford Cathedral has its own repair bills. Where is the fairness?

  2. Dear Mr Whitmey
    Thank you very much for your support. I entirely agree that the system is not fair, and I was very sorry for Andrew and Gail Wallbank, with whom I have been in touch.
    I am very interested to hear about your involvement in the 1982 Synod debate and perhaps you know people at Hereford Cathedral who would be interested in pursuing this law reform idea.
    Regards
    Michael Hall

  3. Law Blog says:

    Thank you for this usable topic. Nice post. I think I wlill back here soon. Site added to my favourities 🙂

  4. Nanette Williams says:

    I am involved in trying to help a group of 30 families in Broadway, Worcs, who got together last week with the PCC for a meeting to discuss a letter they have all received asking them to put their liability on their deeds.

    The PCC have written to the Charity Commission for advice because they are not now in favor of
    carrying the matter any further. However, the families have only managed to extend their deadline until late August and are very distressed.

    Peter Luff attended the meeting last week and it has made national headlines today.

    We seriously need help and advice.

    • Nanette
      Thank you for drawing this to my attention. I have looked at the reports in the Evesham papers and in the Daily Telegraph. I think it is clear from these that the PCC in Broadway does not want to enforce the alleged liability and the Charity Commission should confirm that the PCC is free to make its own decision on this. I have also added to my blog notes a link to the Legal Advisory Commission of the CofE’s advice to PCCs, which I must say I think exaggerates the risk to members of PCCs in deciding not to register and not to enforce the alleged liability. It must be unlikely to say the least that a PCC would decide to sue its own past members for alleged breach of their fiduciary duty, when they have supported the vicar in a pastoral decision made in good faith and in no way profited personally from it. I am interested in getting political action on this and am pleased to see that Peter Luff the MP for Evesham is supporting the campaign for abolition. I will email you about this.
      Best wishes
      Michael

      • Christopher Whitmey says:

        Michael,
        Thanks for posting the above. Especially the link to the Legal Advisory Commission of the CofE’s advice to PCCs,
        Re. [14] I can vaguely recall there was a case where English Heritage made its grant conditional upon the Chancel Liability being enforced: sorry can’t recall where.
        Re [16] seek formal advice from the Charity Commission on whether not enforcing the liability would be consistent with the fiduciary duties of its members. Only today I’ve learned of CC’s advice to a charity where I’m a trustee. A land sale had been agreed in principle for a very small piece of land with planning permission (albeit controversial) to the prospective purchaser. A neighbour then learned of it and, to stop the development, has offered thrice whatever we have been offered: way above open market value. The CC, aware of the circumstances, has advised we must “Act in good faith in the interests of the charity to the exclusion of all other interests.”. It seems we must accept the increased offer.
        I hope the Broadway PCC has better luck!
        Christopher

  5. Christopher
    Thank you for letting me know. That is very interesting and I expect the Charity Commission always replies to these questions in that inscrutable manner, leaving it to the charity trustees to determine what is in the best interests of the charity. In the case of a PCC which exists to attend to the temporal affairs of the parish church, but also to support the clergy in the Church’s mission of proclaiming the love of God in the community, being an example of Christ, it is seems quite clear to me, as I think it does also to the Vicar and PCC members in Broadway, that it is in the best interests of the charity not to pursue any applications to register CRL.
    Best wishes
    Michael

  6. Ian Mellor says:

    I have been asked by my Rector to investigate the matter of registration for CRL, and while there are many difficulties, real and potential, in registering the right properties, the whole thing smacks to me of arrant stupidity. My church is in a village and is attended by perhaps one inhabitant in 30. But the other 29 inhabitants live in harmony with the church and indeed use it regularly for baptisms, marriages and funerals, as well as filling it for Easter, Christmas and other special services. The ill-feeling that such an anachronistic liability will undoubtedly cause is wholly out of proportion to the value of the standing of the church and is utterly contrary to the church’s (Church’s) mission. Why the 1982 decision of the General Synod cannot be acted upon is beyond me; why the Synod cannot itself, by repealing its claims, eliminate this appalling liability I do not know. Furthermore, my church is not rich – it cannot even afford its full parish share, and the gap between what it can afford and what it has to pay widens annually. How and why it is now supposed to fund the CRL searches – paying for Tithe Maps, registering, visiting Kew, finding solicitors’ fees – I cannot understand. The help of our Diocesan solicitors has been refused, too, on the grounds that they may well have many clients who, though still unknowingly, are “lay rectors”, and they claim to wish to avoid conflicts of interest. This suggests to me that were such conflicts to arise they would take the side of theie existing clients other than the Diocese, leaving the Diocese and its constituent PCCs completely in the lurch.

    • Dear Ian
      Thank you for this response, and I know you are not alone in feeling that. I do also think that the costs, complications and difficulties for PCCs of researching and claiming for CRL are such that, even were it not for the damage to the mission of the church, it would not be worth doing. I am now hoping that the pressure for reform is building up, so that the Government may well decide to revoke the 2003 land registration order, as a quick first step towards abolishing CRL by repealing the 1932 Act. I hope your rector and the rest of your PCC agree with you, at least when they see the results of your research, if not before.
      Best wishes
      Michael

      • Christopher Whitmey says:

        Ian Mellor’s post has just come to my notice. If he has not done so already I would urge him to download Legal Advisory Commission advice on chancel repair liability from the link above and take comfort from:.
        [footnote nos and footnotes in original omitted] 13. As to the second principle referred to in the Harries case, there would seem, in principle, to be scope for arguing that the registration of a notice or caution, and more particularly the enforcement of chancel repair liability could, in the circumstances of the particular PCC concerned, hamper the PCC’s work, either by adversely affecting its ability to pursue its object of promoting in the parish the pastoral mission of the Church or by alienating potential financial support. (For example, even registering a caution or notice against all the owners of houses on
        a newly built estate in the parish could alienate people from the church and thus
        cause both pastoral and financial damage to its mission in the parish because the notice or caution would be a ‘blot’ on the owners’ titles. And actually enforcing liability in those circumstances could give rise to considerable alienation.) That analysis may be supported by the statement of Lord Scott in the Aston Cantlow case that:
        “The PCC could have decided not to enforce the repairing obligation. They could have so decided for a number of different reasons which, in particular situations, might have had weight. … They might have taken into account excessive hardship to Mr and Mrs Wallbank in having to find £95,000. Trustees are not always obliged to be Scrooge.”

  7. I simply needed to thank you very much again. I do not know what I would have taken care of without the entire information discussed by you directly on such question. This was a traumatic issue for me personally, however , looking at the specialized way you dealt with that forced me to leap with joy. Now i am grateful for this support and even hope you recognize what an amazing job you have been providing teaching other individuals with the aid of your web page. Most probably you have never got to know any of us.

  8. Christopher Whitmey says:

    I’ve just read today’s Church Times:
    “A CHURCH in Worcestershire has been told by the Charity Commissioners that it would be “reasonable” for it to decide not to register chancel-repair liability (CRL) against 30 households in its parish. The PCC of St Eadburgha’s, Broadway, began the process of registering liability during an interregnum, after advice from the legal advisory commission of the General Synod, which encouraged PCCs to “register their interest at HM Land Registry”. Parishioners were unhappy about the process. …”
    Some sense prevails at last !

  9. Dear Christopher
    Thank you very much for your two comments, which I agree with. I did not know that this all started in Broadway during an interregnum, but am pleased to hear that the new Vicar has taken charge with the support of the Bishop and that common sense has prevailed at last as you say.
    You may also be interested to read the exchange of views with Frank Cranmner on the Law and Religion blog, http://www.lawandreligionuk.com/2012/08/02/chancel-repairs-an-unenviable-dilemma/
    Regards
    Michael

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  12. Christopher Whitmey says:

    Dear Michael,
    Has there been any response from Dr Cable or the Land Registry to your Draft SI?
    The subject of chancel repair liability is on our Deanery Synod agenda next month. The motivation comes from a PCC who is horrified (my interpretation!) at the pastoral impact of registering, so I’m informed, some 400+ fields.
    The Compulsory Church Rate Abolition Act 1868 states in section 7:
    “Trustees and others under incapacity may subscribe to voluntary [church] rate.
    It shall be lawful for all bodies corporate, trustees, guardians and committees who or whose cestuisque trust are in the occupation of any lands, houses, or tenements to pay, if they think fit, any church rate made in respect of such property, although the payment of the same may not be enforceable after the passing of this Act, and the same shall be allowed to them in any accounts to be rendered by them respectively.”.
    Why on earth they did not include at the time the same for chancel liabilty?
    After nearly some 150 years later matters should be remedied !
    Regards
    Christopher

    • Michael Hall says:

      Christopher
      I am pleased to hear that your Deanery Synod is to debate chancel repair liability, and I hope that this could lead to legisation by the General Synod, to repeal the Chancel Repairs Act 1932, or at least reform the law so that it is a little less iniquitous. Yes, I did receive some letters from the Land Registry’s Director of Legal Services, in response to my letter to Dr Cable, but they did not take my suggestions any further. The letters were long, and very confusingly explained that the law is perfectly clear. I also got into correspondence with the Provincial Registrar to the Archibishop of Canterbury (Canon John Rees, a partner in Winckworth Sherwood) who entirely agreed that “there are situations in which it would be deeply counterproductive for parishes to enforce the liability against some of their parishioners; but at the same time he mentioned that many of the liabilities rest with “major institutional landowners, colleges and other bodies which are themselves well-endowed”. He seems to be referring to those bodies such as Oxford and Cambridge Universities, Eton and Winchester Colleges, Deans and Chapters and the Church Commissioners which received compensation stock from the Government for the extinguishment of tithe rentcharges under the proviso to section 31(2) of the Tithe Act 1936. The Law Society’s submission excluded those from its suggested reform. I replied to Canon Rees concluding “Given that the General Synod is unlikely to agree to outright abolition, my suggestion is that the Chancel Repairs Act 1932, and the Land Registration Act 2002 should be amended in the following respects with effect from 13 October 2013:
      1. So that no more notices of CRL can be registered
      2. So that there is no liability on anyone who purchased after that date when there was no notice registered
      3. Providing for the fair apportionment of CRL so that no-one is liable for more than a fair proportion of the liabilty based on the acreage of his land as a proportion of all the former titheable land of the parish (determined by an impartial tribunal)
      4. For the fair compounding of the apportioned liability – so each owner is individually entitled to compound based on his limited liability (determined by an impartial tribunal).
      For impartial tribunal I would suggest the First Tier Tribunal (Land Chamber) which will take over the work of both the Leasehold Valuation Tribunals and the Adjudicator to HM Land Registry. I have some correspondence which may be of interest to you, which I can send you by email. Thank you for your continuing interest in this subject.

  13. Tim Acheson says:

    CRL is obsolete and unfair. The law needs to change, as concluded by Law Com. 152.

    In the meantime, the presumed legal basis of CRL is flimsy and complex and it desperately needs to be challenged in Court. CRL was extinguished when land was exchanged in lieu of tithes. The assumption that CRL was transferred to the land is unsound. At most, it could be argued that the personal liability could be transferred to the landowner at that time, but not attached to the land and not implicitly binding any successor in title. Furthermore, tithes cannot be transferred without an explicit deed, therefore neither can CRL because it arises from tithes. Henry VIII had no legal right whatsoever to give these lands, and hence the right to claim CRL, to the Church of England. Any existing tithe rights therefore belong to the Catholic Church.

    There is a popular misconception that the case for CRL is strong because of the famous Wallbank test case, but that case was very badly defended relying entirely and erroneously on Human Rights law and the family ran out of money before the end and had to represent themselves. In the judgement, the judges helpfully set out numerous ways they could have challenged CRL but did not do so, and raised some fundamental questions about the alleged liability. It was a missed opportunity.

    • Hi, Tim, and I agree with the gist of what you say – in that the dissolution of the monasteries was something that would today be regarded as a breach of human rights, but the Human Rights Act did not apply then and the King was virtually an absolute monarch. Perhaps those who argue that Britain should leave the EU so that it is free to abrogate the human rights that we now take for granted, should ponder what other breaches of human rights our Parliament might inflict on the public if given the opportunity to do so. I also argue that Chancel Repair Liability cannot, or should not, be regarded as an interest in land as there is no authority in the common law or statute for saying that it is, and it is not within the definition in the property legislation. This means that the Land Registry should not be registering it. Without registration which gives the appearance of establishing the existence of CRL (but does not actually do so) property owners who were not sued for contributions to chancel repair costs could not be placed under pressure to pay to remove the notice of a liability which they rightly dispute. I really hope that one or more of those people who have these notices registered on their property will be prepared to take a case to the First Tier Tribunal, Property Chamber, Land Registration Division, on the basis that CRL is not an interest in land.

      • Tim Acheson says:

        “the Human Rights Act did not apply then and the King was virtually an absolute monarch”

        Henry VIII did not have the lawful right to take property from the Catholic Church which was a higher legal authority at that time. That is why Henry created a dodgy dossier alleging descent from King Arthur — that is the one and legal basis for what he did, and the Legend of King Arthur and Henry’s make-believe role in it would not stand up in Court today.

        Henry is one of the most evil tyrants in the history of human civilisation, e.g. responsible for the deaths of some seventy thousand of his own people in official executions alone. This is the background to CRL. This is the man who created the Church of England, because his extreme lifestyle choices were forbidden by the Catholic Church. This is the man who granted the right to claim CRL to his spurious new Church.

        Today like other victims I am suffering. I am being deliberately and unnecessarily persecuted by the Anglican Church and by my own neighbours who represent it. The evil tyranny of Henry VIII has transmitted its self successfully to the present day where it is being exercised through the conduit of the Church he created.

      • Ian & Natalie Johnson says:

        we are currently supposed to be in negotiation with the pcc, although mainly on our part and there seems to be a lot of lies flying around! We are considering taking the matter to the first tier tribunal but are very concerned about the out come. Would you have any helpful advise.

        Michael James Hall replies:
        Yes, it is a good idea to take it to the First Tier Tribunal, as there is a strong argument for saying that chancel repair liability is outside the scope of land registration. Of course the Land Registry does not agree and it has registered hundreds of notices of chancel repair claims, but it admits in its practice guide 66 that it is aware of the arguments that chancel repair liability is not an interest in land (see s 2 of the Land Registration Act 2002). It argues that in 1925 it was recognised as an overriding interest in land under the Land Registration Act 1925. But that Act has been repealed, and there is nothing in the present Act to say that it is one at all, and there are strong arguments that it is not. I assume you have a Solicitor acting for you and do not want to interfere with what your Solicitor is doing, but I will send you an email so that you can contact me directly if you wish as I would like to be able to help.

  14. Tim Acheson says:

    Michael, are you on Twitter?

  15. Tim
    I did not realise you were personally affected by chancel repair liability. As an Anglican I think it is a disgrace that it has not been abolished, and I agree that Henry VIII was an awful man and a tyrant, but as the King of England he also defended us against foreign tyrants, and he regarded the Pope as one. The Catholic Church was also guilty of breaches of human rights at the time, so I don’t want to get into a historical debate about who was worse. It was I believe the Pope who sent the Spanish Armada to invade Britain when Ellizabeth I was on the throne, and who started the Spanish Inquisition, and no-one would expect or wish for a repeat of that and the torture, and burnings at the stake that were done in the name of religion. I hope you will allow me to help you with your case, if you do not have a solicitor acting for you already.
    Michael

    • Tim Acheson says:

      Would you like to send me a Direct Message via Twitter with your email address? @timacheson

      I certainly recognise that the historical background is too complex to paint it in shades of black and white. But I’ll grab onto anything I can get my teeth into in order to undermine CRL. I don’t think CRL helps anybody, I think the NSS put it very well when they described the current situation as financial vandalism. It’s a complex mess that needs sorting out. It’s blighting the lives of many ordinary people.

  16. Alan Riley says:

    Michael

    I thought I would reply directly to you via your website rather than by commenting on your comment on my comment on the Law Society Gazette CRL article.

    I have avoided entering into the argument as to whether CRL is an interest in land or a personal liability, because there are some fairly strong views out there to contend with. The argument tends to sidetrack the main discussion point arising from the Law Soc Gazette article which is: What is the Land Registry playing at in allowing registrations of CRL after there has plainly been a protected disposition for value. shows even more why the Land Registry should
    However, on the issue of the status of CRL, regardless of what the Chancel Repairs Act 1932 says, there are some very strong suggestions in the Wallbank case that CRL is an interest in land. Here are some quotes (from three different Law Lords):

    “[16] …when a parochial church council enforces, in accordance with the provisions of the Chancel Repairs Act 1932, a burdensome incident attached to the ownership of certain pieces of land: there is nothing particularly ‘public’ about this. This is no more a public act than is the enforcement of a restrictive covenant of which church land has the benefit.”

    “[63] But the liability of the lay-rector to repair the chancel is a burden which arises as a matter of private law from the ownership of glebe land.”

    “[71] This is a burden on the land, just like any other burden that runs with the lands. It is, and has been at all times, within the scope of the property right which she acquired and among the various factors to be taken into account in determining its value. She could have divested herself of it at any time by disposing of the land to which it was attached. The enforcement of the liability under the general law is an incident of the property right which is now vested jointly in Mr and Mrs Wallbank.”

    “[77] The obligation to repair is one which derives from the ownership of land to which the obligation is attached. The obligation runs with the land.”

    These are pretty strong suggestions that CRL is treated like any other title burden.
    In addition, it is fairly fundamental that the legislature decided in 1925 to classify CRL as an interest in land by including it within section 70 of that Act as an “overriding” interest. By legislation, CRL was therefore established as an interest in land. The fact that it is no longer overriding, does not mean that it has ceased to be what the legislature decided it to be – an interest.

    You focused in your original item (at the top of this page) on section 2 LRA 2002. You say: “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.” I would suggest that this is not the correct section to focus upon. Section 2 merely sets out what the Act intends to cover in terms of the registration of title to interests – e.g. whether freeholds, easements, charges are required to be registered. It does not with the classification and identification of all interests. If you want to find out what is meant by the word “interest” in the LRA 2002, it is section 132(1)(b) which is the operative provision. It states that “references to an interest affecting an estate or charge are to an adverse right affecting the title to the estate or charge.” This, coupled with comments in the Wallbank case, and the fact that the legislature has twice classified CRL as an overriding interest, satisfies me that CRL is an interest in land capable of affecting successors in title, and capable of being rendered void if not protected by notice in the register.

    Regards

    Alan

    • Alan
      Thank you for taking the trouble to engage in this discussion, and I appreciate that there are arguments for saying that CRL is an interest
      in land, as you have set out, but do not really think that a county court judge could throw out a claim against a lay rector on the basis
      of the argument about want of registration. Claims for CRL are now, though based in ecclesiastical law, dependent on statute.
      The fact that in the past, CRL was an overriding interest, does not make it necessarily interest now that it is no longer overriding.
      Until Parliament, or the Courts or tribunals, clarify the law, each solicitor will have to decide whether it is safe to treat CRL as a
      minor interest. As you point out quite rightly, the Land Registry has changed its position, and seems to be trying to force those who have
      notices of CRL on their titles, to challenge it in the 1st Tier Tribunal, or by Judicial Review. I have written to Lord Faulks QC the Minister of State in the Ministry of Justice, who has taken over from Helen Grant MP the responsibility for civil law, and I hope that there will be a debate in Parliament or in the General Synod. It could take years for a case to reach the Supreme Court on the status of CRL, and in the meantime, it is not fair to those who have their property title blighted, such as my correspondents below, that they are being forced to negotiate with the Church to remove the burden from their land. Parliament has not authorised the continuance of registration of notices of CRL – it is not provided for in the 1932 or the 2002 Act, nor even the current Land Registration Fee Order. I know of course that registration has not created the liability, but without registration, the PCC could not make anyone pay other than by taking them to Court, when they would have the opportunity of arguing that Wickhambrook was wrongly decided, should be confined to its own facts, that land can no longer be held in lieu of tithe, etc. The Chancel Repairs Act 1932 should either be repealed, or amended to make it clear that registration is necessary and has to precede the purchase for value or it loses priority and so cannot be enforced.

  17. Christopher Whitmey says:

    Michael,
    Just had this Google alert: http://www.lawgazette.co.uk/law/bill-looks-to-abolish-chancel-law/5042287.article
    A bill to abolish chancel repair liability has been successfully introduced into the House of Lords.
    Liberal Democrat peer Lord Avebury yesterday [17.07.14] brought forward the Chancel Repairs Bill for its first reading.
    Christopher

  18. Christopher
    Thank you for letting me know, I had not spotted the Law Society Gazette piece, but I posted an up update on this blog about it on 16 July. The Bill has been well received by Solicitors, as it is what we have been arguing for for years. Please note that it will end all CRL including what the Law Commission called “rentcharge liability” i.e. under the proviso to section 31(2) of the Tithe Act 1936, so bodies such as the Church Commissioners, Deans and Chapters of Hereford and other Cathedals, Eton and Winchester Schools, Oxford and Cambridge Universities and Colleges will be released from further liability, as well as property owner lay rectors.
    They will therefore be free to allocate charitable funds on a more rational basis.

  19. Christopher Whitmey says:

    Michael,
    Thanks & noted. Apologies for not checking above before commenting: <}:-(
    Pleased to note "that it will end all CRL …". In the General Synod debate in 1982 the late Ven Tom Barfett (then a residentiary canon of Hereford Cathedral) argued strongly for its abolition. Though a PCC member of St Mary's where Hereford Dean and Chapter have CRL I totally support its abolition.

  20. Alan Brocklebank says:

    Michael,

    Further to the comment above I have heard that as of January 2015 the government has said that they are not looking to do any reforms on CRL, do you have any further details on this?

  21. Alan

    As explained in my posting above, in January 2015 Lord Avebury asked a question for short debate in the Grand Committee of the House of Lords, and the Government in the form of Lord Ashton of Hyde, expressed opposition to Lord Avebury’s Chancel Repairs Bill, which was given a first reading in the Lords last year. Sadly Lord Avebury has now passed away.
    There will be opportunities in the next session of Parliament to reintroduce the Bill but I and other campaigners for abolition have so far failed to convince the Government that abolition should be supported. I am afraid that Government Ministers seem to have been misinformed regarding chancel repair liabiiity and they therefore mis-speak on the subject and mislead others.

    The Law Commission is looking at the reform of the Land Registration Act and in particular has proposed that property owners who object to notices of CRL should be able to require the PCC to produce evidence.

    Please let me know if you are affected by CRL and if I can help by providing any further information regarding the campaign. Whoever proposes the new Bill on CRL will want to have had personal contact with people affected by CRL. Lord Ashton of Hyde called for evidence of hardship caused by CRL and suggested that there was little evidence of hardship. However several Labour and Libdem members had spoken in the debate and told him of such cases. This was ignored.

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