Chancel Repairs

NOTE THAT PAROCHIAL CHURCH COUNCILS MAY STILL REGISTER ANY SUBSISTING CHANCEL REPAIR LIABILITY AGAINST AFFECTED LAND IN THEIR PARISH AFTER 12 OCTOBER 2013, IF THEY WISH TO SECURE THE LIABILITY FOR THE FUTURE. REGISTRATION WILL NOW, HOWEVER, ATTRACT A LAND REGISTRY FEE OF £40. IF THE PROPERTY HAS BEEN THE SUBJECT OF AN APPLICATION FOR FIRST REGISTRATION OF TITLE OR A REGISTRABLE DISPOSITION FOR VALUE SINCE 12 OCTOBER 2013, THE PROPERTY WILL NO LONGER BE BOUND BY CHANCEL REPAIRING LIABILITY UNLESS THE LIABILITY HAS PREVIOUSLY BEEN REGISTERED AGAINST THE LAND BY MEANS OF A CAUTION AGAINST FIRST REGISTRATION OR A NOTICE. SEE BELOW FOR MORE DETAIL.

The liability of some landowners to contribute to the cost of repairing the chancel of a parish church has become a ‘live’ legal issue in recent years for several reasons. First, the decision of the House of Lords decision in the case of Aston Cantlow PCC v Wallbank [2003] UKHL 37 made it clear that this historic liability could still exist, and could impose a very significant cost on landowners in some cases.

Secondly, following a review of the law by the Law Commission in the 1980’s,  the Land Registration Act 2002 (as amended by the Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003) has clarified and amended the law. Parochial Church Councils (PCCs) whose churches may benefit from existing obligations on the part of local landowners to contribute to the cost of chancel repairs should be aware of the changes introduced by this legislation.

The liability to contribute to the cost of chancel repairs does not affect every parish, or every landowner. The liability attaches to land which has been ‘rectorial’ property at some stage in the past. This included glebe land and tithes, which were property held by the rector of a parish to support himself and out of which he was to discharge his liabilities, including his liability to keep the chancel of his church in repair. In many cases this type of property passed into lay ownership following the Dissolution of the Monasteries by Henry VIII under the Suppression of Religious Houses Act 1539. Other property became rectorial property, or property to which chancel repair liability attached, later on, sometimes through an award made under an Enclosure Act, or through compositions of liabilities to pay tithes under the Tithe Act 1836 or later Tithe Acts, or through the operation of the Tithe Act 1936, which extinguished various classes of tithe rentcharge. Under each of these provisions, liability may have become attached to land.

The way in which that liability is shared out between affected landowners depends on the way in which it was created. In some cases the liability may be joint and several, so that any one affected landowner can be made liable for the whole of the cost of any repairs. For liabilities created under the Tithe Act 1936 there is a complicated method of apportioning the liability between affected landowners.

The liability to contribute to chancel repair costs is currently what lawyers call an ‘overriding interest’. This means that it passes automatically with the land, so that when the land is sold or passed to a new owner, the new owner assumes the liability with the ownership of the land.

The Land Registration Act 2002 (as amended) ended the ‘overriding’ status of chancel repair liabilities at midnight on 12 October 2013. If land which carries a liability to contribute to chancel repairs is sold after that date, the chancel repair liability will be extinguished unless a notice has been registered on the title of the land at the Land Registry to indicate that the land is subject to chancel repair liability. Land which is currently unregistered will, if registered after 12 October 2013 without a caution against first registration having been entered, also become free of the liability to contribute to chancel repairing costs. Land Registry guidance on this subject is available at Land Registry Practice Guide 66