Chancel repair liability
Where people own property within land that was once rectorial (part of a rectory or glebe), they may have wittingly or unwittingly acquired a responsibility to fund repairs to the chancel of the medieval-founded Church of England parish church or Church in Wales church which that glebe land supported. This can still be invoked by the church council of some parishes.
From pre-Reformation times, churches in England and Wales have been ministered by either a vicar, who received a stipend (salary), or a rector or parson who received tithes from the parish. The rectors (of around 5,200 churches) were responsible for the repairs of the chancel of their church, while the parish members were responsible for the rest of the building. Monasteries and Oxford and Cambridge colleges could buy or receive rectorships, and thus become liable for chancel repairs. When Henry VIII dissolved the monasteries and sold their rectory (with land), or the relevant university college sold this, the chancel repair liability passed with that land and persists today, even after subdivision. The owners of such land are thus equally called lay impropriators or lay rectors.
As far as spiritual rectors are concerned, their liability transferred to parochial church councils by the Ecclesiastical Dilapidations Measure 1923.
The recovery of funds from lay rectors is governed by the Chancel Repairs Act 1932.
In concept, to be a lay rector is now entirely a burden for having taken rights over land such as impropriated glebe (the vast majority of glebe formerly held by a vicar or clerical rector has no liability) or abbeylands and therefore being exempt from paying the tithes that other parts of that parish paid, as the agricultural produce or (after 1836) rentcharges the landowner used to receive no longer apply. Lay rectors would usually be wealthy landowners owning a substantial amount of property in the parish. Tithes have been terminated or commuted for centuries and en masse since the Tithe Commutation Act 1836, remaining ones terminating in the Finance Act 1977, so it is sometimes possible to discover definitively from any free source whether a given piece of land is still glebe in a present parish that must have had a rector but no longer does – maps and records held by the National Archives can be consulted. Also in some cases it is possible to see which plots of land fall under headings c) and d) of apportionment of chancel liability, from the church website itself. If a parish's liability only falls under headings a) or b) then those persons (a corporate/charitable body or private individual) are liable only, however some geographically diverse parishes had extraneous tithings and in a few cases in the 19th century a merger of the rectory/rectorial land and tithes into one piece of land as a whole took place, such as in Aston Cantlow.
In a majority of parishes there is a vicar and crucially the historic university college or other rectory-owning major landowner only sold their land free from tithe under the Tithe Acts so they, or more commonly, the local church, bears the liability for the local chancel. In a minority of parishes a rector persists and his/her predecessors in that role never sold any land, as permitted after 1836, while granting the new owners the right to levy a rentcharge, automatically co-opting all successors to that land to potential liability for the chancel, or conducted a similar sale with a "merger of tithes", or saw part of an inclosure act swap glebe for common.
In liable ecclesiastical parishes, only a minority have exercised their rights to apportion the cost of chancel repairs among the affected landowners, despite the common nature of checks and insurance.
In the vast majority of ecclesiastical parishes (into which all of England and Wales is split) chancel repair liability is not applicable. However, it was brought into use for the first time in a few years in 2003 in a particularly lightly populated glebe. Andrew and Gail Wallbank received a demand for almost £100,000 to fund repairs of their ecclesiastical parish's medieval church at Aston Cantlow. After a protracted legal battle, as they sought to challenge this ruling, the Law Lords found in favour of the parochial church council, leaving the Wallbanks with a £350,000 bill including legal costs.
The case is constitutionally significant for finding that a parochial parish council is not a "core public authority" under the Human Rights Act 1998.
St. John the Baptist church, Aston Cantlow's historic rectory was acquired by the Priors of Maxstoke in 1345 (which is a monastery, abbey, priory or college of Oxford or Cambridge) leaving a "discharged vicarage" (as the name for the living of the priest) and creating lay improprietors (lay rectors) of the glebe land – e.g. in 1848 this was the Earl of Abergavenny. He held the glebe land, in this case helpfully named Glebe Farm, so was responsible for the chancel. Later buyers of this land remain liable.
Registration of liability
Subsequent to this case, it became best practice for new purchasers to be advised to request a check as to whether the local parish (one of the 15,000 ecclesiastical parishes into which all of England and Wales is split) included an older rector's church, not evolved from a chapel but now with a vicar, and if so to take out chancel liability insurance. Unless such a check was made, homeowners who had lived in their property since before 2003 were unlikely to be aware of their liability or to have insurance, as chancel repair liability would not have been registered on their title and may not have been researched by their conveyancers on moving in. If it was not noticed by solicitors and the church enforced the liability across the affected land, action against the solicitors may be time-barred after six years.
Through provisions made under the power of the Land Registration Act 2002, the onus was put on parochial church councils to identify all affected land and register their interest before 13 October 2013. This means that chancel repair liability is no longer an "overriding interest" protected under the Land Registration Act 2002. The assumption has been made that, since that date, new owners of land are only bound by chancel repair liability where it was already entered on the Title Register database kept by the Land Registry. The Law Society expressed doubts about this in 2006.
Some parochial church councils have therefore followed the process in order to secure a valuable asset. However, others may have concluded that registering the right to claim chancel repair was likely to damage the church's mission or reputation in the local community, and have taken no action.
An online petition to the Prime Minister requesting legislation to remove this liability resulted in the following response in 2008:
Peter Luff, MP for Mid Worcestershire led an adjournment debate in the House of Commons on 17 October 2012 to seek a change in the law, above and beyond the required registration entries and notifications on all affected properties by 13 October 2013. The minister responsible was not convinced that a change was necessary at the time.
Chancel Repairs Bill 2014
On 16 July 2014, Lord Avebury gave the first reading to a new Chancel Repairs Bill, which would have had the effect of ending all liability of lay rectors for the repair of the chancels of churches and chapels in England.
Lord Avebury caused to be printed these Explanatory Notes. This Bill made no further progress in the session of Parliament, and, consequently, it has been "lost" – it is no longer before Parliament.
Notes and references
- Sources such as A Topographical Dictionary of England by Samuel Lewis, and the Victoria County Histories, in most areas state whether there was, an acquisition of the rectory, however who owned merged land (if any) at final apportionment in the 20th century, or rentcharge-accruing land is not accessible in such sources.
- The County History also states:
The rectory land was administered as a manor.
The Bishop of Worcester received a pension from the land of 13s 4d for having granted it.
The Priors of Maxstoke enjoyed in addition an income of 30s. from lands and tenements
Following the Reformation in 1542 this pension passed to the Dean and Chapter of Worcester.
In 1535 the farm of the rectory was worth £24 and the vicarage £9 9s. 7d.
...Their son Francis Browne sold the manor and rectory to Fulke Greville, Lord Brooke in 1622
By 1743 Lord Brooke held 12 yard-lands and the corn tithes of the greater part of the parish. In the Inclosure Award that year he was compensated as lay rector with a holding of 347 acres which included the present Glebe Farm, on which is still charged the maintenance of the chancel of the church.
- That was the date on which the Land Registration Act 2002 (Transitional Provisions) (No. 2) Order 2003 ceased to have effect.
- Law Society of England and Wales, 2006 Submission to HM Government; see footnote 18 on page 9. The reason is that it is unclear that a parochial church council's right to claim all or part of the cost of repairs to the chancel from a lay rector is actually an interest in the lay rector's land, and no change has been made to the Chancel Repairs Act 1932 to give a lay rector a defence to a claim under the Act based on non-registration. Only interests in land require registration at the Land Registry.
- Chancel Repairs Act 1932 s.1, s.2
- Chancel Check maintain a database
- Butt, Paul (2008). Property Law and Practice. Guildford: College of Law Publishing (CLP). pp. 237 of 600. ISBN 978 1905391387.
- Sir William Blackstone, Commentaries on the Laws of England, Volume 1. Collins & Hannay, New York 1832. Book 2, page 17 at Google books: "A second species of incorporeal hereditaments is that of tithes…"
- National Archives#19446 5. What Does a Record of Ascertainment show? Archive IR104 National Archives
- Philip Styles (editor) (1945). "Parishes: Aston Cantlow". A History of the County of Warwick: Volume 3: Barlichway hundred. Institute of Historical Research. Retrieved 2 November 2012.CS1 maint: extra text: authors list (link)
- "£350,000 blow for church couple". BBC News. 26 June 2003. Retrieved 12 June 2011.
- Parochial Church Council (PCC) Aston Cantlow & Wilmcote with Billesley, Warwickshire v Wallbank & Another (26 June 2003). Abbrev. Aston Cantlow (PCC) v Wallbank UKHL 37 Archived 25 May 2012 at the Wayback Machine
- Samuel Lewis (editor) (1848). "Aston-Botterell - Aston, White Ladies parish descriptions". A Topographical Dictionary of England. Institute of Historical Research. Retrieved 2 November 2012.CS1 maint: extra text: authors list (link)
- Limitation Act 1980 – table Tort (negligence): general rule
- section 29 of the Land Registration Act 2002.
- James Hall, Diocesan Registrar. PCCs must act now or risk losing the right to claim it. St Edmundsbury Parish Church, January 2011.
- 10 Downing Street Petition Response of 6 March 2008
- Hansard transcript of debate
Ecclesiastical Parish Finder
- A Church Near You - Church of England parish finder. Note: glebe land can be in an outlying part of another parish, a detached part not shown in this map.
- Chancel repair liabilities in England and Wales, Legal Records Information Leaflet 33 at National Archives
- Why archaic laws could land you with repair bills for the local church, The Independent, 15 November 2006
- The Times (subscription required)
- The Times (subscription required)
- Old law forces couple to sell up to pay for church repairs, Daily Express, 29 September 2009
- The Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003, the Statutory Instrument setting out transitional arrangements 2003-2013