Parish Support

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.

The Diocesan Registrar holds a list of parishes in the Diocese of Norwich indicating those for which chancel repairing liability has now been extinguished, and those where it continues in force. A copy of this Schedule is available at Chancel Repairs in the Diocese of Norwich, and there is an explanatory note from the National Archive at Chancel Repairing Liability – National Archive 33 which explains the significance of the entries in this Schedule. The note by Derek Wellman at Wellman – Note on CRL explains what information is available in Records of Ascertainment held at the National Archive and at County Record Offices

If there is no land in the parish which may be subject to chancel repair liability then the PCC need take no action. This is generally shown in the Schedule of parishes either by the absence of any entries in columns 2a to 2d of the Schedule, or by an “x” entered in column 2a of the Schedule against the name of the church. The Schedule is, however, not an exhaustive analysis of the liability, and it is possible that liability may exist but is not documented in the record of ascertainments where for example enclosure of the land led to conversion of some or all of the tithes in the parish into corn rents, or there was an allotment of lands in lieu of tithes; or where rectorial glebe land has passed into lay hands; or where the tithes were merged with the land. But if the Schedule is clear, and the parish has no records of its own indicating any other source of chancel repairing liability, it is probably reasonable for the parish to draw a line under its researches at that point. This is on the basis that it may be be very difficult to prove the negative proposition that there is no liability affecting land in the parish, and if, having done reasonable research, the PCC has found no evidence of any liability, it is entitled to conclude that there is indeed no liability, and that no further research need be undertaken.

If there is land in the parish which may be subject to chancel repair liability, the PCC should consider carefully whether it wishes to take steps to identify that land and to register a notice or caution against the property to ensure that if the property is sold or becomes registered after 12 October 2013, the chancel repair liability will continue to run with the land.

The land can be identified from the Record of Ascertainment, which will list fields and other plots of land to which the liability has been attached, and may be accompanied by a tithe map, showing the land affected. Copies of tithe maps for most parishes in Norfolk may be found at https://www.historic-maps.norfolk.gov.uk/mapexplorer/ The same site, maintained by Norfolk County Council, also has other useful maps of the County.

This list and map need to be compared against a modern Ordnance Survey plan to identify the land affected. The next step is to find out from the Land registry whether that land is registered or not, and this is done by conducting a search of the Land Registry Index Map, using Land Registry form SIM, in conjunction with a map of the affected land. The Land Registry will respond with information about the title number of the land, or to confirm that it is not registered.

In relation to land which is unregistered a caution against first registration can be registered (Land Registry Form CT1). In relation to registered land a notice would need to be registered (Land Registry Form AN1 for an Agreed Notice, where the landowner agrees to it being registered, or UN1 where he does not – the Land Registry forms are available on their website at www.landreg.gov.uk/). See forms AN1 and UN1.

However, registration may not be the automatic choice for a PCC for the following reasons:

  • It may be expensive to identify parcels of land within the parish which may be subject to chancel repair liability, and the ownership of that land.
  • Once the land carrying a potential liability has been identified, a notice or caution will need to be registered at the Land Registry in respect of that land. There was no fee for this provided that the registration was effected prior to 12 October 2013, but registration after that date now attracts a fee of £40 per title for the first three titles, and £20 per title for each additional title.
  • The Land Registry may require evidence to be produced to show how the liability to pay for chancel repairs has arisen and how it has devolved onto the land in question, and it may be expensive and time consuming to establish this.
  • If the overall cost of registration exceeds the value of the contribution which would be secured, it would not make sense to proceed with registration, since the PCC would be establishing a net liability rather than protecting a net asset.
  • Once a notice has been registered, the entitlement to recover contributions to chancel repair costs ceases to be an overriding interest. If the notice is subsequently cancelled, the right to recover contributions from future owners of the property will effectively have been lost, as it will no longer be an overriding interest
  • Registration of a notice against the properties in the parish which may be affected may be perceived as an unhelpful or even hostile step, which may adversely affect relations between the PCC and the church on the one hand, and parishioners on the other hand

Notwithstanding these considerations, it may be prudent for the PCC to seek to protect its rights to recover contributions to chancel repair costs by registering appropriate notices at the Land Registry. A PCC wishing to take this step will need to take legal advice to ensure that satisfactory evidence is available to support Land Registry applications.

As a minimum, to ensure that the members of the PCC discharge their fiduciary duties properly, each PCC should have considered and minuted its conclusions on the following questions, ideally before 12 October 2013, though those PCC’s which have not yet done so should still consider taking these steps:

  1. Whether there is land within the parish which may be subject to chancel repair liabilities. If there is not, the PCC should minute this, and resolve that no further action should be taken to research the matter.
  2. If the answer to the first question is ‘yes’, whether there is sufficient evidence available to support the registration of the PCC’s rights in respect of particular parcels of land
  3. If the answer to question 2 is ‘yes’, whether, having regard to the potential advantages, costs and disadvantages of registering rights to receive contributions to the cost of chancel repairs, the PCC wishes to proceed to register such rights in respect of that land

Where a PCC knows that land is affected by chancel repair liability, and is faced with a bill for chancel repairs, the PCC should consider very carefully the benefits and disadvantages of pressing landowners to make a contribution to chancel repair costs. On the one hand, by recovering part or all of the cost from a local landowner or landowners, the PCC will be assisted financially, and may be able to complete urgent repairs more quickly than would otherwise be the case, or to maintain funding for other important projects. On the other hand, however, enforcement of this type of liability may alienate parishioners and could be unhelpful to the wider mission of the church. It may therefore be better to seek ‘voluntary’ contributions to repair costs, rather than relying on strict legal rights. However, PCC’s should make sure that they protect their legal entitlement to recover chancel repair contributions where this is possible, by registering the relevant rights.

Please see also the advice set out by the Legal Division of the Archbishops’ Council at http://www.churchofengland.org/media/51405/chancelrepairliability.rtf

What costs can be recovered under Chancel Repair liabilities?

First, the liability relates only to the chancel, not to other parts of the church, such as the nave or tower.

The liability goes beyond paying for the chancel to be made just wind- and weathertight, and includes putting the fabric and structure of the chancel into good repair. It does not extend, however, to the cost of decorations or furnishings. The amount recoverable in any particular case will depend on a variety of factors, including the way in which the liability arose, the number of landowners identified as having a liability, and their ability to meet that liability.

How should the PCC approach landowners to tell them that their land may be affected by chancel repairing liability?

If the PCC thinks that land in the parish may be affected by the liability, it may be worth writing to landowners to let them know that their land may be affected, and that they might like to explore the possibility of arranging insurance cover against any future liability. Letter 1 is an example of the letter a PCC might write. Alternatively, if a good deal of land was thought likely to be affected, the PCC might circulate a note of advice along similar lines in the Parish Magazine. Once the liability has been confirmed, Letter 2 might follow, perhaps a couple of months after Letter 1. This would give landowners an opportunity to arrange insurance cover in the meantime.

Cancelling the Liability in return for a one-off payment

Alternatively, the PCC might offer an informal arrangement to affected landowners – in return for a reasonable donation to a “Chancel Fund” by the landowners, the PCC could agree not to take any steps to register or enforce the liability. The money in the fund could be held as a restricted fund within the PCC’s accounts, and invested so that when repairs were next required to the chancel, the PCC would have some resources from which to pay for those repairs. There is a formal mechanism for this ‘compounding’ of the chancel repair liability, set out in section 52 of the Ecclesiastical Dilapidations Measure 1923, but that requires a complicated process to be followed, and only works if the whole of the liability, not just an individual landowner’s share, is to be compounded by a payment made to the PCC. When considering either a formal composition, or an informal arrangement, the PCC will need to give consideration to how much money it may need now to meet the future cost of anticipated repairs to the chancel, and to suggest a level of donation accordingly. A simple form of agreement for the composition of liability is available here: Chancel – Agreement to Compound Liability – Apr 2015

If the PCC does not consider it appropriate to register the Chancel Repairing Liability, can confirmation be obtained from the Charity Commission that the PCC’s proposed course of action is reasonable?

If the PCC decides not to investigate, register or enforce chancel repair liability it can make an application to the Charity Commission for formal advice under Section 110 of the Charities Act 2011.  If the PCC follows such advice, its members will be protected from any subsequent criticism or claim.

The Charity Commission takes the view that PCCs should:

  • Act in good faith solely in furtherance of their charitable aims;
  • Not take account of inappropriate considerations;
  • Preserve and protect charitable assets, including claims; and
  • Where the case calls for it, take into account appropriate legal and other professional advice

The information that the Charity Commission needs to give formal advice will vary depending on the particular circumstances of each case but the Commission will probably want to see that the PCC has:

  • Considered the financial cost of surveying, identifying and registering the liabilities;
  • Considered the foreseeable need for chancel repairs and their likely costs and timing;
  • Considered the potential loss of grant from funders if the PCC have not registered a liability;
  • Consulted the Diocesan Registrar and, where appropriate, taken their own professional advice

Any application to the Charity Commission should be made to Kate Waring at WWEPSCWL@charitycommission.gsi.gov.uk or Charity Commission Direct,PO Box 1227,Liverpool,L69 3UG

General Questions

Yes. The liability will continue to affect land which was subject to it before 12 October 2013 until that land is transferred to a new owner or, if the land is not currently registered, until an application is made to register the title to the land at the Land Registry. After a transfer or first registration, however, the land will be free of Chancel Repairing Liability (“CRL”) unless the liability has previously been registered against the property at the Land Registry. This means that if you are buying a property, and there is no mention of CRL registered against the property, the property will be released from any potential liability when your title is registered. You do not, therefore, need to waste money on obtaining insurance against the future risk of a claim for a contribution towards the cost of repairing the chancel.

If you own a property now, and the title has not previously been registered, it is a good idea to register the title to the property. This will ensure that it is released from any future CRL claims.

The PCC can still register the CRL against affected properties but if, since 12 October 2013, they have been transferred, or title to the property has been registered for the first time then, it will be too late to register the CRL – it will be extinguished.

There is no central Church of England register of parishes where Chancel Repair Liability may exist, but research undertaken by the Church Commissioners in the early 1980’s suggested that somewhere between 4,000 and 6,000 parishes might be affected, or about a third of the total number.

The Diocesan Registry holds a schedule of parishes in the Diocese of Norwich showing which may be affected by chancel repairing liabilities. A copy of this schedule is available from the Registrar (stuart-jones@birketts.co.uk) or can be downloaded at Chancel Repairs in the Diocese of Norwich. Please note that the Schedule is based on records at the National Archive dating from the 1930’s. In some cases where it indicates that the Church Commissioners hold a liability to contribute to chancel repairs, that liability has since been extinguished by the Endowments and Glebe Measure 1976. Please apply to the Registrar for advice if in doubt.

There is no central Church of England register of parishes where Chancel Repair Liability may exist, but research undertaken by the Church Commissioners in the early 1980’s suggested that somewhere between 4,000 and 6,000 parishes might be affected, or about a third of the total number.

The Diocesan Registry holds a schedule of parishes in the Diocese of Norwich showing which may be affected by chancel repairing liabilities. A copy of this schedule is available from the Registrar (stuart-jones@birketts.co.uk) or can be downloaded at Chancel Repairs in the Diocese of Norwich. Please note that the Schedule is based on records at the National Archive dating from the 1930’s. In some cases where it indicates that the Church Commissioners hold a liability to contribute to chancel repairs, that liability has since been extinguished by the Endowments and Glebe Measure 1976. Please apply to the Registrar for advice if in doubt.

You should ask your solicitor or conveyancer to advise you on the question of whether the land may be affected by Chancel Repair Liability (“CRL”). Your solicitor can organise a search to check this as a part of the conveyancing process, and also check that no notice of CRL has been registered against the title to the land. If the search suggests that the land may be affected by CRL, you could consider insuring against this liability. Your solicitor or conveyancer can advise you about this and about an appropriate level and type of cover. However, CRL is no longer (since 12 October 2013) an overriding interest for land law purposes, and when you complete the purchase of the land, provided you have given valuable consideration for it (i.e. paid something for it), and as long as the CRL has not actually been registered against the title to the land, the CRL will cease to bind the land. If CRL has been regsitered against the title, you will probably not be able to obtain insurance against the risk of a claim anyway. So insurance against CRL will probably either be a waste of money or simply not possible.

Yes. Chancel Repair liability may attach to a small property as well as to a larger property such as a farm. Even if you are buying a house, you should ask your solicitor or conveyancer to check whether it may be affected by this liability. If you own a house and are concerned about the possibility of chancel repair liability, you can still arrange a search and insurance, or discuss with the Parochial Church Council the possibility of making a modest payment to the church in exchange for having the liability extinguished.

No, it does not matter whether the landowner of affected land is an individual, joint owners or a company or other type of corporation.

From 2013 church repairing grants will be administered by the Heritage Lottery Fund, and they have indicated that they will not take such a strict view as that put forward by English Heritage when considering grant applications. They will still want to look at the resources available to the church, but there will be no automatic refusal of applications just because chancel repairing liability has not been registered.

Yes, if you hold all of the liability you can enter into a formal agreement with the PCC to effect what is called a “composition” of your chancel repairing liability, under Section 52, Ecclesiastical Dilapidations Measure 1923. The amount payable will depend on the amount which you might have had to pay in future, discounted to reflect early payment, but will also include an element of a contribution to the cost of insuring the Chancel. It may be possible to reach an agreement for composition of the liability outside the terms of the 1923 Measure, e.g. if you hold only a part of the liability, although there might be a question about the legal authority of the PCC to enter into such a deal. Nevertheless, from the PCC’s point of view, it would be better to effect a composition of individual shares of any liability rather than doing nothing at all.