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The interest can be registered in the title or an overriding interest (Under the Land Registration Act of 1922) which means it does not have to be registered in the title of a property to be enforceable and those liable would not be aware of any liability until asked for money to repair the chancel. Leasehold properties are also likely to be affected due to the owners of the lease having an interest in the company/association that owns the freehold or via the contractual terms of the lease which would have effect of transferring the burden of making any payment from the freehold/landlord to the tenant. It affects approximately 3,780,500 acres of land in England and is enforced on the behalf of the Church of England by the Parochial Church Councils (PCCs) under the Chancel Repair
Act 1932. The majority of chancel repair payments are settled outside of court but in the recent case, 2003, of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank resulted in Mr and Mrs Wallbank paying £95,260 for chancel repair.
Types of Chancel Repair Liability
There are 3 types of liability which run with the land:
- Current owners of land which had been allotted under an pre 1836 Enclosure Act in lieu of tithe (see Enclosure Acts).
- Current owners of land where the right to tithe or tithe rent charge has merged under the various tithe acts from 1836 or 1936 (see Tithe Act 1836 and Tithe Act 1936).
- Current owners of former glebe land – this was land which fell into lay (non clergy) ownership on the dissolution of the monasteries or was sold by the rector (see The Reformation)
The other liability is attached persons and bodies who are still entitled to receive pre 1836 tithe rentcharge of resulting from an Enclosure Acts (see Enclosure Acts).
Parochial System
Chancel repair liability has existed since before the accession of King Richard 1 in 1189 when the parochial system was first getting established. The local land owners would build the church and provide the land for the church yard. They would also provide the rectory (also called parsonage) where the rector lived and the glebe (land to farm) by the way of endowment for the rector. So every parish had its rector whose principle sources of income were the glebe (such land was not necessarily situated close to the proximity of the church or next to the rectory/parsonage) and tithes (payment in kind) from the parishioners. This income provided both for his maintenance and a fund from which he could pay for chancel repairs.
Tithes
The tithe (payment in kind) was an annual payment of an agreed proportion (originally one-tenth) of the yearly produce of the land. E.g. wool, milk, corn, barley etc).
Advowson/Monasteries
The rector had a value due to the ownership of the rectory, glebe and having the benefit of the tithes. The right to appoint the rector (known as an advowson) generally belonged to the land owner who originally built and endowed the parish church and his successors. Advowsons could only be given to ecclesiastical persons – either an individual or an entity. During the 13th, 14th, and 15th centuries many advowson were acquired by monasteries who waited for the current rector to vacate, then presented themselves, appointed deputies (vicars), and thereby appropriated the rectory, the glebe and also the responsibility of the chancel repair.
The Reformation
During the reign of Henry VIII the reformation took place and in 1536 the dissolution of the monasteries. Their property, which included the rectories, the glebe, were appropriated to the Crown. The Suppression of Religious Houses Act enabled the Crown to dispose of the property, including the rectories and glebe to non clergy (lay) to institutions such as Oxford and Cambridge, and also to many individuals. Where the rectorial property went so did the benefit of the tithes and chancel repair liability. If the glebe was distributed between more than one new owners, then there was a (joint and several) division of the chancel
repair liability. The numerous remaining rectories remained in the hands and ownership of the rector who continued to receive the income from the glebe and tithes.
Enclosures Acts (Parliament)
From early times, money payments (tithe rentcharge) had begun to be substituted for tithe. This process accelerated from the beginning of the 1700s up to 1836 with the drive to improve the land and its yields. There were approximately 2230 Enclosure Acts covering half of English parishes of which the majority of the records with a map are held locally. This enclosure was a purely local affair; achieved by the passing of an individual Act of Parliament, called an Enclosure Act and was prompted by local landowners. It removed obligation to pay tithes, either by allotting land to the rector (approx 75% of the 2230) in lieu of tithes, or by substituting a fixed money payment (approx 25% of the 2230) called a tithe rentcharge (corn rent) which was based on the price of corn. With land acquired by the rector went the chancel repair liability. The Tithe Act 1936 did not deal with existing tithe rentcharges (corn rent) prior to the Tithe Act of 1836.
The Tithe Commutation Act of 1836
By 1836 tithes were still payable in most of the parishes in England and Wales. A commission was set up to oversee the commutation of all tithes (payment in kind) to a monetary payment called a tithe rentcharge (corn rent) which were to be based on the price of wheat, barley, and oats. The annual payment was not subject to local variation, was adjusted annually thus preserving the purchasing power and a record was to be kept so that a prospective purchaser of land would know exactly what he would have to pay annually to the tithe owner. The process of commutation was long.
The commissioner’s first task was to establish to what extent commutation had already taken place (Tithe Files). Then a survey of the whole of England was necessary to determine the boundaries of land and their acreage. The resulting maps, were to become known as tithe maps and in the majority of case reflected the tithe districts upon which apportionment was to be based,. The tithe owners and landowners then agreed the apportionment, the tithe rentcharge to be paid.
Existing tithe rentcharges (corn rents) which already existed under any previous Enclosure Act before 1836 were left unaffected and continued to be paid instead. The chancel repair liability remained with the land owner.
The Tithe Act 1936
Prior to 1936 various acts made provision for the liability to pay tithe rentcharge (corn rents) to be extinguished by redemption of the charge by payment of a lump sum only. The Tithe Act 1936 abolished all tithe rentcharge (corn rents) prior to 2nd October 1936 and replaced them by redemption annuities payable for 60 years ending on 1st October 1996 unless redeemed or other wise extinguished in the meantime. The Tithe Act 1936 did not deal with existing tithe rentcharges (corn rent) prior to the Tithe Act of 1836.
The Tithe Redemption Committee checked the claims submitted by the tithe owners who had been entitled to collect the rentcharge payable under the Tithe Act 1836. It then compensated the former tithe-owners out of Government stock and set up the Tithe Redemption Commission to collect the redemption annuities for the State. It was abandoned in 1956, by which time about 5,900 of the 11,830 tithe districts had been dealt with. The whole scheme as envisaged by the 1936 Act was wound up prematurely under the Finance Act 1977.
It dealt with the chancel repair liability in the following manner:
The Tithe Act 1936 chancel repair liability
What is the current legal position?
Following the Land Registration Act 2002 which came into force on 13th 0ctober 2003, there is a requirement that all chancel repair liabilities must be registered by the Parochial Church Councils (PCCs) before the 13 October 2013 to be enforceable. This means the liability will only bind new owners of registered land if it is protected by an entry in the land register. Until then chancel repair liability will remain an interest that binds successive owners of a property even though it is not protected by an entry in a register kept by the Land Registry. If the church fails to register by 2013 they will lose the right to enforce chancel repair liabilities against the owners of the land. However failure to register will only mean that the new purchasers will take the land free from the liability, current owners will remain liable unless and until the land is sold.
There is no fee chargeable by HM Land Registry for the PCCs to register the interest. Notice of the Parochial Church Council’s application will be given to the present owner of the land affected, and it may then be necessary to determine whether there is sufficient evidence that the liability affects the land, and what other landowners are subject to the liability.
What is the position of the church?
As the deadline of October 13th 2013 created by the Land Registration Act 2002 approaches so will the drive to ascertain if the there is a chancel repair liability interest which can be registered. As well as the Parochial Church Council there will be someone with sufficient interest in the history of the parish to carry out the necessary research.
The Church view chancel repair liability as a valuable source of revenue and is taking a proactive approach to registration through PCCs, although the task of registering all potential liable land is considerable. PCCs are also, in general, under a duty to secure to protect their interest in chancel repair liability.
Extract from the Peterborough Diocesan Registry website regarding chancel repair liability - Action to be taken by Parochial Church Council.
‘PCCs who believe that a liability for chancel repairs attaches to any land should seek advice from their solicitors about registering at the Land Registry a caution against first registration of the land (if the land affected by the liability is unregistered) or registering a notice (if the land is already registered), in order to alert a prospective purchaser to the liability.’
Establishing Chancel Repair Liability
There are 3 current methods or combinations thereof to establish if chancel repair liability exists:
- By checking whether an interest has been registered in the title of the property. This was so in the case of Aston Cantlow Parochial Church Council v Wallbank. However, this only establishes if the interest has been registered but not if there is an overriding interest. This still leaves unanswered the question of liability regarding pre 1836 corn rents, owners of former glebe land, owners of land under an Enclosure Award Act, and owners of land where the tithe or rent charge has been merged.
- By carrying out a full search in The National Archives at Kew. These are costly, approximately £120, time consuming, and often inconclusive as the records are incomplete and hard to interpret. If the search is conclusive it still leaves unanswered the question of liability regarding pre 1836 corn rents, owners of former glebe land, and owners of land under an Enclosure Award.
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By carrying out an electronic search to establish if the land/property is within a historic parish boundary with potential chancel repair liability. There are, however, 3 issues with this method.
(i)
If the result of the search is that the property/land is not in a historic parish with potential liability it still leaves unanswered the question of liability regarding pre 1836 corn rents, owners of glebe land, and owners of land under an Enclosure Act.
(ii)
These searches rely upon the accuracy of the historic parish boundaries. The boundaries are based upon the Tithe Map which were created as a result of the Tithe Commutation Act of 1836. These cannot be relied upon as only 1/6th of the Tithe maps, see below, were stamped by the government as accurate enough to use and some were never even finished.
Extract from The National Archives - Tithe Records Domestic Information Research Guide 41, Section 9. Tithe Maps (IR 30)
When the 1836 Act was amended in the following year, a provision was inserted to the effect that, whilst every tithe map should be signed by the Commissioners, a map or plan should not be deemed evidence of the quantity of the land, or treated as accurate, unless it was sealed as well as signed by the Commissioners. Approximately 1,900 only of the tithe maps - about one-sixth of the whole - were sealed by the Tithe Commissioners, and it is these alone - called first-class maps - which can be accepted as accurate. The unsealed (or second-class) maps constitute a very mixed collection - indeed, some are little more than topographical sketches.
It is unnecessary to discuss in detail the problems of interpreting a tithe map; but it is well to bear in mind that reliance cannot be placed upon the area of individual tithe areas stated in an apportionment or computed from the tithe map, unless the map is sealed.
(iii) They ONLY search against the ADDRESS-POINT (a grid coordinate) of the subject building and NOT the delineated property/land boundary. Much of the glebe and tithed land has been developed over the hundreds of years and the approximate 116,000 linear probably dissect millions of new property/land boundaries making grid coordinate based searches ineffective. The larger the area the more likely this will happen.
Comments from the Law Society, below,
which can be helpful with the above.
Chancel Repair Liability - A Law Society
Submission October 2006
21. A commercial searching service has been established. However, it necessarily suffers from the limitations imposed by the incompleteness of the records. A routine search, described as "a low cost screening report" - for which the charge is £10 plus VAT – only addresses the question whether the property falls within a parish where there is chancel repair liability. Even within a parish where the liability exists, the search report does not address the question whether the liability definitely affects the land in question.
22. While a firm negative response (no chancel repair liability) is helpful, it is immediately apparent there are severe limitations with the service it is possible to offer. A property may be within a parish where there is some liability, although it does not affect that particular land, or the parish may be one for which there is no record. We understand that, as a result, a substantial number of search results states that the possibility of liability cannot be ruled out. That does nothing to offer any certainty.
Conclusion and solution
Current methods to establish whether chancel repair liability exists may be inconclusive, due to incomplete information, inaccurate data and failure to cover all types of chancel repair liability. As a result may not give 100% protection.
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- All policies cover, the cost of chancel repair liability, legal costs, and loss of property market value
- No need to purchase any electronic searches or additional insurance
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