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1 April 2013

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‘Chancel Repair Liability for Woodlands’ feature by Ray Arnall

Posted by: Gill Gange

The chime of church bells ringing through the woodland reminded me of a legal risk which, until recently, has been considered of esoteric relevance. Very few people have actually heard of Chancel Repair Liability or are aware that they may have a potential liability to contribute to repairs to their local church building. However, a recent legal case in the Parish of Aston Cantlow caused a fundamental change in thinking. In this dispute, the Parish Council pursued the neighbouring land owners, Mr & Mrs Wallbank, for substantial expenses relating to the repair of the Chancel of the local church. The case was challenged at various levels through the English Courts and determined in favour of the Parish Council resulting in a very substantial award (over £200,000) against Mr & Mrs Wallbank in respect of the cost of carrying out repairs to the Chancel and legal fees.

The practical problem is that liability to Chancel repair is not usually noted in title deeds. There are searches and enquiries which can be made, but these lack certainty as to whether the land actually has a liability and if so, what the expense is likely to be. An owner or purchaser of land may have to take a pragmatic and commercial view of the situation, and take the risk that unexpected expense claims may arise in the future.

There have been many calls to abolish Chancel Repair Liability, but in practice Parliament has been reluctant to deliver meaningful legislation. However, the law is due to change in a minor way whereby after 13th October 2013, Chancel Repair Liability will cease to be a “overriding interest” for Land Registry purposes, and, unless the Parish Council register an entry on each registered title, it would be difficult for the Parish Council to pursue a claim after any subsequent sale of the property.

That is not a very satisfactory position for existing owners, either now or in the future, since the liability will still continue to attach to the property until it changes hands. In the meantime, any Chancel Repair registration against the property could blight any subsequent sale and diminish the value of the property, or even prevent a sale.

Chancel Repair Liability: Historical Origin

Chancel Repair Liability arises out of medieval laws relating to the church’s right to collect tithes. The church (in this context meaning the Church of England) had a historic right to collect tithes in order to repair and maintain the Chancel, which is the eastern end of the church containing the altar. Various reforms, including the dissolution of the monasteries, meant that rectorial land which had the liability was sold on and the owners of that land still (in many cases unknown to them) retained the liability for Chancel repair. The “lay rector” with this liability would historically have expected to have received tithes and other payments out of which he could have paid the cost of Chancel repairs. However, various pieces of legislation over the years abolished the right to collect tithes but over looked the abolition of the Chancel Repair Liability itself.

This ancient law has been much criticised even by the Church of England and also by the Law Commission who commented that the law was “anomalous, uncertain and obscure” capable of creating financial hardship and unsuited to modern society (Law Commission Report 1985). Nevertheless, the liability has still not yet been abolished.

Rectorial land liable to contribute to Chancel repair is thought to exist in about 5,300 parishes in England and Wales.

How a Chancel Repair Liability may affect Woodland Owners

Chancel Repair Liability could potentially affect woodland owners along with any other land owners. Native woodlands would sometimes have been part of the rectorial land, and woodlands planted since medieval times could have a liability in the same way as any other property. However the area of a typical woodland is substantially greater than the area of a private house and garden – leading to a proportionately greater risk and share of liability.

What can I do about it?

The current position is that the title deeds very rarely indicate whether the property has a liability to contribute to Chancel Repair. However, it is possible to carry out a Chancel Repair Liability Search which will indicate whether or not the property falls with a Parish or tithe district that has a record of Chancel liability and indicate whether there is a potential liability. These searches are, however, only indicative and do not offer certainty or a guarantee. It would take extensive analysis of Parish records to give greater certainty, and the expense of doing so would be disproportionate and costly. Furthermore, finding out that there is a liability may mean that it would be difficult to take out Chancel Repair Liability insurance at a sensible premium.

The most practical approach is to carry out a Chancel Repair Search. If this does reveal that the property falls within a Parish where there might be a potential liability, taking out an insurance policy against the risk is the pragmatic solution. Although such insurance policies are generally aimed at either residential dwellings, commercial buildings or plots of land of less than 3 to 5 acres, some insurers will insure woodland but at an increased premium. On a recent matters where I have carried out this exercise for Clients, the insurers charged premiums of £100 to cover a potential liability of up to £60,000 and £700 to cover a liability of up to £500,000. Higher limits of indemnity may be available at higher premiums.

After 13th October 2013, the change in the Land Registration rules will make the decision easier. If it is a purchase of registered land, and there is no registered entry relating to Chancel Repair Liability, an “arms length” purchaser for value without notice of any liability would normally take free of the risk of future liability. This does not however, benefit existing owners of land where the risk of Chancel Repair Liability is already noted on the register.

Going forward

It is hoped that, at some stage in the future, the Government will abolish what many think is a legal anachronism. That would probably be the best solution, since even the Church of England have been reluctant to support Chancel repair liability in a multi-ethnic society where they rely on parishioners and church visitors to contribute towards maintenance of church buildings on a voluntary basis. Until abolition, the approach is either to take out the insurance for a fairly modest premium, or take a pragmatic view that the risk of a claim being made is very small and hope that the dice roll in your favour.

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