Chancel repair liability - will the ghost ever be exorcised?

Posted: 08/11/2012

Reform of chancel repair liability (CRL) has long been mooted and resisted. This historic obligation on property owners to meet the costs of repairing the parish church chancel was most recently debated in the House of Commons on 17 October 2012. Despite the lack of certainty as to the extent of its existence and an attempt to rectify this through the land registration process, it would appear that the pre-Reformation ghost will continue to haunt properties up and down the country.

CRL arose as the result of ownership of glebe land and the entitlement of lay rectors of a parish to tithes. It applies regardless of the religious leanings of the property owners and properties affected can be situated many miles from the church in question. Roughly speaking, the chancel is the area including the altar and choir stalls (which accounts for approximately 25% of the total area of the church).

In land registration terms it is considered an overriding interest meaning it is enforceable against successive land owners even if not registered at the Land Registry or as a land charge. The enforceability of CRL was upheld by the House of Lords in PCC of Aston Cantlow v Wallbank [2004]. Moreover, the Lords permitted the recovery of the costs of chancel improvements as well as repairs.

Up until this time, the Church of England and Church in Wales hadn’t sought to exercise their right to claim the liability. This was partly due to the lack of a definitive register of lay rectors and land affected by CRL. Following Wallbank, the Government came under great pressure to declare CRL unenforceable. It resisted, however, a total abolition of liability and instead proposed a registration procedure designed to bring about the certainty which was lacking.

Changes made by The Land Registration Act 2002 meant that CRL was to be recorded by parochial church councils (PCCs) in one of two ways:

• by way of a caution against first registration in the case of unregistered land;
• by entering a notice in the register of land where title is registered at the Land Registry.  

Registration is to take place by midnight on 12 October 2013 (registration date). Failing registration, CRL loses its overriding status. The Land Registry has thus witnessed a rush of applications from PCCs. It remains to be seen whether any applications are contested; objections need to be supported by evidence that the right to make the application does not exist. This is likely to be an expensive exercise given the difficulty in researching the existence of CRL with any certainty.

The passing of the registration date will not, however, mark the end of CRL. A loophole in the legislation guarantees the enforceability of unprotected CRL beyond the registration date; CRL will only be unenforceable against successors in title. In addition, PCCs will be allowed to register cautions or notices after the registration date where there has been no subsequent disposition.

Post October 2013 there will still be a real risk that contributions to chancel repair costs could be sought by PCCs. What can those in affected areas do? Mr and Mrs Wallbank were billed for £100,000 of repairs. By comparison, indemnity insurance can be obtained quite cheaply. Insurance should, however, be checked to ensure that cover is provided both for a drop in market value as a result of the existence of CRL and the payment of the costs of any demand made for payment. In addition, the Ecclesiastical Measures Act permits payments to PCCs for a release from CRL, but it can be expensive. The release fee is calculated by multiplying the cost of repairing the church in question, including all fees and fire insurance, by 33 years. Advice would be needed from expert valuers, only increasing costs further.

The current situation is still unsatisfactory for property owners. Further legislation is needed to deal with the enforceability of unprotected CRL post registration date. The Government’s willingness to act against the Church is, however, no greater now than it has been in the past. Such legislation could lead to legal action by the PCCs against the Government for the monies it would otherwise have been able to recover. This is undoubtedly a risk the Government will not want to run and so for the foreseeable future property owners still need to be advised on their exposure to liability.

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