Medieval Law but a Modern Problem

The Anglican Church of

St. Mary the Blessed Virgin
Plympton, Plymouth, Devon, UK.
Dedicated 1311.AD.

Chancel Repair Liability

This posting will be of most interest to bloggers residing in England and Wales. Recently, an acquaintance of mine, put his house in the Plympton district of Plymouth up for sale. A purchaser was found and conveyancing procedures were implemented. To his astonishment he received a letter from the purchaser's solicitors stating that search results revealed that the plot of land upon which his property stands is situated within a parish which continues to have a potential chancel repair liability. The solicitor's letter stated the property is located in a parish where there is a medieval church (Plympton St. Maurice) and legal opinion considered the liability to be very real in this regard. He was thus required to purchase a chancel liability indemnity policy of insurance at his own expense of £162.70 before the sale could proceed. This relates to the adjoining parish to my own at Plympton St. Mary.

The gentleman concerned made local enquiries and established that this was 'no wind up' and that others had experienced similar claims. There is anecdotal evidence that a lady in Market Road, Plympton, claimed she had been held responsible under medieval tithe laws for the repair liabilities of the west door of my local church at St. Mary's, Plympton, and a farmer living on the edge of Dartmoor National Park had, allegedly, discovered he was liable for repairs to the roof of nearby Yelverton Parish Church , Devon!

I was fascinated by this story and researched it on the internet and sure enough I found that chancel repair liability hit the headlines in 2000 with the High Court decision in the case of Aston Cantlow v Wallbank where Mr. & Mrs. Wallbank were ordered to pay more than £95,000 towards the repairs of the chancel of the local church. They appealed and it was allowed. However, the House of Lords overturned the Appeal Court's decision in 2003, finding that chancel repair liability was indeed enforceable. The repair costs escalated in the interim and the final blow came on 5th February this year when the High Court assessed the claim at a final figure of more than £200,000. In addition, Mr. & Mrs. Wallbank are facing legal costs of more than £100,000.

It seems that much of this problem has come to light as a result of legislation which has resulted in the computerisation of land registry records of title deeds in England and Wales which has identified ancient tithes dating back to the dissolution of the monasteries in the reign of Henry VIII. Chancel repair liability can affect land within any parish with a church dating from before the Reformation, so it affects both rural and urban areas. Under the Chancel Repairs Act 1932, it is the parochial church council (PCC) which has the right to enforce chancel repair liability. The liability runs with the land and the landowner is liable whether it knows about the liability or not. It only affects freehold land.

The Law Commission recommended in 1985 that it was not appropriate in our modern society and, further, it should be abolished after 10 years but to date no government has brought forward draft legislation to deal with this. However, The Land Registration Act 2002 (Transitional Provisions) (No.2) Order 2003 preserves the status of chancel repair liability as an overriding interest for a period of ten years beginning on 13th October 2003 (The date when the Act came into force).

I am grateful to Frances Richards, a professional development lawyer who, writing in the Property Law Journal, claims the liability will continue to bind existing owners but after the end of the ten year period of liability will only bind new owners of registered land if it is protected by an entry in the register. This will put chancel repair liability on broadly the same footing as comparable rights, such as payments in lieu of tithe, Crown rights and manorial rights.

In response to the land registration developments, the Church of England is claimed to be actively seeking to register chancel repair liability before the 2013 deadline. As trustees, PCCs have a duty to protect their assets and diocesan authorities are apparently supporting them in considering registration where appropriate. So buyers and sellers beware! Is there an ancient chancel repair liability attached to your little piece of freehold land? Check your title deeds now or else the PCC may present you with a nasty surprise one day soon! The insurance companies are selling 25 year indemnity policies at very high premiums but the churches are receiving none of the proceeds.

Pressure for the abolition of chancel repair liability is mounting. In October 2006 the Law Society made a submission to the government calling for the abolition of liability accompanied by appropriate financial contributions to historic churches, and in December it launched a campaign asking individual members to endorse its proposals. It remains to be seen whether, and if so when, this campaign will bear fruit, but in the meantime chancel repair liability is a problem which property lawyers and their clients cannot afford to ignore.

A service called ChancelCheck provided by Chancel Liability Services Ltd now offers a low-cost screening report to identify if your plot of land is within historic parish boundaries where liability may still exist. Their website can be found at http://www.clsl.co.uk/