Tuesday 1 February 2011

Chancel Repair Liability

Under the Chancel Repairs Act 1932 a Parochial Church Council (PCC) has the power to claim for costs and contributions towards the expense of repairing the church chancel. Some figures estimate that up to one third of PCCs may be entitled to recover chancel repairs from persons who own all or part of lands that would have historically been owned by the parish. In the event that the owner fails to pay then a PCC can enforce the demand through the courts as shown in the case of Aston Cantlow v. Wallbanks Case [2003].

In this case Mr & Mrs Wallbank inherited a farm holding which was within the PCCs boundary. When they inherited the property they also inherited the Chancel repair liabilities by succession. This is because the obligation to contribute towards the costs of repair of the chancel currently passes to a buyer automatically with the affected land, regardless of whether or not the seller of the land knows of the liability. Thus, when Church (Chancel) was in need of repairs the PCC requested that the Wallbanks pay for the expenditure associated with doing so. The Wallbanks chose to dispute their liability, and ultimately lost their case being ordered to pay somewhere in the region of £200,000 towards repairs plus legal expenses.

Unsurprisingly ever since the Act has been widely criticised as unfair and there has been many calls for it to be abolished.

However, this is not a simple case of the church being greedy; each PCC has a legal and fiscal obligation to seek costs from a person who is legally obliged to pay. In fact, in some cases this may even be a requirement before a church can ask for help with repair costs from Lottery funding or English Heritage.

The problem is that there is no single register of chancel repair liability that a potential purchaser can refer to when buying a property. Meaning that even finding out your liability risk can be extremely difficult. Despite the fact that it is possible to carry out ‘chancel check’ searches as part of your pre-contract investigations of the land. These searches are not property specific and will simply determine whether the property is located in a parish where it continues to be possible to enforce chancel repair liability.

Purchasers can take practical steps, such as, checking the state of repair of the church chancel and if they are aware of any potential liability trying to negotiate the purchase price down or set aside a sum for any liabilities that may arise. In short though, there is no absolute way to protect against liability for chancel repairs. The risk can be mitigated in various ways but if a purchaser has real concerns then insurance may be their only option.

However, under the power of the Land Registration Act 2002, the situation will change from the 13th October 2013.

The Church of England has until this date to register all land liable for chancel repairs. Thereafter chancel repair liability will only bind new owners of registered land if it is protected by an entry in the land register and should therefore no longer be an overriding interest. This would mean that if there was no Notice on the Land Register, a buyer would acquire the affected land free of liability. Thankfully though chancel repair searches will become obsolete for purchasers. It is worthwhile noting that until a sale of the property occurs after that date the current owner of affected land will remain liable.

It is likely that this legislation will lead to a large increase in demands made by the church, as they seek to enforce liabilities before the deadline.

Potential buyers, tenants and landowners need to be aware that the value of the property subject to a chancel repair notice could be seriously affected.

Until 2013 we will continue to carry out Chancel Repair Liability searches for our conveyancing clients to establish whether or not the property they are intending to buy lies within the boundaries of a PCC. If it does, then we will advise on the purchase of appropriate insurance against the risk of a liability coming to light.

TOM HERD, LLB (Hons)
Legal Advisor
Hallmark Solicitors


Tel: (01482) 616 616
Web: www.hallmarksolicitors.co.uk
Email: tom.herd@hallmarksolicitors.co.uk

© Hallmark Legal Services Ltd 2010
This publication provides general information only and does not constitute legal advice or seek to be an exhaustive statement of the law. Specific legal advice on any matters raised in this publications should be obtained.