Ed John explains the current legal position
What is chancel repair liability?
Chancel repair liability is essentially the liability of a rector to maintain the chancel of a church. The chancel is the part of the church that is reserved for the choir and clergymen. Repair of the chancel is of historic origin, dating back to 1534 following the Act of Supremacy which confirmed Henry VIII as head of the Church of England.
After the reformation, when Henry VIII dissolved the monasteries and sold off the land, the liability passed from the rectors to those who acquired the land. These people are regarded as “lay-rectors” and with the land they assume responsibility to the Parochial Church Council (or in Wales, the Representative Body of the Church in Wales) for the repair of the chancel.
The repair liability passes to those who subsequently purchase or take a lease of the land. If the land is divided into parts which are separately owned, then each owner would be joint and severally liable for the cost of repairs. This means that, if the Parish Council were to pursue only one landowner for the cost of repairs, then that landowner would be liable to pay the whole chancel repair cost and then reclaim a proportion of the cost of the repairs from the other landowners.
Historic chancel repair problems
There are a number of issues which may be problematic for a person liable to fund chancel repairs, namely:
- Unless liability is clearly stated in the title documents, it is very difficult to know with certainty, even with the benefit of a search, whether a property is subject to chancel repair liability as the responsibility is binding on the land without it needing to be recorded in any public register.
- There is no need for the liable property to be proximate to the Church. In the 2007 case of Parochial Church Council of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank1, which resulted in repair costs of £186,969.50 and liability for legal costs of over £200,000, the liable property was located just under 100 miles away from the church.
- Properties located in an urban environment can be subject to chancel repair liability - it is not solely rural properties which are liable.
- Likewise, the size of the property is not material as to whether or not it is subject to chancel repair liability.
- Freeholders and lessees of both commercial and residential properties can find themselves affected.
Since the Aston Cantlow case there has been a boom in chancel repair insurance.
Chancel repair liability – reform
Until 13 October 2013, chancel repair liability is an “overriding interest” which will continue to bind existing owners and new purchasers of affected land, despite not being registered against the title to the property.
After that date, it will be much easier to tell whether a property is subject to chancel repair liability. Purchasers or lessees of land affected will only be liable for chancel repair costs if the chancel repair obligation has been entered in the registered title of the property. However, it is worth noting that those that continue to retain ownership of property (i.e. those who owned the land prior to 13 October 2013) will continue to be liable for chancel repairs until they dispose of their interest altogether.
It is expected that there will be a spike in applications by Parochial Church Councils to register before the deadline of 13 October 2013.