What is it?
Chancel repair liability is an ancient interest, and according to The National Archives, potentially benefits some 5,200 pre-Reformation churches in England and Wales. It allows the Parochial Church Council (PCC) to require owners of former rectorial land (which does not need not be in close proximity to a church building) to meet the cost of repairing the church chancel. It does not matter that the land may have been divided into many freeholds – each part of the land is potentially liable for the whole amount – and the liability passes with the land, regardless of whether the owner of the land knows of the liability or not.
Chancel repair liability is classified in law as an ‘overriding interest’ and therefore did not always appear in the title deeds to a property. PCCs are now however proactively identifying and registering land that is subject to a chancel repair liability before the 13 October 2013, as after this date chancel repair liability will only bind new owners of registered land if it is protected by an entry in the title to the property.
There have been numerous calls over the years for chancel repair liability to be abolished but it appears that the Government had no plans to abolish it or to introduce a scheme for its redemption. For the time being, chancel repair liability is here to stay.
How does it affect me?
As mentioned above, if chancel repair liability is established the owner or occupier of property may be called upon to contribute towards the costs of repairing the church chancel. The House of Lords decision in Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank in 2003 highlights the potential costs and liabilities to landowners. The facts of the case are detailed but the outcome of the case was that Mr and Mrs Wallbank were liable to pay almost £200,000 to put a church chancel into substantial repair and a similar sum again in legal costs in challenging the liability over a 17-year period.
The formal record which sets out the proportionate liability of all owners in a parish required to contribute to the repair of the church chancel is called the Record of Ascertainments. A search in the records of ascertainment will help to identify the likelihood of liability in respect of a given property as well as the proportion of the total cost to be paid in respect of each liable property. The actual amount to be paid cannot be known until repairs are carried out and their cost established but it is important to be aware that the potential liability is not limited to the value of a property.
What can I do?
A simple check to see whether a property is near a medieval church alone is not sufficient and it is not safe to assume that properties in urban areas will necessarily be free from any chancel repair liability.
Any purchaser or tenant of property should, before it becomes contractually obliged to buy property or take a lease, have their solicitor check the title deeds, the Land Registry and current landowners for information as to chancel repair liability. Internet searches are now available from companies such as Chancel Check, which for a cost of less than £20 provide an indication as to whether or not a property is situated in a parish that continues to have potential, theoretical chancel repair liability.
If an initial chancel repair search reveals that there is a risk, a purchaser or tenant can take out indemnity insurance (for a one-off premium) against the risk of a PCC seeking to recover the cost of repairs, or they can obtain a full search from The National Archives. A full search costs in the region of £100 and provides a more definitive reply as to whether a particular property has a liability. If a full search does reveal a liability, a purchaser or occupier can still approach insurers to obtain an indemnity insurance policy covering the costs of repairs but, given the known risks the policy premium will be higher.
It will often be a condition of any insurance policy that no contact has been made with the PCC alerting them to the potential liability and therefore parties should keep this in mind when conducting their investigations.