Chancel repair liability – has the draconian tithe law expired at last?

Thanks to medieval law, landowners of property within the parishes of Anglican churches built before 1536 can be held liable for their share of the costs of repairing or replacing the local parish “chancel”, namely the area around the altar in a church.

There is no limit on the sum that the Parochial Church Council (“PCC”) can claim from homeowners for chancel repair.  In a landmark case in 2003, a homeowning couple were ordered to pay the PCC £95,000 towards chancel repair and the PCC’s legal costs of around £250,000 for the lengthy legal battle, which concluded in the House of Lords.

Prior to 12 October 2013, a landowner could be pursued by the PCC for chancel repair liability, even if they had no knowledge of its existence. Churches did not have to protect their right to claim for chancel repair; it was automatic. Consequently, conveyancers simply insured against chancel repair liability, while the government sought to repeal the ancient law to make it harder for the PCC to claim funds from landowners.  The law was changed on 13 October 2013.

Since this date, churches have been required to protect their interest if they want to enforce liability against those purchasing land within their parish. This change in law was supposed to protect new buyers by making them aware that they could be held liable for chancel repair. Unfortunately, as highlighted further in this article by Jennifer Sole and Saskia Gates, with assistance from intern Arshid Mahmood, this objective has not been achieved conclusively and liability insurance may still be necessary.

The methods by which local churches can protect their interest to recover chancel repair funds differs for registered and unregistered land:

Unregistered land

The right to demand payment for chancel repair must be protected by lodging a caution against the first registration. As it is a legal requirement to register any new sale of land, the caution will alert the PCC of the first registration and provide them with an opportunity to apply for a notice. They can protect their interest by entering such a notice in the register when a property is registered, to bind any future owner.

Registered land

If the land is registered, the right to demand payment must be protected by a notice in the register. Although the entry of the notice does not necessarily mean that the Anglican church is intending to make a claim for liability, it does give them the option of doing so. If a notice is not registered and the property has been disposed of to a new owner for monetary consideration after 13 October 2013, as the law stands the new owner is unlikely to be held liable for any chancel repair liability. However, if the disposition was a gift or subject to an insolvency matter, the new owner is likely to remain liable for chancel repair, even if there is no notice registered on the register.

Land Registry approach – the search for clarity continues?

HM Land Registry is still accepting applications for the registration of notices to protect overriding interests that lost their automatic protection after 13 October 2013. Further, the Land Registry will not check whether the registered proprietor has changed since this date before proceeding with the application! Consequently, it is possible that a notice could be entered on the registered title even after property has been transferred to a purchaser for value on or after 13 October 2013. Until the late entry of a notice is challenged in the Courts, therefore, it must still be “buyer beware”; meaning use of the insurance policy remains widespread.

The property lawyers at Curzon Green are experienced in conveyancing. Please contact our offices and our experienced lawyers will be happy to help you manoeuvre around this minefield.