As regular readers will be aware, chancel repair liability remains a controversial issue. In the following guest post, Michael Hall argues for its final abolition. Michael is a solicitor with experience of chancel repair liability.
Current practical problems
It has often been said that Chancel Repair Liability (CRL) is a property right like any other; your solicitor can easily search to find out if it exists, and you can insure against it, so what’s the problem? Anyway, wasn’t the Land Registration Act 2002 (Transitional Provisions) (No. 2) Order 2003 supposed to deal with it, by removing the overriding status of Chancel Repair Liability?
Many property buyers may think like this, until they are unexpectedly affected by it. The law is full of uncertainty, and searches are often not reliable or definitive.
- Insurance is not always available cheaply, and it does not provide cover against all types of loss.
- Inclosure Awards are not easy to search for, photograph, transcribe and read; many are held only in County Archives and there are no digital copies available. Often they are largely illegible or their plans are missing. Why don’t The National Archives and the County Archives keep digital photographs and supply them on request instead of only making photographic copies to order? Flash photography and tripods are not allowed, so the Archives’ own ‘Reprographics’ Service may have to be employed.
- Inclosure Awards often consist of about 30 vellum sheets each measuring a yard square, written in 18th century script (not easy to decipher).
- Similar problems can occur with Records of Ascertainment, Tithe Apportionments and Tithe Maps. Finding the right Tithe Map and identifying any remaining landmarks may not be easy, or even possible.
- Insurance does not cover you against the loss of value caused by potential chancel repair liability.
Lord Avebury’s new Bill
Lord Avebury’s Chancel Repairs Bill 2015, which had its first reading in the House of Lords on 4 June, will end liability for Chancel Repairs arising from the ownership of land. Unlike his 2014 Bill, it will preserve the liability of the institutions which the Government compensated for the loss of tithe rentcharges under the Tithe Act 1936. This should give some comfort to those in the Church who argue that the Church should receive compensation if Parliament legislates to end the liability.
The new Bill will greatly reduce the chances of any claims for compensation by PCCs. But the Government is very unlikely to agree to any compensation, nor should it – given the support already given to Churches through the Heritage Lottery Memorial Fund, Church Roofs Fund and suchlike, and the compensation paid under the Tithe Act 1936 (when tithe rentcharges became extinct).
I cannot see the Conservative Party invoking the Human Rights Act 1998 at the same time as proposing to repeal it. This is certainly a matter for our Parliament and not for the European Court of Human Rights. Since no other country in the world has anything like the Chancel Repairs Act 1932, rights under that Act are hardy universal. The General Synod has left it to Parliament to implement its 1982 decision. The Labour Party could have enacted the Law Commission’s 1985 report; but Lord Irvine of Lairg as Lord Chancellor was against it on spurious human rights grounds.
The Church cannot reasonably claim compensation for the loss of chancel repair rights which it has only very rarely enforced. The Land Registry have told me that there has only been one case where the issue of a registered notice of CRL has got as far as the First Tier Tribunal – but that case was settled. More cases may go to the Tribunal shortly.
There may be decisions on the enforceability of CRL against lay rectors who purchased since 13 October 2013 when no notice was registered then. This would be interesting, because CRL is not a charge on land, and so non-registration should be irrelevant. The Chancel Repairs Act 1932 has not been amended to provide a defence of non-registration. The Law Commission said in its 1987 Third Report on Land Registration (Law Com 158) that it was arguable that CRL should not have been listed as an overriding interest under the Land Registration Act 1925 because it is not a charge on the land [paragraph 2.81, page 34]. The Law Commission recommended that, until abolition, CRL should be treated as a general burden on land (such as local property taxes) and so not be registered.
Registration has caused many of the problems for property owners and abolition of registration would largely solve them. There is no statutory authority for the registration of notices of chancel repair liability. The Land Registration Act 2002 and the Land Registration Rules 2003 contain no mention of such liability. If complete abolition of the liability is not possible, abolition of registration would solve most of the problems.
Alternatively, Parliament could amend the Chancel Repairs Act 1932 so that it says what people seem to assume it says: that the liability is not enforceable against someone who purchased the affected property when there was no notice of it on the register.
There cannot be any human right to have the Land Registry register CRL notices. Of course, some will argue that section 11 of the Land Registration Act 2002 means that CRL will not affect buyers if there is no notice of the liability on the register, as only overriding interests – of the kinds mentioned in schedule 1 of the Act – bind purchasers in the absence of registration. But section 11 only identifies the matters affecting the estate; it does not list any personal obligations of the property owner under statute. The PCC has no right of recourse to the land if the lay rector refuses to pay for chancel repairs. If CRL were a charge on land there would be provision in the Rules for the registration of the PCC as the proprietor of an appurtenant right under section 13 of the 2002 Act (that is, under Rule 7 of the Land Registration Rules 2003 as a “rentcharge, franchise or profit à prendre in gross”).
Land Registry Practice Guide 18 concerning franchises (such as the right granted by the Crown to hold a market or fair in a particular place) explains the test to be applied to decide whether or not a right amounts to an interest in land. A “relating franchise” does not give the franchise-holder the right to enter the affected land without the land-owner’s consent. So it does not confer an interest in his land and should not be registrable against his title. Similarly, CRL does not amount to an interest in land.
In several parishes the PCC registered notices but backed down and cancelled them in the face of complaints from alleged “lay rectors”. The churches often say that they never wanted to register the notices: they only did so because the Diocese told them they had to. They had no intention of suing anybody. I suggest they may now support Lord Avebury’s Bill.
The most significant contributors to chancel repairs are the Church Commissioners, who may in retrospect prefer the previous version of the Bill (but they were not enthusiastic about that one either). Deans and Chapters of Cathedrals such as Hereford, which are heavily burdened with CRL, have chosen to remain silent, as has the General Synod.
The reform of CRL is about simplifying the law and getting rid of antiquated and anachronistic legislation. The Church is generally keen to do so if it reduces the workload of the bishops or, in the jargon, ‘allows them to work more efficiently’. There is a Simplification Forum on which they have been kind enough to allow me to be the first to post a comment.
I hope my comments here and there will bring this issue to the attention of those who have a stake in it and if you have read this far, thank you.
Cite this article as: Michael Hall, “Why reform Chancel Repair Liability?” in Law & Religion UK, 17 June 2015, http://wp.me/p2e0q6-5cL.