Chancel Repair Liability

[NobbyClarke]

Hello,

 

Our search has just shown that we *may* have a chancel liability and did we want to buy insurance.

 

I decided to check if we actually did have a liability, so I checked with the national archives - they have a very good leaflet (The National Archives | The Catalogue | Research Guides) on determining if you have a chancel liabilty.

 

From this, I discovered that there are 8 landholdings that have a liability, but the total liability will be less than 1% of any repairs. The most that an individual landholding has is 0.16% which is pretty good. Unfortunately the maps to show which plots have the liability have not been digitised yet, so I would have to actually visit Kew Gardens to identify if my plot is liable. The plots are also highly likely to have been sub divided in recent years, so the liability will be even less.

 

The documents that show if there is a liability only cost £3.50 and were emailed to me immediately - although it is a double edged sword - if you discover that you do have a liability, instead of a chance of a liability - you cannot then take out the chancel liability insurance :@

 

regards,

 

Nobby

[JonCris]

Nobby had you read this thread from it's beginning you would have realised it wasn't a good idea to check with Kew.............reason........rather then there being a possibility of liability you have now confirmed it beyond doubt & must now disclose the fact to any potential buyer.........& as you say you will not now get insurance..........or if you do the cost will be considerably more

[JonCris]

Forgot to mention........any potential buyer will use this fact to either withdraw from any agreed sale or at the very least as a bargaining tool to lower their offer

[NobbyClarke]

I agree with you, however I have not gone to Kew and identified that my plot has a liability, all I have done is pull the record of ascertainment which identified that there are a number of plots in the village that have a liability, limited to less than 1% of the total liability.

 

Therefore, there is still a chance of liability and any insurance would still be valid - of course, if I went to Kew and fully identified it was my plot that was liable the insurance would not be valid.

 

Finally, I made sure the application for the Record of Ascertainment was not made in my name, nor using my credit card, so it would be very difficult for the insurance company to prove I knew about it.

[JonCris]

Nobby then I agree you should be OK........but tell me is there a Church Chancel building (used or not) or a Tithe barn within say 1 mile of your home or within the old Parish boundary?

[NobbyClarke]

There is a church in the village, I have no idea about a tithe barn. The village has expanded rapidly over the past few decades so I don't know the exact distance to the church.

 

However, as you have pointed out, I don't really want to find out any more as that would bring with it a whole load more problems, including the fact that I will have to disclose anything I find.

 

At the moment I am happy knowing that there is a chance of a liability, but it is a severely restricted liability.

[JonCris]

Of course it is Nobby.........problem is any potential buyer would have to know that.........I suspect many will panic when confronted with the possibilty & withdraw or at the very least use it to reduce the price.......I know I would....attempt to reduce the price that is:)

[BADGER 69]

Gawd! It's enough to make you in to a disestablishmentarianist.

[JonCris]

Many people say there's nothing to worry about the Church will never use this Chancel liability..that its a very restriced liability.......Now if that's true can someone tell my why the C of E has, within the last couple of years, employed many legal clerks & lawyers specifically to register at the Land Registry their interest, on qualifying properties, before the deadline of 2013

[pommymike]

I don't know that Church House in Westminster (i.e. the National Institutions of the Church) are employing people to do registrations but they are employing lawyers to give advice to Dioceses. They intend to leave it to Dioceses and Parishes to take advice from local lawyers about whether actually to apply to register the rights they may try to claim. They have a Legal Advisory Commission which has accepted that PCCs can "take into account non-financial matters, including the church's mission in the parish, subject to obtaining advice and provided they act in the best interests of the charity."

 

This advice is rightly playing down the erroneous idea that members of PCCs have "fiduciary duty" to enforce all its financial claims. They must of course taken into account the disproportionate cost in many cases of employing lawyers to attempt registrations which would be disputed and lead to bad feeling and clearly run counter to the religion's ethical teaching, i.e. "love thy neighbour" (apart from the adverse publicity for the church's legal advisors).

 

There is a suggestion that the Charity Commission would need to approve any decision not to register or enforce claims, which I don't believe to be correct - the Charity Commission does not nowadays in practice interfere in the financial affairs of Church of England and there is no mention at all of the Church on its web site.

 

In the distant past it was otherwise. In an 1899 case In Re the Alms Corn Charity: Charity Commissioners v Bode and another [Chancery Division 1899 A 1422] the Charity Commissioners brought an action against Jane Bode under the Charitable Trusts (Recovery) Act 1891. Ms Bode had purchased 278 acres from the Ecclesiastical Commissioners. There was evidence that since time immemorial the Rector of the Parish had made an annual payment of corn for the poor of the Parish. This custom was regarded as a legally enforceable charitable obligation. Mr Justice Stirling commented that it was much like chancel repair liability.

 

This was not disclosed by the Church at the time of the sale which was stated to be "free from incumbrances", but the conveyancers included the phrase "subject to all tithe rentcharge, and other payments and outgoings charged upon or payable out of the lands conveyed".

 

The buyer was deemed to know about it because of a tablet in the Parish Church which mentioned that these "corn payments" were made out of the great tithes of the Parish. The Rector later had the land allocated to him in lieu of tithe under the Inclosure Acts.

 

This case shows how biased the Courts were in favour of established institutions and against the individual. This is no longer the case and I think a challenge to any claim would be far more likely to succeed and the Human Rights aspects have still not be fully explored.

 

There is a new book by John Burgess published by Word Power Books - "Chancel Repair Liability: The Church of England and the Strang Case of the PCC of Aston Cantlow v Wallbank : A Continuing Crisis for the Church of England?" - which I have read and would recommend.

[JonCris]

Great post pommy & if it were all only such it would be great. The problem in your post lays with the fact that in some diocese, of which I know personally (in fact I could name them but obviously I cant) there lawyers currently being employed to register properties

 

If I'm not mistaken the other problem faced by the Church is that English Heritage will refuse restoration funding until that avenue has been attempted.

 

I shall read the book you recommend

[Kanzashi]

I have not done a search, lived in the property for 20 years and have a church dating back to 1100 AD only 800 yards away. Can I buy Chancel Repair Liability insurance (pref on line) as a residential householder, or will I have to go through a broker?

[JonCris]

Kan it's my understanding that only account holders such as solicitors can purchase insurance on the home owners behalf

[Kanzashi]

Jon, is it the situation then that I could go to a licenced conveyancer and ask if they would for a fee purchase the insurance on my behalf, even though I have lived at the address for 20 years and have no inclination to move?

[pommymike]

You might be interested in a report of the Pastoral Committee of the Church of England :

http://www.cofe.anglican.org/about/churchcommissioners/pastoral/pastcom/reporttoboard.doc

This shows that in 2006 the Church Commissioners who are responsible for chancel repairs to about 1000 churches only spent about £400 per church during the year on chancel repairs.

If you have chancel repair liability the chances are that it has been apportioned so that you are only liable for a small percentage and it is unlikely that anyone in the church would want to bother you over it.

Probably the chancel does not need repairing anyway.

[altona18]

I have not done a search, lived in the property for 20 years and have a church dating back to 1100 AD only 800 yards away. Can I buy Chancel Repair Liability insurance (pref on line) as a residential householder, or will I have to go through a broker?

 

 

As Jon said only through solicitor as needs to be in place prior to completing.

[Kanzashi]

I seem to be somewhat lost here, most are saying I should have this insurance, yet having lived in my house for 20 years with no intention of moving, no one can tell me of how this insurance can be obtained without 'completing a move' ie going through a conveyancer or solicitor, which makes me think I'm missing something here. Is it only for recent house purchases since the judgement of their Lordships in Cantlow PCC v Wallbank? I am sure there will be huge numbers of people around the country who will fall into my situation of wishing to cover themselves against a potential claim, yet there is insufficient information available to enable to make an informed decision or help them start this process. Can anyone bring some clarity to my understanding of this please? Many thanks.

[pommymike]

I suggest you look at the chancel check website:

Welcome to ChancelCheck®

I think they will allow you to take out the insurance if you register with them. It does not matter that you have already bought the property, as long as you have not done a full chancel repair search (of the National Archive Records of Ascertainments). They will also do a screening search to check whether your property falls in a tithe district in which there is potential chancel repair liability.

 

The normal practice is not to take out the insurance if that screening search produces a negative result. However the screening search will not reveal whether there is an Enclosure Award which alloted land to a rector in lieu of tithe, as happened in the Aston Cantlow case.

 

The type of liability revealed by the screening search is where a claim could be made by the Church under section 31 of the Tithe Act 1936 because the tithe owner who was liable for chancel repairs acquired land out of which tithe rentcharges were payable before they were extinguished as a result of the 1936 Act. The tithe rentcharges are said to have "merged" in the land.

 

It is possible to obtain from the National Archives on a DVD a copy of the Record of Ascertainments for your parish if there is one, and it will describe the land affected by reference to the field numbers. TNA will also supply on DVD copies of any revised tithe apportionments and if there is an M with a number opposite it means the tithe rentcharges merged in the land referred to so that it is affected by chancel repair liability. You can obtain on DVD a copy of the tithe maps and revised tithe apportionment maps for your parish. Not all parishes had tithes and those with parish churches whose incumbants were rectors were relieved of liability by the Ecclesiastical Dilapidations Measure 1923.

 

Of course in respect of most of the land out of which tithe rentcharges were payable the diocese received compensation for the extinguishment of the rentcharges and the liability passed to the PCC. It is only where the tithe owner also owned the land out of which the tithe rentcharges were payable that the liability came to affect the land itself.

 

The reason for this was that the tithe owner did not have to pay the tithe rentcharges to himself so he instead had to pay the same amount to the church for chancel repairs if required. The tithe rentcharges are mostly very small amounts, like a pound or two each year, for several acres of land.

 

What the church lawyers don't accept but it is clear from reading the actual statutes, the liability cannot be more than the amount of the tithe rentcharge. However it is not stated how many years tithe rentcharge you have to save up or how this would work in practice. This is because there is no case at all on the subject - i.e. no case since 1936 where a claim has been made by the Church under section 31 of the Tithe Act 1936 which has been disputed in Court.

 

Perhaps this gives you a better idea of the level of risk in not taking out this insurance.

 

YOu can read the legislation yourself in the Statute Law Database Home - Statute Law Database

 

Look at the Tithe Act 1936 section 31 which refers to section 1 of the Tithe Act 1839, and section 21 of the 1936 Act (which was actually repealed in 2004 by the Statute Law (Repeals) Act 2004 on the advice of the Law Commission). Section 1 of the 1839 Act refers to the "extent of the said tithe or rentcharge" which is the crucial phrase often overlooked and disregarded.

[JonCris]

excellent post pommy & I would also point out that some but not all home insurers are (or may be soon) offering Chancel Repair risk cover included in the normal building & contents cover

[McDavid]

I am the incumbent of a parish to which chancel liabilities attach, and it is a minefield. Twenty years ago a legal opinion on one property stated that, because it was only one small part of the original property to which the chancel liability attached, the owner of the property in question would carry liability for "one quarter (or less)" of "113/73908 of any liability" - in other words, about £38 in any £100,000 ! The opinion given was that "the daunting size of the task which the PCC would face, in order to identify everyone responsible, would deter them from undertaking such an exercise unless they faced a very major expense". Hardly surprising. The Aston Cantlow case was simple by comparison.

All this has been left to history until Aston Cantlow. No parish would wish to stir up the level of antipathy that it would generate, but they were forced to do so by English Heritage (who refused to consider grant aid unless the parish pursued the chancel liability). It is now for each individual parish to consider whether or not to register these historic/archaic liabilities, and as you can imagine from the fraction above, this would be a gargantuan task for my parish (and most of the land in question is now in another parish - so don't think that because you do not live in an ancient parish you are all right, because everywhere was once in an ancient parish - they have simply become sub-divided over time...).

On top of that, I am trying to sell a house that I have recently inherited and the purchaser's search has thrown up the possibility that it may have a liability to chancel repairs, so would I please take out insurance...:-?

[JonCris]

Excellent McDavid But I understand that whilst you may be asked to foot the cost the insurance should be in the name of the new owner & not the seller as chancel insurance is non-transferable

[happymug]

Have just discovered this subject so sorry to be a bit behind the rest of this thread!

I have read this thread from the start and now have a comment / question.

The previous post seemed to suggest that you can not transfer the insurance if you take it out, but the info I have just received from ChancelSure, via my solicitor offers various policies that include "Residential Non Successor" and "Residential Successor" (the distinction being that you can pass them to future owners.

Period of cover is offered at 25 years, 35 years and "In perpetuity"

Now I might have got the wrong end of the stick, but it seems to me that if the Church are serious about this, the only insurance that makes sense is "In Perpetuity" on the basis that if they formally register their interest before the 2013 deadline and you have the balance of your 25 year insurance left, then progressively over that period, your house will be worth less and less as fewer and fewer buyers (or mortgage companies) are interested. And presumably, if you are still resident when the policy expires and the Church continue to make claims, then you will be unable to insure and have to stump up?

Is that right?

FYI, a Residential Successor, In Perpetuity, up to 5 acres policy with a Limit of Liability of £100k has a cost of £95.75. Is that a sensible limit though? Based on the much referenced Aston Cantlow Vs Wallbank case it seems too low - you can get higher liability cover....

£250k = £145.75

£500k = £170.75

£1.0m = £185.75

£1.5m = £220.75

£2.0m = £245.75

£2.5m = £270.75

Depending on who's numbers you care to believe, Wallbank would still have been out of pocket to the tune of £400k if he took a minimal policy (£45.74 would buy you a Residential, Non Successor, up to 5 acres with £100k limit of liability).

Sorry to waffle on - so my 2 questions turn out to be...

1. Am I right that you need "In Perpetuity" cover to protect your investment long term

2. What is a sensible limit of liability?

[JonCris]

Dunno to both questions. You have to make a judgment as only you know the property Personally & in view of the piddling amount involved, when you consider the value of the property, I would go for the top figure "In Perpetuity"

[majsheridan]

Hi,

 

I am in the process of trying to sell my house and the purchaser's solicitor has done the search and have come back to me using the standard terminology saying that my property MIGHT be subject to the chancel repair liability.

 

However my house was built by the Ministry Of Defence on MOD land, which has now been sold off privately.

 

Is it likely that MOD land would be subject to the chancel repair liability? Would the MOD build houses on land that could be subject to chancel repair liability? It seems unlikely to me otherwise the church would have a claim against the MOD?

 

Any thoughts on this would be welcome.

[JonCris]

YES It's not the dwelling that's makes it liable it's the land it's built on & that liability transfers with each he owner..........unless the MOD were shrewd enough to 'purchase' the liability when they bought the land & if they did it'll be in the deeds