Monday, 26 November 2012

Examples of Devon Chancel Repair Liability

Introduction


I have chosen to look at Devon's Tithe Apportionments (Awards) because they are mostly available on-line and this will give a sense of what kind of liability is outstanding in these places. In several cases there will be a need to cross check with the record of Ascertainments for tithe rent charge liability as well as the Tithe Apportionment.

Venn Ottery


The apportionment of this township is found here In this township all the Tithes are owned by the Clerical Rector and so for this township there shall be no liability going forward  since the liability tied to the tithes has been extinguished. There is the possibility that liability maybe outstanding in other townships but those are not available on line.

Morebath


The apportionment of this parish is found here this document is  a little confusing to read since the Vicar who is collecting some of the greater tithes  and Lay Rector  who is collecting the rest of the greater tithes are related.. It is a little uncertain looking at the document as to whether the vicar is collecting the greater tithes because they are the vicar or because they are a Bere hence some local research would be needed but the record of ascertainments should make that clear.
What is clear is that Montague Bere has merged and extinguished the tithes in the freehold with the result there is non-apportioned liability (personal and several) in a number of plots and these plots are given a plot number with the result that non-apportioned liability should be traceable and they also have names including  Ashtown and Timewell wood.


Tavistock


The apportionment for this parish is found here the second declaration says that the Duke of Bedford as the tithe owner of and land owner of 10,000 acres of land is merging and extinguishing the tithe in the  freehold. Extinguishing the tithe and merging the liability means that all  10,000 acres almost certainly still bears the liability, personally and severally (or non-apportioned liability), for the Chancel of Tavistock. It would seem that that this land will be traceable by the tithe map since on the apportionment they are given plot numbers. There is also likely to be liability apportioned by tithe rent charge  under the record of Ascertainments.

South Pool


The apportionment for this parish is found here and the rector is a Clerical Rector hence there will be no liability continuing.

Rockbeare


This apportionment is found here there are three schedules one with merged greater and lesser tithes and one with merged greater tithes and one schedule of unmmerged tithes. The First two schedules have the liability un-apportioned (personally and severally) with a total of 1,600 acres of land with the liability. The third schedule now is going to be either of apportioned liability or of no liability.

Twitchen


The apportionment for Twitchen is found here the tithe owner and the landowners were different at the time and there was no merger of land and tithe no enclosure award hence the only liability that would appear to be here is likely to be covered by the record of Ascertainments and hence apportioned liability.

Caveat

Chancel Repair Liability is always complicated and there may be other documentation in existence which may suggest the liability is different to what I have found via these tithe apportionments.

Conclusion


It would seem that from Devon's apportionments and indeed the ones I have seen in Staffordshire and Shropshire suggest that merged land tithe liability is quite widespread and may indeed not be included in the  4,000,000 acres that is normally given as a estimate of land bearing chancel repair liability. I have given further advice on an early blog post and some are found on this webpage.

Friday, 23 November 2012

Researching Chancel Repair Liability on Tithe documents

Chancel repair Liability research for PCC's

This post is aimed at PCC's who are stressed and this I hope is at least a starter in the right direction and I do have more advice on my webpage in the top right hand corner on pdf files.

Starting from home


Before you do anything it is worth researching the history of your church  since this will give you a heads up of what you may find or may not find. Looking your church up on a variety of on-line resources which I have put links to here. Starting with  your church on the 1836 clerical directory and the British history on-line are excellent places to start your research since they may say if there was an impropriator or lay rector.
Looking at  House of commons order paper 44 may well suggest if there was an enclosure award . Your parishes entry in the elusive 1887 Land Commission report can give a hint of the issues of what  a particular parish may have to deal with but also will show you if your parish was considered for Tithe purposes a parish church or a chapel and if it is a latter there will be no Chancel Repair Liability for your church although there may be liability for a church some distance away.

The purpose of the Tithe map and apportionment


The whole purpose of the 1836 Tithe Act was to change the payment of tithe to tithe rent charge ie from a payment of goods to a payment of money. All other considerations were secondary including issues of liability to repair the chancel. A plot which does not pay tithe rent charge may either have no liability or complete liability  for the chancel but this was not the focus of those drawing up the maps and the apportionments hence the mixed approached to mapping of those plots. They changed both Rectory (greater) tithes which have the liability and vicarial (lesser) tithes which don't to a money payment. Like Rectory tithes vicarial tithes were often owned by a lay person but not always so.


The vital documents


The next stage is to locate your church's vital documents which are the Tithe apportionments (or award) and Tithe maps for each township that made up the medieval parish. A parish may have up to dozen or so maps and apportionments but most parishes will have one or two.There were at least three copies produced  for each township, one copy will be at the national archives and others should be in local archives.
The other document is the record of Ascertainments which for many parishes is downloadable from the national archives but it may be obtainable from your diocese.


Tithe Apportionment and Map.


Everyone of these documents is different and they come in all different sizes and shapes and I would highly recommend that for ease of reading and understanding of the document that taking high quality photographs and taking them home to read on the computer is the best option. Even apportionments and maps from different townships in the same parish may well be different.


 The record of Ascertainments


 A question that will need to be asked  is 'Can the plots on the record of Ascertainments be identified on the Tithe map?' If so those plots have a apportioned liability for the chancel (normally very small). Sometimes plots are altered and subdivided and altered apportionments may well be needed to be obtained from the national archives. A good place to understand this document and relationship to your tithe map can be found on the national archive website here.


Plots not on the Record of Ascertainments 


These fall into several categories those in which the tithe rent charge has been redeemed (probably no liability) or tithe free as a result of enclosure awards and hence no liability and those in which the liability  is not apportioned and those which the tithes were in the hands of appropriators or an a particular organisation.


Enclosure award


Sometimes in the introduction of  the tithe Apportionment  it will state if there is an enclosure award that has affected tithe in which case this must be investigated

Redeemed plots


Between 1836 and 1936 there were various acts of parliament that allowed the land owner to pay the tithe rent charge owner off and also end  the liability (correction may or may not have ended the liability no one knows for sure). This may have happened to all the rent charge plots in a given township hence giving the result of no rent tithe charge liability and no record of Ascertainments. Yet liability can still exist in all the other forms as noted here.

Tithe Free plots


Sometimes as a result of an earlier enclosure some of the plots are tithe free and hence also liability free.

Merged plots


Some plots will been noted as having been 'merged with the Tithe' or 'merged and extinguished' and this only happened if the tithe owner and the land owner were the same person. This moved the liability for the chancel from the receiver of the tithe to the land owner but being the same person may no difference at the time and it ended the silliness of people paying themselves. Sometimes the greater tithes were merged but the lesser tithes were not and this happened when the Vicar was collecting the lesser tithes these plots still carry the liability since the greater tithes were merged.These merged plots bear the liability for the upkeep for the chancel in a non-apportioned form ie it is  personal and several as outlined in section 1 of the 1839 Tithe Act.
There may be many of these plots on a Tithe map and where much of the land is merged, it may not be annotated  or instead of plot numbers land owners names are used. When entire townships consist of merged land then there may be no map at all..

It is easy to get confused with 'merged tithe rent charge' land which is included in the record of ascertainments and merged Tithe and land which is not.

Chancel Checking Companies


It does seem that merged and extinguished land is at times not detected by Chancel checking organisation hence there are places with entire townships consisting of merged land with a negative result arriving


Glebe


Some plots may well be glebe and if it is rectory glebe held by a lay person then there will be liability for the upkeep of the chancel but even in this this case there is some disagreement depending on the history of the glebe. Vicarial glebe or Rectory glebe held by an incumbent does not carry any liability and so living on glebe farm once owned by a vicar will never have the liability. Contrary to some blogs no one has to be extra worried if they live on glebe land since it depends on the history of the land.

Clerical Rectors


If the liability from each tithe rent charge only went to a the incumbent  on a given plot there is no liability or if  'merging' of the greater tithe was done by the incumbent there is no liability. It is possible that a township will both have a clerical rector who collected the tithes and a lay rector who also collected tithes on different plots.

Appropriator


If the Tithe or Tithe rent charge went to an appropriator like a Bishop or a Dean or pebend in which case it is worth contacting the church commissioners since the liability may have fallen into their hands and this may be supported by the record of ascertainments. Not all the assets of all appropriators fell into the hands of the church commissioners and so this is very much a case by case basis. It seems that the Church commissioners are actively seeking to register the liability against themselves where they sold land free of Chancel repair liability.

Conclusion


This is but a pen portrait of a very complicated area and to carry out good research James Derriman's 'Chancel Repair Liability: How to Research it ' is the book to have.

 

various minor corrections 14 may



Thursday, 15 November 2012

Is Heathrow Airport responsible for a Chancel?

Middlesex Parishes


There are a number of Middlesex parishes near Heathrow airport which have had Lay Rectors and also enclosures  acts with traceable enclosure plans.  These include Enfield, West Drayton, Ashford and Harmonsworth (full list here). I have looked up all these parishes on the internet and according to British Online History '369 acres in lieu of tithes were awarded to George Byng, the impropriate rector' of Harmondsworth.

Where is this land now?

Well according to wikipedia ' Much land in Heathrow Field which later belonged to Heathrow Hall was assigned to "George Byng,", some as landowner, some in lieu of rights to tithe'.  It is the owner of the land in lieu of tithe that has chancel repair liability. Heathrow Hall was demolished in 1944 and the rural common land has gone so those 369 acres probably now have an airport on top of it. Almost certainly BAA  is the Lay Rector of Harmondsworth and personally and severally liable for the chancel but I don't think BAA will be worrying about the money or the loss of value of their property.

Questions, Questions.


Well does BAA know this? Has this liability been compounded in the distant past? What is the church doing about protecting their rights? Does the church think that registering the liability will compromise their charitable objectives?

Conclusion 


There is little doubt in my mind that this is true but there is only one way of being certain and that is view the Award and Plan at the London Metropolitan archives reference MR/DE/HARM/1/1-2.

Tuesday, 13 November 2012

Felixkirk update


Church Commissioners are involved


The Church Commissioners now accept they have the liability and so the local people appear to be free from Chancel repair liability. A happy ending here at least.

Enclosure Award Liability

The start of the story: The Rectory Tithes


The Rectory was a valuable asset since the owner had Rectory Glebe and also the Rectory Tithes  (sometimes called Impropriate tithes or greater tithes) which meant the owner had the right to have a share in certain produce from all farmers although precisely what produce came under these tithes was often in dispute  It was though of huge value with one minor fly in the ointment that once in a generation the owner of the Rectory tithes had to either contribute or maintain the local parish church's chancel. The Rectories were generally in the ownership of monasteries or clergy although a few lay people possessed  them. It was Henry VIII who sold the rectories off to Lay people on an industrial scale along with the liability to retain the chancel. The new owners though made a lot of money on the tithes and so to maintain a chancel on occasion was not a significant issue.

There were also Vicarial or less tithes which may include 10% of the honey and various other small items of produce which would normally to the Incumbent of the church be it vicar or rector. In the event the priest was a perpetual curate the lesser tithes were also frequently owned by a Lay person.

The Tithes were often  sold or given in parts to various people and organisations and so in a parish some of greater tithes may have been given back to the vicar some remained being collected by the local gentry and others tithes fell into the hands of the various Oxbridge colleges.

Collecting the tithes became by the mid seventeenth century awkward since it was hard to know who owned what and what was titheable, as there were local variation, and there were also court cases going on over tithes. People resented giving there produce going to the local gentry and non-Anglicans disliked a tax to support the church they did not go to and it was thought , probably correctly, that the collection of tithes made farming less efficient. There was a desire to remove the tithe system by various parties from the seventeenth century onwards but it was not completed until 1936.
Between 1730 and 1835  the principle away in which tithe collecting was removed (commuted) in parts was by enclosure acts.

 Enclosures


Enclosure (older spelling is inclosure) started in the Tudor period where essentially the wealthy land owners claimed the common land for their farms. This was done piecemeal, causing much upset with the commoners who used the common lands and this led to riots in places. This enclosure was frequently illegal but there was no enforcement to prevent it from happening.
From the early eighteenth century through to the mid nineteenth century enclosures continued  but more frequently by parliamentary act. All the local landowners or those with land based interests would be allotted some land as outlined by a Private Act of Parliament. The Enclosure Commission would then come along and give allotments in way they considered to be fair. Some land would  go to those with manorial rights, others to those who owned the tithes, some going to large landowners and some to the commoners. Generally it was the wealthy who gained, whilst the poor commoners would end up with a tiny amount of land for their own use instead of the right to farm hundreds of acres with other commoners

Enclosures and Tithes


One way people could gain an allotment was by ownership of tithes and people would give up there right to collect the tithes in either the newly enclosed land or the entire township or Parishes. Depending on the number of tithe owners, and/or  townships, or even Parishes, there may well be a number of allotments of land. Since a condition on owning the Tithes was that the owner had to upkeep the chancel then this liability was transferred to the land. The allotment of land is often given the phrase 'in lieu of the Rectory (Impropriate) Tithes' and/or sometimes Rectory Glebe that end up carrying the liability for the upkeep of the chancel. Well known examples of this form of liability are Aston Cantlow Broadway and Wickhambrook  Essentially this liability has never been repealed or changed although there is a way of compounding (paying the church off) to remove the liability.
There were also sometimes allotment given for the lesser tithes to the local vicar or curate and these allotments never carry the liability.


How much land is covered by this Liability?


There were about 1100 Acts of Parliament that created land in lieu of tithes to a non-clerical Rector  but some allotments for tithes are very small or the tithe owner got Corn Rents (a monetary payment) instead of land. On occasion the allotments in lieu of tithes was large for instance Arlecdon where 390 Acres were given to the Bishop of Carlisle. In the Enclosure awards I have viewed the amounts were between 30-150 acres. Assuming an average of 200 Acres per Act that gives 220000 Acres with personal and several liability as a result of Enclosures.

How is this land with the liability located


Parliamentary Enclosures come in three parts an Act of Parliament, an award and plan or map. The Award  interpreted the act on the ground and each award is it's own eccentric, often hard to read and long, document but I provide a rough guide to reading one here. An example of an enclosure award with all 58 s pages is  Streatley Berkshire here. The plan  of the award and Streatley's is found here and unusually it notes the land given in lieu of tithes on the plan.
Of the 1100 or so Acts of parliament which gave land in lieu of tithes to an non incumbent I have found around 620 plans and I expect there are not more than 700 in total in existence. Without a plan, I believe, it is all but impossible to locate the land and having viewed a number of enclosure plans it is clear that a number are simply inadequate to locate the land with the liability but  many though are very good plans.                      
(Three files showing the partial results of my research explanation  pre 1771 Enclosures, post 1771 enclosures) .

Vanished Liability

In some cases the liability may theoretically exist but church has been rebuilt in such a way that the liability has ended or the church is now redundant with the result there is no liability. Where the allotment was given to a clerical rector the liability was removed in 1923 as the church nationalised all its various assets removing the land with the liability form the care of the local rector but also removing the liability.

Conclusion

Although there may well be the potential for 220000 acres of land with the liability I would expect there to be approximately 500 usable plans connected to chancels with the obligation to repair remaining and this makes about 100,000 acres of land.





Saturday, 10 November 2012

Charlbury Chancel Repair Liability

A Brave PCC


I am certain there are other PCC's who have made the same decision as Charlbury PCC  and decided not to  fully investigate the liability and not to enforce it who ever holds the liability. Quoting from their website 'On 9 March 2009 the PCC of Charlbury passed a resolution saying that they were not aware of any claims for chancel repair liability in the parish and that they would not pursue any such claims in perpetuity. Therefore people wishing to sell, or to buy, any land in the parish of Charlbury no longer need to buy insurance against hypothetical chancel repair liabilities'
It is clear that to me that this is a brave PCC assuming they did not communicate with the Charity Commission.

The legal situation

From the legal advice of the Church of England it says 'Members of a PCC who act in breach of these fiduciary duties may be required to make good any loss which the PCC has incurred as a result of that breach, out of  their own personal resources.  They may also face an inquiry by the Charity  Commission and, in consequence, exposure to the exercise of the Commission’s protective and remedial powers'

On the same place that 'Additionally, the Commission strongly recommends that if a PCC considers, after careful consideration of the principle described above, that it would be contrary to its interests to enforce chancel repair liability to which it is entitled, or to register notice of it, the PCC should seek formal advice from the Charity Commission on whether not enforcing the liability would be consistent with the fiduciary duties of its members.'

This seems to put the onus on PCC's to investigate the liability but not necessarily to notify or enforce the liability and since the Charity Commissioners have clarified the situation it seems that non-notification of the liability is more likely to be acceptable.

Is there Liability in Charlbury?


Like all such things it is an unknown until detailed research is carried out at various Archives. Yet a brief amount of research suggests there is apportioned liability under Charlbury's record of Ascertainments  and small amount of liability maybe the responsibility of an Oxbridge college as identified in the 1887 Land Commission report and there may be Monastic glebe as well. I think it is likely that the apportioned liability is  not worth pursuing and they could have written to the Charity Commissioners making that case.

What do you think?

Is this right decision on behalf of the charity? legally morally? Is it right to let the Oxbridge College off the hook for a legal obligation they may have had for couple hundred or so of years?
Personally I would have investigated the issue fully before coming to any conclusion but every PCC has to make it's own mind and balance what is best for the charity taking into account personal risk. My PCC action sheet for PCC's is found here.










Wednesday, 7 November 2012

Felixkirk Chancel Repair Liability

A Surprising Liability


What  is unsurprising is the inaccurate use of statistics in the story  (also here) since there are nothing like 16,000 churches which have Chancel Repair Liability the figure is closer to 5,200 churches of which about 800 chancels are in the care various bodies like the Church Commissioners and Oxbridge Colleges.
The one clear thing this story shows is how each Church's history is unique with their historical events leading to differing forms of Chancel Repair Liability.

The first surprise:  It is nothing to do with Henry VIII.

He normally gets the blame for CRL and often he is at fault but here it is the Archbishop of York in 1279 who gave the rectory to the Knights of St John who would then have been liable for the chancel. This is a reminder it is the separation of the rectory (tithes and or land) or part of the rectory from the incumbent that transfers the responsibility of the Chancel to someone other than the incumbent.

The second surprise: The Land is Monastic Glebe

It would seem that the tithes ended up with the Archbishop of York but the Glebe was transferred to lay people.  This type of Glebe, according to the 1985 Law Commission on Chancel Repair Liability, was very unlikely to be found but I guess Felixkirk is a place that disproves the rule since it would seem that the Tithe Map noted this Glebe. It seems that liability attached to monastic land may be more common since the owner of Thame Park according to British History online has Prebendal land meaning they are responsible for St Mary's Thame and in 1958 the Lay Rector was known, showing that the  knowledge of  who a Lay Rector land has not always been forgotten in the mists of time.

The third surprise:  Church Commissioners not involved

The Land Commission report of 1887 shows that the Tithe Rent Charge in Felixkirk was collected by the Archbishop which would have meant he would have been liable for the upkeep of the chancel jointly with the landowners and this liability has normally ended up with the Church Commissioners. Rent Tithe Charge Liability as set up by the 1936 Tithe Act ignored all other sources of liability and so Church Commissioners could be responsible for anything from 0% to 100% and this would be shown in Felixkirk's record of Ascertainments.
So it is at least possible that the landowners will be sharing the responsibility for the chancel with the Church Commissioners.

The fourth surprise: The PCC felt this was the best way forward

The PCC either felt the Broadway option was not open to them or they are causing a storm in the local press and making the point that notifying the liability would hinder the charitable objectives of the Church.

Update (8th November)


It would seem that the liability is based on apportioned liability under the 1936 Tithe Act not Monastic Glebe (you can't believe everything you read in the papers!)

Monday, 5 November 2012

The start of a blog on Chancel Repair Liability

Introduction



This blog will be my personal reflections on issues with regards to Chancel Repair Liability (CRL) and should not be intended as legal advice since that is the role of solicitors. I am inspired to write this as a result of reading inaccurate comments across the web, being fairly well read on this subject I believe I can pass comment without ridicule.
I will not fool myself into thinking I know everything about CRL, since I doubt that anyone does and I am always happy to be corrected. The best book on Chancel repair liability is James Derrimans book  Chancel Repair Liability: How to Research It and I think if you want to understand it  then this is the book to have.

Opinion

Personally I think the whole concept is slightly bonkers but we are where we are and sadly parliament which generally created the issue  has failed over the past 80 years to resolve it and they seem to be determined not to resolve it considering that apparently only 4 people attended the last debate on the subject.

A Common Error


I  will explain this in later blog posts but to make it clear of the  4,000,000 acres that are liable to CRL, for the upkeep of about 5200 churches, 70% or so are liable to fraction of a fraction of a chancel under Tithe Rent Charge Liability.

In one example, the owner of a field, in event of £200,000 damage to the chancel would be liable to £86. If the ownership of the field was split up then that £86 would be personal and several to all the part owners. It is likely that it would cost in excess of £50 to prove the liability and about £30 to collect the money from each partial owner. In other words the liability exists but it is most unlikely that any PCC would actually enforce it. I suspect this misunderstanding has been helpful though for the profit margins of insurance companies and for various anti-church organisations.

Liability Personal and Several

The remaining 30% of liability is personal and several but in many the maps to prove the liability are not good enough or there was no map made. I would expect that of the 30% remaining probably around 10% could be found. This would leave about 2000 places with allotments of land with provable personal and several liability and this remains an important issue for those parishes.


Parochial Church Councils (PCC's)


For PCC's Vicars and wardens the whole issue is very difficult and I have put together some helps on this webpage on the top right hand corner one link goes to  PDF of  PCC action sheet  another is a short guide to Enclosure awards and Tithe maps. Both these are written by me and I do update them every so often and they are not perfect. If you see a mistake I'll be delighted to correct them but please note each enclosure award and Tithe Apportionment are unique and so it is hard to generalise.

My next post will be about Felixkirk.