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.


12 comments:

  1. I note your comment regarding 'Common Error' and although in theory you would be correct, case law (Wickhambrook PCC v Croxford, 1935)has made it clear that the PCC need only enforce against 1 liability holder for the whole amount as it is personal and several, not joint and is not limited to the amount of the tithe rent received. A liability holder is however entitled to claim contribution from any other liability holder who would, essentially, be jointly liable if they can stretch their finances to a detailed search to establish who the other liability holders are in respect of that Parish.

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    1. Dear Fiona thank you very much you seem to have fallen into common error that of the 4,000,000 acres of land which bears CRL probably at the most 500,000 acres or so is Personal and Several as a result of either Enclosure awards, Monastic glebe Rectory Glebe, Prebendal Glebe and the merging of Land and Tithe.
      The Wickhambrook case happened before the passing of the 1936 Act and the apportioning out of Rent tithe Liability and so this is not going to happen again.

      In other words CRL in it's land based form comes in two forms one is Personal and Several as in Aston Cantlow and the other is apportioned (I deleted my own reply and so now reinstated!)

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  3. I think that 500,000 acres of land which is personal and several is probably an over estimate since in the majority cases the land given in lieu tithes under enclosure awards was quite small. There are at the most 700 Enclosure Plans in existence based on the fact I could find 590 plans for the 1000 or so Acts of Parliament.

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  4. I should have been clear that the apportionment of rent charge liability comes from the Seventh Schedule of the 1936 Tithe Act which probably came about as a result Wickhambrook case. Although for all other forms of liability the Wickhambrook case is the precedent.

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  5. Dear Rev Yerbury
    Apologise for my late reply. I assume you are referring specifically to the land burdened as allocated under Records of Ascertaiments,thus the land and the rentcharge were under the same ownership, merged in acordance with s21 of the 1936 Act.
    Although the act provides for a apportionment, Derriman provides at p18 that "there is no provision in law for sub-dividing that liability...7th sch para 5 specifically provides that anyone against whom proceedings are taken to enforce chancel repair liability apportioned by rent charge may dispute whether liability attached to that rentcharge or not."
    Essentially therefore as time passed and parcels of land have been split into several parcels owned by various land-owners, the analysis still supports the argument that as only 1 liability holder need be enforced against by the relevant PCC as they are under no obligation to enforce against all relevant parties; it is upto that owner to seek contribution of each other relevant land owner through the civil court.
    I would however, agree that the land relevant to this specific issue would not be the norm and would be probably a small percentage of the overall acreage involved in this historic liability, which should have been abolished long since.
    Yet my original comment regarded the 70% as quoted under your heading of Common Error, providing that owners were only liable for a fraction of a fraction equating to £86, so forgive me if I have misread, but this 70% would not cover the land which is under the apportionment. As for the calculations made, it is suggested unlikely that a landowner would be happy, in today's society, to suddenly hand over money against a liability of which in many cases no notice was given, without having it proved legally that they are liable, irrespective as to the amount being recovered.

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  6. Oh, I agree that within the fraction that is personal and several and so if 12 houses were in a field with £400 of liability then the PCC could simply visit one owner and claim the £400 from them and they could claim a share from the other 11 owners. The land registry would would still insist all the properties would have to be registered with the liability at some some expense to the PCC. I actually believe that in the majority of cases the cost of finding the land and registering apportioned liability and then enforcing it will exceed any benefit to the charity. That is simply ignoring the damage it would do to the charities reputation.

    I am saying that approximately of the 3,800,000 acres of land with the liability about 70% is apportioned liability as of the 1936 tithe Act. Many people seem to assume that all the land with the liability is all personal and several for the entire chancel but this is not the case. The estimate given by the second Estates Commissioner last week was 1.5 million acres of merged rent tithe charges it would be fair to say the is roughly the same for unmerged. Although unmerged as total often is more than merged in the records I have gone through. From the Government this gives an estimate of 78% of the land under apportioned liability from the 1936 Tithe Act. I think this is a little optimistic and that is why I go for 70% under the apportioned liability from the 1936 Act.

    This still leaves a large amount of land with personal and several liability (900,000 acres) in existence but not as much as some writers think.

    I totally agree with your point about people finding it unacceptable to be faced with a liability that is nothing to do with them. People should take up with their MP as I have done.

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  7. I notice I successfully contradict myself with the amount of 500,000 acres and 900,0000 for Personal and several, still all these are guesses based on guesses made in the 1980's. It must be noted the maps for this liability may well be either non-existent or poor.

    I think though the percentage of 70% apportioned liability is a fair guesstimate

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  8. Unfortunately it is not enough to involve your local MP, the recent debate in Westminster brought by Peter Luff MP faced a government minister on the topic, who was either not versed in the liability or completely uninterested in it. Although the liability doesn't effect the whole of the UK, under the Council of Mortgage Lenders Handbook it is a requirement that a Chancel Check be carried out on all properties being purchased by way of mortgage. The Chancel Check reports make it clear that irrespective of a positive or negative responce, insurance against the liability should be purchased - this equates to tens of £mil each year.
    Governments intervention of a deadline for Oct 2013 will not, as intimated, put the liability in its place, it is only really applicable against a bona fide purchaser for valuable consideration purchasing without notice that will be be able to escape this liability - thus, essentially, this liability could be with us for a further hundred years, still effecting individuals in the same capacity; it makes a joke of Parliament's initial intention.

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  9. I think the Government have done precisely what they wanted; a partial removal of CRL by making much of it far to expensive to actually register for the relative gain ie rent tithe charge liability and much of the rest is hard to locate. The Government also avoids compensating all the churches for the loss of asset.
    I would expect those churches which have registered their liability to be offered some money to remove the liability in about 5 or 6 years time and at the same time removing all pending liabilities. Probably with the need to compensate several hundred churches in stead of thousands.
    I am assuming a master plan which may well be an assumption to much.

    I am not that convinced about chancel check companies since I am aware where they have made the wrong call in a couple of places one property where the liability was owned by the Church commissioners and insurance had to be taken out. In yet another place I would strongly suggest someone took out insurance but the result was a negative.

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  10. From the information available, the respective PCC's do not currently have to pay for the registration of this liability with the Land Registry. As for compensation, the church's have already been compensated for the loss of the tithes and any loss as a direct result of the CRL is just and proportionate based on the Church's own decision to release the Spiritual Rectors from their liability previously.
    There is already the ability to 'pay' the liability away - records show that the Wallbank's had to do exactly that at a further cost of £40k just so that they could sell the property.

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  11. You are correct registration is free (until Oct 2013)but all the ancillary costs are not. There is a need to find the title, getting authenticated documents, getting a surveyor to identify the land (although this may not be needed in some rural areas), possibly paying a professional to carry out the work. It all soon mounts up particularly if you compare that to a plot you are registering has 12 houses on it with a potential liability of £86 in the event of £200,000 damage. In rural areas though where there are but a few owners of the liability then it may well be economic to register. Then of course you have to

    The Government elected not to fully compensate the church for the loss of the liability hence the record of Ascertainments and ignoring of other forms of liability.
    The issue about spiritual rectors I am in partial agreement with but what the church did was transfer the spiritual Rectory to the care of the Church commissioners and remove the liability from the individual to the church (PCC) and pay rectors and vicars a stipend.

    I am aware that compounding exists but unaware that the Wallbanks had used that process since generally it is considered to very expensive and unfair. It seems that they must have agreed to a reduced amount of money which considering the history seems good.

    What I expect the government to do is to come up with a cheaper easier form of compounding. I am agreement that the whole thing is slightly mad and unfair on a lot of people.

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