Tuesday, 30 July 2013

Chancel Repair Liability insurance

Many of us have taken Chancel repair Liability insurance out probably for a sum of between £25 and £60 possibly preceded by a chancel check to see if there is likely to be a liability in the area.
On the face of it as a result of as a result of Aston Cantlow where a family were faced with a bill of £100,000 it seems fairly reasonable. 
Yet questions have arisen in my mind about this practice, since I am aware of places where insurance has been take out where there is no liability and other places where there is liability and yet it has not been taken out. One question that I have considered is paying the PCC cheaper easier and more efficient to remove the liability than getting insurance that has limited effect.

Paying the PCC off


At a later date long after the Aston Cantlow court case left the headlines the Wallbank family had to pay a further £36,500 to release their land from the liability which is called compounding a mysterious procedure under the Ecclesiastical Dilapidations Measure 1923. After that date, the liability was removed and since they paid, I assume for 100% of the liability it was removed from all land in the parish.

Apportioned liability under the 1936 tithe act




The vast majority of chancel repair liability (75 %?) is apportioned out with each field taking a tiny amount of liability using a calculation based on pre-decimal coinage. Taking a real but anonymised example from a parish that I believe is not to pursuing the liability.



this means that for every 1 old pence of a value an allotment has the owners are due to pay 1/281578.

An example is field 185



The value of this field is 9 shillings and 4 old pence which means  the owner of the field  is liable for 184/281578 of the value of the chancel or for every £1000 damage to the chancel  the owner is liable for £0.65

here is the plot 185



Allotment 185 now has  11 owners on it and the owners would be obliged to share the liability between them in a way they thought was equitable. For a PCC to register the 185 it would almost certainly cost a PCC in excess of £100 and to collect the money probably about £30. 
It is  likely, as the estate is fairly new, that all the owners have bought chancel repair insurance at a cost of at least £25 (could be as much £60) per house which is vastly in excess of any even foreseeable liability on the plot of land.
If it was considered that the compounding figure was around £40,000 (this is only a guesstimate and based on Aston Cantlow) for a chancel that the compounding figure to completely remove the liability from this plot would 184/281578 * £40,000 or £26 showing that in this place chancel repair liability insurance is fairly pointless.
This example of apportioned liability is fairly average since there are places where the percentage per plot is much smaller and a places where it is larger.


Other Liabilities


All the other forms of Land based liabilities i.e 'land given in lieu of tithes' (like Aston Cantlow), 'merged land and tithe' and 'impropriate glebe'  are several ie an owner is liable for it all with the other owners of the lands. 'Land given in lieu of tithe' size  varies in size from between a few acres to 1000 or so acres and the number of parishes affected is normally between one and three. The enclosure of Neroche (or Roach) Forest in Somerset may have the record with the possibility of involving 13 parishes (Broadway, Bickenhall, Beercrocombe, Ilton, Barrington, Ashill, Illminster, Whitelackington, Curland, Donyatt, Isle-Abbotts, Hatchbeauchamp, Buckland). 'Merged land and tithe' liability can be equally vast in a given parish covering maybe 1000's of acres.


Enclosure Award Liabilities


Acts of parliament that created enclosures are fairly well documented and it seems that Chancel checking organisations use these as a basis of their databases. I am aware of at least 2 instances where people have paid for insurance in an area which had an enclosure award giving land to a Clerical Rector but that liability was removed in 1923 so in effect people are paying for an insurance that can never be used. Many enclosure award's were issued without plans or the plans are not that good and so that the land bearing the liability cannot be traced.
Yet not all enclosure awards where carried out by parliamentary act and so at the this point it remains slightly uncertain to me whether the databases of chancel checking companies can detect this liability if there is no parliamentary act.


If someone happened to be aware they own an acre of liable land out of a possible several hundred I don't see why they can't approach the diocese to remove the liability. The owner could offer to compound it by an appropriate percentage ie if they own 1 acre out of 200 the owner could offer 1/2% of possibly £40,000 although it may not be accepted but it is worth the attempt.

Merged Land and tithe


This particular liability was created by the 1839 tithe act and allowed owners of the land, who also owned the tithes to extinguish the tithe payment to themselves and to merge the liability for the chancel into the land. Not every land and tithe owner did this but it seems to a way of avoiding mapping and apportionment costs and the only way of knowing if a particular area has this liability is a close examination of the tithe apportionment document. This form of liability is often poorly mapped and hence no one could locate the land bearing the liability but there are tithe maps where the land is eminently traceable.
I am aware of  at least one place were people have not taken out chancel repair liability insurance and I know there is at least a strong potential for the liability based on merged land and tithe.

Self research


It is quite easy to do a probably survey if an area is likely to have certain forms of chancel repair liability but looking up the area (here) if you find the place as clerical rector then there is no liability but  if someone else owned the tithes then there is a possibility of enclosure based chancel repair liability. If an area had apportioned liability then looking the name of  the parish up here in section IR 104 will show if there was apportioned liability in the given area although not all areas of the country have got the files in a downloadable format. If there is apportioned liability then there is the increased chance for the other rarer forms of liability to exist. If got hold of the record of Ascertainments from IR104 and then compared it with the local tithe map and your proposed acquisition was on one of the plots listed then you know it is subject to apportioned liability as noted above.

Local Solicitors


I have wondered why solicitors have not over the last 10 years engaged their own archivists to draw up a portfolio of information with regards to chancel repair liability in the local parishes and so being able to give better advice but i guess that is where chancel checking companies have come in.

Chancel Repair Liability insurance was it worth it?


Generally, for the ordinary home owner, in the majority of locations, it was probably not worth it since frequently the liability is minuscule and in urban areas virtually untraceable.  For people living in country areas who own large tracts of land or people living in parts of the country with known enclosure awards it is probably something that is worth having. Even apportioned liability can build up if  someone owns a large number of fields. I have spoken to many parishes and by far the majority are not registering the liability for a whole variety of reasons which decreases the usefulness of the insurance.
I would only take out insurance in a place after I have done some personal research but I would absolutely take out insurance if one of the conveyance deeds said something like land subject to 'Ecclesiastical dues'  or it was in an parish where I have found there should be liable land as a result of an enclosure award and a plan exists (my personal lists researched  are on points 4a, 4b and  4c  here).

I guess, though for the vast majority of us, there is the element of peace of mind for having the insurance and avoiding the research stuff but don't expect the insurance to be used. If buying property after 13th October there shall be virtually no need for chancel repair liability insurance.

Monday, 15 July 2013

Hameringham Lincolnshire; Chancel Repair Liability

I was asked a slightly odd question, 'can a parish refuse to research chancel repair liability and still get a letter approving this from the Charity commissioners?' and the answer is, as far as I can see, no. The charity commissioners can consider whether a decision is reasonable or not but for a parish to refuse to a investigate can, in my opinion, never be considered to  be reasonable particularly as the liability might be held by the crown or the church commissioners.

Lose Lose Decision 


In refusing to investigate no one really wins, the PCC members may be considered to be breach of their role as charity trustees. The local home owners still have the possibility of liability outstanding on their land which could be registered at any time as the liability still stands until the property is sold and as a result in the change of the law in October makes it more expensive for one Lay Rector to register against other Lay Rectors (if possible). When an investigation takes place everyone is helped, since a PCC can decide not to register the liability and possibly seek confirmation from the charity commissioners or simply discover there is no liability or find there is someone who will actually give them money if the chancel is damaged. Investigation provides closure for everyone as opposed to a nagging uncertainty.

The Unwanted Research


I took it upon myself to see what I could discover about Hameringham from Staffordshire and the first difficulty was that the place name had changed and was originally called Hammeringham.
My next stage was to look up the tithe maps and there was none and then to look up enclosure acts and according to House of Commons paper 44 there was one in 1772.


This shows that the owner of the tithes was a clerical rector and he got an allotment of land for the tithes equal to 2/15ths of all the new land due to be enclosed. Today looking on the map this land is almost certainly called Glebe Farm.


As the land was given to a clerical rector 'in lieu of all tithes', the liability has long since been extinguished under the terms of the 1923 Ecclesiastical Dilapidations Measure. To be completely and absolutely certain the PCC would need to get the  act of Parliament (search Hammeringham here) or to visit the enclosure award and plan at Lincoln Archives. Doing this would confirm, House of Commons paper 44, by looking at the definitive documents but in my experience if an Enclosure is recorded as being a clerical rector or lay rector on House of Commons paper 44, it is a correct record. When sundry impropriators are recorded over a number of parishes in Paper 44 then the only way to discern the details is to look at the records in the archives.

Summary for Ham(m)eringham


There is almost certainly no Chancel Repair Liability in this parish and there is no need to write to anyone but this research should be recorded in the PCC minutes but it might be quite nice to have a copy of the Enclosure plan in the parish..

Final update on Barlow and Brayton chancel repair liability

It is now certain that Brayton PCC withdrew the  notice of the liability on the land both on houses and on the Parish Council of Barlow as the story was going to print.

The Conclusion (I think)


There is no doubt that a PCC can feel that they are in a lose lose situation and I am certain they had no intention of making peoples lives more difficult. This is a very complicated area of the law and most advice is very expensive and so they may have felt they had little choice but to register to protect themselves. I can but hope and pray that the good reputation that Brayton church and the local vicar enjoys is not hindered by this almost non story.


Thursday, 11 July 2013

Glebe and Chancel Repair Liability

There are lots of rumours that go around around about Glebe and Chancel Repair Liability most of which are wrong. Glebe comes in at least four differing forms most of which it can be assumed do not carry liability and listed below I have put them in order of likelihood of being found

1 Vicarage Glebe


Land owned by the Vicar or land obtained by the vicar in exchange for surrendering the small tithes in a parish. This type of Glebe never had the liability.

2 Rectory Glebe 


Land owned by the Clerical Rector or land given to the Rector in exchange for surrendering the Greater or Rectory tithes in a parish. This type of Glebe had the liability but lost it in 1923 on the Ecclesiastical Dilapidations Measure.


3 'Lay held' Glebe


On rare occasions land is called glebe by an enclosure award when it is given to a lay person in exchange for the greater tithes and Aston Cantlow is one such occasion. It is also called Tithe land or as I call it 'land in lieu of tithe' This land does bear the liability and generally came into existence before 1830 and the enclosure award will make that clear.

4 Impropriated Glebe


This land was part of the rectory prior to the reformation (1539) and was given over to lay people or other organisations and this almost certainly carries the liability. It is hard to locate since it would need to be marked on a tithe or enclosure map and I have come across this on one tithe map but there was no name on the ground to suggest it was impropriated glebe.


Glebe farm, Glebe house etc


A place with Glebe as part of it's name  is less likely to have Chancel repair liability than neighbouring areas  since it has probably been owned by the Incumbent of the parish in the  recent past and hence it has either never had the liability or it was removed in 1923. Glebe owned by a lay person which carries the liability is far less likely to have the name glebe but there is always the exception and Aston Cantlow is one of those.

Wednesday, 10 July 2013

Barlow and Brayton Chancel Repair Liability update 3


Well it seems as far as locals are concerned the PCC has not withdrawn the notice but are registering on land but not property and this apparently includes land  owned by local organisations.

It would seem as long as the the enclosure award and plan are clear the only way forward for the locals would be to offer to compound the liability.

Random and helpful Links for Chancel Repair Liability

There are many helpful resources on the web but the best are hidden and far down the Google search results and here are the ones I recommend.

Firstly as one stop research base I would strongly recommend my files from all my presentations  found here some people have found the PCC flow diagram extremely helpful although I am aware it is not perfect.

Researching liability on enclosure awards


There is no substitute for getting hold of your parishes Tithe documentation to discover if there was an enclosure award. Yet to save time there is this amazing search engine for known enclosure plans which is not perfect, since for some places have changed names and so quite often it is better to look a the county list and see if there was an enclosure plan near the parish you are looking at. I have found one or two plans not on this index and found that some of the plans are in a very poor condition.

For parliamentary enclosures only there are two almost complete lists that show whether tithes were converted into land and this is not perfect either since what parliament intended and what happened may not be the same.
These two books are Parliamentary papers 44 and papers 30. It will show that if tithe were owned by a non-incumbent and there was a conversion to land then there is likely to be liability, conversely if the tithe owner was a clerical rector only then there is far less likely to be liability in that parish. Some warning needs to be given about names and county boundaries, since both could have changed and sometimes enclosures involve more than one parish and also the name provided on the House of Commons paper is not the name of the parish but part of the parish.

I linked House of common papers 44 and 30 with the search index and sorted some of the place name changes and created two files here and here.

Other Links


Other useful links for research are the national archives discovery website
and the  local archive search index access to archives 
The national archives have a helpful starting place for chancel repair liability research 
Various dioceses have a mixtures of helps and opaque comments but if you are a PCC in a diocese you should start with your diocesan website  but it is worth reading the Church of England's main website .
For PCC's considering not to register the liability but feel they need confirmation that this is a reasonable decision for them then visiting the Charity Commissioners website is a good idea. Personally I consider that getting something from the charity commissioners would protect a PCC from any other body questioning a PCC's decision and may help protect grants at a later date.

All solicitors websites that have something, give brief and unfortunately, sometimes, not accurate overviews of Chancel Repair Liability the purpose of which, I suspect, is to encourage people to use them for advice.

These links are a little random but hopefully will save some time struggling with Google.



Tuesday, 9 July 2013

Barlow and Brayton Chancel Repair Liability update 2

Further Research

I have done a little more digging and in the parish of Brayton there were several  parliamentary enclosure one in the area of Hambleton but there seems to be no plan for that award. The other is the area of  'Brayton, Thorpe, Willoughby, Burton Hall etc' From house of commons paper 44  it says







This means that one seventh of the land was set aside for the owner of the tithes split between the Archbishop, Lord of the manor and the vicar.
Any land given to the Vicar has now lost the liability under the term of the 1923 Ecclesiastical Dilapidations  Measure  or it is possible it never had liability because it was for the small or Vicar's tithes.
The Lord of the Manor and the Archbishop's allotments will still carry the liability and the actual location of these places should be be found by reference to the Enclosure award and plan probably  located at the West Riding Record office.

The Archbishop's Allotment 


All the Archbishops land and liabilities eventually came into the hands of the Ecclesiastical Commissioners after 1840 and if the land in Bratyon parish bearing the liability  was still owned by the Archbishop on the date it was handed over to the Ecclesiastical Commissioners then there is a vague possibility that the current owners of this land could be indemnified by the current Church Commissioners.

The Householders of Barlow


If I was a householder of Barlow I would certainly wish to know if the PCC had researched the Enclosure award in the areas now known as Thorpe Willoughby, Gateforth and Lund farm. There is a possibility that the people of Barlow could register other land bearing the liability elsewhere although it is normally considered that only a PCC can register.

Update 2

It would seem that this is a bit of a storm in a tea cup and that the local PCC are not pursing the liability maybe I shouldn't rely on the press..(hence the disappearance of the original update).

Friday, 5 July 2013

Barlow Chancel Repair Liability

The story is found here  where sixty five house holders have found themselves receiving letters from the Land registry notifying them of the liability was created under an enclosure award of 1839.  This was unusually done by local agreement and a copy of  the award and plan is stored at the North Yorkshire Records Office Since it was done by agreement it was missed by me in my, fairly exhaustive, research of parliamentary enclosure acts (files top left here ) since a parliamentary act was the normal means of carrying out enclosures and creating the liability.

It would seem that the liability is that of 'land given in lieu of tithes' which makes the liability non-apportioned and so it is shared severally with the other owners of  the land. The PCC has the right to send the bill to one owner and  they can then ask the other owners to share in the cost of repairing the chancel.


Land owners response 


The first question to ask would be, was this liability was recorded on the deeds or Conveyance documents of the landowners? and if so they probably took out the Chancel Repair Liability insurance. If it was not recorded on the deeds I would suggest they got a copy of the enclosure plan to see if it is good enough  to identify the 'land given in lieu of tithe's' since I have examined several enclosure plans and awards over the the past year where they are not clear enough to prove liability. If it is not good enough there is a tribunal at the Land registry to contest the liability.

Another response 


The landowners could offer to compound the liability under Ecclesiastical Dilapidations Measure 1923 and pay the PCC off. This actually need not be a large sum because the Diocesan Board of Finance could accept a lower sum that the default figure after consultation with the PCC.


The PCC


I think the whole situation of Chancel Repair Liability is slightly mad because to notify the liability on the land does not often forward the mission of the church but too fail to do so can actually put a PCC in a very difficult position. There are alternatives that the PCC could have considered they could have prioritised  the harm to the mission of the church or reputational damage but this would still have to be balanced against the  financial loss. The Charity Commissioners have some guidance here and it has to be said the vast majority of parishes, I have spoken to, have opted to not register their Chancel Repair Liability but admittingly because it was apportioned liability and very costly to trace the land owners. To even start finding apportioned liability  PCC's need to convert tithe maps onto a modern map and to locate possibly hundreds of plots of land and then to register the liability. In Barlow it is very likely that there is only one or two allotments of land hence if the map is reasonable it may be easy to locate the land and there is no need to go to great expense to overlay an enclosure on to a modern map.

Postscript 1

It is possible that the opportunity of chancel repair Liability insurance was not on offer since the databases of organisations that do this research may have missed it since it is not on house of commons papers 44 or 33.

Correction

Actually the enclosure plan is more likely to be stored at the West Yorkshire archive service.