Thursday, 2 October 2014

October 13th and Chancel Repair Liability part 2

Rumours 


I have spoken to several people recently who believe my analysis that the October 13th 2013 is correct and there was no change in the law pre and post that date with regards to the transfer of the liability from one owner to another owner. This means that people can still buy land with the liability despite the advice that can be read on virtually every other website who cover this subject.

Lets hope both landowners and Solicitors have insurance to cover any mistakes.

Conclusion 


This means that one way to change the situation is to define what Chancel repair liability by law is and with it change either the 1932 Chancel Act or  land registration law. The other way is to simply compensate all PCC's who have churches who have Chancel repair liability and to get rid of the liability from all Lay Rectors as proposed by Lord Avebury. 

Tuesday, 15 July 2014

Chancel repair liability is Personal and Several.

In one day I have had 4 conversations about the nature of chancel repair liability with regards to enclosure awards.  There is a common mistake that the liability is joint this is absolutely not the  case and this was decided by the Wickhambrook verses Croxford case and ratified by the Chivers Verses Airministry cases that the liability is several and personal and definitely not joint in correction to virtually all websites who discuss it.

What does this mean?

Well it means several things  one is that if the liability is partially extinguished on one plot of land by compounding or by another way then it probably continues in the remaining land (if it were a joint liability where it would probably be extinguished). To what extent it continues is a moot point and never been settled but there has been a practice that if 10 acres of an enclosure award of 100 acres is extinguished or compounded  then 90% of the liability is still present. The deed to get rid of the liability has to be quite clear and I have heard of a case where it was unclear and effectively removed all the liability from all the land although the intention was only to remove the liability from one plot.

Secondly it means that a landowner could be faced with the entire bill and then in turn has to sue another land owner for the share of any liability and not expect the PCC to do it for him or to expect the other landowners to be jointly sued for the money by the PCC.


Where these cases correctly decided? 

This a moot point but they are how the law is understood at the moment.

Conclusion 


Beware Chancel repair liability since it  is Personal and Several and it is not a joint liability.




Friday, 2 May 2014

Confirmation from Gorleston of the withdrawal of chancel repair liability

I have found this letter on the net



Quote 'as a result of our investigations we have become aware that the above property was incorrectly registered with Chancel Repair Liability for which we offer our sincere apologies".
Those affected in this way will have their liability removed from their property, and will receive a confirmation of this direct from the Land Registry soon. Anyone who purchased a Certificate of Exemption from the church will be refunded with a cheque shortly.
Others who remain affected by this can expect the matter to be resolved by the end of the year, when the church hopes the process to remove the registration of the liability for all property owners.
'

Thursday, 1 May 2014

Tuesday, 29 April 2014

Compounding Chancel Repair update

Minor update

I have discovered that some parishes have used a multiplier of 20 years coming up with a compounding figure. The issue of partial compounding over enclosure land is uncertain because it has never been tested in court whether this is correct but it has been the practice for many years.

Monday, 14 April 2014

Compounding Chancel Repair Liability

I am frequently asked questions about compounding chancel repair liability or paying the PCC off to remove the liability under the 1923 Ecclesiastical Dilapidations Measure.
What is in the public domain is the Church Commissioners  default calculation  to compound the liability but prior to reaching there it seems to make it clear that if a  PCC and the landowner(s) come to a reasonable agreement there would be no need for it to be sent to the church commissioners.  As long as the Diocesan Board of Finance was happy the setting of a figure could come about by negotiation between all the parties.

How Much Money?

The method of calculation is complicated and  dependent on the state of the chancel but there is one figure that is in the public domain and that is Aston Cantlow at the cost of £36,500 for an entire chancel in good condition. From what I have read this figure was arrived at by being sent to the Church Commissioners and so it is reasonable to assume that this could be near the compounding figure for an average chancel in good condition. I have heard of two other figures being bandied around for other chancels one of £40,000 and another for a small chancel with a compounding figure of £25,000.
The vast majority of landowners will be responsible for part of chancel either by a fair division of the liability over enclosure land or by the apportionment by the 1936 tithe act. Although some writers say a partial removal  is  not possible it is actually quite possible but needs to be done through the official channels.

The Power of the PCC

One concerning issue is that although the power resides in the diocesan authority which is probably the Diocesan Board of Finance the PCC could end up misusing it's power and position. I have to hope and pray that each PCC that has chosen to go the way of compounding has acted fairly, with integrity and entered into a spirit of mediation with the relevant landowners.

Tuesday, 1 April 2014

Humbleton Chancel Repair Liability -Revoked

I have heard through twitter and e-mail that this liability has now been withdrawn by the PCC. The Statement  From York Diocese is

 In October 2013, the PCC of Humbleton with Elstronwick registered the properties in the parish which were legally responsible for Chancel Repair Liability (CRL), and informed the Land Registry.  This was in response to a deadline set by the Government, which encouraged all Church Councils to register their CRL before 13 October 2013.  The decision to do this was made because the PCC are trustees of the church with a responsibility to care for it for generations to come, and they felt it was important to register their assets and keep their options open.

However, on 31 March 2014 the PCC of unanimously resolved to revoke the registration of Chancel Repair Liability on land in the parish. This decision was made for pastoral reasons and for the goodwill of the residents of the parish

Thursday, 27 March 2014

October 13th and Chancel Repair Liability

What is Chancel Repair Liability?

This is a very basic question but what is clear is who ever owns part of a Rectory is liable for the upkeep of a Chancel of a Church and this has been quite settled by common law development over the past eight hundred years. Yet the nature of the liability is uncertain and the land registry on it's website states

There have been arguments that chancel repair liability is not an interest in land that can be protected by notice. Land Registry currently operates on the basis that it does constitute such an interest. But we will serve notice on the proprietor before making an entry of an agreed notice. 

There are two possible views the liability is an interest in the land and the other that it is personal liability as a consequence of having a particular asset. The former means there is a deadline for registration to retain the liability beyond the sale of the land but the latter means there was not.


There is a Deadline


For the time being the land registry is assuming that the liability is registrable and this is certainly the main stream view. The basis of this is what is written in the law and that is based on the 1925 section 70

All registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such interests shall not be treated as incumbrances within the meaning of this Act, (that is to say): Liability to repair the chancel of any church.

This was picked up by the 2002 Land registry act and a deadline was given to register the overriding interests by October 2013 and the above interests that were protected without a notice would cease to be. On the surface it would seem that in effect the end of the conveyancing trap of people buying a priority without knowing of liability has now come to an end. This view is widely supported in legal circles and there are numerous websites who support this view here and here and on the Church of England Website.

Summary

The 2002 land registry Act provided a deadline for the registration of Chancel Repair Liability and now land can be safely bought knowing there is no hidden liabilities attached to the land.

There is no Deadline

The basis of the viewpoint is that there has never been a deadline is that there has never been a clear definition by statute of what is meant by Chancel Repair Liability. The common law development over many centuries of what chancel repair liability is, that it is not an interest in the land but a personal liability of someone who owns some of the rectory property.
To make this clear what I mean by this I need to visit several cases related to chancel repair liability and Acts of parliament.

1839 Tithe Act

During the tithe commutation many land owners were also the tithe owners and as the tithe owners they were responsible for the chancel. The 1839 Tithe Act allowed the transfer of liability that was linked to the tithes or now the Tithe Rent charge into the land Section 1 Reads

In every case where any tithes or rent-charge shall have been or shall hereafter be released, assigned, or otherwise conveyed or disposed of under the provisions of the said Acts, or any of them, or of this Act, for merging or extinguishing the same, the lands in which such merger or extinguishment shall take effect shall be subject to any charge, incumbrance, or liability which lawfully existed on such tithes or rent-charge, previous to such merger to, the extent of the value of such tithes or rent-charge; and any such charge, incumbrance, or liability shall have priority over any charge or incumbrance existing on such lands at the time of such merger taking effect; and such lands, and the owners thereof for the time being, shall be liable to the same remedies for the recovery of any payment and the performance of any duty in respect of such charge, incumbrance, or liability, or of any penalty or damages for nonpayment or non performance thereof respectively, as the said tithes or rent-charge, or the owner thereof for the time being, were or was liable to previous to such merger

This seems to say that the liability that was formerly linked to the tithes has been transferred to the land but in exactly as the same form as it was prior to the merger but the act itself hedges it and says land or person I suspect because it has always been certain what the liability is. I think it is reasonable to assume that all land based liability has the same form of liability as the tithes that it came from.


Court Cases

There are actually few court cases relating to chancel repair liability and not that many than can be found recorded on the internet. I have picked a few to show how case law has understood the nature of the liability to repair the chancel as a result of owning the rectory tithes or rectory land.

1793 Alwyn verses Awberry

In this case the court said 'that the Rector is repair the chancel out of the profits of the glebe' and so for this case the liability is tied to any money that comes from the glebe be it tithe or land.

1828 Ross verses Aglioney

Where a party is bound in respect of his property to repair a chancel

Wickhambrook PCC v Croxford

The judge quoting an earlier case of 1870 Smallbones v. Edney
a tithe owner is exempted from an ordinary church-rate for the repair of the body of a church because he is under a particular liability to repair the chancel. He is not less liable, but more liable, than the owners of other property in the parish to repair the Church, being under a personal liability to repair a particular part of it.

1955 Chivers verses Air ministry case

Judge Wyn Parry noted
'It is sufficient for me to say that, as that case shows, the liability, which, where there is more than one impropriator, is a several and not a joint liability, and is not a charge on the rectorial property, but a personal liability'

Summary

Case law and the various ancient ecclesiastical legal books printed before the 1925 Land Registration act came to pass, define the liability as being personal to the owner of the Rectory assets be it land or Tithe or possibly  tied to the profits of the Rectory but it is not described in any as being an interest or a charge or encumbrance on the tithe or land. 

The 1985 law Commission Report


This almost seminal report on Chancel repair liability is all but silent on this issue although it does carefully talk about ending the liability of Lay rector not about removing the liability from the land in their proposed act.

Another way of looking at it.

The vast majority of the liability started out as Tithe before being transferred to the land. A church can't have an interest in the actual Tithe or money it'self but only in the owner of the tithe or tithe rent charge and therefore the same should apply to the land. As argued in the Chivers case the liability is not a charge on the land because a PCC has go no rights to the land itself unlike Manorial and mineral rights where the liability is directed connected to access and rights over the land.

Deadline or no Deadline

There is without a doubt a court case pending on this whether chancel repair liability can be classed as an interest in the land or as a personal liability which cannot be registered on the land. If the later is correct the liability still can be enforced on certain owners of various pieces of land but there was never a need to register it.

The Conveyancing trap

If the chancel repair liability cannot be registered, but it is still a liability enforceable by the 1932 Act, then the conveyancing trap will continue to exist as the deadline given does not apply to this liability. Arguably it is now worse that it was before since no one actually can be certain whether the liability can be be acquired for the sale of the property or not. For a householder who knows they live on rectory land but a PCC has opted not to register the question they now have to wonder should they declare this possible liability to any future buyer or not?

Chancel Repair Liability Insurance

At the moment there is a practice that people are acquiring chancel repair liability insurance for current householders or for those who buying a property just in case that between agreeing to acquiring the property and actual buying a PCC puts a registration on the land. Arguably this is incorrect and that chancel repair liability insurance practice should have simply ignored the 13th October deadline and continued for all buyers of all property.

Conclusion

PCC's in my opinion should continue to consider the liability as a registrable liability whilst property buyers and conveyancing solicitors should treat the liability as a non-registrable liability that will continue from one owner to the next owner whilst we wait for a court case to finally decide the issue or a change in the law. The 1925 Act may have incorrectly classified Chancel repair liability as an interest in the land or arguably there could be land with that liability but that it is nothing to do with rectorial assets which is the principal origin of  the liability to repair a chancel.

Caveat

In some-ways the above argument is academic since ordinary people have only received a bill for the liability to repair a chancel twice in the last 80 years but the risk of being sent a bill, is a real risk, just a very small risk indeed.

This whole post maybe just a bit of March Madness.


Post Script

After a twitter debate I thought I should leave with a quote from the only case I haven't mentioned that of the Wallbank which really only debated Human rights law from here 
'The liability of a lay rector is a personal liability arising from his ownership of impropriated property'.
I agree that there is still some open uncertain issues with regards to Chancel repair liability but maybe that is for another blog post.

 






Wednesday, 8 January 2014

Bywell Chancel Repair Liability.

Introduction

The report on this liability is found here  and in various other places where the PCC has registered the liability on a number of plots of land in private ownership. In my opinion in the vast majority of cases it is wrong for a PCC to register the liability but there are some exceptional cases when it is reasonable  to do so.

Who owned the tithes


As in all case the liability starts with the owner of the tithes and any related glebe land. The  owners of tithes and the liability is recorded, on this web page ,as being the the Dean and Chapter of Durham which were called Appropriators. The vast majority tithes and glebe held by Appropriators  came into the hands of the Ecclesiastical Commissioners now called the the Church Commissioners. When the tithes and the land came into the possession of the  Ecclesiastical commissionaire so did the liability. Over the past 160 years the Church commissioners bought and sold land bearing the liability and sometimes the land was sold without the liability or the new owners were given some form of indemnity and on other occasions it was sold with the liability.

Type of Liability 


The evidence would suggest that the liability is apportioned by the 1936 tithe act meaning that contrary to the report which says 'He claimed that such an unlimited liability had blighted the properties affected and could very well render them unsaleable'. That the liability is apportioned out into tiny fragments which is the truth of the vast majority of liabilities.

Case Law


Case law has made it clear if the liability is attached to the land then it cannot be removed from it by the owner except by compounding the liability but a  previous owner may well  indemnify any future owners. The article says the owners will never have to pay money and this would suggest that the Ecclesiastical Commissioners sold the land without the liability. This unfortunately  contradicts case law makes it clear the liability attaches to the land but in effect if a land owners sold the land on with encumbrances and they still exist then the current owners have a claim against previous owners.The PCC may have felt they had little choice but to register since if they hadn't done so they would have been unable to secure the money from the Church commissioners. In this case I suspect the owners may find the land is registered with the liability but the church commissioners will pay any money acting as a permanent  insurance.

Conclusion


I agree that some of what I have written is guess work because I do not have access to any files but it does fit the facts. It is clear from reading the report they Diocese may well have been trying to find a away to avoid registering the liability but time ran out. Sadly I believe this story is down to poor communication on behalf of the church which has meant the property owners have put through unnecessary stress.

Passing thought 


If your land was owned by a large organisation such as the Ecclesiastical Commissioners and you have the liability registered on your land  it is well worth searching  for the very first conveyance document since the liability may actually be held elsewhere.