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.