The liability stems from the historic English Church's entitlement to receive tithes (meaning a tenth) and, in this context, broadly comparable to a tax), which was granted by King Ethelwulf in 855, and given a statutory basis in the Statute of Westminster of 1285.
Where previously the local rector owned land in the parish, he was responsible for repairing the chancel of the church out of the money the land produced. Monasteries often acquired this land together with the responsibility for paying for the repair of the chancel. When Henry Vlll sold the monasteries’ land, the liability to pay for the repair of the chancel remained with the land sold.
The risk of liability was highlighted in the House of Lords decision in the case of Aston Cantlow PCC v Wallbank (2003).
In 1986 the Wallbanks became the owners of Glebe Farm near Aston Cantlow, Warwickshire. The property was subject to a chancel repair liability and in 1990 the Parochial Church Council (PCC) asked the Wallbanks to contribute nearly £100,000 towards the repair costs of the chancel.
The PCC subsequently brought legal proceedings against the Wallbanks after they refused to pay. The case eventually went to the House of Lords and the Wallbanks were ordered to meet a repair bill of £186,986. After legal costs were added the Wallbanks were left with a bill of £350,000 to pay!
Until 12 October 2013, chancel repair was an “overriding interest” meaning that it was capable of binding a person who acquired an interest in property whether or not the liability appeared in the Title register. Since 13 October 2013 chancel repair no longer has the status of an overriding interest. That does not mean to say that the rights have been lost, but rather that they will only bind a purchaser of property if the liability has been registered against the title to the property before a change of ownership has been registered. After a property has been sold the right to register the liability is lost.
If a property is transferred for no consideration (such as property transferred as a gift or an inheritance or following insolvency), it appears that the transferee may still take the land subject to chancel repair liability even if the liability is not protected by notice on the register.
The right will continue to bind the owner of property purchased or voluntarily registered before 13 October 2013 until that land is sold to a third party, again even if the right has not been protected by notice in the register.
Whilst the change in status of chancel repair is good news for property owners, there remains a risk of liability to both current owners and future owners of property until such time as the relevant property is transferred to a third party for value.
What can I do about this?
Fortunately where this is a continuing risk of liability, indemnity insurance can usually be obtained (often inexpensively). Your solicitor will be able to advise you on this.
Gian Floris is a Solicitor and Director of QualitySolicitors Gould & Swayne based in Wells.
Legal advice may vary with the circumstances of each case - be sure to take your solicitor’s advice.