Property law expert Caroline Entwistle explains why chancel repair liability remains a potentially expensive problem for many homeowners.
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Chancel repair liability
There are innumerable things we consider when looking for a home:
- purchase price;
- number of bedrooms;
- size of the garden; and
- local schools.
But issues concerning the local church, if they feature at all, will be way down the list. So, it may be surprising to discover that some properties come burdened with a liability to pay for church repairs. This is called chancel repair liability.
Although a mediaeval relic, some unfortunate homeowners find chancel repair liability attached to the land on which their house sits. Chancel repair liability is a perpetual obligation to contribute to the cost of repairs to the chancel. That is, the easterly portion of the church where you will find the altar.
See also: Improving your home’s legal kerb appeal
How did this liability arise?
Centuries ago, chancel repairs were the responsibility of the parish’s rector, paid for from his tithes. Tithes were a local tax attached to land and payable annually to him. Over time, monasteries often acquired this land and, with it, the responsibility for chancel repairs. However, the dissolution of the monasteries by Henry VIII saw the widespread dispersal of their land. But any liability for chancel repair remained attached to it. Even today, homes built on this land can be liable.
Liability is ‘joint and several’. So, that means any one of the affected landowners is responsible for the full amount of the repairs. And this might run to tens or even hundreds of thousands of pounds.
Before 2003, chancel repair liability was all but forgotten. Indeed, the commonly accepted view was that it was unlikely that churches could force property owners to pay up. But in a bitterly-fought case which reached the House of Lords that year, the court found a couple in the village of Aston Cantlow in Warwickshire responsible for chancel repair costs of almost £100,000. In addition, their liability for legal costs was around £300,000. Unsurprisingly, selling their home was their only option.
These days, many churches face rising overheads and reduced income. And with the fabric of many places of worship disintegrating, taking advantage of chancel repair obligations is more tempting than ever.
How can properties affected be identified?
Given its serious implications, you might think it’s easy to identify properties saddled with this draconian liability. But the waters remain muddied.
A change in the law in 2012 meant churches had until 12 October 2013 to protect their right to chancel repair liability by registering a notice at the Land Registry against properties affected. That resulted in around 250 churches registering notices against more than 12,000 properties. Yet that does not represent the full extent of the problem.
First, around thirteen per cent of land remains unregistered, meaning a church cannot register a notice against it. They can, however, register a ‘caution’ against the land, meaning the Land Registry must immediately notify the church of any application for first registration. If the church does not then register a notice, it loses its right to the liability.
Second, churches that failed to register a notice against a registered property by 12 October 2013 can (possibly) still do so. The right is only lost if the property has subsequently changed hands for ‘valuable consideration’, ie for money or something else of value, not as a gift.
Protecting yourself from chancel repair liability
For registered property, a Land Registry search will reveal any existing notice when your solicitor carries out a Land Registry search at the start of the conveyancing process. But even if the church has failed to register a notice, that’s not necessarily the end of the matter. Unless a transfer for valuable consideration has occurred since 12 October 2013, the church can still lodge a notice right up until completion. That’s one of the reasons why your solicitor obtains a ‘priority search’ from the Land Registry before completion. Doing so prevents registration of any interest adverse to yours, including chancel repair liability, for thirty business days. To ensure protection, completion should take place within this period or, failing that, a further priority search should be obtained.
In appropriate cases, conveyancing solicitors recommend a chancel repair liability search. For a modest fee, the search company reports whether the property is within a parish where a potential chancel repair liability exists. Alternatively, you can search the National Archives.
You should take out insurance if your property is exposed to chancel repair liability. The premium for cover varies depending on the type and location of the property, whether a notice has been registered, and the limit of the indemnity provided. A typical one-off premium for a standard residential property with £100,000 indemnity is around £25.
It is worth noting that even if the church has registered a notice, it may still be possible to obtain insurance, although the premium will be higher, sometimes considerably so.