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Are my clients liable for the upkeep of their local church?

  • 11/08/2003
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A couple have recently bought a property in the vicinity of their local church but have been ordered to pay thousands of pounds for the upkeep of the church. Is this legal and why, and should they have been able to avoid this fee?

I am afraid it is true, the costs can be astronomical, and it affects more people than you may think.

A recent case where a couple in Warwickshire were forced to pay £95,000 highlights very clearly the dangers for homebuyers of unwittingly buying property on land belonging to the Church of England.

In this particular example, the couple bought a farmhouse in a village called Aston Cantlow. What they did not realise at the time was that a field called ‘Clanacre’ belonged to the Church of England. What they also did not know was that under the 1932 Chancel Repairs Act, the couple were viewed as lay rectors and therefore liable for the upkeep of the local parish Church.

The couple did in fact originally win their appeal against the huge bill two years ago, claiming that it contravened the European Convention of Human Rights. However, the Law Lords overturned this recently ‘ even though the Law Commission described the Chancel Repair Act as a ‘relic of the past’.

The £95,000 bill paid by this couple is of course a significant amount of money, but I have heard of cases where the liabilities for the property owners were even greater. So what can homebuyers do to ensure they do not become a victim of the Act?

For people who have purchased land, there is, unfortunately, not a great deal that can be done. However, for a house buyer, precautions can be taken. I would advise anyone buying a property that is near to a parish church belonging to the Church of England to ask their solicitor to conduct a ‘Chancel Repairs’ search.

Remember, any liability on the land and property will not be disclosed by the standard conveyancing searches. A search of this type costs in the region of £100, but with the huge liabilities at stake it could be money very well spent.

The history of Chancel Repair is ancient, dating back prior to 1189 and is linked with the old right to collect tithes.

Although tithe liability has ceased and much of the land previously owned by the Church has been acquired by private individuals, the liability for repairs to the parish church can remain attached to the land. It is not uncommon to find such liabilities affecting ordinary dwellings on urban housing estates, although it is more likely to affect rural properties.

The liability to meet the cost of chancel repairs attaches to land that was originally glebe land. It has been known to the law from time immemorial and passes with the land, irrespective of the will or even the knowledge of the parties. It has been criticised as ‘anomalous, uncertain and obscure’. The Law Commission has described the liability as ‘one of the more unsightly blots on the history of English jurisprudence’, and has called for its abolition because of the financial hardship that it can cause and because it is unsuited to a modern society. The harsh reality of the enforceability of these ancient obligations recently came to the attention of the public when this couple lost their bid to avoid paying the cost of repairs to the chancel of their parish church.

So what can be done to protect intending purchasers of such land? The solicitors will need to check carefully whether there could be any potential obligation but in the absence of any formal ‘notice’ relating to the liability means it will not be revealed by the standard conveyancing searches and therefore it would be prudent to carry out a Chancel Repair search which will reveal whether a certain property is liable to contribute towards repairs at the local parish church.

Although the prospect of buying a property with this liability is remote any prudent buyer will need to pay for such a search- and once again the cost of house buying goes up with ancient laws coming back to haunt us from the 11th century.

As they have bought land which belongs to the Church they may well be responsible for the cost of repairs to the chancel of the local parish church. This is known as ‘Chancel Repair liability’ and can only attach to land within a Church of England parish which has a vicar (not a rector) and has a church which dates back to mediaeval times or earlier.

In simple terms this means that the landowners are treated as lay rectors of the Parish and are subject to an obligation to pay the cost of repairing the chancel of the Parish Church if required.

This case went to the House of Lords and the owners of a field that was former Church land were hit with a hefty £95,000 bill from the Parochial Church Council requiring them to put the chancel in proper repair. The owners then tried to rely on a modern law to avoid this ancient liability.

The owners argued that enforcing the liability against them was made unlawful by the Human Rights Act because such action was incompatible with their rights under the European Convention on Human Rights .

Despite some technical arguments on behalf of the landowner the judges decided they were liable to pay for the repairs. This case is yet another fascinating example of the courts having to interpret the 21st century implications of the Human Rights Act in relation to a well established area of law.

Although this can be a trap for the unwary there are precautions that can be taken. First, get as much information as possible by talking to neighbours and the officers of the Church. Second, there is a search lawyers can carry out to enquire whether there may be any chancel repair liability. Unfortunately the results can be inconclusive as the records maintained by the authorities are incomplete. If there is a risk that liability may exist, take out insurance.

Provided these precautions are taken, the green acres of the countryside can be enjoyed with peace of mind.


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