DIOCESE OF GUILDFORD

NOTES OF GUIDANCE by the Registrar of the Diocese

CHANCEL REPAIR LIABILITY

Introduction

In many parishes, a person or a body other than the PCC has the responsibility to keep the chancel of the parish church in good repair. This responsibility is called ‘chancel repair liability’ (CRL), and the person or body with the responsibility is called the “lay rector”. This results from the history of legal rights and responsibilities that are special to each individual parish. Although some of the recent publicity about CRL has been unfavourable, it is not always understood that CRL does have a historical rationale and is not an arbitrary charge. CRL means that others may pay for repairs that would otherwise fall on the PCC. Therefore it is an important asset for any PCC in a parish where CRL applies.

As trustees, the churchwardens and other members of the PCC have an obligation to safeguard the PCC’s assets. That includes ensuring that the PCC retains the ability to recover the cost of future chancel repair under CRL wherever possible. However, the provisions of the Land Registration Act 2002 (“LRA”) mean that unless steps are taken by the PCC to ascertain and protect the rights that the law gives the PCC this potentially valuable right to recover the cost of chancel repairs will be lost forever.

It is estimated that there are in excess of 5,000 parishes that benefit from CRL.

This note explains more about CRL, and gives guidance about identifying the persons or bodies which might carry relevant responsibility in respect of your parish.

1. What is CRL?

The liability to contribute to the cost of chancel repairs does not affect every parish, or every landowner.

The position today is that some parishes have a lay rector, who has a legal obligation to meet the cost of repairs to the church chancel. This liability has existed since long before the Reformation. It arose as the result of ownership of glebe land by the rector of a parish or his entitlement to tithes. Where there is a lay rector, depending on the particular circumstances, the liability today for the repair of a specific chancel may or may not be attached to land.

Chancel repair liability attaches to land which has been “rectorial” property at some stage in the past. This included glebe land and tithes, which were property held by the rector of a parish to support himself and out of which he was to discharge his liabilities, including his liability to keep the chancel of his church in repair. In many cases this type of property passed into lay ownership following the dissolution of the monasteries by Henry VIII in the 16th century. Other property became rectorial property, or property to which chancel repair liability attached, later on, sometimes through an award made under an Enclosure Act, or through compositions of liabilities to pay tithes under the Tithe Act 1836 or later Tithe Acts, or through the operation of the Tithe Act 1936, which extinguished various classes of tithe rentcharge.

Importantly, in some cases the ownership of land which former rectors held as a benefit of their office still carries with it the burden of repairing the chancel: this is the case for land-based CRL. In essence, if the land to which the liability attaches can be identified, the burden to fund the chancel repair can be enforced against the owner or indeed owners if the land has subsequently been split into different ownerships. Where CRL attaches to land it is today what lawyers call an “overriding interest”. This means that the liability passes automatically with the land, so that when the land is sold or passes to a new owner, the liability is binding on the new owner of the land. In a recent, well-publicised case in 2003 (Aston Cantlow and Wilmcote PCC v Wallbank) the House of Lords affirmed that a PCC could take proceedings to recover the cost of chancel repairs from a lay rector.

In other cases the liability does not relate to land, and the provisions of the LRA do not apply. Such a non-land-based CRL cannot be registered at the Land Registry; the lay rectors will continue to be liable for the cost of chancel repairs unless and until a Government repeals chancel repair liability.

CRL applies to “substantial repair without ornament” (Aston Cantlow Judgment). It is regarded as extending to more than ensuring that the chancel is kept wind and watertight. The extent of the obligation depends on the particular circumstances. Perhaps essential fixtures and services are required to be maintained; but there is no obligation to repair decorative fittings eg stained glass, ornamental items, furniture or to pay for the ‘improvement’ of the chancel.

2. Who is subject to CRL?

Today, CRL continues in the case of some ecclesiastical corporations (notably the Church Commissioners), certain universities and colleges and other corporate bodies as well as private persons (commonly known as lay rectors).

It is possible for the CRL in respect of a church to be shared between two or more lay rectors (eg the Church Commissioners and a private individual).

In some instances, CRL has been commuted: it is possible for a lay rector to “buy out” chancel repair liability with a one-off commuted payment. In such circumstances the funds are invested by the DBF to be used in case of the chancel requiring repairs in the future.

Further information is available from the Diocesan Office.

If, following an investigation into the existence of CRL, it is possible to identify a lay rector it may be appropriate to encourage the lay rector to "buy out" the liability by making a one-off commuted payment. This would benefit the PCC in providing a degree of certainty regarding the existence of capital monies to fund future chancel repairs and may also benefit the affected landowner in releasing their land from any further liability that may deter potential purchasers of that land in the future.

If the payment of a commuted sum is considered to be appropriate, the PCC must take legal advice from the Registrar about the statutory procedures that need to be followed and the valuations etc that will need to be obtained.

3. What changes are introduced by the Land Registration Act 2002?

Under the LRA, chancel repairs will no longer be regarded as overriding interests (that is to say, binding upon an owner of land irrespective of whether this burden is registered on the title of the land). The Land Registration Act 2002 (Transitional Provisions) (No.2) Order 2003 provides that chancel repair liability will continue to be an overriding interest for a limited period expiring on 13 October 2013. After that period, the part of the CRL which is a land-based liability will only be binding on a purchaser of land if the liability itself is registered at the Land Registry. In short, if after 13 October 2013, a purchaser buys land against which CRL is not registered, the purchaser will take free of the liability; the PCC will have lost the legal right to recover the cost of chancel repairs from the lay rector.

The LRA applies to land-based CRL only.

4. Do all Churches have a lay rector?

No. Churches built after 1840 on land on which a church had not been previously built will not have a lay rector. However, some caution needs to be exercised: many churches have been built and re-built several times over, and it is often not possible to identify a single date when the church was built.

As a general rule, chancel repair liability affects churches built before 1840 or that have been rebuilt after 1836 on the site of an earlier church. There are many instances of a church being rebuilt in the 19th century on a former, sometimes medieval, church site. It is important to ascertain whether the church was in existence at the time of the commutation of tithes under the Tithe Commutation Act 1836.

In most cases chancel repair liability arose where tithes were commuted to corn rents or allotments of land. This process ended in 1836 when such tithes as had not previously been commuted were either merged in land or commuted to tithe rent charge. Accordingly, any church not in existence at the time of this Act (or built since then on the site of such a church) is unlikely to have a lay rector responsible for chancel repair liability.

5. What action should a PCC take?

Firstly, and very importantly, as a charity the PCC has a duty to safeguard its assets. CRL is an “asset” and the PCC is obliged to protect the valuable rights that the benefit of CRL confers on it, whether or not it has exercised the rights in the past. The actions that a PCC should take will depend upon whether the PCC is aware of CRL and the land to which it attaches, or whether it is unaware whether there is a lay rector with potential liability.

Action if land with CRL can be readily identified

If the PCC believes that a liability for chancel repairs attaches to any land, it should seek advice from its solicitors about registering at the Land Registry a caution against first registration of the land (if the land affected by the liability is unregistered) or registering a notice (if the title to the land is already registered), in order to alert a prospective purchaser to the liability. If this registration is not completed the result will be that the right to recover the cost of chancel repairs will be lost in the event of the transfer of the land after 13 October 2013 to a purchaser without notice of the liability. There is no fee payable to the Land Registry for this registration.

Therefore, wherever land-based CRL is found to exist, it should be registered at the Land Registry.

However if initial information suggests there is a land-based liability with only a small percentage of the total cost of repairs (eg single digit percentage liability), then that may be a matter the Incumbent and churchwardens would wish to discuss with the Archdeacon because the cost of investigations in establishing a small percentage liability and registering it at the Land Registry may not be worth the effort. The PCC would need to be consulted and give its consent to such an approach. Action if PCC are not aware of land with CRL

If the PCC has no record of CRL, it will be necessary for it to conduct investigations to ascertain whether such a liability may exist. Unfortunately, no diocese has a definitive register of lay rectors responsible for chancel repairs. Accordingly, the PCC should conduct its own searches and make enquiries of appropriate bodies. Guidance is offered later in these Notes of Guidance about how to go about making such enquiries and searches.

If a PCC conducts full investigations for CRL which reveal nothing, the PCC will have discharged its obligation. In this case, it should be fully reported to the PCC what inquiries have been made and this should be recorded in its minutes together with the conclusion that no liability exists.

Action if there is information which indicates the Church Commissioners may have a CRL for your church

You should already have been contacted by the Registrar. If you have not received a letter but there is some information in the parish (with the minister in charge, churchwardens or PCC) that the Church Commissioners are (or at some time in the past may have been) lay rector for your church, then you should write to the Church Commissioners and ask them to investigate their liability.

Action if there is information which indicates there is non-land-based CRL.

CRL which is not a land-based liability is not affected by the LRA and does not need to be registered under its provisions. Such a non-land-based CRL will continue unless and until a Government repeals chancel repair liability.

The lay rector should be asked to acknowledge and confirm their non-land-based CRL for your church. The information needs to be recorded in the terrier or church property register and reported to the PCC and recorded in its minutes.

6. What investigations should be made to ascertain whether there is a Lay Rector?

If there is a lay rector of a particular church, this information is usually known by the incumbent, churchwardens or the PCC. If, however, these parties have no knowledge as to this then if the chancel is of a sufficient age (see above) further enquiries need to be made if there is some suggestion that there is a lay rector.

These enquiries should take the form of the following:

(i) A thorough search of the records in the vestry, church chest and vicarage should be undertaken. The parish terrier needs to be examined and terriers from past years should have been deposited in one of the diocesan record offices (see below). Terriers compiled between 1850 and the Second World War are frequently a good source of information. In recent years the terrier is sometimes called the Church Property Register.

In particular, enquiries should be made of churchwardens and PCC members or others who have had a long association with the church concerned. It may also be helpful to look through the PCC minutes or other records about the last significant repair to the chancel fabric (say, more than 30 years ago, or better still major repairs undertaken before the Second World War) and see whether a lay rector then paid for those repairs.

There may also be an extensive history written of the local community which may be helpful - a copy may be in the nearest library.

(ii) The National Archives at Ruskin Avenue, Kew, Surrey, TW9 4DU – telephone number 0208 876 3444. The National Archives produce a Chancel Repairs Research Guide (Legal Records Information Leaflet 33), which provides guidance on how to establish possible Chancel Repair Liability from records held by the National Archives. They have a very useful website www.nationalarchives.gov.uk where this information can be found. You should follow the advice which the National Archives gives.

(iii) The Diocesan Record Office may be a useful source of information – The Surrey History Centre, 130 Goldsworth Road, Woking, GU21 1ND – telephone number 01483 518737 – website www.surreycc.gov.uk/surreyhistoryservice (iv) An Enclosure Award is often a valuable source of information. These may be deposited at The National Archives or at the relevant County Records Office (see above).

(v) The Victoria County History. A very good place to research is to look for the parish in the Victoria County History (VCH) of the appropriate county, where this has been published. Further details of the information available in the VCH and a useful guide on how to conduct research using this source is available on the homepage of the VCH at www.victoriacountyhistory.ac.uk.

(vi) The Church Commissioners at Church House, Great Smith Street, London, SW1P 3AZ, (Pastoral and Closed Churches Department). The Diocesan Registry has been supplied by the Church Commissioners with some information which indicates those churches in the Diocese of Guildford for which the Church Commissioners may have some chancel repair liability.. The Church Commissioners are unable to assist unless they have some liability themselves.

(vii) The patrons of the benefice.

(viii) PCCs may wish to consider commissioning work to identify any CRL applying to their church. If a PCC does not feel that it is equipped to carry out the research itself it may be appropriate to look for a professional researcher with expertise in this particular field to carry out the necessary work. The National Archives issues a list of independent researchers prepared to undertake chancel repair research assignments. Although general search firms may undertake chancel repair work, this is a very specialised area and it is important that a reliable researcher with specialised experience of chancel liability work is instructed.

I am aware of one company, Capital and Country Searches (www.chancelrepairs.co.uk), which offers a service on behalf of PCCs: there may be others. Please be aware that neither I nor the Diocese have any association with such firms or first-hand experience of the reports they produce, and so are not in a position to give an actual recommendation.

7. CRL, the PCC’s responsibility, and pastoral considerations

The Church of England’s Legal Advisory Commission has issued an opinion that each PCC is under an obligation to find out whether there is any CRL applying to its parish church, and then to recover the cost of chancel repairs accordingly. It is only under the most exceptional circumstances that the PCC may properly take the decision not to do so, and even then, the PCC should seek further advice and not take the decision on its own authority alone. This is because, as trustees, all PCC members have a duty of stewardship of the PCC’s assets, including any CRL. Indeed, if a decision or a deliberate failure to act without good cause results in the loss of the CRL benefit, PCC members could be in breach of trust.

If there is a real concern that registering the CRL before 2013 may cause serious pastoral disruption, then it is essential that you consult the Archdeacon as a matter of urgency. Registering a land-based liability with only a small percentage of the total cost of repairs has already been discussed in section 5.

It is appreciated that there may be concerns about recovering the cost of repairs at some time in the future, and that there may be situations where the PCC would wish to consider not doing so. These matters are considered in the Appendix to these Notes.

8. Conclusion

It is important that the PCC takes steps to protect the ability of the church to enforce any rights of chancel repair liability, as this is a valuable benefit to the church that will be lost forever if it is a land-based CRL and is not registered at the Land Registry. Further it is a duty of the PCC to protect such rights. If there is no knowledge of the existence of CRL, appropriate enquiries and searches should be put in hand. If land to which the liability applies is already known, action should be taken to register this liability against the land. Enquiry, research and registration can take a significant length of time, and so this process should be started as soon as possible. Unfortunately the Registry is not able to assist in the research and identification of whether there is a lay rector for your church.

If a PCC does establish that there is a lay rector for the church, full details should be put in writing and sent to the Registry so that a record in the Diocese of lay rectors can be maintained.

If there is land-based chancel repair liability then it must be registered against the title of the relevant land at the Land Registry before 2013. If you require legal assistance to do this, and you wish to instruct the Diocesan Registrar then he would ask one of his colleagues in the Property Department at Denison Till to deal with it. A fee would have to be charged for the work done in dealing with the registration of the liability. The amount of the fee will depend on the circumstances of the case. You can contact the Registrar then about what will be involved and the amount of fee.

Please note - these Notes of Guidance are written for the use of the clergy and churchwardens in the Diocese of Guildford of the Church of England. They are intended solely as a summary of the key issues to consider when investigating chancel repair liability. The purpose of the Notes is to provide a general guide to this subject matter. They are not intended to provide legal advice for particular situations and accordingly they must not be relied on for that purpose.

I am grateful to Lionel Lennox, the Registrar of the Diocese of York, on whose Guidance Note this note is based.

July 2011 DIOCESAN REGISTRAR APPENDIX

CRL, the PCC’s responsibility, and pastoral considerations: further comments

There are several issues or steps in this matter. They include ascertaining whether there is any CRL applying to your church, and if so what institution or which persons is/are the lay rector(s), whether the CRL is a land based liability or not, and if land based then registering the liability at the Land Registry before 2013.

If your church falls within the “age category” for which there may be some CRL then all these matters should be taken further by the PCC now. If a land based CRL is found to exist it needs to be registered at the Land Registry (unless the liability is a very small percentage of the total cost of repairs - see section 5).

It is separate question whether to seek to recover the cost of chancel repairs when they have been incurred. The Church of England’s Legal Advisory Commission has given its opinion that a PCC may only under the most exceptional circumstances properly take the decision not to do so. The LAC does not describe or suggest what those “exceptional circumstances” may be. It is appreciated that some clergy, churchwardens and PCCs may have serious misgivings and pastoral concerns about the consequences of recovering the cost of chancel repairs from a lay rector. However these matters can only be considered when the cost has been incurred - and do not detract from the obligation to make enquiries now and if appropriate to register a land based liability at the Land Registry. Some of the circumstances which the PCC may wish to consider at the time of deciding whether or not to recover the cost of repairs from a lay rector(s) include:-

· Is the lay rector(s) an institution or an individual person(s) or a combination of both? · How many lay rectors are there? If they are individual persons are there just a small handful or a large number of people involved? · Have the lay rectors insured against the risk of a claim to pay for chancel repairs? · How much is each lay rector being asked to pay? · Is the CRL land based or not? · Will grants for the cost of repairs eg from English Heritage be withheld if the PCC does not endeavour to recover the cost of repairs from the lay rectors? · Are the lay rectors individual persons who support the PCC financially in other ways, are regularly members of the worshipping congregation or on the electoral roll: will asking private persons to meet their CRL obligations do more damage to the PCC’s finances and/or the mission of the church and PCC in the parish than the benefit of the lay rectors paying their share of the repairs?

If there is a real concern that recovering the cost of the repairs may cause serious pastoral disruption, then it is essential you consult the Archdeacon at that time. There are several possible approaches that might be then adopted - recovering the cost from the lay rectors or their insurers, making a request of the lay rectors for a contribution to the cost, or possibly taking no action. As the matters in this section indicate, there are many and various circumstances which would need to be taken into account at the time.

The issues which have been described in the last paragraph concerning the recovering of the cost of repairs when they arise are not relevant to the issues of ascertaining whether or not your church has the benefit of CRL and if so registering a land based CRL before 2013. A decision taken now by the PCC not to make any investigations may be a bad decision for the future and one which a future PCC would fail to understand if it resulted in an asset of the PCC being lost in due course because a land based liability had not been registered at the Land Registry.