The ancient law insisting that owners of glebe land pay for chancel repairs must be taken seriously, argues Chris May


The House of Lords ruling in Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & Anor [2003] UKHL 37 highlighted the potential levels of financial risk associated with chancel repair liability and reminded property professionals of the serious impact it can have on the title, value and marketability of a particular property.


Aston Cantlow involved a couple who inherited a farm and received a demand to pay £95,000 towards repairs of their local church. It was under an ancient law that requires the owners of glebe land to pay for chancel repairs. This is enshrined in the Chancel Repairs Act 1932 but the practice predates the Reformation. After losing in the High Court, the Wallbanks won in the Court of Appeal, which ruled that the demand was unfair and arbitrary, and contravened the Human Rights Act. However, the House of Lords, although recognising the law as unsatisfactory, found for the church.



The imposition of time constraints for the church to register its interest before the Land Registration Act 2002 removes the liability's status as an overriding interest in 2013 has further exacerbated the problem. This Act has focused clearly the conveyancing market's interest in this somewhat archaic law, as well as that of the church in registering liable land.


There remains only eight years &150; until 12 October 2013 &150; for parochial church councils to register a caution at the Land Registry to guarantee that they can do so. This entry will protect the church's right to charge chancel repair liability costs against a property in perpetuity. As the 2002 Act is somewhat unclear on the matter, it seems as though only successors in title will be formally protected by the legislation after 2013.


It is arguable that a purchaser who buys a property prior to 2013 that is subject to an overriding interest, will still be liable after 2013 and the church will still be able to register. Lack of registration of a caution entered against a property's title prior to 2013 is thus not necessarily an indication that the property is free and clear of the liability. This point is likely to be settled in court some time after 2013 when the church attempts to register an interest.


Chancel repair liability only affects parishes in which there is a medieval church. Approximately 5,200, or 30%, of all parishes are said to be 'at risk' and, far from only affecting property in rural locations near a church, both semi-rural and urban parishes are also affected. 'Liable land' can be located anywhere within the mediaeval parish boundary and not just close to a church (see the guidance notes issued by the National Archive).


Conveyancers are currently operating within a risk environment where the church is reported to have 'invested' £250,000 (on legal costs in Aston Cantlow) and risked perhaps £500,000 to ensure that chancel repair liability is legally enforceable. The church has a fiscal obligation to enforce this right wherever possible, which means it has to register all liable land between now and 2013. It is estimated that hundreds of thousands of properties are at risk. From recent experience it is clear that a small but significant proportion of the houses constructed over the past 50 or more years have been built on 'liable land'.


The church is taking a proactive approach to registering property - there are numerous open diocese instructions to parochial church councils instructing them to identify and register 'liable land'. One diocese referred to the value of registration being worth tens of millions of pounds to the church.


It is certainly arguable that a conveyancer who fails to undertake some level of investigation of this issue will be deemed negligent should a register entry be made on their client's title (potentially affecting its saleability) or repair costs demanded by the church. As an overriding interest, mere analysis of the deeds is clearly not sufficient to determine potential risk and nor are the standard enquiries of the seller (who, no doubt, has no knowledge either). Conveyancers who have previously ignored this issue or who intend to for the next eight years may well not be able to sleep as well as they had hoped.


The Council of Mortgage Lenders has shown itself to be aware of the problem, and amended the 'frequently asked questions' section of its Web site to add: 'It remains the responsibility of the conveyancer to identify where there is potential risk [of chancel repair liability] in the first instance.'


On a practical note, owing to a lack of resources at the National Archive, it is not feasible to carry out a chancel repair search in every one of the one million residential conveyancing transactions projected for this financial year. The additional cost and time delays that would be caused by these searches would create mayhem in the market. Conveyancers will have to look at alternative methods to identify where there is potential risk. The market has, in fact, already made certain moves to provide an e-conveyancing solution to address this increasingly pertinent, hazardous issue.



So, is chancel repair liability a minor threat or a serious problem? It is certainly capricious in nature and we have to live with it as an overriding interest for some time to come.


Chris May is director of operations at BPL Solicitors in Yeovil