Beyond repair?
Date: 20 November 2009
Authors: Sam Cherry
Issue: Vol 159, Issue 7394
Categories: Features, Property
Chancel repair liability has featured heavily in the media in recent weeks with the lead up to and subsequent selling of Glebe Farm via auction in Aston Cantlow by Andrew and Gail Wallbank. This well-documented saga began in 1990 when the Parochial Church Council (PCC) approached the Wallbanks to demand £6,000 to repair the chancel of the parish church.
The Wallbanks took advice on the issue and the ensuing legal battle began. Initially this resulted in the church winning the case at the High Court, but this was later overturned at the Court of Appeal under the Human Rights Act 1998 (HRA 1998). However, the PCC appealed to the House of Lords where they ruled that as the PCC is not a public body it was therefore exempt from HRA 1998. On 5 February 2007 the court delivered the quantum of costs as £189,986 plus VAT plus costs estimated at £250,000 bringing the total to around £500,000.
How did we get here?
The issue of chancel repair liability affecting the modern day conveyancer really stems from the time of King Henry VIII. Wanting a divorce that the Vatican would not sanction, Henry decided the answer lay in setting up his own church (the Church of England) and bringing about the dissolution of the monasteries.
The immediate benefit was that he took control of land that had previously belonged to the monasteries. But, the monasteries had gobbled up large tracts of rectorial land. As rectors, the monasteries had installed “vicars”, as their deputies, who became liable for repairing the chancels of their parish churches. The income for this liability was to be sourced from the profits of the rectory, namely the glebe and the tithe.
When Henry VIII sold off the monasteries, he also sold off the liability for the chancel repair with the lands, creating “lay rectors”. Fast forward to today and chancel repair liability is now an over-riding interest that affects millions of acres of land.
Is it a real risk?
The Wallbanks, the Law Society and the CML certainly believe so. There are 15,000 parishes in England and Wales and around 5,200 of them are liable.
To insure or not to insure?
Some practitioners merely insure away the risk without undertaking a ChancelCheck screening report, and yet where they act for a lender this contradicts the Council of Mortgage Lenders’ (CML) guidance and leaves the buyer unaware of whether their property is in a risky area.
If such policies do not include diminution in value, clients would still have a right of action against the conveyancer for failing to allow them to make an informed decision. So the message is to search first and then consider insurance such as ChancelSure if appropriate.
Guidance
The most recent edition of the Conveyancing Handbook states: “Where the liability is not recorded in the title deeds consideration should be given as to whether it is appropriate to make enquiries.” CML general guidance to conveyancers states that conveyancers must carry out “all necessary and usual searches”. These, together with the fact that chancel repair searches are classified as “authorised searches” under HIP legislation demonstrates that conveyancers really should consider at least screening in every case.
Conveyancer beware
There is, as always, an element of discretion for the conveyancer in how they consider chancel repair liability, but it is worth noting that where the church have registered an interest in a property and a ChancelCheck search was not carried out at the time of purchase the conveyancer could be deemed negligent.
Some conveyancers maintain that chancel repair searches are unnecessary, as they believe that the church will not pursue individuals who are subject to this liability. If this were the case why are more diocese investigating and implementing registration programs pre the 2013 deadline for registration? So far over 200 parishes have begun registration.
In the end it is up to the conveyancer to decide whether it is appropriate to check for chancel repair liability. But with the increased activity from the church in terms of registration is it worth taking the risk of either ignoring the matter or putting in place insurance that doesn’t comply with their recommendations? Conveyancers should ask themselves am I doing all that I can to establish and protect against this medieval liability, if not, perhaps this is a question for the PI insurers?
Sam Cherry, director, Conveyancing Liability Solutions
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