Buildings and maintenance / Chancel Repair Liability
CHANCEL REPAIR LIABILITY – GUIDANCE FOR INCUMBENTS AND PCCs
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How to research Chancel Repair Liability >>
1 BACKGROUND
Over 5,000 churches are entitled to call upon an institution or individual to pay or contribute to the cost of repairing the church chancel. The institution or individual who is liable to be called upon to pay for repairing the chancel is known as a lay rector. A person may become a lay rector by buying land which historically has been associated with the church, in particular land which used to be subject to the old tithe laws. (Tithes were only abolished in 1936.) Many churches do not know that they have the benefit of this right, and unless action is taken fairly quickly they will lose the right forever. The reason for this is that these rights now have to be registered at the Land Registry. If they are not registered by October 2013, the rights will be lost when the land which carries this liability is sold to a new owner.
2 FACULTIES
One of the standard questions on the petition form for every faculty is designed to find out about the existence of a lay rector.
27. (a) Is work to the chancel proposed?
(b) Is there a Lay Rector?
If yes, please give name[s]
(c) If yes, has the Lay Rector been informed of the work?
(d) Is the Lay Rector intending to contribute to the cost?
Most parishes answer this question by stating that there is no lay rector. To date the diocesan chancellor has accepted this answer without further investigation. In view of the 2013 time limit, the position will now change. In all cases where the work involved includes repairs to the chancel, the incumbent or priest in charge will need to satisfy the diocesan registrar that proper steps have been taken to verify that the answer given to question 27 is correct. If, in truth, the position is that the matter has not been looked at, then now is the time to do so, and the diocesan chancellor will require this to be done as a condition for granting the faculty. This will involve some research either in the county archives, or in the National Archives in London. It is not intended to impose a major burden on the parish, but the matter will need to be researched properly. The DAC can provide guidance, and can suggest persons who are suitably qualified to do the necessary work (for a fee) if parishes are unable or unwilling to do it themselves, but the DAC cannot itself undertake the work for you.
3 WHAT RESEARCH IS REQUIRED?
Essentially two things need to be established. First, is there in principle a lay rector for the church. Second, identify the land which is charged with the obligation to repair the chancel.
There are five classes of persons who may be liable to contribute towards the cost of repairs to the chancels of parish churches:
(1) The Church Commissioners, ecclesiastical corporations such as Deans and Chapters of Cathedrals, Oxford, Cambridge and Durham Universities and their constituent Colleges, Winchester College and Eton College. Members of this select group may be liable simply by virtue of having owned relevant tithe rentcharges immediately before the extinction of such charges by the Tithe Act 1936.
(2) Landowners whose land was once included in an award under an Enclosure Act to a lay rector (or tithe owner) in lieu of tithe. This is probably the largest class of persons liable. In some cases, in which the liability has been regularly enforced, the answer may be clear, at least as regards some identifiable land in the parish. In others it may involve some research. The Public Record Office publishes a useful leaflet on Enclosure Awards , and recommends W.E.Tate's Domesday of English Enclosure Acts and Awards (1978) as an essential guide to the present location (many are held only locally) and date of English enclosure awards and maps. Tate estimates that enclosure awards cover about half of English parishes; and there are said to be about 2200 Enclosure Acts affecting individual parishes, though not all of them will necessarily have allotted land to the lay rector in lieu of tithe, the ownership of which carries with it the chancel repair liability.
(3) Landowners in whose land the right to tithe or tithe rentcharge has merged, either under the Tithe Act 1936 or under an earlier Tithe Act. These will be landowners who were entitled to tithe and whose right to tithe was not extinguished by an Enclosure Act or Award. The Tithe Redemption Commission appointed to put the 1936 Act into effect was required to compile, in relation to every chancel repairable by tithe rentcharge owners, a document known as the Record of Ascertainments. The proportionate liability for repairs to the chancel of ancient parish churches which was to be borne by the owners of tithe rentcharges was ascertained by the Tithe Redemption Commission and recorded in the volumes in this series. The apportionment of liability made in this way was, however, only legally effective as between the owners of land at the date it was made, and on a subsequent division of the land no further apportionment binding on the PCC would normally have taken place. The Public Record Office has again published a useful leaflet on the subject, and holds 108 volumes of Records of Ascertainment at Kew, filed alphabetically by county and parish.
(4) Landowners whose land was originally part of the glebe of a parish but fell into lay hands on the dissolution of the monasteries. The Law Commission say that the chances of a piece of land being identifiable today as impropriated glebe are fairly remote, unless it is still in the hands of the original lay impropriator (such as an Oxford College) and the details of its acquisition are known, or unless the liability has been acknowledged or recorded.
(5) Persons and bodies entitled to corn rents in lieu of tithes, which were allotted to them under an Enclosure Award instead of land. They will not have land, in this capacity, against which the PCC can register a caution or notice. This category is linked with category (2), as both arise from enclosure awards.
The first three are the most important categories. Category 1 may well apply if any of these institutions is a patron for the church. Local enclosure awards (category 2) and records of ascertainments under the Tithe Act 1936 (category 3) are the likely categories where historical research is needed in the local archives. Categories 4 and 5 are historical anomalies, and can probably be ignored.
Once you have established that a local enclosure award or a record of ascertainments exists in respect of the church, or that one of the institutions in Category 1 is involved, you now need to identify the land which is subject to the liability. This is by no means an easy task, as it will involve a careful examination of old tithe maps, enclosure maps and similar historical documents, and comparing features shown on these with modern ordinance survey maps, so as to identify the land which is now subject to the liability.
4 REGISTRATION UNDER THE LAND REGISTRY
Once you have identified that a plot of land is subject to chancel repair liability, you need to protect your interest by registering a notice at the Land Registry. There is no fee payable to the Land Registry to register your interest, but you may need legal advice from the diocesan registrar.
5 CHANCEL REPAIRS ACT 1932
Once you have established that a particular person or institution is liable to pay for the repairs to the chancel, you can call on him to pay for the repairs before you do the work. There is a special procedure under the Chancel Repairs Act 1932, and you should consult the diocesan registrar to make sure you do it correctly.
6 SUMMARY
In all cases where a church proposes to carry out repairs to the chancel, the incumbent or priest in charge will need to satisfy the diocesan registrar that proper research has been carried out to ascertain whether the church has a lay rector, that is, a person who can be called upon to pay for the repairs. The diocesan chancellor will in future make it a condition of granting any faculty concerning the chancel that this has been done.
This guidance is not intended to be daunting. The DAC, the diocesan registrar, and others in the diocesan office are all working together to ensure that this valuable right is not lost to the diocese. We are here to help you, and we will together learn from our experience in dealing with the first few cases. But ultimately it is up to each parish to find out whether it has this right, and if it does, to protect it before it is too late.
DAC/ August 2006