CHANCEL REPAIR LIABILITY A LETTER FROM THE REGISTRAR. Dear Parish Officer

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1 CHANCEL REPAIR LIABILITY A LETTER FROM THE REGISTRAR Dear Parish Officer I have now had my meeting with the Church Commissioners who have provided me with the up-to-date information about the various benefices in the Diocese as to which they have some chancel repair liability, a list of which I enclose so that you can see if your parish is among those. Much of the rest of this letter applies to every parish, but I will then return to the case of those with Commissioners liabilities. I am trying though you may find this hard to believe to make this difficult subject easier to follow. Inevitably it makes the letter long, but it is probably worth the read, or even the re-reading in due course. If at the end it is still a mystery, please feel free to arrange to see me or have me attend a meeting in order to answer your queries. The problem: For those who have still not had this explained, the problem is this: Back at the time of the English Reformation, church bodies such as monasteries who had been the property-owners for many churches were deprived of their rights in land and in those churches, and the property rights of land were transferred to people who were laymen. In many cases the lands of the church became private property of both individual people and institutions (Oxbridge colleges were given a lot of this land). The main value of land in those days was that it generated rental or similar income. Where the previous owners had had the responsibility to use the income of the land to pay for repairs to the chancel areas of their churches, the new owners who were given the land also acquired the liability to use part of the income from that land (often in the form of tithes or tithe rent-charges) to keep the chancel of the relevant church in wind- and weathertight condition. The reasons are historical, and not important for the present purpose. There have been other ways in which the same sort of liability was passed on, and there have been attempts since the mid-nineteenth century to change the position, but whatever the reason there is still a large amount of land where the owners are bound to contribute to this cost. What makes it even more awkward today is that there is nothing usually found in the deeds of the relevant properties to show the liability; that is recorded elsewhere and not held in a form which is easy to research. On the face of it, one would think the matter could be left there, and a lot of the liabilities would slowly get lost in the mists of modern life. However, partly as a result of one rather prominent case, it has become a matter of serious concern, and cannot be ignored by PCCs: The right to call on someone to contribute to the costs of repair of a building is an asset of the owners of the building. In the case of a church, although the church is not technically owned by the PCC, it is the PCC that has the responsibility to repair the church, and the right to call on someone else to contribute is a valuable asset. The sheer inconvenience of trying to enforce that sort of right has meant that lots of people who would be liable have never been asked, and many 1

2 thousands of properties have changed hands without anyone realising that there may be a liability. Had it not been for the recent publicity, that situation would not have changed. However, it has now been decided at Government level that the liability must be recorded on the title of the properties involved, or it will disappear. The responsibility for placing the matter on the title lies with the people who wish to enforce it namely the PCCs. The right is an asset of the PCC, the PCC holds its assets as Charity Trustees, and Charity Trustees must protect their assets or be personally liable for failing to do so. That is why it is not open to PCCs simply to give up their rights. In general principle, as the law applies to them, they must do what is reasonable to find out whether they have any rights, and if they do, they must make appropriate efforts to try to protect them. The process is tricky and time-consuming, and that is where the problem lies. The following is the result of what I have established about what PCCs can be expected to do about this, and they are in general terms required to do it by the autumn of It is not open to any PCC to do nothing, although some PCCs will be able to reach an early decision that nothing further needs to be done, and some slightly later on that there is nothing that cannot be avoided as to further work on the matter (see below). General: I had hoped to find that there was a simple and cheap way to do the early work needed in checking whether there is any land with chancel repair liability in any parish, but I have found that that was not possible. The first job that any parish must do is to find out if there are any properties which carry with them the liability for chancel repair in their church, and although in some cases it can be started off on-line (see the National Archives web-site and its advice under the heading Chancel Repair ) it is likely to be time-consuming. It has to be accepted that if the process reveals that there is no property in that category, then the time spent getting that far will produce no financial return whatsoever. At the sort of hourly charge that professionals would be bound to impose, it is very unlikely that a parish should undertake paying a professional to make this initial level of research. I have learned that those parishes which have actually done it have all used the good offices of members of the congregation who have some curiosity about the matter and are willing to do it for little or no recompense (although it would be reasonable for them to be reimbursed travel costs and the like). It may be possible for someone in a multi-parish benefice, or a parish that has several parish churches, to make the researches for all of them. However, if any parish does not even try to find out this first level of information, namely whether there is any property which may bear the liability, it is difficult for it to justify simply abandoning the project without even going that far. To come to that conclusion is not likely to fit the responsibilities of charity trustees. In fact the Charity Commission has stated that it would not accept that a parish with a Mediaeval Church could rightly decide not to make at least the initial enquiries as to this the question in particular is whether Records of Ascertainments exist for their parish, and I will explain that below. I will set out in a separate sheet (Appendix to this letter) the rare circumstances in which it may be possible to say that the researches could be thought so unlikely to reveal any liability that it would be right not to undertake them, but otherwise the following is the first step: In the nineteenth century, when a lot of opportunities were given for the liability for chancel repairs to be commuted or changed into a different sort of liability (so that the 2

3 ownership of land was not the basis), the Tithe Commissioners produced a record of which properties in parishes were burdened with the repair liability. Copies of all of these and in many cases the originals are held in local records offices and/or in the National Archives at Kew. They are not easy to interpret without the help of an expert or well-informed person, but they form the principal record. Unless you have either firm information as to the whereabouts of land that has the liability (such as a report from the Church Commissioners as to which see the later part of this letter), you need to contact the local Records Office for the County, and ask if they have copies of the Records of Ascertainments for your parish or parishes. If they have, then ask them to provide copies to you, and if they cannot do that then go and get them. If they have no such record, contact the Public Records Office in Kew, and ask the same question of the National Archives, including going to get copies if necessary (In either case, it is worth seeing if there is a possibility of doing some of the later levels of research, referred to below, on the basis that it will save time, if someone has to go in person to the Records Office or to Kew). In each parish s Record of Ascertainments (of which I attach a sample for you to see while reading this) there is a schedule, and paragraph 2 of that schedule shows four categories of liabilities. You may in due course need to know about the first two of these (under sub-paragraphs a) and b), but there is no need at present to take any action to protect them. The land-based liabilities are set out in sub-paragraphs c) and d), and if there are some shown for any parish under these two, then action by the PCC may be needed. However, it is important to carry out one more task before going much further, and it is this: All the figures shown against liabilities in the Schedule are actual sums of money in old coinage. A total is shown, and so are all the individual parts. Somoeone needs to work out what portion of the total is represented by each of the parts and particularly by the items under sub-paragraphs c) and d). In some cases the proportion is very small. One has come to light in which the total of those two paragraphs is only 0.3% of the total. The variation in this proportion may be enormous between parishes, and you will need to find out what that total is for yours. It is only in that way that you will be able to assess the viability of spending further time and even money on protecting that by registering the liability. The next task is to try to work out just what money you might be able to claim from anyone who owns the land with the liability attached to it: The specific sums shown are based on a value that was relevant at the time, but now you need to convert those precise sums into proportions. Once you know the proportion, you can do some useful comparisons by applying them to real or assumed figures for your own church. If you are just about to do some work on the chancel of your church, you can find out a specific figure for the part of the work that is needed to make it structurally sound and weathertight. That part is the part which could be covered by the total of the Chancel Repair liability. You can work out what money is represented under categories c) and d) by applying the proportions you have found for those two categories. If you do not have any work in hand, which will usually be the case, you should think about what sorts of figures might be involved on a maintenance basis over the next ten years or so (ask the church architect if you don t actually know), and then make the same calculation. Keep a clear note of what that cost and proportion would be, because you will probably need to return to it from time 3

4 to time, but also ask the architect what he thinks will be the longevity of any work that is done, and how often it might be necessary to go back to do further work. Note this as well. You should now work out roughly what is likely to be the effort and cost of going further is going to be worthwhile. From this point on there will have to be more research before you can register the liabilities, and a specific cost of actually registering it once it is done. The minimum cost of actual registration for each piece of land involved is 360, for the sake of calculation, and the process of getting to that point may double that cost. The first calculation you should do is this: If you were able to enforce the liability, would the potential amount of actual contribution it could achieve justify the cost of that enforcement? Take the following alternatives as being opposite ends of the spectrum: In one parish the proportion that falls under sub-paragraphs c) and d) is 50% of the liability, and the architect estimates that when work has to be done it is going to be about 60,000 worth. The potential claim under the liability is therefore 30,000 on the first occasion. It is obviously proper and even required of the PCC to expend reasonable effort and money to protect that claim at this stage. If in another parish the proportion is 2% and the architect says that the likely costs are going to be of the order of 10,000 and will not recur significantly often, the actual amount therefore is 200 on the first occasion. Then it would be harder to justify going much further if it involves expense, and the costs of registering the liability, particularly if the parish has serious lack of funds anyway. In the light of that, any PCC that has obtained a copy of the Record of Ascertainments needs to have a discussion, doing the calculations above, then imagine itself making a decision as if it were a businessman in the course of his business, and resolve whether or not to take the matter further. If it is decided not to do anything more, on the basis that it would be uneconomic, it would be sensible to ensure that the minutes detail the sums and the discussion, and that the result is passed to the registry to have the matter checked, to see if it ought to be referred to the Charity Commission for ratification. For the sake of completeness, I would recommend that the final decision is made in a full PCC meeting, regardless of whether this was where the discussion took place. If the parish feels that it must find out more and go on to the next stage, it is this: The Record, on its face, rather than in the Schedule, identifies parcels of land affected by reference to the Tithe Map of the area at the time of the making of the Record. The County Records Office may have the Tithe Map, but if not then originals are held at Kew. Getting actual copies is not always straightforward, but obtaining a copy is by far the most useful way of going forward with this, since the next stage is to compare it with an up-to-date map such as an Ordnance Survey. If someone can take with them to the Records Office or to Kew a local OS map and make preliminary comparisons it might be useful, but at some stage some detailed comparisons will have to be made, and it is most likely that this should be done later, rather than rushed and perhaps got wrong. The aim at this point is to find out where the land really is, by identifying it on the OS map. Once this is known, the next thing is to know or find out what that means on the ground. The land may still be a group of open fields, on the farm where they always 4

5 were. On the other hand, they may be the site of a housing development, or a trading estate, and the exact boundaries may be hard to identify. It is at this point that the parish will now have to determine whether it can take the matter on to a registration or not. There are some questions to be asked: What is the actual land involved? Is the same plot still existing as when it was on the tithe map? Do you expect there to be one owner or lots? Do you already know who owns the land? Are there any commercial owners involved? Once you know the answers to these, the PCC can decide whether there is reason to think that the owners taken as a group or individually are likely to be embarrassed by a claim if it were made. The reason for this discussion is to take a view on whether the pastoral needs of the parish would be such as to make it doubtful whether to claim if the occasion arose. If that question needs to be asked, it may be best to get some guidance by raising it with the Registry before discussing in full. But once the land has been identified the next course is to instruct someone usually a solicitor to make searches at the Land Registry to see if the land is registered, and if so how many different titles (usually equal to the number of different owners) there are. That will reveal the scale of the work in registering the liability against each title. Once the number of owners is known there are some further questions to be asked, and they depend on the proportion of the whole liability which was discovered in the first place and found to attach to the land. If any piece of land was originally the subject of one liability at the time of ascertainment, the fact that it has been subdivided since then will mean that a claim for the whole liability for that land can be made against any one of the present owners. If a field had half the liability and it now has fifty houses on it, each will be responsible for one percent of the total, but it can all be claimed from the owner of the biggest house who then has to get the contribution from each of the other owners. But that may be unattractive! It is certainly likely to cause significant pastoral issues. If once it is possible to identify the land on the ground, the PCC may choose to instruct solicitors and to obtain some advice once the picture is clearer. Solicitors properly instructed in these circumstances will first of all use the Land Registry plans to extract the information that will guide the rest of the process. If the land bears a substantial liability, and is in the hands of a relatively small number of owners, it is possible that the answer is to warn the owners (telling them that they always have a right to require the church to settle for a lump sum, using a statutory formula) and then go ahead and register. The solicitors cost of one registration is likely to be around 300 plus VAT ( but it does not follow that it will cost that for each and every registration if there are several in the same context and they can be done as a batch). If, on the other hand, there are many individual owners, there may be no economic way of registering against every title, even on batch terms, particularly if the individual liabilities are going to be very small. Suppose that the cost of the actual registrations, because it were done as a batch, were going to be 100 each, and there were fifty of them. The total cost would be 5,000. If they shared half the liability, and a claim were made for that half of the cost of work that cost 10,000, the contributions would still only recoup the first costs of registration, and it would be years before the issue arose again. And that assumes no costs of collection, which have to be deducted from the collections themselves to present a true picture. 5

6 However, it might in those circumstances be better to consider offering the compounding (settling for a capital sum) of these liabilities, and through a concerted effort collect a sum to be put away for the purposes of a fund for the future of the repairs. It could be difficult to collect each contributory sum, but the threat of the registration and its potential effect on the value of the house might lead a contributory to be willing to pay a settlement figure which, as part of a group of settlement figures, might be well worth having. Knowing that many properties may now have the benefit of an insurance policy, it may be possible to persuade insurers to compound where the individual owner might not. All this, of course, is subject to some careful evaluation, with the benefit of specific legal advice at the time. I realise that this is a lengthy and complicated set of guidance, but if it appears better for any parish to have it explained in person to someone, I will always be happy to meet with representatives or, subject to the finding of a suitable date, to come to speak to the PCC about the matter. I now turn to the position of Parishes where it is known (as we may well have told you) that the Church Commissioners have a liability for Chancel Repairs either completely or partially. The special case of the Chancel Repair liability of the Church Commissioners I hope that I can explain a little more simply how you need to understand the implications of what the Commissioners have provided, having spoken to them about it. Looking at paragraph 2 of the schedule, as in the general comments above, your sole concern should be whether it shows there is a liability under headings c) or d) or both. As mentioned above, you only need concern yourself with land-based liability, and there is no land-associated liability under the other headings so that no action is required in relation to any liability shown under a or b. The technical differences between the various categories need not concern you. Your actions will have to be the same under c) or d) or both. The simple point is that if, by inclusion under headings c) or d) or both, the Commissioners have a land based liability in respect of your parish, the percentage of any specific cost of works which is their responsibility is shown in the list, and you need to take the following steps, which will be part of what every PCC would face if trying to pursue the matter in respect of other potential lay rectors: You need to find out, from the information available, which land is involved in the specific liabilities of the Commissioners. The records sent to us and recorded in the attachment will in some cases identify the land, but more often will simply enable the actual land to be found on the tithe map for your parish, which is held, if nowhere else, by the County Records Office or at Kew. Once identified on that map, it has to be identified on the ground, usually by cross-comparison with a current Ordnance Survey map of the same area. Once identified on the ground, the ownership of that land has to be established, and this can usually done at HM Land Registry by means of a simple search. The relevant owner can then be approached to inform them of the existence of the liability (about which they may very well be unaware), and to tell them that the parish is considering the registration of the liability against their title. Written out like this it all looks very simple, but reference to what I have set out in the general part of this letter will indicate that it may not always be so. 6

7 The task of working through the records and comparing with the tithe map can be very time-consuming, and the following stage finding the present-day location of the land and identifying it on a modern map is almost equally time-heavy. Both these tasks require the identification of a sufficiently able person to carry out the work, and if they are not complete volunteers then at least whose charges for time are not large perhaps not driven by the costs of running an office, for instance. One church in a nearby town has had the benefit of efforts of an individual member of the PCC which have so far consumed about thirty hours of his time. There is no way of getting a full prediction of how much time will be taken, but it is unlikely even in relatively simple cases to take less than ten hours. There is a major difference in the case of a search for the actual land covered by a known liability as in the case of Commissioners liabilities and searches to find land in general, and it is this: One can see form the Commissioners own documents the percentage liability, and take a view as to its value. Anything other than very low percentages will have a significant value. However, if one is searching in relation to land on which perhaps a housing estate has been built, the first searches may only reveal that, if there is some land so burdened, it is now under a major housing development and has a large number of owners. It could lead to the conclusion that to try to register the liability would be futile, or at least financially unjustifiable. A professional person searching for the information would probably be expecting to charge between 50 and 150 per hour, so it can be seen that the likely commitment for a PCC in employing a professional to search starts at around 500 and could on the evidence of the parish referred to above be as much as 4,500. All of which is fine if liabilities are found for the majority of the potential costs of work on the chancel, but is a very substantial waste of money if the outcome is that the enforcement of the liabilities is going to be unprofitable anyway. The likely position is that the only basis on which the majority of PCCs would be able to justify the pursuit of these issues is by identifying a suitable person able and willing to commit personal time to it at little or no charge to the PCC. As set out above, once the land to which liability attaches has been identified on a modern map, then the process of registration and/or seeking commutation of the liability can be properly given to lawyers. Some parishes have already indicated that they would ask the Registry to carry out that work, and it is relatively straightforward to give a clear commitment as to costs once the instructions are received. However, whereas it had been thought that the information from the Commissioners would identify the land sufficiently to enable the instructions to the legal advisers to be given at that point, it is clear that the intermediate steps, of identification of the land on the ground and on modern maps, will still have to be carried out on behalf of the parish in each case, and it is that work which it is very unlikely that a PCC should commit to a legal firm at the sort of fee-rates which would be likely to be involved. Most of the work of this type starts with a trip to the County Records Office or even the Public Records Office in Kew, and of course that involves some travel costs. However, it is relatively easy to justify that initial expense, as long as the person going to Kew is then able to get the right documents and establish the viability of further investigation. All this, nevertheless, does not assist in the initial requirement for the PCC to make a sound determination as charity trustees as to the whole process. For parishes where the Church Commissioners have identified a significant liability and that it is land based (it may be worth thinking of about 3% as the minimum liability worth pursuing, 7

8 since that would mean over 1000 each time an expense of 30,000 was involved), it would still probably be uneconomic to ask professionals to do the identification process, but it would certainly be worth pursuing it through a suitable individual who would be willing to undertake it on a voluntary or more personally priced basis. The balancing for this purpose between, say, 100% liability justifying even perhaps a professional doing the work, and a 20% liability only justifying the engagement of someone who would charge a fee of say 200 for doing it, is not something on which one can make a judgment in advance. However, one has to do ones best to guide charity trustees in making such a judgment, and this is what one might say: if we spend the money needed to establish the liabilities, will the amount that is spent be reasonably likely to be justified by the amount that can be recovered either by commutation of the liabilities or by collecting the sums due when work has to be done. I have done what I think can usefully be done in writing to explain this very complex and uncertain set of circumstances and liabilities. If further questions arise, it will either be to explain a small point that is still unclear, or it will be to ask that a whole explanation be given in person so that questions can be asked at the time. If either of these is true for you, please get in touch and I will see what can usefully be done to accelerate the process. Yours etc 8