how do you avoid this payment of chancel?

moike

Richard_Webster wrote: »

All it takes is for the Mortgage Lenders to get the Council of Mortgage Lenders handbook changed to add a paragraph: "We do not require you to carry out a Chancel Check Search."
Quite a number of lenders do not require Environmental searches to be carried out, so they could take a policy decision to do the same for Chancel Check Searches.

So why is my solicitor, who knows I am getting a mortgage, asking me whether I would like both the Chancel & environmental searches performed?
I would of thought that if it's a condition of the mortgage they would not ask.
Regards

dothemaths

You'll love this.

I moved my daughter into her flat last week (where my interest in Chancel Insurance/search/liability/indemnity was sparked) and got talking to her new neighbours in the flat above. You'll never guess............their solicitor did not mention the Chancel mularky at all!!! And they only moved in 6 months ago.

Now, can someone please explain to me why my daughter was advised to take out Chancel insurance and the people in the flat above were not?

Perhaps if you live above the height of the Chancel, you are not liable eh? Oh Yes - that'll be it!

What an utter scam!

Richard_Webster

A lot of lenders do not require environmental searches carried out so the buyer has a choice.

As far as the Chancel search is concerned, if the solicitor wants to take the risk on himself, fine, but I'm not going to, even though I accept the risk is very small.

Lenders are suitably sphinx like about these things. They require us in 5.2.1. of the CML handbook:
5.2.1 In carrying out your investigation, you must ensure that all usual and necessary searches and enquiries have been carried out. You must report any adverse entry to us but we do not want to be sent the search itself.

Nowhere is there any specific mention of Chancel Check or Chancel Repair Searches, except for the Halifax where in relation to personal searches they say:

5.2.5.1- Do you accept personal searches?

Yes


- all personal searches without limitations

Yes. Our requirements as to such searches are as set our in paragraphs 5.2.6.1 and 5.2.6.2 of part 1. In addition a Chancel Repair Liability Insurance term of 35 years is acceptable where the mortgage is to be conducted on a term greater than 35 years.

Nobody else mentions Chancels, but this certainly implies that Halifax consider that we should do the search because otherwise why go into this level of detail about insurance policies? If Halifax think this then it is reasonable to assume that other lenders think the same.

If anyone who works for a lender is reading this they can make my life easier by getting their employer to alter their CML Handbook responses to make it clear that Chancel Searches are not required.

In the mid 1990s solicitors were sued by lenders for not checking all kinds of things that solicitors never thought it was their duty to check, so it is wise now to be careful for that reason. With more and more negative equity, lenders will be looking for somebody to blame...

moike

What risk is the solicitor taking? surely the risk is the purchasers?
Regards

Richard_Webster

What risk is the solicitor taking? surely the risk is the purchasers?

Yes, the Purchasers are taking a risk and by giving them a choice (with appropriate explanations) the solicitor is discharging his duty to them.

However, if they are getting a mortgage the lender could sue the solicitor for not taking out the insurance if there were to be a claim by the Church in respect of Chancel Repairs, which made the property more difficult to sell following repossession by the lender.

pommymike

I think what some readers may not appreciate is that solicitors have general local knowledge as to parish boundaries and whether there is a real risk of chancel repair liability in their locality. ChancelCheck screening searches will reveal that there is a potential risk of chancel repair liability even if, for example, 95% of the liability has passed to the parochial church council, the remaining 5% is divided between thousands of home owners and the church was rebuilt in 1950, so it is no longer an ancient parish church, and anyway it has been advised by the Church Commissioners not to attempt to claim, or has decided not to do so with the approval of the Charity Commission.
Even if there is no chancel or if the church has been demolished, ChancelCheck does not record this. It only reveals information about the Record of Ascertainments which was made by the Tithe Redemption Commissioners in 1936 after the passing of the Tithe Act 1936.
This Act extinguished the tithe rentcharges on which the liability was based. Compensation was paid to the church and to certain universities and colleges which chose to continue the liability under the proviso to section 31 of the Act. The remaining liability under the Act is only in respect of land in which tithe rentcharges merged because the owner of the tithe rentcharges also owned the land out of which they were payable. This liability was in effect to continue paying the tithe rentcharges if the money was required for chancel repairs. Any claims for these payments should be limited to very small sums because section 31 refers to section 1 of the Tithe Act 1839 which states that the liability continues "to the extent of the value of the said tithe or rentcharge". Section 31 also refers to rentcharges mentioned in section 21, which were rentcharges which merged in the land immediately before the 1936 Act came into operation. These rentcharges can in my opinion no longer give rise to such liability as section 21 was repealed by the Statute Law (Repeals) Act 2004.
The main type of chancel repair liability arises from enclosure awards and again solicitors have local knowledge and should know whether there is an enclosure award relating to and land in their area, whether it says that certain land is alloted to the rector in lieu of tithe, where that land is, and whether the local church has ever made it a practice to attempt to recover any payments due from the owners of the land which was alloted to the rector in lieu of tithe. Also the solicitors would know if the parish church has a priest-rector who would have been liable but who was relieved of liability under the Ecclesiastical Dilapidations Measure 1923, so that the liability has passed to the PCC. A ChancelCheck search will not reveal information about enclosure awards, so frankly it is pretty useless.
Therefore if solicitors are not doing chancel searches or advising on the need for insurance this is usually because they know full well that it is unnecessary in their area and/or they are quite properly relying on information provided by the seller's solicitors.

bubblesmoney

some of the terminology drove me nuts as i didnt know what they meant. so did some reading about this. hope the links help others (lay people like me) understand some of the terms.

http://en.wikipedia.org/wiki/Chancel_repair_liability

A online petition to the Prime Minister requesting legislation to remove this liability resulted in the following response from 10 Downing Street on 6 March 2008:
Chancel Repair Liability has existed for several centuries and the Government has no plans to abolish it or to introduce a scheme for its redemption. The Government has, however, acted to make the existence of the liability much simpler to discover. From October 2013, chancel repair liability will only bind buyers of registered land if it is referred to on the land register. By that time, virtually all freehold land in England and Wales will be registered. The Government believes that this approach strikes a fair balance between the landowners subject to the liability and its owners who are, in England, generally Parochial Church Councils and, in Wales, the Representative Body of the Church in Wales. The Government acknowledges that the existence of a liability for chancel repair will, like any other legal obligation, affect the value of the property in question, but in many cases this effect can be mitigated by relatively inexpensive insurance. It is for the parties involved in a transaction to decide whether or not to take out insurance.

http://en.wikipedia.org/wiki/Chancel_Repairs_Act_1932

http://en.wikipedia.org/wiki/Tithes

http://en.wikipedia.org/wiki/Chancel

last but not the least, the house of lords judgement won by the church against a property owner who went bancrupt paying chancel repair bill. http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/aston-1.htm

Aston Cantlow v Wallbanks Case (2003) .....The Wallbanks chose to dispute their liability, and ultimately lost their case being ordered to pay somewhere in the region of £200,000 towards repairs (the cost increasing significantly in the 9 years the case took to get to the House of Lords! As well as a hefty bill for legal expenses incurred by the Church, around £250,000!

quote from the chancel website, a website dedicated to chancel repair bills and also found a book about this

Woby_Tide

bubblesmoney wrote: »

last but not the least, the house of lords judgement won by the church against a property owner who went bancrupt paying chancel repair bill. http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/aston-1.htm

again this case comes up, for such a 'relevant' insurance, how many house transactions complete each year and so far there is only 1 actual case of a church claiming through the Chancel Liability route, or is it extremely common but people keep quiet about it? are there any stats about how many householders have been required to pay under this right in the last 30 years say?

Richard_Webster

The risk is probably very small indeed in any given case, but cannot be removed altogether unless the government simply abolishes the right altogether. Why can't they?

I am not sure anybody would be greatly concerned about it as the adverse publicity for the Church generally is probably more significant than the loss of the odd medieval Chancel (in my opinion anyway.)

dothemaths

Richard_Webster wrote: »

The risk is probably very small indeed in any given case, but cannot be removed altogether unless the government simply abolishes the right altogether. Why can't they?

I am not sure anybody would be greatly concerned about it as the adverse publicity for the Church generally is probably more significant than the loss of the odd medieval Chancel (in my opinion anyway.)

The problem with the chance being 'very small indeed' is that the chance of my house being flooded is very small indeed - but I have insured against it. People don't understand statistics and risk, and are bullied or scaremongered into paying out for insurance they don't need.

If the chance of event A not happening is 99%, and the chance of event B not happening is 99.99999999%, then people think that the chances of each event happening are broadly similar. Nothing could be further from the truth. The chance of event A happening is a HUNDRED MILLION times more likley than event B happening. You might as well insure against being abducted by aliens as againgst Chancel liability, (OK I know that many people do in the States - but they ARE American!).

It's a scam/con/rip-off - don't do it.