Lending on a property with CONFIRMED chancel repair liability

ems11

thanks again for the replies. Yes, the solicitor has referred it back to the lender, but they havent received the letter (!) or the fax she sent them yesterday. They asked me to send them a letter confirming what she had already sent them (that it came up positive for confirmed liability), so we are just waiting to hear from them, and i suppose thats the bit im trying to second guess.... it leaves me with a bit of a dilema, if the mortgage company wont lend on the property if its confirmed liability, but would if its potential liability, the only thing i could do (if i wanted to go for another property in the same village, assuming lending on this one was out of the question), would be just to have the chancel check done rather than the full search, and then get the insurance policy for potential laibility. But it may be difficult for me to find out if the lender would lend on potential liability, if the dont lend on confirmed liability. I think i will give them another ring to see if the legal team have reviewed this yet... as exchance time is drawing ever nearer and we are running out of time.

ems11

ok, great news here. It seems that the lender does require insurance to be in place (indemnity insurance), they havent stated for how much, but have just refered my sols to clause 9? of the CML lending guide (if that makes sense), but dont have an issue lending the money to me as long as its in place prior to completion.
So it appears that they dont see it as an issue, as long as appropriate insurance is in place. phew.
Thanks for your input guys, hopefully this will help others faced with the same situation, when indemnity has been confirmed.
Unfortunately i now have to sort out the insurance, but that leaves me with less of a problem than there could have been.

pommymike

I think even a confirmed chancel repair liability is likely to be very questionable. If it is based on tithe rentcharge having merged in the
land of a lay rector, so that it is referred to in the record of ascertainments,
this will show the annual amount of the tithe rentcharge and that is the most you can be required to pay each year. (See section 31 of the Tithe Act 1936 which refers to section 1 of the Tithe Act 1839). Note the words in section 1 "to the extent of the said tithe or rentcharge". You can view these statutes on www.statutelaw.gov.uk.
Also note section 31 refers to section 21 of the 1936 Act which was repealed by the Statute Law (Repeals) Act 2004, on the advice of the Law Commission, so that there are now no rentcharges referred to in section 31, as it refers to the ones referred to in section 21, which has been repealed.
If you send me a private message I will be pleased to give you more information.

pommymike

The important thing is to make sure that your solicitor should not register the alleged chancel repair liability on your title. If the alleged chancel repair liability is a based on a full search which reveals a record of ascertainment and a declaration of merger which refers to the tithe map and the tithe map clearly shows the relevant tithe field to include your property, this is still not clear evidence of chancel repair liability because of the repeal of section 21 of the Tithe Act 1936. I have been in correspondence with the lawyers at Church House Westminster and they would not reply to my letter to explain why they thought this type of chancel repair liability had survived the repeal of section 21. The Law Commission admitted that it was arguable that they had effectively abolished this type of chancel repair liability. The other main type is where there is an enclosure award and the land was allotted in lieu of tithe. I would ask for copies of the enclosure award and maps or the record of ascertainments and the declaration of merger and tithe maps and you will see for yourself that the maps are very inaccurate and probably do not really define the affected land clearly. I would say it is for the Church to establish liability if they are prepared to incur the expense of doing so and there is no reason why solicitors acting for buyers should help them. Our duty is to our own clients.

ems11

Pommymike

thanks for your reply. My solicitor was fairly insistent that now its been confirmed it has to be registered on the deeds. Although this doesnt worry me as insurance will be in place, this could potentially put off any future buyers should i wish to sell the house again. My sols has sent me the details from the search, including the maps and it is difficult to establish the land and correspond that to the property i am buying. also seems that most of the (small) village is affected, as are the neighbouring villages. I would appreciate any guidance or help you can give me in relation to persuading my sols that she doesnt need to register this on the title deeds (if she doesnt legally need to do so). Like you say, by registering on the title deeds, she has done the Church's work for them... Do you need me to send you a PM with any more info?
Thanks again for your time on this....:beer:

pommymike

I think the difficulty for solicitors is that we are expected to certify whether or not the property is affected by "overriding interests" such as chancel repair liability, and we may be liable to clients if we certify incorrectly that it is, and liable to the Land Registry if we fail to disclose such liabilities. But no one can tell whether such liabilities exist or not. Many diocesan websites make this point. The only reasonably safe course of action for the solicitor is therefore to act in accordance with his own client's instructions and refuse to certify that the liability exists unless the client agrees that it is clearly so. If you are not fully satisfied that it is clearly so, you should refuse to authorise your solicitor to disclose it. The solicitor may then say he cannot act for you, in which case you can find a property that is not subject to chancel repair liability, or a solicitor who is prepared to act on your instructions.

RetroBob

Ems11, where did you get your insurance from? PM me if you like. Thanks.