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Bargain_Rzl

TheGame7 wrote: »

I believe you can do a search to find out if you are truly liable. However, if you do and the house is found to be liable, no chancel insurance company will offer you a policy and no mortgage lend will lend on the property - hence no one will buy it deeming it valueless. Not nice for the current vendor.

By my understanding, that's not true. The way I understand it is that you can take out an insurance policy over a number of different terms - either for the duration of the mortgage, or in perpetuity. If it's in perpetuity, it is transferable to future owners. A property would then only become unsaleable if a chancel repair bill becomes payable while an "in perpetuity" policy is NOT in effect - because after that, nobody will give you insurance against it happening again, and therefore nobody will want to buy the house.

Correct me if I'm wrong.

Bargain_Rzl

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TheGame7

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pommymike

'In perpetuity' does indeed mean for ever. Chancel repair liability affects the land on which the house stands, so it continues after the house is demolished.

I am a conveyancing solicitor and have been supporting the Law Society's campaign to have chancel repair liability abolished.

We are making progress and I do know that the Government Minister responsible, Vera Baird, is to consider a report this summer from the Ministry of Justice. The more people who write to their MPs, who will forward the letters to Vera Baird, the more MPs will be aware of this issue. At the moment I suspect many MPs are entirely ignorant of it. There was no debate, at the time the Land Registration Act 2002 was considered or the Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003.

I have made the following points in an email to the Ministry of Justice:

In 1929 the Ecclesiastical Dilapidations Measure relieved clerical rectors of chancel repair liability. This means that the Church of England General Assembly decided that clergy whose benefices enjoyed tithe rentcharge income should not themselves thereby be made responsible for chancel repairs, this would only affect lay people who were entitled to receive tithe rentcharges. Then in 1936 tithe rentcharges were abolished so there was no income from which to pay for the repairs. Strangely the opportunity was not taken to abolish chancel repair liability as well.

In 1982 the General Synod merely passed a resolution calling for the phasing out of CRL, instead of bringing in a Measure to bring this about, which was a pity. It could have legislated to abolish CRL.

Why should Government be concerned about this church issue?

1. It is not just a church issue, it affects millions of people buying their homes who are expected to pay for chancel repair liability searches and insurance against it.

2. There is no adequate insurance available. ChancelSure provide cover against "diminution in value" but will not pay any claim for diminution in value resulting from "mere registration" of CRL at the Land Registry, they will only pay for diminution in value if the church claims money.

3. Where the church has failed to make any claim against lay rectors for 6 years after dilapidations occurred any claim is statute barred. Mr Derriman in his book has suggested that the limitation defence would only apply where the church has given a notice of claim under the Chancel Repairs Act 1932 and the claim is unpaid for 6 years. The nature of chancel repair liability is that the lay rectors are responsible for repairing the chancel, not just for meeting money claims for default in their duty., so the cause of action arises when the chancel becomes in need of repair. This surely means that most lay rectors have a defence to any claim in the Limitation Act 1980.

4. The National Archives system of searching microfiche for records of ascertainment in respect of the work carried out by the Tithe Redemption Commission following the Tithe Act 1936 is not a satisfactory modern system of searching. Solicitors should be able to carry out searches themselves using a database of records of ascertainment with electronic tithe maps incorporated into the Ordnance Survey digital mapping system. ChancelCheck claims to have accurate maps of tithe districts etc but it is very unlikely that they have the accurate information they claim. Tithe maps are notoriously inaccurate as can be seen in Mr Derrimans book. Often they are merely sketches which contain no modern landmarks. Therefore it is impossble to create a modern system of chancel repair liability.

5. The Ecclesiastical Dilapidations Measure 1929 is the only legislation that allows redemption (or commutation) of CRL. Under this legislation the Diocesan Board of Finance or the Church Commissioners decide the amount of any commutation payment. This infringes the rule "nemo judex in causa sua" and is against the principles of natural justice. There must be an impartial body to decide on a reasonable amount for any required payment that is affordable by the individual householder.

6. If the Government is not prepared to invest in a modernised system of CRL, the only answer is to adopt the Law Society's recommendation that English Heritage is financed to take over the responsibility, or the liability should be transferred to PCCs.

7. CRL was an ancient common law right, which the Government has argued cannot be taken away without infringing the human rights of the church. However in the past Governments intervened to abolish tithes and tithe rentcharges which were the whole basis of CRL. The Tithe Act 1839 indicates that the liability (CRL) transferred to the receivers of redemption money to the extent of the money received, but that was the whole apportioned value of the liability of the tithe rentcharge payer, and so it would be unjust for the church to be allowed go back for more. The Human Rights Act 1998 does not interfere with the power of Parliament to legislate to change property law. It is only property rights which the law recognises that are protected by the Human Rights Act 1998.

8. The Government abolished Compulsory Church Rates in 1868 in the Compulsory Church Rate Abolition Act 1868. The Church Rates were a fair system of raising revenue from all the property owners in the parish to pay for repairs to the Church (including the Chancel). CRL was obviously even then considered unworkable; perhaps Mr Gladstone was being too radical for the present Government, and he should have thought about the effects of this abolition for lay rectors.

9. If the Government insists that it will not abolish CRL, then perhaps it should re-introduce tithes or compulsory church rates, as it has caused the problem with CRL by abolishing them over 100 years ago (sarcasm - not to be taken literally!).

A further thought:
I have been in touch with the Church Commissioners and know that the Church is not opposed to reform but wants some compensation to be paid for accepting the abolition of chancel repair liability. At the moment English Heritage pays about £20m a year for church repairs. Presumably there would be no objection from the Treasury to a one off payment of say £500m to the church which it could invest to produce income to pay for chancel repairs, and this could then be substituted for the future English Heritage contributions i.e. it could be offered to the church instead of support from English Heritage. The door could of course be left open for English Heritage to make more grants in the future if it wanted to.