The Witchfinder delves into medieval land law and its modern application by the UK Parliament. Specifically, the last Labour government.
Your Inquisitor has been studying land law this year for his GDL. One of the Witchfinder’s acquaintances asked about the law of Chancel Repairs and, as it involved topics relevant to the Witchfinder’s revision, he looked into it.
According to horror stories promoted by the National Secular Society, Chancel Repair Liability is an ancient law that binds some unfortunate purchasers of land to have to pay for repairs to their local parish church even if they did not know about the liability when they bought the property and even if it is not recorded in the deeds for the land nor any Land Register (or Land Charges Register) entry.
Of course, campaigning groups often exaggerate stories for maximum effect and so the author initially treated the claims with a pinch of salt. Unfortunately, upon investigation, the stories actually turned out to be true.
The question is more complex than it first appeared and so the Witchfinder has decided to share the fruits of his legal research. There are two types of Chancel Repair Liability, helpfully explained in the Law Commission Report of 1985. The first type is “landowner’s liability” which falls on the owners of a particular piece of land. The second type is rent-charge liability, which the author will ignore as it only falls on certain large corporate bodies.
This article deals with Landowner’s Liability for Chancel Repairs, as that is the source of the horror stories.
The first question of course is what type of interest is it? The natural first thought is that it is an interest in land, since it passes with it. In the UK, since the Law of Property Act 1925, the law only recognises two classes of estate or interest in land – legal (common law) and equitable. The definition of legal estates and interests is restricted narrowly –
“1 Legal estates and equitable interests.
(1)The only estates in land which are capable of subsisting or of being conveyed or created at law are—
(a)An estate in fee simple absolute in possession;
(b)A term of years absolute.
(2)The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are—
(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute;
(b)A rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years absolute;
(c)A charge by way of legal mortgage;
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and any other similar charge on land which is not created by an instrument;
(e)Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rentcharge.
(3)All other estates, interests, and charges in or over land take effect as equitable interests.”
In order to be a legal interest, Chancel Repair Liability must fall under s1(2) of the Act. If it does not fall within the 5 definitions from (a)-(e) it is an equitable interest.
Which category, if any Landowner’s Chancel Repair Liability falls under is not immediately obvious. It is not a rentcharge under (b) because rentcharge is defined by s1 Rentcharges Act 1977 as an annual or periodic payment. Case law has held that it is not a charge under (c) or (d) . It is not a right of entry under (e).
So, if Chancel Repair liability is a legal interest it falls under s1(2)(a) and is an “easement, right, or privilege“. Failing that it is not a legal interest, it is an equitable interest. The law commission report is silent on that question. The most recent case law, which reached the Lords is Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v. Wallbank & Anor  UKHL 37 . That case does not address the Witchfinder’s question.
It appears the first instance judge, Ferris J found the liability was not a charge (paragraph 23 Parochial Church Council of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and Another – (2000)) and Lord Rodger cites with approval in the House of Lords judgement.
What, precisely, Chancel Repair liability is defined as is not clear from the case law. The matter is further confused because until 1932 it was enforceable in ecclesiastical courts under church law but was transferred to the County Courts by the Chancel Repairs Act 1932.
Absent the Law of Property Act 1925 your humble inquisitor would say that Chancel Repair Liability was not common law but ecclesiastical (canon) law recognised by statute and made enforceable in the County Court. However, the Law of Property Act expressly permits only legal or equitable interests and converts anything that does not meet its criteria for legal interests into equitable interests.
Statute, including the Land Registration Act 1925 (s70) and the recent Land Registration Act 2002 treats the liability as an interest in land. So if it is an interest in land (which appears to be, implicitly, the view of Parliament) then it must be legal or equitable. The Witchfinder believes that this interest, like so many ancient land interests exists only in equity in modern law.
Either way, depending on whether land is registered or unregistered some interests do not always bind the purchaser if they bought the land in good faith and blissful ignorance. For example, a third party equitable interest in unregistered land may not bind a ‘bona fide purchaser of the legal estate for value without notice’ (also called Equity’s Darling).
So, it might be that the innocent victims of Chancel Repair liability would be able to get out of it … had not Parliament intervened.
The Land Registration Act 1925 and the Land Registration Act 2002 create a species of interest called ‘Overriding Interests’. These are defined solely and only by the fact that they bind purchasers of the land even if they did not know about them and the interest does not appear on any register.
When Labour passed the more recent Act in 2002 it had the option of abolishing Chancel Repairs entirely. Instead it confirmed them as an overriding interest but with an expiry date, in effect, in 2013. After the expiry date the liability would no longer apply to purchasers of property unless it was registered. The intent was to force the Church of England to register the land interests, which of course it did, blighting the lives and finances of thousands of ordinary home owners.
The Witchfinder then, thinks that Chancel Repair Liability survives in modern law as an equitable interest protected by statute passed by the Labour Government. The Witchfinder also observes that it would be nice if he did not have to speculate and the Courts or the legislature had, y’know, defined Chancel Repair Liability a bit better.
The Witchfinder’s conclusions are simple –
The Law Commission and the Lords have criticised Chancel Repair liability in similar terms as ‘capricious’ and not ‘just’ or ‘reasonable’. The Witchfinder thinks that Chancel Repair liability should be abolished.
Those presently suffering from Chancel Repair Liability, who have been liable for large sums or who have registrations made against their home should blame Tony Blair’s Labour Government.
Picture via Wikimedia Commons. Licensing Information Link here.