Glossary
The space around a Church altar choir and sanctuary usually occupied by the clergy and choir (and lying to the East): Chancel
The schism between Henry VIII and the Roman Catholic Church arising from the King’s wish to annul his marriage (to the Queen, Katherine of Aragon) which led to the dissolution of the Monasteries and the establishment of the Protestant Religion (Church of England- Period 1533 – 1603): The Reformation
The Title to land registered at His Majesty’s Land Registry which defines ordinarily conclusively ownership, boundaries and interests in the land: Registered Land
Interests which may bind the purchaser of land even though those interests have not been registered at His Majesty’s Land
Registry (e.g. a Lease of 7 years or less; rights of way): Overriding Interest
A portion of agricultural produce (grain, hay, wood) paid to a Rector to support their subsistence: Rectorial Tithe
Those to whom former Rectorial land was transferred (either owing to the dissolution of the Monasteries in The Reformation or by straightforward purchase): Lay Impropriators (also known as lay Rectors)
The Act of Parliament which commuted Tithes from payments in kind to financial sums (aka Rentcharges): The Tithe Act 1836
Aston Cantlow Parochial Church Council v. Wallbank & Anor Aston
The Land Registration Act 2002 (Transitional Provisions) (No. 2)
Order 2003: enabling the liability for Chancel repairs to continue as an Overriding Interest until the 13 October 2013: The 2002 Act
An independent organisation created in 1965 to keep the Law of England and Wales under review and recommend reform where needed: The Law Commission
The Law Commission proposal (July 2025) to amend the 2002 Act so as to impose a liability on the buyer for Chancel Repairs only if that liability appears on the Land Registry records: The Proposal
“When clouds appear, wise men put on their cloaks;
When great leaves fall, the Winter is at hand;
When the sun sets, who doth not look for night?”
(Richard III, 2.3)
Wm. Shakespeare
In this quotation from Richard III, The Bard’s character sensibly counsel’s the benefits of alertness and readiness to meet the risks and threats posed by an uncertain world.
This short paper alludes to the difficulties and potentially horrendous expense which a sudden demand to meet the costs of Chancel Repairs may well occasion.
Of late, the Law Commission has unveiled proposed changes whose aim is to prohibit or curtail the liability of property owners to contribute towards the cost of Chancel repairs.
It is with no little trepidation that one attempts to approach this somewhat arcane area of Law within the confines of a brief Article; the authors accordingly invite the merciful reader’s forgiveness if we have not in the following summary mentioned something of possible import.
Context first of all:
- Background:
The duty to contribute to Chancel repairs appears to have had its origins in the reign of Aethelwulf King of Wessex (AD 839 – 858) over 10 centuries ago.
In a pre-industrialised society, and absent of state education, the most learned in the land were either politicians or Churchmen. Often the local Church or vicarage was both a beacon of faith and the focal point for a local community.
For centuries, prior to The Reformation, and for some 200 years after, local landowners would contribute ten per cent of their annual produce (grain, hay, corn and timber) to the upkeep of the Rector and the Chancel; the latter was and is the most important area within the body of a Church. (The upkeep of the Knave and other parts of the Church were and are for the Church alone).
Such contributions were known as Rectorial Tithes.
Tithes were a universal tax. Their main aim was to assist the Church in its religious and pastoral duties and to ensure that Parish churches and in particular Chancels were properly maintained.
- Beneficiaries:
The liability for Chancel repairs for hundreds of years has worked to the benefit of about 5,000 pre-Reformation churches in England and Wales. The responsibilities for collecting in Tithes has over time devolved to Parochial Church Councils (PCC). The risk has not lessened for those today who have bought or inherited land where historically their predecessors in title have been obliged to meet the cost of Chancel Repairs.
- The Tithes Act 1836:
In the early Victorian era the 1836 Act would have been viewed as a most pragmatic and forward thinking piece of legislation. Overnight it abolished the practice of making payments in kind to satisfy Tithe obligations; instead, sums of money were substituted (known as Rentcharges).
The real difficulties lay in enforcement. What if a lay Rector set their face against meeting this historical liability? The unholy combination of a weak PCC and a dismissive landowner meant that many Chancels fell heavily into disrepair. The kernel of the problem lay in the cumbersome procedure for enforcement.
- The Chancel Repairs Act 1932:
This Act afforded direct and ready means of recovery – in comparison with the unwieldy and somewhat abstruse procedures of yore.
There is no better illustration perhaps than the case of Hauxton PCC v. Stevens.
Prior to 1932, enforcement of Chancel Repair obligations largely rested with a sub-division of Ecclesiastical Courts: the Consistory Court.
In order to enforce, the PCC would sue for an Order of Admonition. (In today’s parlance, this would be known as an Order for Specific Performance). Such an Order required the lay Rector to carry out or fund the repairs.
It took Walwyn v. Awberry to decide that claims to enforce Chancel Repair Liabilities were excluded from the somewhat simpler procedures available to ordinary creditors at common law.
Where the Consistory Court had issued an Order of Admonition – and it was not obeyed – the Parish Council had but two choices:
- to apply for a Decree of Excommunication (although it must be said, not necessarily a ready means of collecting in but possibly an incentive for those of a god-fearing disposition); or
- to transfer the case to the High Court and seek an Order for committal to prison for contempt of court.
In Hauxton, lay RectorMr. Hauxton (having unsuccessfully challenged his liability) ignored the Consistory Court Admonition. The King’s Bench Division Court found him to be in contempt and committed him to prison. He was only able to walk free from his prison cell upon his undertaking to fund the much needed repairs to the Chancel of his local church.
The case occasioned no little notoriety.
Imprisonment was considered a somewhat disproportionate remedy.
Section 2 of the 1932 Act duly authorised Parish Councils to serve Notices of Repair on individuals considered liable for Chancel repairs. Failing compliance the PCC could then commence proceedings in the ordinary courts to recover the sums required.
- Aston Cantlow Parochial Church Council v. Wallbank and Another (1999)
The issue in this case was whether the repairs to the Chancel of St. John the Baptist Church, Aston Cantlow, was the responsibility of the PCC or lay Rectors Mr and Mrs Wallbank (Mr and Mrs W) who owned Glebe Farm, land which had formerly belonged to the Church.
The Church had been beautifully preserved since Anglo-Saxon times. William Shakespeare’s parents were married there.
Mr and Mrs W had inherited Glebe Farm from Mrs W’s father in 1986; her parents had bought the Farm in 1970.
In 1990 they received a Notice from the PCC requiring them to meet repairs to the Church Chancel.
That liability had been inherited with the land. It had arisen owing to the transfer of part of the Church land to Glebe Farm in 1743. As a consequence, Mr and Mrs W were effectively lay Rectors and as such responsible to pay for the upkeep of the Chancel.
- Aston Cantlow: the issues:
What follows is a somewhat imperfect summary, given the confines of this paper.
- Liability:
At an initial Court hearing on 29 September 1999, Mr W conceded that he and his wife were the joint freeholders of Glebe Farm, and had at all material times been lay Rectors and as such were personally liable for the Chancel repairs of St. John the Baptist. Having conceded the debt in principle, they sought to rely upon 20th century legislation as a means of extricating themselves.
- Preliminary Issue No. 1: Human Rights:
Mr and Mrs W sought to contend that there still remained doubt over that liability where:
- they had inherited only part of the Church land and whether they should be held fully responsible to contribute was still not a settled question in English Law; and
- to hold a lay Rector liable would contravene the European Convention on Human Rights (ECHR).
The proceedings went as far as the House of Lords.
- The House of Lords: Preliminary Issue (a):
In relation to contention (a) the House of Lords found against.
Earlier cases – Wickhambrook PCC v. Croxford [1935] and Chivers & Sanders Limited v. Air Ministry [1955] had settled this question of Law by holding that an individual who had come into ownership of part only of Rectorial property nonetheless became liable for the full burden of Chancel upkeep.
- House of Lords: Preliminary Issue (b):
It is not possible, within the confines of this paper, to do full justice to the arguments and reasoning.
In summary the House of Lords found:-
- A Parish Council was a core Public Authority and accordingly, in carrying out its functions, it was not caught by the provisions of Human Rights Law.
- The liability of a lay Rector (to contribute to costs of Chancel Repairs) was a personal liability arising from his ownership of impropriated property and as such imposed by common law.
- Aston Cantlow: the realities
As a consequence of losing their case in the House of Lords Mr and Mrs W paid a heavy price. Glebe Farm was eventually sold at Auction for £850,000. The proceeds were applied as follows:
- £230,000 towards the cost of Chancel Repairs.
- Legal fees of £250,000; and
- Buying out of future Chancel Repairs liabilities: £37,000.
- The Law Commission: 1985
The capricious (and potentially ruinous) nature of this ancient liability was acknowledged by the Law Commission in 1985 in its Report “Property Law: Liability for Chancel Repairs (1985) Law Com No. 152”.
In that document the Commission found that “this relic of the past … is no longer acceptable” and recommended its phased abolition.
Notwithstanding that recommendation remains preserved in aspic.
- Chancel Repairs: The Law today:
Under the 2002 Act the liability for Chancel Repairs continued as an overriding interest until the 13th October 2013.
A PCC retains the powers to register a caution or Notice against a Registered Title provided that the land has not been sold or bought for consideration since that date.
One view is that, over the passage of time, these liabilities should slowly extinguish and dwindle to naught.
However, where there has been no change of ownership since 13 October 2013 property owners may still find themselves at risk where Notice has been served and entries made upon the Land Register.
- Notice entered:
Where Notice has been entered by a PCC against the Register there are two possible remedies:-
- viz: Wallbank, buy out the liability (under the Ecclesiastical Dilapidations Measure 1923) or
- Take out an Insurance Policy against the risk of a demand.
- Registered Land: no sale since 13 October 2013:
In relation to those buyers contemplating a purchase of land unsold since 13 October 2013 and where there is a risk of a Parish Council registering a caution or Notice for Chancel Repairs, it is important to bear in mind the following: –
- In the period between exchange of contracts and completion, if a PCC should register its interest against the Title, the buyer may wish to rely upon the terms of the Contract of Sale.
That Contract of Sale is likely to contain a provision obliging the Vendor to sell free of any unspecified incumbrances.
It follows that if the entry is not removed the Vendor may be in breach of contract entitling the potential buyer to resile from Completion and claim in damages.
- If a buyer has already applied for an Official Search with priority, any entry made during the priority period will ordinarily be postponed to any entry (registration of title in favour of the new buyer) made during that priority period. By these means the new buyer takes free of the PCC’s incumbrance.
- Costs: The Law Commission: 2025
The ordinary costs incurred by the buyer’s solicitor on a conveyance to conduct a Chancel Check Search of the National Archives (for the existence of a Chancel Repairs Liability) is £26.40.
Although the purpose of the 2002 legislation was to free purchasers of land after 2013 from Chancel Repairs liabilities unless these had been protected on the Register, questions have arisen about the legal status of that liability and whether home owners are nonetheless bound.
As a consequence, homebuyers and land purchasers spend millions each year on searches and insurance to protect themselves from such unexpected costs.
It must be said that 2002 Act relates solely to Registered Land.
Buyers of Unregistered Land can still find themselves unexpectedly liable.
The current aims of the Commission are to amend the Law so that Chancel Repair Liability does not bind buyers of land unless it is registered – and therefore visible – to purchasers.
By such means it is thought that the cost of undertaking Chancel Repair searches or having to pay a premium for insurance protection will be rendered redundant and accordingly promote highly beneficial savings for deserving potential buyers currently at risk in England and Wales.
Richard Peter Tymkiw, Senior Litigation Partner (London)
Kidd Rapinet LLP, 29 Harbour Exchange Square, London E14 9GE
Richard Peter Tymkiw LLB (Hons) 