Our property lawyers have been struggling with the knotty subject of chancel repair liability for decades, so why has it only just come to the forefront of public knowledge?
Chancel repair liability is a potential liability to contribute towards repairs to the chancel (the part of the church containing the altar and choir). The potential liability dates back to the time when Henry VIII sold the monasteries’ land and the liability to pay for the repair of the chancel remains with the land sold.
Until the 13 October 2013, chancel repair liabilities were what is known as “overriding interest”. Overriding interests are matters which bind property owners, even though there is no mention of that potential liability on the property register at the Land Registry (or within title deeds where land remains unregistered). These overriding interests are a thorn in the sides of legislators’ desires to provide a complete record of all necessary information about property at the Land Registry. In the last 10 years or so, the categories of overriding interests have reduced from 13 to 5 and some of those remaining categories have had their qualifying criteria narrowed.
On 13 October 2013, chancel repair liability lost its overriding status. Property lawyers largely breathed a sigh of relief in the hope that that would be an end to this particular uncertainty. In some ways it has, because anybody buying a property now, and registering their title with the Land Registry after 13 October 2013, without any notification on the title of the potential for a chancel repair liability, will be protected from future claims. However, the process has caused confusion for a number of reasons:-
It has caused parochial churches to review their records and to consider whether or not they have the ability to register a potential parochial chancel repair liability against property. This registration process is what has brought the chancel repair liability into the greater public domain even though a particular church may not be indenting to enforce their right.
13 October 2013 is not an automatic cut off for chancel repair liability to be registered with the Land Registry. It simply means that anybody who has bought a property after that date is protected, provided there is no registration. Anybody who purchased a property prior to 13 October 2013 could still have a chancel repair liability registered against their property, which would then be binding on them and their successors.
The issue that we have as property lawyers is that parties are legally committed to buying a property from exchange of contracts, whereas the cut off for overriding interests is the date of registration of the property with the Land Registry after completing the purchase. We usually protect clients’ interests in that regard by undertaking a priority search with the Land Registry which gives us a 30 day period to register title in the safe knowledge that nothing will change and the Land Registry will not accept any further registrations during that priority period. However, the Land Registry has said that they cannot rule out a situation where they would register a chancel repair liability during that priority period. That stance is unfortunate, to say the least, and creates an uncertainty that should not be there. The Law Society and other commentators are taking this matter up with the Land Registry, but until then property lawyers are being forced to consider a chancel liability insurance policy, even where there is no chancel repair liability noted on the title.