Charities | Chancel repair liability and the Commission

Chancel repair liability is a liability on some property owners in England and Wales to fund repairs to their local parish church. It originates in the pre-Reformation system of rectorship, whereby some local parish priests were not paid a stipend, but lived off tithes from the parish. Under this system, the rector was responsible for the upkeep of the chancel of the church. It was common for monasteries to receive rectorships, and thus take on liability for chancel repairs. When the monasteries were dissolved under Henry VIII and the land passed into private hands, so did the liability.

The case of Aston Cantlow PCC v Wallbank, in which a claim against a homeowner was upheld by the law lords, highlighted that property owners are often unaware that the land they have purchased is subject to chancel repair liability. For this reason, the government introduced a system of registration, allowing Parochial Church Councils (PCCs) '“ which are charities '“ a limited period of time to register liability against property owners in their parish. They will only be able to enforce liability against new owners if repairs are needed in future if they have registered.

Often the liability is shared amongst a number of owners as the land has been sub-divided over the years. The deadline for PCCs to register liability expires in October 2013. For this reason, many are now in the process of deciding whether to register.

In order to help PCCs fulfil their legal duties, the commission has produced guidance that explains what principles members should consider when making a decision. It is not for the commission to judge what is right in individual cases, as it is for trustees to make such decisions. However, our guidance sets a framework for decision making, which, if followed, should help trustees reduce the possibility of being challenged for any decision they make, and thus also reduce the chances of members being held liable for breach of duty in future.

Our guidance sets out the usual principles of trustee decision making to enable the members to make a decision within the range of decisions a 'reasonable body of trustees' might make. It also flags up what are likely to be key relevant factors that members will need to take into account in this regard, including the costs of enforcing liability compared to the costs of any likely repairs, the likely impact of the PCC's ability to pursue its mission, and the likely impact on the charity's ability to raise funds from other sources (some funders may reject applications for grants to repair the chancel if the charity had not maximised a potential asset).

Chancel repair liability, of course, is not a matter of charity law and the commission is not the expert in this area. For this reason, we advise PCCs to study the opinion of the Legal Advisory Commission of the General Synod (LACGC), alongside our guidance. PCC members may also wish to take professional advice.

While decisions about registering and enforcing chancel repair liability are matters ?for trustees, some PCCs come to the commission to request confirmation that their ?decision not to register or enforce the liability was reasonable. We are able to consider providing such advice under section 110 of the Charities Act 2011 and are willing to do ?this in cases where PCCs consider there is a high likelihood of their decision being challenged, and they are able to make a substantive case explaining how they ?arrived at their decision.

In general, however, our hope is that PCCs will feel confident in their decisions having taken account of our guidance and that of the LACGC.