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When I started out in my career as a solicitor, being interested in arcane corners of the law, I was recommended by a barrister friend to read the Law Commission's 1985 Report on Chancel Repair Liability as a definitive review of the law on that subject, which I duly did.
Now 40 years on from that "definitive review", the Law Commission has published a further Consultation Paper on the subject of Chancel Repair Liability which – such is the arcane and obscure nature of the subject – frankly admits that some of the views which their predecessors expressed in the 1985 Report were wrong. So why have they done so?
When the Land Registration Act 2002 was going through Parliament, the Court of Appeal had held in the case of Wallbank v The Parochial Church Council of Aston Cantlow [2001] EWCA Civ 713 that the liability was a breach of Mr & Mrs Wallbank's human rights, and so that was thought to be the end of it.
After the 2002 Act was passed, however, the House of Lords reversed that decision, and so a Statutory Instrument – the Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003 [SI 2003/2341] – was hurriedly passed to add Chancel Repair Liability as an overriding interest for the purposes of the 2002 Act, as it had been under the Land Registration Act 1925.
In line with the policy of the 2002 Act in phasing out overriding interests in so far as possible, however, the liability would only remain overriding for 10 years, until 2013. After that date, if not noted on the register, it would cease to bind a purchaser for value – or so some of us thought.
Despite that understanding of the law, it seems that since 2013 many conveyancers have continued to carry out Chancel Repair Liability searches, and when those have revealed a potential liability, have taken out insurance. All this is costing the house buying public a lot of money and the Law Commission wants to know why.
I suspect that the reason is that the searches cost in the region of £30-£40, and insurance about the same amount again, which only represents about 15-20 minutes of the average solicitor's time. Those conveyancers who have continued to carry out searches have done so, therefore, because they don't properly understand the liability, it doesn't cost their clients very much to carry out the search, and it's frankly cheaper than their spending time worrying about it.
Those of us who did understand the liability – or thought we did – took the view that this was all unnecessary. As long as the liability was not noted on the title, we put in a search with priority and lodged our application within the priority period of the search, all was well and our clients would take free of it. Sadly, it seems we were wrong.
According to their recent Consultation Paper, the Law Commission now thinks it probable (they are not claiming to be certain, this time) that Chancel Repair Liability is not a liability attaching to land at all but rather a personal liability attaching to the office of being rector. It is just that since the reformation, it has been possible for a lay person to become the rector of a parish – or one of a number of rectors of a parish – by acquiring rectoral property, including land. The consequence of this is that the liability (probably) binds someone who has acquired rectoral land, whether or not it is noted on the title.
Indeed, it is not even possible for the liability to be noted on the title as it is not within the class of interests which are capable of being noted. The fact that the liability is or is not noted on the title is therefore irrelevant, and those conveyancers who have continued to carry out searches and take out insurance were right to do so. By the same token, those of us who didn't were being cavalier if not – dare I say it – negligent.
So what is the Law Commission proposing to do about this conundrum? Their proposed solution is that Parliament passes legislation that will:
- Make Chancel Repair Liability capable of being noted on a registered title notwithstanding that it is not technically an interest in land; and
- Provide that it will not be binding against a purchaser for value unless it is noted.
Thus, the Law Commission is proposing to ask Parliament to put the law into the position that some of us had wrongly assumed has been the case since 2013. You live and learn.
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