THE Law Commission published a consultation paper this week on reforming land-registration law with regard to chancel-repair liability (Synod, 1 March 2024).

The legislation dates back to the dissolution of monasteries in the mid-16th century, and the resulting sale of land to lay landowners.

The chancel-repair liability is an obligation on a landowner to pay for certain repairs to the chancel of the parish church when it falls into disrepair. The liability is personal to the landowner and is not limited to the value of the landowner’s property. Legally, a PCC can ask a landowner to pay more for chancel repairs than the property is worth.

If many landowners are all liable to repair the same chancel, the PCC can pursue any one of the landowners for the full amount. The landowner who is required to pay can then try to recover a contribution from the other landowners.

Although the chancel-repair liability is an obligation that is rarely enforced, it was claimed successfully in 2003 by the PCC of Aston Cantlow and Wilmcote with Billesley against the landowners, Mr and Mrs Wallbank, who had inherited the land from her parents in 1974.

The landowners fought the claim all the way to the House of Lords. Their defence, which failed, was that the enforcement of the PCC’s claim would breach their rights, under the First Protocol to the Human Rights Act, to peaceful enjoyment of their property. The landowners incurred nearly £187,000 in chancel repairs plus £250,000 in legal costs. That case drew attention to the potential impact of the chancel-repair liability on homeowners.

Amendments to the Land Registration Act 2002 had been widely understood since 2013 to be that the chancel-repair liability affected property-buyers only if it was registered against the title of the property. Consequently, property-buyers incurred additional costs for searches and insurance against any potential chancel-repair liability.

Since the 2002 Act came into force in 2003, however, a question had arisen about the legal status of the chancel-repair liability and whether homeowners were nevertheless bound. The Law Commission proposes to end the uncertainty by clarifying that a purchaser of registered land will be bound by the chancel-repair liability only if it is noted against the title to the land.

The chair of the Law Commission of England and Wales, Sir Peter Fraser, said that the “proposals aim to deliver the certainty that was intended when the land registration rules changed in 2013. By clarifying the law, the aim is to reduce unnecessary costs to those who buy land such as homebuyers, while ensuring the rules work as Parliament expected.”

The Law Commission also proposes that the amendment to the 2002 Act should apply retrospectively, ensuring that any transfers of registered estates or first registrations of unregistered estates which have occurred since 13 October 2013 are taken into account.

The Law Commission’s aim is to put an end to any doubt that exists about the effect of the land-registration regime on chancel-repair liabilities by making certain that it does what it was understood to do in 2003 when the 2002 Act came in force.

The 2002 Act governs only registered land. Purchasers of unregistered land could still find that they were bound by an unexpected and undiscoverable chancel-repair liability.

The Welsh Church Act 1914 ended the application of ecclesiastical law in Wales, although it preserved some types of chancel-repair liability. It appears that the scope of chancel-repair liabilities in Wales is significantly reduced, but the Law Commission is inviting information about the extent of any liability that still survives.

The consultation paper invites views on the Law Commission’s provisional proposals, and the Commission wishes to know whether they would create more certainty in the law governing chancel liabilities. It also invites participants to provide information about any experiences or encounters that they may have had with chancel-repair liabilities, or any other matter directly related to them.

The consultation will close on 15 November. The responses will be analysed, with a view to publishing a final report, with recommendations, next year.