Proposals To End Chancel Repair Uncertainty For Property Buyers

The Law Commission has launched a consultation on proposed reforms to the law governing land registration and chancel repair liability (CRL)—an obligation requiring landowners to pay for repairs to the chancel of a local church.

The proposals would amend the Land Registration Act 2002 (LRA 2002) to clarify that CRL only affects property buyers if it is registered against the property title. The consultation closes on 15 November 2025, after which the Law Commission intends to analyse responses and publish final recommendations in 2026.

What is chancel repair liability?

Chancel repair liability is an ancient interest which potentially benefits pre-Reformation (i.e. pre 1534) Anglican churches in England and Wales. It enables parochial church councils to require owners of former rectorial land to fund repairs to the chancel (the space around the altar at the east end of the building) of their local church.

The liability arises because, historically, the rector of a church was responsible for repairs to the chancel and was able to pay for these repairs with the income from rectorial land. The liability to pay for repairs attached to the rectorial land and, in some instances, the liability continues notwithstanding that the land has been subsequently sub-divided into various parcels and sold to individuals or organisations who are not connected with the church. The owners of such land are called lay rectors or lay impropriators.

Problems associated with chancel repair liability

Determination of liability

• liability is attached to land not buildings and the burdened land may not be immediately adjacent to the church; liability may even attach to a new property in an urban area
• the liability may not have been recorded in the title deeds to the land or entered on the registers of title
• there is no single central register that identifies all chancel repair liabilities so in many cases it is impossible to tell whether a liability exists; even a detailed search of old records in the National Archive is not always conclusive
• the liability to maintain the chancel falls on the owner or owners for the time being of rectorial land and passes with the land on its transfer; a buyer cannot recover damages from their seller under the seller’s covenants for title

Level of liability

• liability is joint and several and the owner of even the smallest area of affected land can be asked to meet all of the costs connected with the repair of the relevant church; the church is not required to seek proportionate contributions from all who may be liable
• it is unpredictable since the liability only arises when repairs are needed
• liability is unlimited in amount and if the church is large the amounts involved can be substantial; in the Aston Cantlow  case the lay rectors were ordered to pay £95,000 towards repairs plus £140,000 of legal costs

For many years property purchasers have faced additional costs for searches and insurance against potential chancel repair liability. Whilst individual additional costs may be modest, they cumulatively add millions of pounds to property transactions across England and Wales every year.

The current position at the Land Registry

Under the Land Registration Act 1925, chancel repair liability was classed as an overriding interest and a purchaser of registered land for value would automatically take subject to it. The LRA 2002 significantly reduced the number of interests which are capable of overriding a registered disposition for value or the first registration of unregistered land. As a result, from and including 13 October 2013, chancel repair liability is no longer an interest capable of overriding a transfer of registered land for value or the first registration of unregistered land.

LRA 2002 provided for a transitional period expiring on 12 October 2013 in which chancel repair liability took effect as an interest capable of overriding a transfer of registered land for value (or first registration). During that period, chancel repair liability could be protected by registration of a notice (in respect of registered land) or by a caution against first registration (in respect of unregistered land).

A liability for chancel repair which has not been protected by the registration of a notice or a caution against first registration before 13 October 2013 does not cease to exist but because it has not been protected by a notice or caution, a purchaser of registered land for value will take free of it (or, if the land is unregistered, it will not override first registration). However, until such time, because the liability still exists, it can still be protected by the registration of a notice or caution against first registration. HM Land Registry’s guidance states that HM Land Registry will accept an application to register a notice to protect a former overriding interest without checking whether the registered title has been transferred for value since 13 October 2013.

So although it was the intention of LRA 2002 that unregistered chancel repair liability should cease to bind purchasers of land, HM Land Registry Practice Guide 66: overriding interests that lost automatic protection in 2013 states that the courts have still to consider if and when it may be possible after 12 October 2013 for the holder of a previously overriding interest to have the register altered so that a notice is entered where the registered proprietor has taken free of the interest following first registration, or following the registration of a disposition for valuable consideration. The courts have also still to consider whether indemnity may ever be payable where the register cannot be altered in this way.

The consultation proposals

So the consultation proposed to amend the LRA 2002 to clarify that, among other aspects:

• it is possible to register a notice relating to a CRL that affects a registered estate
• a purchaser of a registered estate is not bound by a CRL unless the liability is protected by a notice registered against the estate
• a caution against first registration may be lodged in relation to a CRL
• a CRL that is not recorded in the register at the time of first registration will cease to bind the newly registered estate

The crucial parts really for property buyers are the points relating to non registered CRL ceasing to bind buyers.

Responses can be submitted through an online survey – Law Commission Consultation on Chancel Repair Liability and Registration – Ministry of Justice – Citizen Space

The consultation document can be accessed here Chancel repair liability – Consultation Paper

Sources:

• Proposals to end chancel repair uncertainty for homebuyers – Law Commission
• Chancel repair liability and registration – Law Commission