Ministers tackle ‘anachronistic’ and ‘capricious’ land law

Ministers last week took the first step to changing a medieval church law deemed by the Law Lords earlier in the year to be “anachronistic, even capricious”. The House of Lords reluctantly ordered a couple to pay £95,000 to a neighbouring 13th century church when they ruled in June that Gail and Andrew Wallbank were liable to help with the upkeep of St John the Baptist Church in Aston Cantlow, Warwickshire, under the Chancel Repairs Act 1932.

According to James Dinwiddy, an assistant solicitor at Birketts, the ruling was bad news for 5,000 ‘lay rectors’, which is a title granted to landowners who bear the burden of repairs to the chancel (the eastern end of churches containing the altar) in return for parish tithes.

“One very frightening consequence is that there is an unlimited liability and [for example] if the roof blows off next year they’re back in the firing line,” explained Dinwiddy. “But also, this obligation to pay attaches to any part of church land in the parish and you may have bought only a small part of the chancel land but you could be responsible for the lot.”

The House of Lords overturned a previous appeal ruling two years ago that the Human Rights Act had removed their liability to pay. Despite the unanimous ruling, Lord Nicholls called for reform in this area. “This case concerns one of the more arcane and unsatisfactory areas of property law – the liability of a lay rector for the repair of the chancel of a church,” he said. “The very language is redolent of a society long disappeared.” The Law Lord went on to say that the “anachronistic, even capricious nature of this ancient liability” was recognised some years ago by the Law Commission.

Now the Department for Constitutional Affairs has published a transitional provision order covering chancel repair liability, which will take effect when the Land Registration Act 2002 comes into force on 13 October. The order keeps the status of chancel repair liability within the land registration system for a period of 10 years.
“They’re preserving this as an overriding interest and it will, for the next 10 years, be something that still binds the title even though it’s not noted explicitly on the register,” Dinwiddy explained. “But from then on the order drops away and it will no longer be an overriding interest and the situation will become clearer for purchasers.”

Meanwhile, the National Land Information Service (NLIS) has just completed its millionth search last week. According to NLIS Central Government Coordinator Pete Sizer: “Over 3,250 law firms have already used NLIS. The experience of lawyers shows that online working is easy to learn, saves time and clients like it.”

See:
Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v. Wallbank and Anor, House of Lords, 26 June 2003

SI 2431/2003, The Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003