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Frank Hovis

Chancel Repair Liabilities

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Here's a Vicar who understands the mentality of the Surrey Homeowner :D

http://www.thisislocallondon.co.uk/news/10693018.Historic_Reigate_church_gives_up_ancient_right_to_make_local_homeowners_pay_for_its_repairs/

The Reverend Phil Andrew said “As a church we have never enforced CRL, and we have felt for some time that this is an unfair law on homeowners.”

He said: “We applied to the Charity Commission earlier this year, and they confirmed that we would be within our rights not to enforce CRL.”

Not exactly strapped for cash either if they found £2m for a fancy new church community centre :o

This particular parish would appear to have only apportioned liability (document of apportionment found here )

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The humans rights aspect was the key discussion in the Wallbank case and it was not considered relevant, a key point made was they acquired the land knowing of the liability although I suspect even if they hadn't the case would have gone the same way.

How do you figure this? Agreed that if the Wallbanks knew about the liability at the time of purchase they implicitly accepted it by making the purchase, but on what basis would human rights law not apply for anyone who was not CofE if the liability was not made clear at the time of purchase? Article 9 of the European Convention on Human Rights states that:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

I don't see how any of the exemptive clauses regarding public safety or human rights of others could be made to argue against this, so if I wasn't aware of the liability at the time of purchase and therefore did not knowingly enter into any contractual arrangement of such how would my human rights as an atheist to freedom of thought and conscience and freedom to manifest my belief in practice and observance not be infringed? Certainly no such precedent has yet been set in law.

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How do you figure this? Agreed that if the Wallbanks knew about the liability at the time of purchase they implicitly accepted it by making the purchase, but on what basis would human rights law not apply for anyone who was not CofE if the liability was not made clear at the time of purchase? Article 9 of the European Convention on Human Rights states that:

I don't see how any of the exemptive clauses regarding public safety or human rights of others could be made to argue against this, so if I wasn't aware of the liability at the time of purchase and therefore did not knowingly enter into any contractual arrangement of such how would my human rights as an atheist to freedom of thought and conscience and freedom to manifest my belief in practice and observance not be infringed? Certainly no such precedent has yet been set in law.

The Wallbank case decided the liability was a charge on the land and unrelated to Human Rights and the Chivers verses Air Ministry case decided that the liability still applied even if the buyer did not know about it. Although it did not appear in the Air ministry case virtually all cases of land based liability can be located in public documents stored in the local or national archives. The Air ministry case boiled down to let the buyer beware.

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The Wallbank case decided the liability was a charge on the land and unrelated to Human Rights and the Chivers verses Air Ministry case decided that the liability still applied even if the buyer did not know about it. Although it did not appear in the Air ministry case virtually all cases of land based liability can be located in public documents stored in the local or national archives. The Air ministry case boiled down to let the buyer beware.

I have to say, it's hard to look at the Wallbank case and not come to the conclusion that "it's complicated" is a pretty inadequate excuse.

Anyway, I appreciate your candour and posts. Many thanks for taking the time.

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At some point people must have bought these plots aware of the liability but presumably getting them at a discounted price.

This is not "droit de seigneur" or offensive to individual consciences but contract law - you can buy this plot of land on the understanding that you have a liability to the local community, i.e. maintenance of a particular church building.

If this didn't come up on searches it's down to shoddy systems and solicitors but fundamentally it's just contract law.

Terrible for people being stumped with these CRLs but not the church's fault; they, like any charity, have an obligation to look after their assets.

I am sure there's plenty of people with only a few years left on their leasehold, but it doesn't mean that because leaseholds are a very old bit of law they should be disregarded.

Declaration of interest - 7+ years on a PCC. My experience is that many church buildings were funded by individual donations at some point in the past 200 years. The buildings are expensive to maintain and paid for by congregation members, and certainly not the government/tax payer.

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This particular parish would appear to have only apportioned liability (document of apportionment found here )

Interesting, thanks. This document talks about a "rentcharge liability" of £735 and that "the appropriate proportion of the liability for repair of the above chancel is 1/176450".

In practice what does this mean - e.g. does it mean that one subject freeholders liability would roughly 57p for a £100,000 claim? If so you can see why they wouldn't bother with it. Plus how does the £735 feature?

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At some point people must have bought these plots aware of the liability but presumably getting them at a discounted price.

As a Christian, if this helps to salve your conscience then please carry on believing it.

The reality is that up until about 10 years ago this was not on anyone's dashboard, not buyers, and not solicitors. So no families in that situation got their properties at a discounted price.

By stark contrast, having been blighted by the church the next buyers probably will. :(

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It seems that the people in the case described above knew about the liability when they bought the land. And there was a Act from the 1930s on this issue, so it's not that medieval. What crucified the family in the case concerned was the legal bill, not the demand per se.

The issue has largely been resolved now and it seems that there's a mechanism for people buy their way out of any exposure, if the PCC even decides to recognise the liability; up until recently they were obliged by law to take advantage of these overriding interests.

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The Wallbank case decided the liability was a charge on the land and unrelated to Human Rights and the Chivers verses Air Ministry case decided that the liability still applied even if the buyer did not know about it. Although it did not appear in the Air ministry case virtually all cases of land based liability can be located in public documents stored in the local or national archives. The Air ministry case boiled down to let the buyer beware.

What the actual ruling says appears to be somewhat different:

the chancel of the parish church, is not discharging the functions of a “public

authority” within the meaning of section 6 of the Human Rights Act 1998, and has no obligation

to act compatibly with the rights set out in the European Convention on Human Rights to which

the Act gives effect

So the ruling doesn't state that it is "unrelated to Human Rights", just that the church has no obligation to abide by Human Rights. Not something I would personally be proud of.

Also, Chivers versus Air Ministry established exactly the opposite to your assertion that it is a "charge on the land", rather it:

is not a charge on the rectorial property, but a personal liability imposed on the owner or owners for the time being of the rectorial property

Given that Chivers versus Air Ministry is a ruling from 1955 that pre-dates the Human Rights Act it is disingenuous to pretend it sets any sort of precedent in relation to the 1998 Human Rights Act.

While the Church might be exempt from abiding by the European Convention on Human Rights, the British judicial system is not. Questioning the the continued validity of the earlier ruling (as to applying liability even if the buyer was unaware of it) from 1955 in the light of the 1998 Human Rights Act would seem eminently worthwhile in cases where the buyer was ideologically opposed to the CoE and where their human rights would therefore be violated by such a ruling.

Again, I would reiterate: these cases do not set a precedent in law regarding chancel repair liabilities that were undisclosed at the time of purchase in relation to the European Convention on Human Rights.

If anyone knows of any cases which do please add them to the thread.

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Again, I would reiterate: these cases do not set a precedent in law regarding chancel repair liabilities that were undisclosed at the time of purchase in relation to the European Convention on Human Rights.

If anyone knows of any cases which do please add them to the thread.

This could be a very valuable point of law but does any family have the resources to fight the church through the law courts. The church, who cant pay to upkeep their Chancels, suddenly seems by some miracle to find money to fight these battles. We saw how the church totally crushed the last couple that tried.

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It seems that the people in the case described above knew about the liability when they bought the land. And there was a Act from the 1930s on this issue, so it's not that medieval. What crucified the family in the case concerned was the legal bill, not the demand per se.

The issue has largely been resolved now and it seems that there's a mechanism for people buy their way out of any exposure, if the PCC even decides to recognise the liability; up until recently they were obliged by law to take advantage of these overriding interests.

You are referring to a very small group of people. Does it not trouble your conscience that there are thousands of families that have had there lives wrecked by PCCs like yours?

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It seems that the people in the case described above knew about the liability when they bought the land. And there was a Act from the 1930s on this issue, so it's not that medieval. What crucified the family in the case concerned was the legal bill, not the demand per se.

The issue has largely been resolved now and it seems that there's a mechanism for people buy their way out of any exposure, if the PCC even decides to recognise the liability; up until recently they were obliged by law to take advantage of these overriding interests.

The initial demand was for about £100k, made up to circa £350k with legals costs. If they just paid up and kept their heads down no-one need have been hurt, right? The initial demand was issued in 1990, worth remembering in this era of telephone number mortgage debts and Ponzi land values.

Despite the historic complexities at play, it seems little different to a vehicle clamper extracting essentially any sum they fancy from a hapless motorist who they have bang to rights.

http://www.chancelrepair.org/2.html

The couple offered to donate the field, worth more than £21,000, which had the potential for development or community use and would make the church eligible to receive grants. This offer was rejected. Afterall, an ongoing 'open cheque-book' to be passed from generation to generation is a valuable asset to the Church.

So the Wallbanks had no option but to fight the demands incurring vast legal costs. If they 'just paid up' the initial amount there was nothing to stop the church persisting in demanding more and more each year ad infinitum.

The High Court found the couple liable for the chancel repair costs, but the Appeal Court overturned this, ruling that the law was unjust and contravened the couple's Human Rights, declaring that the Wallbanks should be released of the obligation.

However, the PCC appealed to the House of Lords, dragging the case into new legal depths. By this time, the couple were forced to remortgage their house to pay off the lawyers. The House of Lords, though not condoning this law and the implementation of it, ruled that PCCs are not Public Bodies and are therefore exempt from adhering to the Human Rights Act (HRA) and Convention. The HRA would normally protect private individuals from unreasonable, arbitrary, and unfair demands by statutory bodies. However, because of the exemption the Wallbanks must pay.

To decide the final repair bill amount, the case went back to the High Court where Mr Wallbank was forced to represent himself as they had run out of money to pay the legal fees.

The judgement found them liable for a bill for repairs totalling £186,986, plus VAT and costs, which will bring the total up to approximately £250,000 – in addition to the £200,000 they’ve spent over the years fighting the case.

In order to pay, the Wallbanks, who have seven children, will have to sell the farm in Warwickshire, BUT while it has the chancel liability attached to it, the property is unsaleable and effectively worthless. The PCC have made doubly sure of this by registering a caution at the Land Registry stating that the land cannot be sold, mortaged or given awaywithout the consent of the PCC.

Even if the Wallbanks suddenly came across the £1/4 million to pay the church, there is nothing to stop the PCC continuing to demand more and more money each year once the initial bill is settled.

Edited by The B.L.T.

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Sorry, genuinely interested, but can you give me the stupid version of that? The colleges and similar pay many of the enforced liabilities - is that right? Okay, it's complicated, but tbh it sounds like the church got this very wrong by not declaring that all private households were automatically exempt.

Question - has anyone considered the human rights issue for someone being hit with this who was actively opposed to the CoE?

Interesting thread. I had never heard of CRL's before but the bit I highlighted here seems to sum it up for me.

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This could be a very valuable point of law but does any family have the resources to fight the church through the law courts. The church, who cant pay to upkeep their Chancels, suddenly seems by some miracle to find money to fight these battles. We saw how the church totally crushed the last couple that tried.

I think there would be a stark difference between what happened to the Wallbanks and what would happen to anyone who was not made aware of the liability at the time of purchase and was not CofE themselves. I don't think the Wallbanks ever really had a case because they were aware of the liability and therefore implicitly agreed to it by continuing with the purchase, so their pursuing the matter through the courts in this instance was somewhat foolish. In contrast someone whose personal beliefs are directly opposed to the CofE and who wasn't aware of the liability and therefore did not implicitly agree to it would have a good case under the 1998 Human Rights Act (as previously stated the earlier ruling on this having pre-dated the Human Rights Act by 43 years does not serve as an adequate precedent).

In terms of financing such a case, where there is a strong possibility of winning, I would think that looking to their own belief community would be anyone's first port of call. For instance as an atheist if I found myself in this situation I would definitely seek funding and support for a test case through the various British and European Atheist and Humanist organisations that exist. Knowing a few human rights lawyers I also wouldn't be surprised if one or more of them would be prepared to take the case on pro bono as winning precedent setting cases enhances their reputations and future earning potential, so would definitely suggest anyone in such a position put feelers out to this effect as well.

Having said this Greg Yerbury's initial suggestion to obtain a UN4 form and attempt to cancel the liability or compound it (assuming this is low cost) is probably the most pragmatic course of action, although I personally would have deep ideological problems with the latter. Insurance policies do appear to be a bit of a scam for the majority of people who are worried about this, but then how often is this not the case with insurance? Fighting a liability with a low compounding cost in the courts would essentially be a matter of ideology and point of law, but where funding was available or I would personally proceed on this basis.

Where compounding costs are high or a high cost bill is presented with no opportunity to compound the liability (and insurance is either high because of the figures involved or unavailable because the bill has already been issued) then pursuit under the Human Rights Act would be the most sensible option if you were not aware of the liability at the time of purchase and your personal beliefs were not CofE. However, I doubt that any such high compound costs of high repair bills would be forthcoming from the church where the purchaser wasn't clearly aware of the liability at the time of purchase, as losing would both set a problematic precedent and be a public embarrassment. I would think that the general pattern of liability being removed outright or with low compounding costs will therefore continue, with the odd exception where the church are certain they can clearly win any resulting case because the liability was implicitly agreed to at purchase. It would be foolish to agree to this liability and not expect it to be enforced (no matter what the church promises on the matter, the only promise worth having is the official removal of the liability), I personally wouldn't purchase any land with an overt Chancel Repair Liability on it any more than I would purchase one with an Uplift Clause.

Of course even if you were unaware of the liability at the time of purchase if you actually are CofE the Human Rights Act would not protect you as your belief system is not fundamentally opposed to paying tithes to the Church of England. Good reason to become an apostate in my opinion ;)

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I had never heard of CRL's before

I think this is the nub of the issue. If you put a cat in a dustbin its easy for Joe Public to grasp that something bad has happened.

The whole subject of CRL has largely bypassed the general public. Because of the complexity of what is happening most people I have spoken to about it, just glaze over in a few minutes. It's particularly difficult getting over the notion of 'joint and several' responsibility, and how a vindictive church forced one family into a bill of nearly half a million pounds.

Almost exclusively people respond with a mixture of disbelief and disgust that a Christian church could do this, but the whole story lacks the wow factor that sways public opinion in large numbers.

I am waiting for the first disgruntled property owner to burn down his local church. That may just get someone's interest.

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I think this is the nub of the issue. If you put a cat in a dustbin its easy for Joe Public to grasp that something bad has happened.

The whole subject of CRL has largely bypassed the general public. Because of the complexity of what is happening most people I have spoken to about it, just glaze over in a few minutes. It's particularly difficult getting over the notion of 'joint and several' responsibility, and how a vindictive church forced one family into a bill of nearly half a million pounds.

Almost exclusively people respond with a mixture of disbelief and disgust that a Christian church could do this, but the whole story lacks the wow factor that sways public opinion in large numbers.

I am waiting for the first disgruntled property owner to burn down his local church. That may just get someone's interest.

I would be tempted to amass an Occupy-style occupation of the church and invite public speakers to come in and lecture on ethics, morality and humanism :D. I wonder, do squatters rights apply to churches or is the CofE exempt from these as well?

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I would be tempted to amass an Occupy-style occupation of the church and invite public speakers to come in and lecture on ethics, morality and humanism :D. I wonder, do squatters rights apply to churches or is the CofE exempt from these as well?

Nice one. You could always claim sanctuary. The bells, the bells, they made me deaf you know :D

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What the actual ruling says appears to be somewhat different:

where the buyer was ideologically opposed to the CoE and where their human rights would therefore be violated by such a ruling.

Again, I would reiterate: these cases do not set a precedent in law regarding chancel repair liabilities that were undisclosed at the time of purchase in relation to the European Convention on Human Rights.

If anyone knows of any cases which do please add them to the thread.

My apologies for relying on memory but the principle of buyer beware is part of English common law such as a house which suffers for subsidence but they didn't carry our a survey,or someone discovers they have a footpath going through the land but it was missed off the definitive map/ both would have been revealed with a full and correct survey of the house and property but probably a very expensive survey

Within the Wallbank case one of the law lords did say something about a liability that someone could not have possibly have known about. I have interpreted this to include liabilities that would only be revealed by access to private information or there is no publicly available map.

In Braughing, which someone mentioned earlier, there are three copies of the enclosure award and plans giving precise locations of the land that is liable and any person could pay for a trained researcher to find this liability prior to purchase. If someone was to seach Braughing in this book list it says land given to a lay Impropriator suggesting there is a liability.

I agree that someone could claim ignorance and I suspect the courts would back them up if the records of the liability were not public. These could be enclosure awards which were not done by public act but by private agreement with records not handed over to the archives but kept in a solicitor's safe as a possible example.

Please do not mistake me for defending the registration of the liability in Braughing or any particular place

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You are referring to a very small group of people. Does it not trouble your conscience that there are thousands of families that have had there lives wrecked by PCCs like yours?

Thousands of people? There was no rush of PCCs to claim CRLs before the Oct 2013 deadline. There won't be that many affected households remaining and the Charity Commissioners have said that churches can now let the CRLs go. The majority of churches don't want to start fights with locals, even though common law is on their side on this one.

The emotive case outlined above was tricky and yes, had I been on the PCC, knowing what I know, I doubt I will have pursued the matter hard. But then I would let many grade I listed buildings collapse.

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As a Christian, if this helps to salve your conscience then please carry on believing it.

The reality is that up until about 10 years ago this was not on anyone's dashboard, not buyers, and not solicitors. So no families in that situation got their properties at a discounted price.

By stark contrast, having been blighted by the church the next buyers probably will. :(

Dear bumpy there are certainly several large estates who acquired land on the cheap because of the liability these were admittingly sales back in the 1800's when CRL was a well known issue for the landed gentry at the time. These though are far more the exception than the rule but I am aware in vast majority of situations this is not true

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Thousands of people? There was no rush of PCCs to claim CRLs before the Oct 2013 deadline. There won't be that many affected households remaining and the Charity Commissioners have said that churches can now let the CRLs go.

Not quite they say every PCC has to make a reasonable decision and show they have made a decision in the best interest of the charity which I believe in the vast majority of cases after a lot research will mean just this.

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My apologies for relying on memory but the principle of buyer beware is part of English common law such as a house which suffers for subsidence but they didn't carry our a survey

Do you think the size of the charge made against them was one that they could reasonably expect? I might buy a house knowing I am responsible for the upkeep of a wall, but I'd be a bit peeved if I was instructed to repair it with gold bricks.

By your own admission, these liabilities have not really been a factor in property prices since the 1800s - they had, as far as private property goes, fallen out of use. I don't quite understand what led to the sudden resurrection over the last decade or so as serious liabilities, but it's a little disingenuous to imply that nothing changed.

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My apologies for relying on memory but the principle of buyer beware is part of English common law such as a house which suffers for subsidence but they didn't carry our a survey,or someone discovers they have a footpath going through the land but it was missed off the definitive map/ both would have been revealed with a full and correct survey of the house and property but probably a very expensive survey

Within the Wallbank case one of the law lords did say something about a liability that someone could not have possibly have known about. I have interpreted this to include liabilities that would only be revealed by access to private information or there is no publicly available map.

In Braughing, which someone mentioned earlier, there are three copies of the enclosure award and plans giving precise locations of the land that is liable and any person could pay for a trained researcher to find this liability prior to purchase. If someone was to seach Braughing in this book list it says land given to a lay Impropriator suggesting there is a liability.

I agree that someone could claim ignorance and I suspect the courts would back them up if the records of the liability were not public. These could be enclosure awards which were not done by public act but by private agreement with records not handed over to the archives but kept in a solicitor's safe as a possible example.

Please do not mistake me for defending the registration of the liability in Braughing or any particular place

Buyer beware indeed.

However none of the other examples given above would violate someone's Human Rights to freedom of religion (which includes freedom from religion), or in fact in any other way that I can see. They are also all direct properties of the land - subsidence is a physical property of the ground itself, rights of way are specific to the land not a charge on the owner - in direct contrast to Chancel Repair Liability which, as mentioned earlier, has been previously defined in law as:

not a charge on the rectorial property, but a personal liability imposed on the owner

I very much doubt that English Common Law would therefore trump the Human Rights act in this instance.

The problem with suggesting that the onus is on buyers to search out these liabilities is that noone is going to go looking for something they were not aware existed. Additionally, as this is a "personal liability" rather than "a charge on the rectorial property", as such I don't see how it wouldn't be subject to contract law and therefore how payment could be enforced from anyone who didn't actively or implicitly agree to it (bearing in mind contract law has changed in line with Human Rights since the original 1955 ruling on this)? Even if this were to be considered legal (which I doubt it currently would be, certainly at the European level) it is clearly highly unethical.

I appreciate that you appear to disagree with the enforcement of this liability on general residential properties, and that you're actively working against this. However the legal position you are advocating does appear to be biased in favour of the church rather than an accurate representation of the current legal situation. Of course if the UK were to pull out of the EU and the European Convention on Human Rights your position would be correct. However that is not the current situation, nor does it seem to be an overly likely one in the near future.

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In Braughing, which someone mentioned earlier, there are three copies of the enclosure award and plans giving precise locations of the land that is liable and any person could pay for a trained researcher to find this liability prior to purchase. If someone was to seach Braughing in this book list it says land given to a lay Impropriator suggesting there is a liability.

Thank you for that. It is additional evidence for me and the Legal Ombudsman that my solicitor when I purchased the property was negligent in failing to flag up the possibility of CRL.

My purchase was in late 2002 / early 2003. In your opinion should the Solicitor have had an awareness of a potential chancel repair liability at that date.

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Do you think the size of the charge made against them was one that they could reasonably expect? I might buy a house knowing I am responsible for the upkeep of a wall, but I'd be a bit peeved if I was instructed to repair it with gold bricks.

By your own admission, these liabilities have not really been a factor in property prices since the 1800s - they had, as far as private property goes, fallen out of use. I don't quite understand what led to the sudden resurrection over the last decade or so as serious liabilities, but it's a little disingenuous to imply that nothing changed.

:lol:

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