Chancel Repair Liability

Originally published in Property Law Journal, March, 2007

The latest stage in the saga of a couple's fight against liability for repairs to the chancel of a church in Warwickshire has been much reported recently.

In 2003 the House of Lords ruled against them in that this liability did not contravene the European Convention on Human Rights. The cost of repairs stood at 95,000 then but now they have been told they have to put the chancel into "substantial repair without ornament", rather than simply wind and watertight, so the cost will be about 200,000. The liability arose because they are "lay rectors".

Who are "lay rectors"?

The ancient common law determines who can be a lay rector.

Before the Reformation, with very few exceptions, the chancel of the church (the part over the altar where the service is celebrated) was the legal responsibility of the local parish priest, or rector, while the parishioners were responsible for the remainder of the building.

To help fund the chancel repairs, the rector and his successors were endowed with land known as" rectoral glebe" and given the right to receive tithes. Tithes were a tenth part of the product of land or livestock paid as a kind of tax by the parishioners. Together, these endowments were known as the "rectory".

As time went on many such rectories were acquired by monasteries which took the tithes as part of their own income providing a priest to serve the parish known as the vicar.

At the Reformation the monasteries were dissolved and their rectories were seized by the Crown. The Crown then granted or sold the rectories to individual laymen or to other institutions. This meant that the rectoral glebe land and the right to take tithes, originally intended for the use of the rector, were then vested in a large number of "lay rectors". Those lay rectors who received tithes of the parish or glebe also acquired the rector's liability to keep the chancel of the church in repair.

The right to tithes

No one today is entitled to receive or liable to pay tithes. The Tithe Act of 1836 replaced tithes with annual tithe rentcharges which were themselves extinguished by the Tithe Act 1936. This created tithe redemption annuities which were extinguished in 1977.

Land affected

Chancel repair liability benefits more than half the pre Reformation churches of the Church of England and the Church in Wales - some 5200 in all, covering 3.7 million acres. Therefore the larger area of land concerned the...