News & Insights // STL "Hometruth" Newsletter - Edition 2, September 2005 Chancel Repair Liability

"The Conveyancing Trap" - How to Avoid It 

Chancel Repair liability has become a major topic of discussion within the property profession over recent months.
The Aston Cantlow v Wallbank (2003) case highlighted the fact that this risk has a potentially huge impact on the title, value and marketability of a property (the Wallbanks have a £96,000 repair bill plus legal costs).
As an overriding interest, Chancel Repair liability is a "Conveyancing Trap" Conveyancers cannot rely on standard searches, analysis of title documents or standard enquiries as there is rarely any reference to this liability made in the title documents. It does, however, affect 35% of all parishes across every county in England and Wales and "liable land" can be located anywhere within a risk parish (not just near the church). The "Conveyancing Trap" is both widespread and will impact on a large number of unwary practitioners.
The Church regards this source of funding as crucial and has become pro-active in protecting its interest through registration at HMLR (it has until 2013 to guarantee that registration can take place.) The CML has made it clear it regards this risk as an issue of concern, that identifying this potential risk is the responsibility of the conveyancer in the first instance and that where there is potential risk it should be insured.

So, once again, responsibility for identifying the potential risk of chancel repair liability and for indemnifying against it falls squarely on the shoulders of the conveyancer. But how do practitioners identify where there is potential risk? Resource, time and cost preclude a personal search of National Archive records in every transaction. A solicitor should generally not contact the Church as this puts the Church on notice, can increase the cost of or negate insurance and/or initiate registration, both of which could lead to a negligence claim.
Fortunately a company called Conveyancing Liability Solutions Ltd ("CLSL") has recently launched ChancelCheck®, an instant web based search that for only £6 plus VAT (£7.05) reports whether or not a property is located within the boundaries of an historical parish which has the right to charge for chancel repairs. This search identifies potential risk, as required by the CML, and screens out those not at risk so enabling conveyancers to avoid the "conveyancing trap". Where a risk is identified, either a full Chancel Repair Search may be commissioned, or alternatively ChancelSure® Insurance offers full value indemnity insurance (CML Handbook Part II compliant) solution for as little as £59-88 for £250,000 of indemnity cover. 

For the first time conveyancers are able to carry out "all necessary and appropriate searches" in a time efficient and cost effective manner enabling all parties in the conveyancing process to be adequately protected.
The flip side to the launch of ChancelCheck® is that there is no longer an argument for not being aware of potential risk. Conveyancers may well be deemed negligent if they have failed to screen for this risk and their clients are charged for chancel repairs or the liability is registered against their title in perpetuity.