Objections to application to register notice of a right in respect of the repair of a church chancel

Transcription

1 HM Land Registry Title Number: Property: Objectors/registered proprietors: Objections to application to register notice of a right in respect of the repair of a church chancel 1. The applicant has claimed a right in respect of the repair of a church chancel which is an unregistered interest and so governed by section 37 of the Land Registration Act 2002 ( the 2002 Act ) and Schedule 1 paragraph 16 of that Act, added by the Land Registration Act 2002 (Transitional Provisions) (No. 2) Order 2003 ( the Transitional Provisions Order ) 2. The Lord Chancellor purported to make the Transitional Provisions Order under the powers granted to him by section 134 to make such transitional provisions and savings as he thinks fit in connection with the coming into force of any provision of the Act. 3. The Transitional Provisions Order was not made in connection with the coming into force of any provision of the Act, and therefore was beyond the powers of the Lord Chancellor. 4. The Transitional Provisions Order purported to amend Schedule 1 of the Act, but it was not laid before Parliament as a statutory instrument and was made solely under the statutory power claimed by the Lord Chancellor. 5. There was no provision in the 2002 Act for a right in respect of the repair of a church chancel ever to be capable of registration or to be or remain an overriding interest for any period of time. The repeal of section 70(1)(c) of the Land Registration Act 1925 liability to repair the chancel of any church was provided for in the 2002 Act but the

2 Transitional Provisions Order did not postpone this repeal, but instead purported to make a new right in respect of the repair of a church chancel an overriding interest until 12 October The Court of Appeal had decided in The Parochial Church Council of Aston Cantlow v Wallbank [2001] EWCA Civ 713 that such a right was contrary to Article 1 of the 1 st Protocol of the Human Rights Act 1998, which Parliament accepted by passing the Land Registration Act 2002 in the form in which it was passed omitting chancel repair liability as an overriding interest. 7. The Lord Chancellor made the Transitional Provisions Order on 14 September 2003, which was before the Land Registration Act 2002 came into force and it was also for that reason beyond the powers of the Lord Chancellor to do so. 8. The right in respect of the repair of a church chancel is undefined but can only be taken to refer to the right to bring proceedings in the county court against the registered proprietor under the Chancel Repairs Act 1932 ( the 1932 Act ). 9. The said right can only arise (under section 2 of the 1932 Act) if the responsible authority has served a notice on a person who appears to them (sic) to be liable to repair the chancel a notice in the prescribed form (referred to as a notice to repair ) stating in general terms the grounds on which that person is alleged to be liable as aforesaid, and the extent of the disrepair, and calling on him to put the chancel in proper repair. 10. No such notice to repair has been served by the applicant or any responsible authority on the registered proprietor and therefore there is no right in respect of the repair of a church chancel to be registered. 11. A right in respect of the repair of a church chancel is not an interest affecting a registered estate within the meaning of section 34 of the 2002 Act; nor is the

3 registered estate subject to an unregistered interest within the meaning of section 37. The Chancel Repairs Act 1932 does not create any interest in land or right in rem, but only a right in personam to call upon a lay rector to repair the chancel, and to claim money from him if he defaults. Paragraph 16 of Schedules 1 and 3 of the 2002 Act is not effective to create an interest in land where none previously existed; nor was section 70 of the Land Registration Act 1925 effective in so doing. 12. The Chancel Repairs Act 1932 was amended by section 31 and the Seventh Schedule of the Tithe Act 1936 ( the 1936 Act ) which had the effect of transferring all liability for chancel repairs (which arose from the payment to lay rectors of tithe rentcharges which were extinguished by the 1936 Act) to parochial church councils except for those cases covered by the proviso to section 31(2) of the 1936 Act (under which certain colleges and other bodies received the compensation stock instead of the diocesan authority), and those cases where tithe rentcharges had merged in the land out of which they were payable under section 1 of the Tithe Act 1839 or section 21 of the 1936 Act. 13. Section 21 of the 1936 Act was repealed by the Statute Law (Repeals) Act The Seventh Schedule of the 1936 Act made provision for apportionment of liability in those cases where lay rectors were liable. The 1936 Act made no provision of any kind for any species of chancel repair liability to continue except as provided for in section 31 and the Seventh Schedule of the 1936 Act. Parliament made no provision for the apportionment of liability in cases where tithes had ceased to be payable before the general commutation of tithes. This shows that Parliament did not intend that any liability would continue (except as provided for in the 1936 Act) since Parliament was extinguishing all tithe rentcharges (all remaining tithes having been previously converted to tithe rentcharges under earlier Tithe Acts).

4 15. [If alleged liability based on an enclosure award] The applicants may have been advised that the [name of Manor...] Enclosure Award [date] had the effect of imposing chancel repair liability on the owners of land allotted to certain persons who are alleged to be the predecessors in title of the registered proprietors in lieu of tithes. The tithes referred to if they had not already ceased to be payable would have been extinguished by the Tithe Acts and therefore cannot be treated as continuing. The said owners of that land are therefore no longer under any obligation formerly attaching to the receipt of tithes. 16. [Include this paragraph only if the objector s title is leasehold] In any event as a matter of law only freehold landowners can be lay rectors liable for chancel repairs and not tenants or leaseholders, as the Tithe Acts made no provision for any liability to be imposed on tenants or leaseholders and it is without precedent for any such liability to be imposed on tenants or leaseholders. 17. Proceedings under the 1932 Act can only be brought against a person who before the passing of the Act would have been liable to be admonished in a cause of office against him in the ecclesiastical court, and admonition was only carried out where the lay rector had received sufficient tithes to enable him to pay for the chancel repairs out of the tithes they had received or were expecting to receive, or held a substantial amount of rectorial land allotted in lieu of tithes, from which they would receive sufficient income from produce to cover the cost of the repairs. 18. The objectors would not have been liable to be admonished by the ecclesiastical court as they are tenants or they hold at most a tiny fraction of the land allotted in lieu of tithes and they have never been informed by the applicants that they were considered to be the lay rectors. I believe that the facts stated in this letter of objections are true.

5 Dated... Signed...(Signatures of Objectors)