Should I stay or should I go? The Law Commission (LC) is consulting on future of chancel repair liability

Let's go back to October 2013, when we all thought  that chancel repair liability (CR) was going to be abolished. Deeply embedded in English history (feudal and ecclesiastical), CR and allows  a parish church to recover costs of repairing their chancel from private landowners. CR, as something that binds land, was going to be consigned to the annals of history by  its ‘overriding’ status being removed. Instead, to continue to be able to enforce CR, the Church was required to  apply for an express entry to be registered in the title registers for the relevant property. 

Did this work – a.k.a. the Clash?

As of 13 October 2013, a purchaser for value takes free from CR, where it is  not protected by an entry in the register. But a ‘gap’ arises where the land hasn't been transferred for a period of time, and the first purchase for value past this date is your own purchase of land. A CR could still exist and a notice could be entered at any time prior to the registration of your purchase, leading to you being bound by potential CR. So it is still fairly standard when purchasing property to undertake a CR search and obtain an indemnity policy where the search flags there is a potential risk of such liability arising (or investigate it further depending on the nature of the transaction).

It’s always tease, tease, tease…….

LC wants to ensure that CR does not bind purchasers of land unless it’s registered and therefore visible to purchasers, avoiding the need for CR searches and/or CR insurance.

LC’s consultation paper includes:

• Discussion/examination of CR history and law, including whether the Land Registration Act 2002 is applying as intended and the position in unregistered land.
• provisional proposals, including draft amendments to the 2002 Act:
• making it possible to register a notice (on relevant title registers) and rules relating to registering cautions against first registration for unregistered land, in each case relating to protecting CR; and
• purchasers not being bound unless the relevant notice (or caution) is registered.

So, should CR stay, or should it go?

In 1998, the then Government rejected a previous LC recommendation to abolish CR altogether. It seems that, once again, CR will live to fight another day. However, LC’s proposals would undoubtedly eliminate the CR ‘gap’ and mean that the title register could be relied upon as an accurate snapshot of the position at any one time (as it is supposed to be). 

Devonshires therefore cautiously welcomes LC’s proposals but with the caveat that the success of the exercise will be dependent on the implementation of the new rules - including how, in practice, HM Land Registry approaches registration of CR going forward.

Timeline

LC published the new consultation on 15 July 2025. The consultation will close on 15 November 2025. LC aims to publish a final report with recommendations in 2026. The consultation is available here.