Otterton Church and the Chancel Repair Liability

Otterton Church and the Chancel Repair Liability

Historical Summary

Tithes are the way churches were financed in Saxon and Mediaeval times.   The history of Tithes is long and sometimes bitter.    They relate to the benefits of having the use of land and come from the biblical injunction to give to the church.   19th century Acts converted tithes into rent-charges, that is they fixed the value of them in a monetary amount.   The last Act of Parliament on the subject was the 1936 Act which abolished those rent-charges.    But the corollary is that the owners of certain land have the obligation to contribute towards the maintenance of the chancel of the parish church.   The chancel is the East end of the church containing the altar.

History in a bit more detail (optional reading!)

As Christianity became established in this country, the parochial system developed. The local landowner would be converted to Christianity and he would give land and build a church on it.    He would also provide a house for a priest and give land as glebe to produce an income to support him.

Having provided all of that, the landowner would reserve to himself the right to choose the priest for the bishop to appoint to the parish and so the system of patronage developed at the same time.

The priest would also have the right to receive tithes, the scripturally based payment of 1/10th of the labour of those in the parish, in the form of the produce of the land in the parish:   crops, livestock or dairy products.  The tithes and the glebe produce were the property of the priest (or rector) and were called rectorial property.   They were to support him and the church which he owned.    In time, tithes were paid in cash instead of in kind.   The income was also used by the priest for some support of the poorer parishioners.

The parish church had to be maintained and the general custom in England developed that the rector maintained the chancel at the east end of the church, which was used by him, while the parishioners were responsible for the rest (the nave etc), being the part of the church which they used. The rector paid for the repair of his part of the church out of his rectorial property. Thus the responsibility for maintaining the chancel was a charge on the rectorial property and so it developed that whoever held the rectorial property had that responsibility.

The medieval period saw the rise in power of the monasteries. The right to call on the bishop to appoint a priest as rector, the right of “presentation” to the bishop, which had been reserved by the original landowners who set up the parish church, was called an advowson.    The advowson gave indirect access to the right to the income from the rectorial property, and so it had a value.   And it could be bought and sold or given away.

Many monasteries acquired advowsons. An advowson could only be exercised in favour of an  ecclesiastical person, in other words a priest. However, a monastery was also an ecclesiastical person, albeit a corporate ecclesiastical person. Having acquired an advowson, all the monastery had to do was to wait until the current priest died and then exercise the advowson in its own favour and appoint itself as rector. The monastery thus acquired the rectorial property: the glebe and tithes. It could not, as a monastery, look after the cure of souls in the parish but it was able to do that vicariously, by appointing a deputy or ‘vicar’.  The monastery would provide for the vicar by allotting to him a portion of the glebe and the tithes, while keeping the balance for itself.  As a result, monasteries grew rich and powerful and sometimes unpopular as a result.  But because the monastery owned the rectorial property, it thereby also had responsibility for maintenance of the chancel.

Henry VIII had a well publicised problem with his wives and his succession but more importantly with the French and was continually strapped for cash. Famously he dissolved the monasteries and appropriated their property, including the rectorial property which they had owned. He then sold this and pocketed the cash. When he sold the rectorial property, the chancel repair liability went with it. And if the property was divided between a number of new owners, the chancel repair liability was also divided.

There were some tweaks to this in relation to large institutions but we needn’t go into them here.   Much rectorial property was sold to lay people.  All of these were called lay impropriators or lay rectors.  Often they eventually sold it on to others and the former rectorial property (and the responsibility for repairing the chancel) became fragmented and the number of lay rectors increased.   Accordingly, there could be a large number of people with responsibility for repairing the chancel of a particular church. That liability was joint and several so each lay rector could be made responsible for the full cost of repairs, although they had rights to recover from the other lay rectors according to the respective values of their portions of the rectorial property.

In Otterton’s case there has been negligible fragmentation.    So the lay rectorate remains essentially with one body.

Not all advowsons had passed to monasteries and where that had not happened the individual priests, the rectors, continued to receive income from the rectorial property. Over the 17th and 18th centuries some of the rights to receive tithe were bought out and thus the priests converted the right to tithes into ownership of financial assets like Government Stocks or commercial land, for example when land was Enclosed.    The income comes to the parish by way of the diocesan trust company which holds the investments.   But by law in 1923 spiritual rectors were relieved of responsibility for the repair of the chancel.

In Otterton’s case the monastery had acquired the right of presentation (the power to nominate the priest) and had subsequently absorbed the Rectorial Property.    At the Reformation the Rectorate was bought by a lay person, Richard Duke, along with his purchase of the monasterial land.   The entire parish passed intact to successive owners – Dukes, Rolles, Clintons – and the agricultural character of the parish remained unchanged.   There was little housing development.

We see the effect of that in the 1844 Tithe Award for Otterton.   The general feeling nationally against tithes led to the 1836 Act ,which monetised the tithe as rent-charges.   Part went to the Vicar (the person installed by the Rector to do the cure of souls) as his income to support his religious work in the parish, and was allocated to all land in the parish, but that part (the old tithe) was abolished in 1936, with some money compensation.

The other part listed in the 1844 Tithe Award, though, was the rentcharge on the parcels of rectorial glebe land in the parish.   Most were noted as owned by Lord Rolle (actually to his Trustees) as then-owner of the rectorial glebe land.   Interestingly the listing was organised by farm tenancy so we can see who the farmers were at that time.

So the 1923 absolution of spiritual rectors of the CRL did not apply here, to glebe land that had passed through monastic hands.    Some people had a duty to pay tithes because they bought rectorial land, and those people entitled to the Rectorial income had the corresponding duty to repair the chancel.    Where the two were merged via the monasteries, as in Otterton, the landowner bore the chancel repair liability.   And still does.

The 1936 Act cut out the Rectorate, abolished the rent-charges (giving compensation to the tithe-holder in Government stock) and connected the liability to repair the chancel directly with the land formerly liable to pay the rent-charges.    This is recorded in the product of the 1936 Act, the Records of Ascertainments, which pins down the CRL to individual plots of land.    Thus the Chancel Repair Liability became a direct burden on freehold interests in land, but the land no longer has to pay tithes/rent-charges.

Otterton’s 1949 Schedule of Ascertainments declared that no part of the rentcharge was represented by money investments (from earlier centuries’ buy-outs), that the 1844 rentcharge was all attributable to land, and listed the allocation of it to the plots of land in the parish, which thus carried the whole responsibility to repair the chancel, and still do.    A page of the Award is shown.

Thus we see how Lord Clinton is the Patron, the person able to appoint the priest, and how the arable and pasture land in his estate bears almost all the responsibility for the chancel.

Where we are now

The Record of Ascertainments in the Public Record Office at Kew lists the plots of land in respect of which the freehold owner is liable to pay the CRL, and the proportions each plot bears.    The plots and the values correspond to the 1844 Tithe Award to the benefit of the Rector.   The list of the portions awarded to the benefit of the Vicar in 1844 is no longer relevant.    But the plots are identified only by number.   The Tithe Map (shown on a separate sheet) shows where the plot numbers are.    That has been overlaid with the current Ordnance Survey map to see what land still bears a CRL.     A charge was registered in 2013 at the Land Registry over all registered land, and a caution against the areas of unregistered land, which carries a CRL.

The CRL is recorded as applying to the plots in proportion.     The amount stated on the Record of Ascertainments is not the liability, it is merely an expression of theamount for that plot as a proportion of the total for all the plots together.   But in fact the liability is ‘joint and several’.

Who has the liability now

The Rolle Estate and its predecessors kept the ownership of the parish together and so we observe that in 1844 almost all the freeholds in the parish were owned either by the Representatives of Lord Rolle (deceased) or subject to leases granted by the Trustees of the late Lord Rolle.   In previous centuries the tithe was imposed on those who produced from the land, under the scripturally-based duty, but by 1844 we see Clinton Devon Estate taxing itself to meet its lingering duty to maintain!    (This may account in part for the 1870 decision to rebuild rather than to repair).

In 1844 there were a very few plots not owned by Lord Rolle.   The subsequent conversion of over-1,000 year leases into freeholds by Act of Parliament has taken more out.   (Those leases were created by the Dukes, presumably to make the Estate more manageable).    There may be a few small parcels of glebe in the parish, owned by the diocese to help fund the stipends of priests.   While the sales by the Estate of house properties since 1844 have been considerable, those properties do not bear a rent-charge (though many were originally obliged to pay the Vicar’s part of the tithes), but sales of land, notably of Seaview to the Carters, do separate out some of the CRL.

What we find in Otterton’s case is this:

All the CRL is represented by rent-charges.   So all the cost of repairing the chancel is to be paid for by landowners.
The rent-charges correspond to the 1844 Tithe Award, so we can identify the respective plots more easily.    Each plot is identified by a Plan number.   It is fascinating to see the relics of the mediaeval strip system of cultivation in the plot shapes and distribution on the 1844 map.   An exercise was done by a villager (Ros Shipton) in 1988 to put the plot names on a map.   There are many duplicate names, and the duplicates are grouped together (for example there are 15 plots called Chockenhole all clustered together), which suggests that that is the name of the area of land and that each plot is the part of that area farmed by an individual farmer:   very mediaeval!
The Estate Office has a copy (or perhaps the original) of the 19th century Tithe map, showing where each plot is by number.    We have an electronic image of it.
All the rent charges are on land identified in 1844 as Arable.
There are almost 1,500 properties on the Tithe Award list (including all the houses), and about half of them are Arable land bearing a CRL.
One plot bears a CRL of fractionally over 1% of the total liability, but all the rest bear less than 0.8% each (£8 per £1,000 of repair cost).
The aggregate liability of the 415 plots each bearing 0.1% or more of the total CRL (£1 or more per £1,000 of repair cost) is 80% of the total CRL.     335 plots account for the remaining 20% of the CRL.
The aggregate liability of the plots among the 415 which, I believe, are not in CDE’s ownership amount to 3% of the total CRL.    But CDE certainly may have sold the freehold of other plots, reducing their CRL.    Nevertheless the overwhelming part of the CRL lies with CDE.

Registration

Roy Smith, a churchwarden who did a great job in tabulating the church’s records but who sadly has since died, related thatCDE approached him in the 2000s about settling the CRL but Roy refused to recommend that the PCC go down that route.    We believe that East Budleigh did negotiate and settle the bulk of the CRL.

But Otterton was mindful of the advice of the Legal Advisory Commission of the Church of England, which is the most authoritative source of legal advice in the Anglican Church:   PCC members are charity trustees and have a duty to take reasonable steps to investigate whether a liability to repair exists in relation to any church within their parish.    They may then have a duty, if such liability exists, to register it and to enforce it.    In Otterton’s case there seemed to be no circumstances driving them not to register it or enforce:   in the circumstances it would not hamper the PCC’s work in terms of its mission and its ability to raise money.

This had to be done by 2013 as the law had changed in 2002:   if the CRL had not been registered as a charge on the lay rector’s land by 2013 the PCC would have lost the right subsequently to enforce it unilaterally against the owners of the land subject to the liability.    That would mean that if repairs were needed to the chancel the PCC would have the duty to carry out the repairs – and all the other repairs needed at that time – without claiming part of the cost from others.

Therefore it registered the charge against the land, 95% of it CDE’s land.

Land which was by then part of residential property was deliberately excluded from the registration.

In the event CDE quickly and generously accepted the responsibility and contributed over £30,000 to the 2018 repairs, for which the PCC is very grateful.

The chancel contains the Reredos, which is the decorative panel on the east wall below the stained glass window.   In our case the panels contain gothic script listing the Apostles Creed, the Lord’s Prayer and the ten commandments.

We have

1844 Tithe Award  (Otterton Tithe Apportionment image.pdf)  (30mb).
Tithe Map   (Otterton Tithe Map.jpg)   (100mb)  . 1936 Record of Ascertainments for Otterton     (RoA_Page_01.jpg -RoA_Page_16.jpg)  .
Spreadsheet pages listing the Plots which each represent > 0.01% of the total of the Ascertainments.
Representative page of the Tithe Award 1844 (Tithe Ascertainment 1844 – extract, page 4.pdf) .

Bolded items are embedded in this document as Appendices 1 – 3.

Appendix 1 – The Record of Ascertainment

Tithe Rent charge Apportionment 1844 - extract, page 4 Spreadsheet pages listing the Plots which each represent > 0.01% of the total of the Ascertainments.
Ranked Apportionments__Page_1 Representative page of the Tithe Award 1844 (Tithe Ascertainment 1844 – extract, page 4.pdf) .
Tithe Rentcharge Apportionment 1844 - extract, page 54 Tithe Apportionments page 54