Ecclesiastical law

Category: Church Property

Church Disposal: Statute and Squatting

King and Blair v Incumbent of the Benefice of Newburn and Newcastle Diocesan Board of Finance (2019) Upper Tribunal 176

This case concerned a family burial vault in a redundant church.  The local incumbent and the diocesan board of finance claimed ownership of the vault on the basis of adverse possession, known colloquially as ‘squatter’s rights’.  The secular Tribunal rejected the claim, for wholly convincing reasons.  Apart from anything else, there was no evidence that the incumbent or the board had ever even entered the vault.  Squatting is, by definition, a physical entry on land.

However, the most intriguing aspect of the adverse possession claim is why it was brought in the first place.  The closure and disposal of redundant churches has been a melancholy but routine procedure for the last 50 years at least, as church attendance has declined.  So why did the ecclesiastical authorities find it necessary to assume the undignified pose of squatters?  Why did the statutory powers that have been exercised for decades prove inadequate in this one case?  The Tribunal observed that ‘there is no recorded authority which is directly determinative of the principal issue raised by this appeal’ (para 18).

The judgment relates that the church was donated in 1837, and consecrated by the local bishop just 9 days later.  However, the instrument of donation reserved to the donor, and his ‘heirs and assigns’

‘the vault or burying place in the interior of the said [church] lately made by me with full power … to enlarge the said vault so only that it do not extend beyond the body of the said [church] and do not injure the walls or foundations thereof … also with full power … to open such vault … and use and repair the same at all reasonable times’ (para 2).

The Tribunal found that the vault ‘was of a completely different structure to the stone floor of the church, … being … of brick [as distinct from stone] construction’ (para 8).  There was no external entrance to the vault.  Access was only possible ‘from the interior, and not the exterior, of the church … by way of a stone pavement slab … set into the stone floor’.  In order to lower a coffin into the vault ‘further pavement stones would also need to be raised’.

The church had been closed (i.e made redundant) in 2004.  It was intended that the site be sold for (no doubt lucrative) residential development.

This was the reason for the unsuccessful claim of adverse possession of the vault.  The Tribunal stated that ‘the existence of the family vault … and uncertainty as to its true ownership … have prevented … any significant progress towards … disposal’ (para 4).  The donor’s surviving family were evidently reluctant to co-operate with the development proposal, and successfully resisted the adverse possession claim.

The Tribunal referred mysteriously to ‘the somewhat protracted and complicated procedural history of [this case]’ (para 1), but did not go into details.  However, the effect of the judgment was clearly stated: ‘if [the family] fails, the Church Commissioners will be free to dispose of the church building for residential use.  If [the family succeeds] … residential purposes [will be] unviable, the only option may be a proposal to demolish’ (para 4).

Although the Church’s claim of ownership by adverse possession was rejected, the judgment was careful to state that it gave ‘no decision’ on whether the family members involved in the case were indeed the true owners of the vault, as successors in title of the original donor (para 2).

Ownership of church buildings can be uncertain and obscure.  An old church may be a veritable bundle of property rights.  It is often said that the incumbent owns the freehold of the church, but the position is not as simple as that.  The case of Griffin v Dighton (1864) 122 English Reports 767 makes clear that ‘the freehold of the church [at common law] … is in the rector, whether spiritual or lay‘ (p.771).  If the incumbent is a mere vicar, the freehold will vest in the lay rector.

It was noted in Jones v Chapman (1869) Law Reports 4 Exchequer 273 that the freeholds of side-chapels and aisles in a church may vest in persons other than a lay rector or an incumbent (p.279), such as the heirs and descendants of those who built small chapels for family burials or (pre-Reformation) for the offering of Mass for their souls.  There must be many churches with family burial vaults.  Pews can also be subject to lay property rights.  Parishioners, of course, enjoy legal rights to attend Divine Service in their parish church, to have their marriages solemnised there, and to be buried in the churchyard.

The existence of all these disparate rights is the very reason that statutory powers are required to close and dispose of surplus churches.  Statutory authority, the ‘Parliamentary title’, is capable of overriding such rights.

The procedures for closing and disposing of churches are now consolidated in the Mission and Pastoral Measure 2011.  When the church in this case was first closed in 2004, they were found in the Pastoral Measure 1983 (itself the successor of the Pastoral Measure 1968).

The power to close a church is found at s.42 of the 2011 Measure (s.28 of the 1983 Measure).  Dealings with closed churches are regulated by Part 6 of the 2011 Measure (ss.55-79).

The general rule is that ‘the building closed for regular public worship, together with the contents thereof, shall … vest … without any conveyance or other assurance [i.e automatically], in the diocesan board of finance’ (s.61(1)).  The diocesan board of finance was indeed the legal owner of the closed church in this case (para 4).

S.71(9) (formerly s.59(9)) seems particularly germane.  It provides that a closed church ‘shall vest free of any trust or burial rights … provided that any person entitled to burial rights may claim compensation in respect of the loss … in default of agreement … determined by the consistory court … any compensation awarded shall be paid by the diocesan board of finance …’.

Viewed in the context of these statutory provisions, the adverse possession claim in this case is baffling.  When the church was closed, the burial vault should have vested automatically in the diocesan board of finance, regardless of who owned it before then.  No need for the board to claim squatter’s rights.  The donor’s family could have no claim in the secular court / tribunal, only in the ecclesiastical court, and only for monetary compensation.  And any compensation would be limited to loss of their own right to be buried in the vault (if they had one), not any other property right.

If a closed church is to be sold off to secular use (whether residential development or otherwise), s.78 (s.65 of the 1983 Measure) makes provision for the disposal of any human remains.  The detailed rules are at schedule 6.

The general rule is that remains must be removed from the church.  The personal representatives or relatives of the deceased persons are given the option of removing the remains themselves, and arranging their reinterment elsewhere, or their cremation (6(3)).  Otherwise, the Church authority takes responsibility for this.  The Secretary of State may grant a dispensation from schedule 6, if satisfied that the demolition or redevelopment of the church will not involve disturbance of the remains (s.78(3)).

Of course, all these statutory provisions only apply to a church.  The claim of adverse possession in this case becomes explicable if it is accepted that the burial vault was not part of the closed church, but a separate building.  Then the declaration of closure of the church could not have affected the ownership of the vault.

S.106 (s.87 of the 1983 Measure) defines a ‘church’ as a ‘church or chapel which has been consecrated for the purpose of public worship …’.  Thus a church building is not defined by who owns it.  A building does not have to have an ecclesiastical owner in order to be a church.  A church is defined by its (1) consecration and (2) purpose.

As the Tribunal noted, the consecration of a church extends to a burial vault (per Rugg v Kingsmill (1867) 1 Admiralty and Ecclesiastical Reports 343, at p.350).  So the consecration in 1837 applied to the vault as much as the church.  This suggests that the vault was part of the church, not a separate building.  Why should the consecration of a church extend automatically to a completely separate building?

The quotation from the 1837 instrument of donation makes clear that the donor of the church was reserving the ownership of the vault to himself and his heirs.  However, this does not make the vault a separate building from the church.  As discussed above, different parts of a single church building may be owned by different people.

The 1837 instrument itself describes the vault as being in the ‘interior’ of the church, not external to it.  The lack of any external access to the vault would also suggest that it was part of the church, not separate from it.

(With thanks, as always, to the indispensable Law and Religion blog for drawing attention to this interesting case.)

The Easter Offering: Duty and Charity

[At] the Offertory, so many as are disposed, shall offer unto the poor men’s box every one according to his ability and charitable mind.

And at the offering days appointed, every man and woman shall pay to the Curate [i.e the incumbent] the due and accustomed offerings.’  (Book of Common Prayer 1549, rubric)

There seem to be 2 widely held assumptions concerning the Easter offering, that:

(1) it is the collection taken at church services on Easter Day and

(2) the proceeds are part of the incumbent’s official income, at least if the incumbent wishes to claim them.

The 1549 rubric quoted above suggests that this assumption is mistaken.  The rubric indicates a clear distinction between the Easter offering and the normal offertory collection, including the collection taken on Easter Day.  The Easter offering is separate from, and additional to, the offertory collection.

Moreover, the two payments are different in character.  The offertory collection is a voluntary charitable donation for the relief of poverty.  The Easter Offering, by contrast, is a ‘due’ payment, not a gift determined by charitable disposition.  A due is a duty (just like a duty on imported goods).  The Easter Offering is a compulsory payment, a tax payable to the incumbent.

As the rubric implies, Easter was not the only ‘offering day’ in the middle ages.  Phillimore relates that there were originally 4 offering days in all, Christmas, Easter, Whitsun-Pentecost and the feast of the dedication of the parish church (Ecclesiastical Law, 2nd edition 1895, p.1243).

However, from 1552 onwards, Easter is the only offering day referred to in the Book of Common Prayer.  The revised rubric provides that

‘yearly at Easter, every parishioner shall reckon with his parson, vicar or curate … and pay to … him all ecclesiastical duties, accustomably due …’.  The word offering no longer appears.

This revised wording, of course, makes more explicit the compulsory nature of the payment, and its difference from the voluntary donation for the poor.

Phillimore suggests that the Easter duty was a common law right of all incumbents (p.1243).  Therefore an incumbent did not have to prove his right to payment.  An Easter offering was a larger payment than the common law duty, but it was payable only if the incumbent could prove an immemorial custom in the parish for payment of the offering (i.e a custom dating from 1189, very difficult to prove).

Victorian legislation permitted individual parishes ‘to enter into a parochial agreement for the commutation of Easter offerings’ (p.1244), i.e to cancel the parish offering in return for payment of a one off lump sum to the incumbent.

Although reference to Whitsun as an offering day was removed from the Prayer Book in 1552, Pentecostals (Whitsun offerings or duties) may have continued after that time.  The Ecclesiastical Jurisdiction Measure 1963 provides that Pentecostals ‘shall cease to be exigible’ (demandable) (s.82(3)), but does not mention the Easter duty / offering.

The Easter duty / offering referred to in the Prayer Book has not been generally abolished, but it has been effectively destroyed by inflation.  The common law duty was a mere twopence a head (2d), so would now be impossible to enforce in practice.  An immemorial offering (if it can be proved) will only be worth a few pence more.  Common law and customary payments may not be adjusted for inflation (see the case of Bryant v Foot (1867) 2 Law Reports Queen’s Bench 161).

On our analysis, therefore, the incumbent’s only legal right is to the compulsory, though negligible, Easter duty.  He has no a priori common law right to keep the voluntary Easter collection for himself (any more than collections taken on other Sundays).  Even though it was removed from the rubric as long ago as 1552, the word ‘offering’, with its connotation of voluntary donation, has served to conflate the two payments artificially, encouraging a perception that they are one and the same.  However, they are clearly distinct in law.

The rubric concerning the offertory collection has changed since 1549.  It now provides that ‘the money given at the Offertory shall be disposed of to … pious and charitable uses’.  This, of course, allows a broader scope of use of the money than that available in 1549.  The money can now be applied to many uses other than the relief of poverty.  However, it is hard to argue from this that the incumbent’s personal benefit constitutes a ‘pious and charitable’ use.

The Parochial Church Councils (Powers) Measure 1956 empowers the parochial church council (‘the PCC’) ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated’ (s.7(iv)).   If they cannot agree, the bishop decides instead (s.9(3)).

This power was originally expressed to be ‘subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.  The incumbent and PCC (and the bishop) therefore remained bound by the rubric.  They could decide how, exactly, the collection money was to be spent, but it still had to be spent on pious and charitable uses.

This restriction on the use of the collection money was removed in 1988, so the incumbent and PCC are no longer bound by the rubric at all.  However, it is arguable that, even in its amended form, the 1956 Measure does not confer an unfettered discretion on the incumbent and the PCC.  It suggests that the collection money must still be applied for the benefit of ‘objects’, i.e purposes or causes, rather than the benefit of particular people.

It has been pointed out that the rubric in the Book of Common Prayer applies only to the collection taken at Holy Communion.  The Prayer Book makes no provision for collections taken at Morning and Evening Prayer and other services.

In the case of Marson v Unmack (1923) Probate 163 the Court of the Arches suggested that ‘Collections … other than … the offertory, may lawfully be made for objects determined by agreement between the incumbent and the PCC.  Such objects may be and … ought to be announced to the congregation before collection …’ (p.169).  Again, the reference is to ‘objects’, and the Easter collection is not specifically discussed.

Apart from the wording of the 1956 Measure, it is arguably inconsistent with the incumbent’s trusteeship of the collection money for him to be able to determine that it should be paid to himself, even with the agreement of the PCC and the bishop, and even if the congregation is fully informed.  There is a clear conflict of interest.  A trustee may not profit from his trust.

If the incumbent’s claim on the voluntary Easter collection has no basis in common law it obviously requires a statutory basis.  It might therefore be appropriate to amend the 1956 Measure to provide this.

Moore’s Introduction to English Canon Law (3rd edition 1993) suggests that nowadays incumbents do not bother to claim the Easter collection, ‘since such offerings merely result in a pro tanto reduction in the [stipend] paid by the diocese’ (p.92).  Thus the stipend is simply reduced by the amount of the Easter collection money so the incumbent is no better off.

The Terms of Service Regulations 2009 confirm that an incumbent’s right to be paid the national minimum stipend is not absolute, but is subject to ‘any [other] income received by the office holder from other sources which is related to or derived from the duties of the office’ (reg 11.1).

Nevertheless the question of the Easter collection may still be relevant, even if incumbents no longer benefit personally.  A large sum of donated money is at stake.  If the incumbent makes a purported covenant or assignment of the Easter collection (to the diocese or elsewhere), this will be invalid if he is not entitled to the money in the first place.  (Nemo dat quod non habet).  Likewise, any decision on the allocation of the money, taken under the powers conferred by the 1956 Measure, may be flawed if it is influenced by the mistaken belief that the incumbent has a legal claim on it.

Churches and Churchyards: Freehold, Possession and Custody

Freehold and Possession

Mr Justice Blackburn explained the tenure of the parish church and churchyard in the case of Greenslade v Darby (1868) 37 Law Journal 137 Queen’s Bench:

‘Originally the land was the property of some lay person, which, when the rectory was formed, was dedicated to the Church and conveyed by the patron.  Then it was vested in the rector with fee simple, saving the right and property of the land which the original patron had, including grass, herbage and everything else’ (p.142).

Thus the rector is the freeholder of the church and the churchyard.  The rector may be either a lay rector or the incumbent of the parish.  If the incumbent is vicar of the parish, and not the rector, then his proprietary rights will be subject to the lay rector’s freehold.

The lay rector’s freehold of the parish church was examined in Griffin v Dighton and Davis (1864) 122 English Reports 767.  Mary Griffin was the lay rector.  The vicar and one of the churchwardens (Messrs Dighton and Davis) broke the door of the chancel and changed the lock.  Ms Griffin sued them for trespass, claiming that their action had infringed her freehold.

Chief Justice Cockburn dismissed her claim.  He accepted that ‘the freehold of the church … as well as the freehold of the churchyard, is in the rector, whether spiritual or lay: but this naked and abstract right carries with it … no right of possession, the latter being in the incumbent’ (p.771).

It is notable that the description ‘naked and abstract right’ was applied to the spiritual rector’s freehold, as well as that of the lay rector.  This suggests that, even where the incumbent is himself the rector, his real right over the church and churchyard derives not from the freehold but from the possession conferred on him by induction.

However, in Greenslade v Darby (cited above), Chief Justice Cockburn, together with Blackburn J, was required to decide a lay rector’s rights over the churchyard.  This time he came to a rather different conclusion.

The Rev Mr Greenslade was the perpetual curate (similar to a vicar), not the rector.  Mr Darby was a glebe tenant whose land adjoined the churchyard.  He turned his sheep into the churchyard for the grass.  Mr Greenslade sued.

He lost his case.  Cockburn CJ held that, as perpetual curate, he had no property in the churchyard, only a possession ‘for those spiritual purposes which attach to his office’ (p.142).  Mr Darby was a tenant of the lay rector.  The incumbent’s possession of the churchyard for spiritual purposes did not exclude the lay rector:

‘a lay rector may have the right to the trees growing in the churchyard, notwithstanding that he is not the spiritual minister and … therefore has not, for spiritual purposes, the possession … all rights incidental to the soil may be in the lay rector’.

Griffin and Greenslade suggest that a lay rector’s freehold of the churchyard differs markedly from the ‘naked and abstract’ freehold of the church.  The churchyard is treated as a kind of hybrid of church and glebe.  Like the church it fulfills a religious and parochial purpose but, like glebe, it is also a source of profit from cultivation.  The lay rector, as the owner of the fee simple, has the right to use the churchyard land for profit, albeit only to the extent that this use is not ‘unseemly or inconsistent with [the land] being consecrated’ (p.143).

The New Parishes Acts and Church Building Acts Amendment Act 1869 effectively applied the common law rules governing ancient parish churches to the tenure of the new churches built under the 19th century pastoral legislation.

Thus s.6 of the 1869 Act empowered the original owners to transfer ‘the freehold of any church or chapel, consecrated or unconsecrated’ to the Ecclesiastical Commissioners.  However, after consecration, these new churches became ‘subject to the same laws as to all rights and property therein as … ancient parish churches’.

Whether he is a rector or a vicar, the incumbent may have to compete with other freehold rights over particular parts of the parish church.  It was noted in Jones v Chapman (1869) Law Reports 4 Exchequer 273 that the freehold of side-chapels and aisles in a church may vest in persons other than a lay rector or incumbent (p.279).  Such freeholders are likely to be the successors in title of those who built small chapels for family burials, or (before the Reformation, of course) for the offering of masses for their souls.  Thus it may be difficult to ascertain the freeholders of ancient churches.

The Faculty Jurisdiction Measure 1964, s.1, offers a solution to this problem.  It provides that the consistory court may make a vesting order, inaccurately described as a ‘faculty’, concerning a part of a church building.  Such an order vests the building or structure in question in the freeholder of the church (i.e the incumbent or lay rector).

The court may only make a vesting order in an undisputed case, where the possible freeholders cannot be traced, or have not appeared in the proceedings.

Where no claimant appears the court must be satisfied that ‘all reasonable steps’ have been taken to communicate with them.  It may appoint a solicitor to represent any possible owner, even where none is known.  Even if the freeholder comes forward and consents to a vesting order the wording of s.1 suggests that an order may not be made if he has carried out works to his part of the church during the preceding 7 years.

It is not clear that the spiritual rector’s freehold of the church and churchyard is now even capable of subsisting.  When Griffin and Greenslade were decided, the freehold for life was a recognised legal estate in land.  However, as Chancellor Newsom noted in St. Paul’s, Covent Garden (1974) Family 1, this freehold life estate was abolished by the Law of Property Act 1925.  The only freehold estate in land now recognised at law is the fee simple.  Yet the 1925 Act did not vest the fee simple of church land in the incumbent.  At common law, a corporation sole can have, at most, only a life interest in land.

Modern pastoral legislation seems to ignore the 1925 Act, and simply follows common law.  Schedule 3(6)(1) of the Mission and Pastoral Measure 2011 does not use the words ‘freehold’ or ‘fee simple’, but merely provides that the property of a new benefice shall ‘vest’ in the incumbent, as spiritual rector.  (All incumbents of new benefices are now rectors.)  The Church Property (Miscellaneous Provisions) Measure 1960 likewise provides that land given for use as a church or burial ground shall, on its consecration, vest in the local incumbent (s.6(1)).

Possession and Custody

Churchwardens have no freehold of the parish church, but the Court of the Arches held in Jarrett v Steele (1820) 161 English Reports 1290 that the possession of the church is in the minister and the churchwardens.  It took a more nuanced view in Lee v Mathews (1830) 162 English Reports 1119, holding that ‘the minister has, in the first instance, the right to possession of the [church] key, and the churchwardens have only the custody of the church under him’ (p.1120).

This restrictive view was strongly affirmed by the same Court in Ritchings v Cordingley (1868) Law Reports 3 Admiralty and Ecclesiastical 113, where the churchwardens interpreted their right of possession rather too freely.  A ritualist incumbent constructed a kind of ledge or ‘super-altar’ atop the altar of the parish church, without the authority of a faculty.  The vestry passed a resolution that the churchwardens should remove it.  One of the churchwardens forced an entry into the church by picking the lock, and dismantled the super-altar.  He was prosecuted for this in the ecclesiastical court.

Sir Robert Phillimore, then Dean of the Arches, held that the churchwarden had acted illegally, even though the super-altar was itself illegal.  The churchwarden’s action was illegal for the same reason as the super-altar.  It did not have the authority of a faculty.  The vestry had no power to authorise the action.  The proper course was to complain to the ordinary.

Phillimore upheld the incumbent’s proprietary precedence over the churchwardens, and affirmed Lee v Mathews.  He held that the churchwardens only have custody of the church when it is open for divine service, not at any other time.

The churchwardens’ rights over the church were further examined in Howell v Holdroyd (1897) Probate 198.  In the course of a ‘difference of opinion … as to who should have custody of the moneys collected in the church’, a churchwarden forced his way into the vestry, where the vicar and the other churchwarden were counting the money.

This time the consistory court supported the churchwarden.  It acknowledged that a churchwarden has not ‘necessarily at all times a right to enter the church or vestry … [but] only … at proper times and for proper purposes … [otherwise] the vicar might lawfully resist his entry’ (p.204).  However, it agreed that, in this case, the churchwarden ‘was clearly entitled to enter the vestry on this occasion without the vicar’s permission for the purpose of assisting in counting a collection made for church purposes’ (p.205).  This was because he was jointly responsible for the disposal of the collection moneys.  Churchwardens must have a right of possession sufficient to discharge their legal duties.

The churchwardens’ duties include the maintenance of order during divine service.  Canon E1(4) now provides that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’.  This suggests a rather more generous view of the churchwardens’ right of possession than that suggested in Ritchings v Cordingley.

The proprietary rights of the parochial church council (‘PCC’) were discussed in the modern case of St. Edmundsbury Diocesan Board of Finance v Clark (No.2) (1973) 3 All England Reports 902.  This concerned a dispute over the access to a church and churchyard.  The benefice of the church was then vacant.  It was argued that, as there was no freeholder, the Church authorities had no locus standi to take legal action in respect of the access way.  However, the court held that the PCC has a right of way to the church and churchyard, for the purpose of discharging its responsibilities thereto.  As the court explained

‘it would be remarkable if the PCC, though having the power and duty to care for and maintain the churchyard itself, had no power and no duty to care for … the [access] way … there  might be a perfectly maintained church and churchyard to which access was impossible … save through a sea of mud’.

Thus the PCC did have the necessary standing to pursue the legal claim.

Pew Rights

The right to occupy a particular pew in the parish church may be acquired by

(1) Act of Parliament or other statutory authority or

(2) faculty.

There may also be a right to occupy a particular seat or stall ex officio, in which case neither statute nor faculty will be required.  It was held in the case of Spry v Flood (1840) 163 English Reports 438 that ‘In an ancient parish church … the rector would be entitled … according to the common law … to the chief seat in the chancel, whether he be [lay] rector, or spiritual rector only, unless some other person … [could] prescribe for it … from time immemorial’  (p.438), i.e by proving an immemorial custom recognised at common law.  However, ‘The rector has [no] common law right to any particular pew in a new church’ (p.441), i.e a church constituted by statutory authority.

Cathedral officeholders will have ex officio rights to occupy particular cathedral stalls, under the cathedral’s own constitution.

While ex officio rights to occupy particular seats in ancient cathedrals and churches have existed since mediaeval times, counsel in Spry v Flood suggested that ‘the right to pews did not commence until the Reformation’ (p.439).  Pre-Reformation seating arrangements for lay worshippers were probably rather informal. 

Statutory Rights

In the 18th and 19th centuries pew rights were quite often conferred by private Act of Parliament.

In the case of St. Mary’s, Banbury (1987) 1 All England Reports 247, a faculty was sought for the removal of pews in the church.  The church had been built pursuant to an Act of 1790.  The Act provided that the trustees of the church were to allot ‘such one pew or seat as shall be sufficient to contain commodiously [the] subscribers’, those who had paid for the church building (p.252).  All such pews were to vest in the original subscriber’s heirs, not merely the subscriber personally. 

The successors in title of the original pew-holders objected to the removal of the pews, asserting their title from the Act of 1790.

The Court of the Arches agreed that ‘no faculty may destroy the statutory rights’ (p.253) and that, accordingly, the courts had no power to permit the removal of the pews without the pew-holders’ consent.

The New Parishes Acts and Church Buildings Act Amendment Act 1869 provides that pew rights acquired under the 19th pastoral legislation and later surrendered to the bishop or the Ecclesiastical Commissioners should be subject to the common law governing pews and sittings.

The Mission and Pastoral Measure 2011, s.41(7) provides that a pastoral scheme may determine claims to sittings in respect of a designated parish church (though not in other places of worship).  A pastoral scheme has statutory authority and so is capable of overriding an earlier statutory right to a pew, or a pew faculty.

Pew Faculties

Besides statutory rights, pew rights may be granted by faculty.  If the faculty is extant, the right to occupy the pew should be easy to establish.  If no faculty can be found, the claimant has to prove occupation of the pew sufficient to satisfy the court that a faculty was granted but was later lost.  This is the doctrine of presumed lost faculty.

Sir John Nicholl, Dean of the Arches in the early 19th century, explained the nature of pew faculties in two cases

(1) Parham v Templar (1821) 161 English Reports 1401 and

(2) Fuller v Lane (1825) 162 English Reports 348.

Nicholl held that ‘an exclusive right [to a pew] can only be

[1] in virtue of a faculty, or

[2] by length of time which presumes a faculty’ (Parham, p.1404). 

Payment of a pew-rate or pew-rent does not confer an exclusive right to a pew (p.1402).

It seems that the ecclesiastical court has no jurisdiction to grant a pew faculty to a non-parishioner: ‘no faculty is deemed, either here or at common law, good to the extent of entitling … a non-parishioner to a seat’ (Fuller, p.352).  This suggests that a faculty granted to a parishioner will automatically lapse, or at any rate will cease to be enforceable, if the parishioner moves out of the parish, though the modern definition of a parishioner is not limited to persons resident in the parish.

Pew faculties were controversial.  They were elitist, tending to exclude poorer parishioners and encourage them to defect to dissenting chapels.  Sir John Nicholl stated that ‘[pew] faculties … have certainly been granted in former times with too great facility’ (Fuller, p.352).  He observed that ‘By the general law … all the pews in a parish church are the common property of the parish … for the use in common of the parishioners … so as best to provide for the accommodation of all’ (p.350).

Disputes over pew rights were formerly decided by the ecclesiastical courts.  A parishioner could enforce a pew right by an action for ‘perturbation of seat’.  However, this ecclesiastical jurisdiction was abolished by the Ecclesiastical Jurisdiction Measure 1963 s.82(2). Thus a pew right can now be enforced only in the secular courts, if at all.  The secular courts have enforced pew rights based on a presumed lost faculty, as the following cases demonstrate. 

Phillips v Halliday (1891) Appeal Cases 228.

The claimant and his ancestors had occupied a particular house in the parish since 1680.  There was evidence of occupation of the pew by the ancestors.  They had repaired it and kept it under lock and key since 1819, a period of 70 years.

The House of Lords agreed that this evidence was sufficient to presume that a lost faculty had once been granted to an earlier owner of the house and his heirs.

The House of Lords approved Lord Stowell’s dictum that ‘The strongest evidence of [a lost faculty] is the building or repairing [of a pew] time out of mind’ (p.233).  However, Lord Stowell did not say that evidence of repair is essential.  Evidence of other acts of ownership may suffice.

‘Time out of mind’ refers to living memory only (as distinct from immemorial custom, which runs from 1189).  Possession is a fact, not a law or custom.  The claimant had to prove possession for a period longer than any living person could remember.  The period of 70 years was deemed sufficient in this case.  Reference was made to a case where a possession of 36 years was accepted as sufficient.

The House of Lords also held that, where repair or other acts of possession are proved, ‘the fair inference … is that that was not the commencement of this dealing with the pew, but that the pew had been in the possession of the family prior to that time …’ (p.230).

Although there was no documentary evidence of faculty in the claimant’s case, the church books referred to a transaction of 1680 when his predecessor in title had apparently ‘bought’ a pew with payment to the vicar and churchwardens.  The right to occupy a pew may not be bought or sold at common law.  (Perhaps it would constitute the sin of simony.)

The House of Lords accepted that ‘a transaction of that sort … could have no validity’ (p.235), but still it did not preclude the subsequent acquisition of a lawful title to occupy the pew.

Stileman-Gibbard v Wilkinson (1897) 1 Queen’s Bench 749

An incumbent and churchwardens sought a faculty to put new seats and stalls in the chancel.  Mr Gibbard objected.  He claimed an exclusive right to use the site of the proposed stalls for attending divine service.  He therefore applied to the High Court for an order restraining the faculty proceedings in the ecclesiastical court.

Mr Gibbard’s claim was rather more than a mere right to sit in a particular pew, or pews, to the exclusion of others.  He claimed ‘an exclusive right in the nature of an easement to use the sites … and for that purpose to have, erect and use pews and seats thereon’ (p.750, emphasis supplied).

Mr Gibbard’s title to the pew sites was derived from his ownership and occupation of a particular house in the parish, which had been built in the 1690s.  In 1871 the existing pews were replaced by chairs.  The woodwork of the old pews was removed to Mr Gibbard’s house.  In 1885 temporary wooden platforms were placed on the sites, apparently on the authority of the incumbent and churchwardens.  Mr Gibbard protested at this but did not take legal action.

The High Court upheld Mr Gibbard’s claim to the pew sites, and granted a prohibition.  It held that the removal and replacement of the pews in 1871 ‘was an act of ownership … in conjunction with [Mr Gibbard’s] undisturbed possession during the period of legal memory, [sufficient] to prove [his] right’ (p.760).  Mr Gibbard’s right took the form of a presumed lost faculty granted to a previous owner of his house.

The Court held that mere undisturbed possession of the pew is not enough to establish a presumed lost faculty.  The claimant must ‘shew some acts of user, or assertion of proprietary right, in addition to possession’ (p.758).  Mr Gibbard had not been able to prove repair.  However, following Phillips v Halliday, lack of evidence of repair was not fatal to his claim.  He would only have had to prove repair ‘if repair had been necessary’ (p.759).

In 1850 the then existing pews had been re-lined with baize covers by Mr Gibbard or a predecessor in title.  However, the Court held that this did not constitute repair or indeed an act of ownership, notwithstanding its permanent character.

It was suggested that Mr Gibbard had abandoned his right to the pews by removing them in 1871.  The Court rejected this.  By replacing the pews with chairs Mr Gibbard had merely ‘alter[ed] his mode of enjoyment of the right to sit in that part of the chancel … But he did not discontinue his enjoyment’ (p.761).  The law will not conclude that a legal right has been abandoned without proof of an intention to abandon it.

Gilbert v Buzzard: Funerals and Fees

(1820) 161 English Reports 1342

This is probably the leading case on the common law right of burial in the churchyard.  Mr Gilbert wished to bury his deceased wife in an iron coffin, as a protection against graverobbers.  The churchwardens, including Mr Buzzard, refused to allow the interment of the coffin, following a resolution of the parish vestry disapproving iron coffins.

The secular courts refused to intervene in the dispute.  Lord Chief Justice Abbott held that

‘the right of sepulture is a common law right alone: but … the mode of burial is of ecclesiastical cognizance alone’ (p.1343). 

Mr Gilbert then complained to the local consistory court (diocese of London).

The Chancellor, Sir William Scott (the future Lord Stowell), noted that

‘the law … certainly says that a parishioner has a right to be buried in his own parish churchyard: but it is not quite so easy to find the rule … that gives him the right of burying a large chest or trunk along with himself’ (p.1348).

Most people were originally buried only in shrouds, not coffins, but burial in coffins was evidently more widespread by the early 19th century.

Thus the Lord Chief Justice and the Chancellor both declined to extend the right of burial to burial in a coffin, although the Chancellor acknowledged that coffin burial was prompted by ‘very natural and laudable feelings’.

The practical difficulty with coffin burial was the burden that it imposed on the parish.  Coffins took up more space in the churchyard.  They also retarded the ‘dissolution’ of the human remains in the soil, preventing the use of the ground for future burials.  The parish was therefore obliged to purchase and maintain additional burial grounds.

The Chancellor resolved the dispute pastorally.  He ordered the parish to fix a scale of burial fees, imposing charges for digging the grave and interment in coffins of wood or iron.  A table of fees was duly prepared, and the Chancellor confirmed it.  Thus Mr Gilbert was able to bury his wife as he wished, and the parish was compensated for the increased financial burden that this caused.

The scale of fees that was eventually approved included separate payments to the incumbent and churchwardens.  The Chancellor held that this was unobjectionable.  The relative of a deceased person ‘has no right … to quarrel with the public uses to which [the fee] has been applied by the parish’ (p.1351).

It seems reasonable to suppose that the right of burial should extend to the burial of cremated remains, since these are no less human remains than an uncremated dead body.  Cremation also avoids the practical difficulties that Sir William Scott identified with coffin burial. 

Yet in the case of Dixon (1892) Probate Division 386, Dr Tristram (one of Scott’s successors as Chancellor of London), doubted that the common law right of burial extended to cremated remains.  (He probably did not approve of cremation.)

However, the Miscellaneous Provisions Measure 1992, s.3(1) confirms that a person who has a right of burial in a churchyard has a right to the burial of his cremated remains.

Although Gilbert v Buzzard is usually cited in relation to the right of burial in the churchyard, it may also inform discussion about ecclesiastical fees.

The judgment suggests that the Chancellor viewed the burial fees as a species of local tax, a supplement or surcharge to the church rates, which was necessitated by the additional cost to the parish of coffin burial.  Thus the scale of fees was fixed by the vestry and confirmed by the ordinary in the same manner as church rates then were. 

Compulsory church rates were abolished in 1868.  Compulsory church fees, however, remain very much in force.

Gilbert v Buzzard suggests that burial fees were introduced for three particular reasons:

(1) a new mode of burial, in a coffin rather than merely in a shroud, that became popular in the late modern period

(2) coffin burial imposed an additional burden on the parish

(3) there was no legal right to burial in a coffin, only to burial of the remains.

Seen in this context, modern marriage fees may be rather hard to justify:

(1) the mode of church-marriage, unlike the mode of church-burial, has hardly changed since the middle ages

(2) modern church-marriage, therefore, does not impose any additional burden on the parish

(3) there is a legal right to church-marriage, as there is not to coffin burial.

In short, nothing has changed concerning the solemnisation of marriage so as to justify the introduction of a fee.  A marriage fee imposes a charge on a pre-existing legal right.

At common law, an incumbent was permitted to charge marriage fees only if they were payable by immemorial local custom and were not unreasonable.  The rubric in the Prayer Book marriage service provides, somewhat unromantically, that any customary marriage fee should be deposited on the officiating minister’s book during the ceremony, along with the ring.  But the incumbent still had to prove that a custom existed.

The case of Haigh v Aspull (1919) Probate 143 suggests that statutory marriage fees were first imposed in newly created parishes under the New Parishes Acts 1843 and 1856 (p.144).

The Mayflower Log

(1897) Probate 208

This seems to be the only reported case concerning ecclesiastical records.

The consistory court of London ordered that a Log recording the peregrinations of the pilgrim fathers be delivered from the London diocesan registry to the perpetual custody of the Governor of Massachusetts, USA.

The order was concerned only with custody, not ownership.  It was not known how the Log had come into the diocesan registry’s possession in the first place (pp.213-14).  Nor was it suggested that the Governor of Massachusetts was the rightful owner of the Log.  The reason for the order was simply recognition that the Log was ‘of the greatest importance and value to … the USA as one of the earliest records of their national history’ (p.209).

The order was made by analogy with the statutory procedure for transferring diocesan records on a reorganisation.  The equivalent statutory provision to that referred to in the case is now found in the Dioceses, Pastoral and Mission Measure 2007, schedule 2 (15). 

Before 1776 the American colonies were under the ecclesiastical jurisdiction of the Bishop of London.  After independence, they ceased to be subject to this jurisdiction.  The Log obviously related to the former colonies.  It was therefore appropriate to transfer the Log, just as if the former colonies had been transferred from one diocese to another when they became independent.

Thus the USA was treated for the purposes of the case as if it was a new diocese, carved out of the diocese of London.  The Log, being a record pertaining to the new ‘diocese’, should be transferred to it.

Despite the analogy, the order to transfer the Log was made on the court’s own common law authority, not any statutory authority.  

The Parochial Registers and Records Measure 1978 defines ‘records’ as ‘materials in written or other form setting out facts or events or otherwise recording information, other than register books’ (s.25(1).

The Mayflower Log was, of course, decided a long time before the 1978 Measure, and the Log was not a parochial record.  It is unlikely that an outright transfer of a parochial record to another country would be permissible under the 1978 Measure. 

S.17 permits a parochial record to be transferred from the diocesan record office to a ‘suitable and safe place’, for the purposes of ‘exhibition or research’.  No territorial limit is imposed, but deposit is only allowed for up to one year, though s.18 suggests that a one year temporary deposit might be renewed annually ad infinitum

The decision to allow the transfer of a parochial record under s.17 is taken by the chief officer of the diocesan record office, not by the ecclesiastical court.  The consent of the relevant parochial church council is also required.

Churchwardens and Chattels

It is generally supposed that churchwardens are the legal owners of the contents of their parish church, its furniture, plate and ornaments.  They are said to hold these chattels as a corporation, or to be ‘quasi a corporation’ for the purpose of holding them.

Canon E1(5) seems to confirm this.  It provides that ‘In the churchwardens is vested the property in the plate, ornaments and other movable goods of the church … [which], on going out of office, they shall duly deliver to their sucessors …’.

There is apparent support for canon E1(5) from the Mission and Pastoral Measure 2011, schedule 6.3(3) (successor of the Pastoral Measure 1983) which refers to movable property used for the purposes of a church or churchyard vested in the churchwardens.  However, this provision envisages that movable property may vest in the parochial church council as well. 

There is also support from Blackstone’s Commentaries:

‘Churchwardens … are taken, in favour of the church, to be for some purposes a kind of corporation at the common law: that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish’ (1, 382).

However, it should be noted that this dictum does not hold that all church chattels per se vest automatically in the churchwardens.

Phillimore states that ‘the [churchwarden] has not only the custody but also the property of the goods belonging to the church and may maintain [legal] actions for them’ (Ecclesiastical Law, 2nd edition 1895, p.1480).  However, he says earlier that ‘churchwardens are a corporation for the purpose of the custody of the ornaments of the church’ (p.1465).

There are difficulties with the corporate status of churchwardens.  It is said that a corporation sole can never own chattels, because chattels, unlike land, can never be without a legal owner.  Thus an incumbent cannot ex officio own chattels.  A corporation aggregate, such as a cathedral chapter, may own chattels, because it has perpetual succession and so ‘never dies’.  This suggests that churchwardens cannot hold chattels unless they satisfy the definition of a corporation aggregate.

In Fell v Official Trustee (1898) 2 Chancery 44, the Court of Appeal expressed doubts about the corporate status of churchwardens:

‘It is said that [churchwardens] are a corporation.  [But] there is an ambiguity about that … it is [not] made out by the custom of London, or by any Act of Parliament … that they are a corporation in the full sense of the word.  They are in the City [of London] a corporation for the purpose of holding land and for the purpose of the devolution of property but … they are [not] … a person in point of law … nor can [they] sue or be sued by any corporate name’ (p.51).

Another judge in the same case stated that ‘churchwardens are not a corporation.  They are … quasi a corporation for certain purposes and in the City of London they are a corporation for the purpose of holding lands: but beyond that they are only officers …’ (p.59).

An anonymous early case held that ‘all the parishioners are the [corporation] and the churchwardens only a name to sue by in personal actions: but the property is in the parishioners’ (22 English Reports 174).

Even if churchwardens are a corporation capable of holding chattels it does not follow that the movable contents of churches and churchyards automatically vest in them.  It is arguable that the donors, or their heirs, are the rightful owners.  In the case of many ancient chattels, the donors and their heirs may be unknown.  If it is acknowledged that the freeholds of churches and chapels can still vest in the heirs and successors of their original donors, it is a bold assertion that title to chattels automatically vests in the churchwardens.

It is further arguable that canon E1(5) could not, proprio vigore, defeat the claims of lay donors of property or their heirs, under the rule associated with Middleton v Crofts (1736) 26 English Reports 788 that canons may not ‘bind’ the laity. 

The parochial church council (‘PCC’) also has a claim on church chattels.  It is the successor of the parish vestry.  It comprises the representatives of the parish.  The Parochial Church Council (Powers) Measure 1956 provides that every PCC is a corporation with perpetual succession (s.3).  It is therefore capable of owning chattels.

The Church courts, under the influence of the late Chancellor Newsom, have stressed that all dealings with church chattels, like dealings with consecrated land, must be subject to the faculty jurisdiction.

In St. Gregory’s, Tredington (1971) 3 All England Reports 269, Newsom followed canon E1(5) in holding that the churchwardens were legal owners of some valuable communion wine flagons.  However, he also held that a sale by the churchwardens, even though they are the legal owners and selling to a bona fide purchaser, would be void without the consent of the PCC and the authority of a faculty.  Presumably the justification for this strictness is that a faculty is a requirement of law so no purchaser may plead ignorance of it.

In St. Mary’s, Balham (1978) 1 All England Reports 993, Chancellor E Garth Moore described the churchwardens as ‘temporary custodians’ of church property only (p.996), thus apparently contradicting canon E1(5).

St. Anne’s, Wrenthorpe (1994) 2 Weekly Law Reports 338 concerned the disposal of 33 redundant items of church furniture.  The consistory court held that all the items were legally the property of the churchwardens, notwithstanding their different provenance.  Citing canon E1(5), the court asserted the churchwardens’ title in the strongest terms: ‘the items … are not held by the [churchwardens] as custodians or as trustees.  They are the owners of the items’ (p.347).  Their ownership is ‘legally unconditional’ (p.346). 

These difficulties and inconsistencies over the churchwardens’ title may not matter much in practice, as there appears to have been remarkably little controversy about the ownership of church chattels.  The ecclesiastical judge in St. Mary’s, Faversham (1986) 1 All England Reports 1 stated that he was unaware of any case in which the secular courts had restrained an ecclesiastical court from deciding ownership of chattels.  There have been no reported cases since then.  Dealings with chattels have been left to the Church courts.

Boundaries and Bias

In two faculty cases, St Clement, Leigh- on- Sea (1988) 1 Weekly Law Reports 720 and St Peter and St Paul, Scrayingham (1991) 4 All England Reports 411,  a consistory court determined a disputed boundary line between the churchyard and the neighbouring land, which was in secular ownership.  In both cases, the court’s decision on the boundary favoured the Church.  

Both consistory courts assumed that they did have jurisdiction to decide the boundary, notwithstanding the impact of this decision on secular property that did not belong to the Church.

Modern tribunals are generally created and regulated by detailed statute law, and this frequently gives rise to uncertainty about whether or not they have jurisdiction to decide a particular matter.  The jurisdiction of the consistory courts, by contrast, is an ancient common law jurisdiction, not the creation of modern statute law.  (Indeed consistory courts are older than common law itself.)

S.6 of the Ecclesiastical Jurisdiction Measure 1963 confirms the jurisdiction of the consistory court to ‘hear and determine … a cause of faculty … relating to land within the diocese’.  It also preserves the consistory court’s jurisdiction over all legal proceedings not expressly abolished by the 1963 Measure. 

This clearly indicates that the consistory court, in the exercise of its faculty jurisdiction, has jurisdiction to define the boundaries of the relevant Church property. As the 1963 Measure confirms, the court has an ancient jurisdiction over Church land which must surely include the boundaries of that land.  Its jurisdiction to determine the boundaries of Church land has not been expressly abolished by statute.

The neighbours involved in the two cases cited above do not seem to have objected to the Church court deciding the boundaries of their property.  The cases were, of course, decided some years before the Human Rights Act 1998.   A neighbour involved in a boundary dispute with the Church today might object to the consistory court’s jurisdiction as incompatible with the right to an independent and impartial tribunal, contrary to Article 6 of the European Convention on Human Rights. 

The diocesan chancellor is unlikely to be personally acquainted with the parties actually involved in the boundary dispute (the incumbent, churchwardens, parochial church council).  Unlike most ecclesiastical officeholders, the chancellor is not subject to a residence requirement, and many chancellors do not even live within their dioceses.  This may have the advantage of preserving their independence and impartiality.  Ecclesiastical judges are also required to take the same oaths as secular judges and are therefore under the same duty of impartiality (s.2 of the 1963 Measure).

However, the churchwardens will usually be parties to any proceedings involving a disputed boundary, and churchwardens are also officers of the consistory court.  The consistory court is therefore not completely independent of the parish. 

Independence and impartiality are also, at least to some extent, a matter of public perception.  Courts and judges must be seen to be impartial.  In a secular, pluralist society the difference between the Church of England’s courts and its parochial authorities may be far from clear. 

Thus, if a Church court is to decide the boundaries between Church property and neighbouring secular property, it may look as if the Church is being a judge in its own cause.  The neighbours may therefore prefer the jurisdiction of the secular court to decide the boundary.

However, it is open to a neighbour to waive any objection to the independence and impartiality of the consistory court.  There may be sound practical reasons for this.  Many ecclesiastical judges are also secular judges, and may have long experience of deciding boundary disputes.  Consistory courts may be quicker and cheaper to use than secular courts.