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.)