Explanatory note for those/advisers of those acquiring freehold

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Explanatory note for those/advisers of those acquiring freehold of
closed churches/sites under the Pastoral Measure 1983
The Pastoral Measure 1983
1
This Measure of the General Synod of the Church of England has the
force of an Act of Parliament. A copy may be found in Volume 14 of
Halsbury’s Statutes.
2
A church which (or the site of which) is being disposed of by the
Church Commissioners (‘the Commissioners’) will have previously
been for declared closed for regular public worship by a Pastoral
Church Buildings Scheme. Such a scheme may also authorise the
Commissioners to dispose of the property for another use.
3
More usually, however, an alternative use for the property is not found
until after the church has been declared closed for regular public
worship. Once a suitable use has been agreed, the Commissioners
may be authorised to dispose of the property for that use by a Pastoral
(Church Buildings Disposal) Scheme.
4
During this process, legal ownership of the property will pass by virtue
of the Measure. If the Commissioners are authorised to dispose of the
property by a Pastoral Church Buildings Scheme, the property vests in
them immediately that scheme comes into effect (see section 59 of the
Measure). If the property is declared closed by the Pastoral Church
Buildings Scheme but there are no provisions relating to its future use,
the property vests in the Diocesan Board of Finance under section 49
of the Measure. It may subsequently vest under section 59 in the
Commissioners for disposal, once the ensuing Pastoral (Church
Buildings Disposal) Scheme comes into effect.
5
You will be supplied with a certified copy of the scheme authorising the
Commissioners to dispose of the property. This, together with the
earlier deeds and/or statutory declaration – see below under ‘Title’ - will
be sufficient for Land Registry purposes.
6
Where the scheme is to be brought into effect by an instrument of the
Commissioners (on an unspecified date), you will be sent a copy of the
instrument once it has been made. (The instrument will in many cases
not be dated until immediately before contracts are exchanged.)
Title
1
The scheme comprises the Commissioners’ title to the property. You
need not apply to the Land Registry for clearance of title, which is a
statutory one, since the effect of the scheme is to vest the property in
the Commissioners for disposal under section 59 of the Pastoral
Measure.
1
2
Before the scheme was made, title to the property will have been
investigated by or on behalf of the Commissioners. You will be
supplied with the originals or copies of such items as the
Commissioners have in their possession (for example, deeds, statutory
declarations where no title deeds were traced, and searches).
3
If the property you are acquiring has unregistered title, the solicitors
acting for the Commissioners will let you know what names you should
search against at the Land Charges Registry.
Rights included in the transfer/exceptions and reservations out of the
transfer
The Commissioners are able to transfer only the property (including rights)
vested in them by section 59 of the Measure pursuant to the scheme. If
additional rights are required over other property (whether or not this be
property in the ownership of a church body), you will need to negotiate this
yourselves. Should rights be needed over a retained churchyard, you should
apply to the diocesan chancellor for a faculty. The secretary to the diocesan
mission and pastoral committee will be able to tell you how to make such an
application.
Covenants imposed on disposals of closed churches/sites
1
The Pastoral Measure 1983 enables the Commissioners to have a
continuing interest in the property by the imposition of covenants. By
section 62 of the Measure, positive covenants have the same force as
if they were restrictive covenants and the covenants take effect as if
they were taken for the benefit of the Commissioners’ adjoining or
neighbouring land. By this means the Church of England retains
control over the use, development and maintenance of land or
buildings which was or were formerly consecrated.
2
The scheme authorising the disposal of the property will generally
specify the use for which the Commissioners may dispose of it. This
use will be protected by a covenant in the transfer, restricting the
property to that use alone (and purposes ancillary to it). Should a
change of use be required in the future, a relaxation of the user
covenant may be considered by the Commissioners at that later date,
although they will have absolute discretion to refuse to do so, or to
grant a relaxation of the covenant subject to such conditions as they
deem necessary (including the payment of a consideration).
3
The transfer will also impose other covenants on the owner of the
property, to ensure that the property is suitably maintained.
2
4
Although a former church is used for another purpose, it will continue to
look like a church and, as such, will almost inevitably attract visitors.
To protect the privacy of the new owner, the Commissioners suggest
that a notice board is erected, indicating that the property is used for
another purpose. Such a notice should also indicate to such interested
members of the public the conditions for access. The transfer will
include a covenant to this effect.
Contents
1
The scheme will indicate that the disposal of the contents will be in
accordance with the bishop’s directions, subject to listed building
consent. The bishop will give written directions in relation to the
various items in the building. He may indicate that all or any of them
are to remain in situ, in which case they will be included in the sale.
Alternatively, he may indicate that all or any of them are to be removed.
In that latter instance, they will be removed by the diocese (not the
Commissioners).
2
Where contents are to be removed, they will generally be taken out of
the property before contracts are exchanged. However, it may not
always be possible to remove them before exchange of contracts, or
even, on occasion, before completion. The agreement for sale (if the
disposal is not a gift) will contain a provision to cover this point.
Burials, tombstones, monuments and memorials
1
There are statutory restrictions on disposals of land in which burials
have taken place. Where there are believed to be burials in the
property, section 65 of the Pastoral Measure prohibits any disposal of
the land (or agreement to dispose of the land) without an order from
the Department for Constitutional Affairs (‘DCA’). The Commissioners
will make the application for any order that is necessary and will inform
you when it has been made. Where the proposed use of or alterations
to the property will not involve any disturbance of human remains, the
order is generally forthcoming without conditions. However, should a
resulting disturbance of human remains occur, you should notify the
local Environmental Health Officer (‘EHO’) and the Commissioners’
Closed Churches Division immediately. (The EHO will advise on how
the remains should be dealt with, screening etc. and the
Commissioners will advise on obtaining revised directions from the
DCA or a Burials Act licence to deal with the remains.)
2
In addition, the tombstones, monuments or memorials commemorating
those buried in the property will have to be disposed of in accordance
with Schedule 6 of the Measure. These will usually be disposed of in
accordance with directions given by the bishop, who may direct that
they remain at the property or that they be removed. Where they are to
3
be removed, this will be done by the diocese before completion of the
transfer from the Commissioners.
3
There will be covenants in the transfer to protect any burials in the
property, and the rights of those wishing to visit the graves.
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