Tuesday 3rd June 2014
Who occupies your property?
Church property is commonly used by a variety of people. The following case studies highlight a few examples and some unforeseen consequences. Each has an answer.
Case Studies
There’s the Methodist prayer group that comes in and uses the church hall every Sunday afternoon. They have done so for years, although nobody knows when they started or what the terms of their use are, let alone the fee they pay.
The private pre-school that uses the old church house has had the keys to that building for a long time now. They sign up to a lettings agreement and pay a decent rent. The church plans to sell the property in the near future in order to fund the parish centre redevelopment but the pre-school can stay for the time being – the agreement contains a six month break clause so that’s okay.
The neighbouring car mechanics use part of the church car park for their business – they’ve fenced it off. They didn’t ask to use it but the number of church-goers using the car park has fallen in recent years so it doesn’t matter – they’ll return it to the church when we need it back, or they no longer require it.
The church is located right in the middle of town and the pathway along the back of the church, through the churchyard, is a very convenient cut through to a smart parade of shops. It’s used by hundreds of people every day so the path is getting quite worn now.
The next door development (a shiny new block of apartments is being built) has required some temporary fencing. The fencing creeps slightly over the boundary onto church land.
Finally, there is a large area of grass outside the front of the church which has been used by the public for about 19 years. Children play there most evenings, and dog walkers use it. The planned redevelopment of the land was put on hold previously and, for the time being, it’s a good way for the church to be able to serve the community.
Why this matters : SK Comment
Of course, it is right and good for church land to be used in a variety of ways and by a variety of people in pursuit of the church’s mission. But the risk is that, if not properly documented or thought through, such use can lead to the church unintentionally allowing its land to be used in breach of the terms on which it is held; or losing control of its land; or the value of the land being severely decreased; or the church even being found liable to users of the land if they injure themselves.
Many specific issues are raised by the examples in this case study and we do not have time to consider them all. However, a few points to consider are:
- Methodist Prayer Group - has the Methodist prayer group provided appropriate guarantees to the church in respect of its use of the hall and would they cover the church against any damage suffered by the church as a result of the group’s use?
- Private Pre-School - if the pre-school has exclusive use of the church house, it may have rights to remain in the property. This may be the case even if a break clause is included in the agreement, if the occupation is not correctly documented.
- Car Mechanics - after a number of years, the car mechanics will acquire ownership rights over the part of the car park they have fenced off, as well as rights to access that part over the remainder of the car park. They may not be required to give the property back to the church but, instead, will have acquired it for free.
- Pathway - The worn pathway may well be an accident waiting to happen. Does the church have the appropriate insurance in place? If the pathway has been used for a number of years, the church may have lost the right to close the pathway for the purposes of repairs and, in any case, should the church bear the costs of such repairs?
- Developers - the developers next door should at least be required to recognise where the legal boundary is and to state that this will be respected and that the fencing will be removed by a specific date. An indemnity should also be provided for any liability, costs etc that might arise from the fencing.
- Community Use - The area outside the church is potentially very valuable. However, after 20 years use by the local community, it may be registered as a town and village green, preventing future development of the land.
Many of these issues can be avoided with simple legal steps and proper documentation and all can be helped in terms of mitigating risk and maximising mission.
For further information or advice please contact
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