The Legal Position of the Clergy

by Philip Vernon Smith

[8]. An incumbent may either himself farm his glebe (see Ch. 1. § 16 above) or let it to tenants. The tenants, however, will have no rights against his successors unless the leases to them are made in accordance with the statutory provisions for the purpose. These provisions enable an incumbent, subject to certain restrictions and with the consent of the bishop and patron, to let the glebe on farming leases for fourteen years or, in some cases, for twenty years,[353] and under special conditions to grant leases of it for longer periods for building and mining purposes.[354]

[9]. An incumbent, as having an interest in the parsonage house and other buildings of the benefice only during his incumbency, was always bound to keep them in repair for the benefit of his successors.[355] His exact liability in this respect and also in respect of insuring against fire is now regulated by the Ecclesiastical Dilapidations Act, 1871.[356]

[10]. Under this Act diocesan surveyors are appointed in every diocese to inspect and report as to requisite repairs and to certify as to their due execution. The proceedings vary according as they take place (a) upon a vacancy in the benefice, or (b) at other times. But in either case, after they have taken place, a certificate of the diocesan surveyor that the requisite works have been completed in the parsonage house and other buildings (including walls and fences, and, in the case of a rector liable for its repair, the chancel of the church) will (in the absence of wilful waste or of loss or damage by fire where the incumbent has not kept up a sufficient fire insurance) confer exemption from liability for dilapidations, in respect of those buildings, for the next five years.

[11]. (a) Within three months after a benefice has become vacant,[357] unless the late incumbent was for the time being free, in respect of all the buildings of the benefice, from liability to dilapidations, the diocesan surveyor will inspect the buildings or such of them as have not been included in the exempting certificate, and will report to the bishop what works and what sum, if any, are required for making good the dilapidations. Either the new incumbent, or the late incumbent or his executors or administrators, may send to the bishop objections to the report, and the bishop will make an order specifying the repairs to which the late incumbent or his estate is liable and the cost of them. The amount of the cost thereupon becomes a debt from the late incumbent or his estate to the new incumbent and may be recovered as such.[358] Any money received in respect of it is to be paid to the Governors of Queen Anne's Bounty, and they, with the consent of the bishop and patron, may lend on the security of the possessions of the benefice, any part of the cost which they have not received from the new incumbent. Any additional balance required to make up the total amount of the cost of the repairs must be paid to them by the new incumbent, and in case of non-payment may be raised by sequestration of the profits of the benefice. All the sums received or lent by them are to be placed in the first instance to a dilapidation account. If a vacancy occurs in a benefice between the time of an inspection of the buildings and the certifying of the completion of the works, the former incumbent or his estate will be liable for any portion of the cost of the required repairs remaining unpaid by him, as a debt due to the new incumbent. But the new incumbent, whether he recovers that portion or not, will be under the same liability to pay for the outstanding cost of the repairs as the former incumbent would have been had he continued to hold the benefice; and any amount which he fails to recover from the former incumbent or his estate may with the consent of the bishop and patron be lent to him by the Governors of Queen Anne's Bounty on the security of the profits of the benefice.

[12].(b) On a written complaint of the archdeacon, the rural dean, or the patron, that the buildings of a benefice are dilapidated, or at the request of the incumbent himself, the bishop, although no vacancy has occurred, may direct the diocesan surveyor to inspect the buildings, unless, in the case of a complaint on the subject, the incumbent is himself ready to put the buildings in proper repair, and the bishop is satisfied that this is actually done. Such inspection may also be directed within six months after the sequestration of a benefice, and is to be renewed in every fifth year while the sequestration continues. The surveyor, in like manner as in the case of a vacancy, will report to the bishop the works needed and their probable cost. The incumbent or the sequestrator may state objections to the report, and the bishop will give his decision in writing. If the benefice is not under sequestration, the Governors of Queen Anne's Bounty may, with the consent of the bishop and patron, lend on the security of the possessions of the benefice the whole or any part of the cost of the required works. The amount of the loan will be placed to a Dilapidation Account, and it will be the duty of the incumbent to execute the required works in the prescribed manner. If he fails to do so, the cost may be raised by sequestration of the benefice, and the same course will be taken as if that had occurred before the dilapidation proceedings had commenced. In the case of a benefice under sequestration, the cost of the required works is to be a charge on the income of the benefice which comes into the hands of the sequestrator, and out of that income, after providing for the performance of the duties of the benefice, he is to pay the amount of the cost to the Governors of Queen Anne's Bounty, to be placed by them to a dilapidation account. The proceedings are not to be affected by any vacancy occurring in the benefice before the works are executed, except so far as modification may be made in them as the result of the report of the surveyor after his inspection consequent on the vacancy, and except that if the benefice was under sequestration, any unexpended amount standing to the dilapidation account of the sequestrator is to be carried to the dilapidation account of the new incumbent in reduction of the amount payable by the former incumbent or his estate. A sequestrator who spends more on the repairs than is authorised by the surveyor's report is personally liable for the excess.[359]

[13]. When the surveyor certifies from time to time, until the whole of the repairs have been executed, that a certain sum ought to be paid in respect of the required works, such sum is payable out of the money standing to the dilapidation account, and when all this money is exhausted, must be paid by the incumbent himself. It is his duty to cause the repairs to be executed, unless with the consent of the bishop and patron he decides to rebuild or to alter or remodel any structure. In that case, if the repairs are superseded or rendered unnecessary, the money standing to the dilapidation account may be applied towards the cost of the new work.

[14]. It is the duty of an incumbent to keep the parsonage house and other buildings of the benefice (including the chancel of the church in the case of a rector liable for its repairs) insured against loss or damage by fire to the satisfaction of the Governors of Queen Anne's Bounty, in the joint names of the incumbent and themselves, in at least three-fifths of the value of the buildings; and the receipt for the current year's premium in respect of the insurance must be exhibited at the next visitation of the bishop or archdeacon. The money received in respect of any destruction or damage of a building which the insurance office does not cause to be reinstated at its own expense, is to be paid to Queen Anne's Bounty, and dealt with in the same manner as money standing to a dilapidation account. If the building cannot be reinstated for the amount for which it was insured, the diocesan surveyor is to certify the additional sum required for the purpose, with the same liberty to the incumbent or sequestrator to object and the same final order of the bishop as in the case of a report as to dilapidations. The prescribed sum is to be paid to Queen Anne's Bounty, if the benefice is not sequestrated, by the incumbent (with power to the bishop, in default of payment, to raise the amount by sequestration of the benefice), or, if the benefice is under sequestration, by the sequestrator, in the same way as dilapidation money is payable by the incumbent or the sequestrator, as the case may be; and the money so paid to Queen Anne's Bounty will be paid out on certificates of the surveyor during the progress of the works, as in the case of dilapidation repairs.[360]

[15]. The provisions of the Act do not apply to buildings let on lease where the lessee is liable to insure, rebuild, and repair; but the diocesan surveyor has power to inspect any such buildings.[361]

[16]. Although there is no positive rule of law on the subject, an incumbent should, as a matter of prudence, obtain a faculty, or at any rate the written consent of the bishop and patron, before making any substantial alteration in the parsonage house or other buildings of the benefice. If he fails to do so, he proceeds at the risk of himself and his estate; and if his action is afterwards challenged, it will lie upon him or his executors to prove that it was justifiable.[362] The precaution should never be omitted in the case of removing a building without erecting another in its place. With regard to any building belonging to or forming part of a parsonage house which appears to be unnecessary, the bishop, on the application of the incumbent, and with the written consent of the patron, is expressly empowered to authorise its removal; and any net proceeds of the removal will be applied to the improvement of the benefice in such manner as the bishop and patron may agree.[363] The foregoing remarks do not apply to structures such as movable sheds or garden frames, which are not regarded in law as affixed to the soil and therefore hereditaments like the land on which they stand, nor to fancy structures with which the succeeding incumbents ought not to be burdened.[364]

[17]. Upon the vacation of a benefice, the incumbent or his estate ceases to be entitled to the income and house of residence of the benefice. But on the death of a married incumbent who was at the time occupying the house of residence, his widow has a right to remain in occupation for two months after his death;[365] and in every case, until the question of dilapidations is settled, the late incumbent or his executors or administrators may, at reasonable hours, with a surveyor, enter upon the premises of the vacated benefice.[366] If the vacancy occurs otherwise than by resignation, the late incumbent or his executors or administrators have a right to emblements, that is to say, to reap and enjoy any crops which he sowed before the vacancy occurred but which have not ripened until afterwards.[367] Where, however, the glebe land is not cultivated by the incumbent himself, but is let to tenants, the current rents are in all cases apportionable between the late incumbent, or his estate, and the new incumbent, up to and from the date of the occurrence of the vacancy; and the same rule applies to tithe rentcharge and to any other income from endowments.[368] Subject to these rights and to provision being made out of the revenue of the benefice for the service of the cure during the vacancy,[369] the new incumbent, on his admission, becomes entitled to the temporalities of the benefice as from the date when the vacancy took place.