Absentee Crofters may take their fight to the European Courts

European Court of Human RightsThe BBC have reported that absentee crofters being evicted by the Crofting Commission for not residing on their crofts have joined forces to challenge the decision and have indicated that they may take their fight to the European Courts.

The BBC issued two reports on 11 April:-

The second of these includes a video containing interviews with Jeremy Gow, who can keep his croft house but has been evicted by the Crofting Commission from the surrounding croft land, and Susan Walker, Convenor of the Crofting Commission.

Jeremy Gow says:-

I’m a Scot and I am getting my land taken away from me. It is only 4 acres. We are in the Highland Clearance at the moment.

Susan Walker responds:-

Since the action on this has started over 280 crofters have now returned to their crofts and there have only been 30 terminations.

11 thoughts on “Absentee Crofters may take their fight to the European Courts

  1. Eilidh Ross

    This is fascinating stuff. See my exchange of tweets with @woodlandcrofts regarding whether the landlord’s make-up (i.e. commnuity body, private indivudual, charitable trust) has or should have a bearing on whether crofters are pursued under the 1993 Act.

    Reply
    1. Woodland Crofts

      It should be noted we were not making a legal point (we are not lawyers!).

      Rather, we were responding to the tone of the BBC reports which implied that this action was ‘unpopular with resident crofters’, but without offering any substantive information to back this up. The point about community ownership was trying to suggest that a community landlord’s position for/against this action might be significant, regarding this issue of local support – though not relevant to whether the Act was being breached or not.

      Another interesting report was the David Ross article in the Herald. In this the absentee did not appear to claim they were not absent in terms of the legislation, but rather maintained that the legislation itself was wrong.

      Reply
  2. Hugh Maclellan

    I was asked by the BBC what my opinion of the Crofting Commission was. My reply was as follows:
    As far as I am concerned, the Crofting Commission is full of unelected beaurocrats who only produce glossy magazines, are obsessed by sheep and act as a Government eviction agency. There is no place for them in the 21st century. How is it that farms in Perthshire, the Central belt and the Borders do not need such a “Commission” and are able to function efficiently without the interferance of a Government agency. There is no place for them in this day and age, the Crofters should be sold the land at 15 times the rent and left to look after the croft themselves.

    Reply
  3. disgruntled crofter

    What the commission have failed to realize is that most absentee crofters have their land let to local crofters on an informal basis, there is very little land lying derelict.

    I am a young crofter who is in the process of taking over from my father who was a full time crofter his whole life and has had the use of several absentee crofters land in some cases for 40 years or more, infact my grandfather had an informal sublet of some of it.

    it seems likely i am now going to lose most of my good land which my father invested in his whole life. I myself have invested a lot of my own money over the past few years on new equipment etc. It looks like this was a mistake.

    My only hope is that there will be a backlash against the commission as nearly every crofter i talk to is very angry with what is happening. Scrap the commission and let us get on with the job!

    Reply
  4. Neil King

    DS, is the outcome not more likely to be that the absentees will be factored out of the equation and you (or your father?) will be installed as the “full” (as opposed to “sub”) tenant in their place?

    Or have the CC said the absentees’ crofts will be advertised and you’ll just have to submit your bid along with the rest?

    As I type this, I remember, does the landlord not have a say in this? Can he not propose you as tenant to the CC in place of the absentees? I suppose you’d be at risk if the landlord proposed someone else but is it likely in practice the CC would accept someone else over your head? Or has the landlord’s role in re-letting been abolished now?

    Whatever the likelihood of the endgame, the disturbance from the status quo must be un-nerving. I realise you’ll want to protect your anonymity but it would be interesting to hear a bit more detail about your situation. It’s always good to educate a wider audience about how these things actually play out on the ground in practical terms.

    Reply
    1. disgruntled crofter

      Hi Neil,

      No the absentee can choose to assign the croft to someone else, thankfully we know 3 of the absentees well so they would want me/us to have it if they were forced out. I am hoping that the commission would allow me to take over the tenancies, but it may come a point when they say that i have enough and want a new entrant?

      Some may call me greedy, but in a way im not trying to gain anything extra, just keep what i have, as it would also fragment our holding if it were to go. But far as im concerned i am happy enough subleting the ground, we were all happy with the situation as it was.

      The estate are consulted when a croft is assigned, but don’t know if they have a huge amount of influence on final decision.

      Just hope the cc will see that we are trying to do a good job and that it is the main part of our living if/when they decide to act.

      thanks

      Reply
  5. Eilidh Ross

    During the period before the tenancy is terminated, it is for the croft tenant (even if they are not resident) to assign the tenancy, and to nominate the proposed assignee. A croft landlord will be asked for their comments on the proposed new tenant, but it is not clear what weight the ‘new’ Commission give to a landlord’s view. Objections received from members of the crofting community may also be taken in to account.

    If the tenancy is not assigned successfully and is terminated by the Commission, the croft is then vacant and it falls to the landlord to let the tenancy afresh – to a person of the landlord’s choosing.

    It is not, at any point in the process, for the Commission to ‘select’ the new croft tenant. The Commission’s role is to take a decision on the application before them and to determine whether proposed assignee is a suitable person to be croft tenant in terms of the various statutory and policy considerations.

    That said, the Commission in some cases do refuse applications if there are others who they would ‘prefer’ to see as the tenant of a particular croft. In my view this approach demonstrates a fundamental ignorance and misunderstanding of the Commission’s role in the process but it is happening, and there is certainly no guarantee that if the tenant applies to assign the tenancy to the person using it informally, the Commission will will approve that application.

    Eilidh

    Reply
  6. Neil King

    Thanks for these replies DC & Eilidh.

    I hadn’t cottoned on to the fact the absentees will be invited to assign their tenancies before being deprived of them and I appreciate that proposed assignations to DC may run up against the CC’s hostility to multiple holdings. So I definitely see DC’s concerns.

    What would there be to stop the absentees buying their crofts and then transferring the freeholds to DC (on the same terms and conditions as they would have assigned the tenancies to him)? The CC has no locus to intervene in either the sale by the landlord or onward sale to DC, does it? Then, as long as DC is resident and doesn’t misuse/neglect the crofts, the CC can’t interfere on grounds of multiple holdings – can it?

    Answer my own question – you’d run up against the landlord’s clawback on the onward sale to DC. But would there be any uplift to claw back??

    This is what I *hate* about excessive regulation. You have someone like DC just trying to make a not very controversial living, yet you seem to be thwarted at every turn. Exasperating!

    Reply
  7. Eilidh Ross

    Neil,

    The answer to your own question is correct – another way to skin the cat would be for the crofter to purchase the tenancy and then convey the croft onwards. As you say, the purchaser would still be regulated; just not at the point of transfer.

    As you also say, the disadvantage of that is that whether or not market value changes hands, it is market value which determines the amount of claw back to which the former landlord is entitled. If the landlord is willing to forfeit his right to claw back, however, or is prepared to accept a nominal sum rather than the full whack, it is a route worth considering.

    Eilidh

    Reply
  8. Neil King

    It highlights as well that, despite all the attempts to equate them (and the collateral damage caused thereby), there remain differences in the regulation of tenant and owner occupier crofters.

    Reply
  9. disgruntled crofter

    Buying the croft then selling to me may be possible, but its alot of trouble for something that could be very simple. Also i suppose the land court is another route but again a lot of trouble and i dont know if they would see things any differently than the cc.

    As i said above i am quite happy with the way things are, but i think its a pretty bad deal that someone in there 20’s may have to fight a government body if they choose to put me, basically out of business, and give the land we’ve used for many years to a 3rd party who has done nothing to it.

    Anyway i could say more but think thats all i will say on the matter for now. Just have to wait and see how things play out.

    Thanks for the replies.

    Reply

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