Tag Archives: CHGS

New SCF Chair

Russell Smith - Chair of the Scottish Crofting Federation

Russell Smith – Chair of the Scottish Crofting Federation

With recent news of crofting commissioner appointments and a new CEO at the Crofting Commission it should also be noted that just before Christmas a new chair was appointed to the Scottish Crofting Federation (SCF).

At their board and council meeting on 16 December 2016, the SCF said thanks to the out-going chair, Fiona Mandeville, who stepped down on completion of her two year tenure. Fiona handed the role to Russell Smith, a crofter from Bonar Bridge in Sutherland.

Mr Smith commented:-

The Federation has achieved a great deal in the past two years, not least the pledges made by the SNP in their manifesto and confirmed recently by the Cabinet Secretary for crofting, Fergus Ewing MSP. The pledges mirror the ‘Five Actions for Crofting’ published by the SCF just before the election.

We have brought crofting very much back on to the Scottish Government agenda with the promise from them to modernise crofting law and make it more transparent, understandable and workable in practice. This will be no mean feat but the law needs to be made to work for crofters not for lawyers. We have won a substantial improvement in the Croft House Grant Scheme and await the government’s action to re-introduce the Croft House Loan Scheme.

Scottish Government will also explore mechanisms to make more publicly owned land available to new entrants, a long running campaign of the SCF, and have promised to introduce a new entrant’s scheme for crofting and to explore the creation of new woodland crofts. At last the National Development Plan for Crofting we asked for is closer to becoming a reality.

So, yes, we have achieved a lot, but there is still much to do. With the prospect of leaving the European Union, one of the few certainties is that support to agriculture and particularly to crofting will have to be fought for. Being the only organisation solely dedicated to representing crofters means that SCF will have to fight hard to avoid being marginalised by big farmers in other parts of the country. Crofters need to stand together under one banner so that our voices can be heard.

Crofting Law and the new Scottish Government

Crofting Law and the New Scottish Government

How does the election results affect the future of crofting law?

Today’s Scottish Parliamentary election results saw the SNP form a minority administration with 63 seats. The Scottish Conservatives came second and form the opposition with 31 seats. Scottish Labour were in third place with 24 seats followed by the Scottish Green Party on six and Scottish Liberal Democrats on five.

What does this mean for the future of crofting law?

The SNP Manifesto states:-

Modernising Crofting

Crofting plays a unique role in Scotland’s Highlands and Islands heritage, bringing distinct social, economic and environmental benefits to communities. We will continue to provide public support for the continuation of crofting and to secure thriving crofting communities.

We will also introduce a new entrant’s scheme for crofting, explore the creation of new woodland crofts and publish a National Development Plan for Crofting.

Croft housing grants have been increased and we will continue to target support at those most in need. We will also re-introduce the Croft House Loan Scheme.

Crofters have long been concerned at overly complicated and outdated legislation so we will modernise crofting law and make it more transparent, understandable and workable in practice. We will also ensure new community landowners are not left out of pocket due to registering as the new landlord of crofts within their community owned estate.

So there is a clear commitment to “modernise crofting law and make it more transparent, understandable and workable in practice”. This must mean a new Crofting Bill being introduced during the next parliamentary term.

At the Crofting Law Group Conference in March there was clear cross-party agreement on the need for crofting law reform. So I can’t see any opposition to the introduction of a new Crofting Bill.

The last Minister for Environment, Climate Change and Land Reform (with responsibility for crofting) was Dr Aileen McLeod MSP. She failed to win the Galloway and West Dumfries constituency seat and missed out on getting a South Scotland Regional seat in the list vote. So inevitably there will be a new Minister for Environment, Climate Change and Land Reform.

Perhaps with a new Crofting Bill in the offing and the dreadful problems within the Crofting Commission that the new Minister has to tackle it is time for Nicola Sturgeon to appoint a dedicated Crofting Minister? Preferably one with a seat in the crofting counties.

Who will be the political voices we will now hear speaking up for crofting law reform and investigation of the alleged abuse of power within the Crofting Commission?

Gone from Holyrood are the strong voices on crofting that came from Jamie Mcgrigor (Conservative), Rob Gibson (SNP), Jean Urquhart (Independent) and Dave Thompson (SNP). We will also miss Alex Fergusson (Conservative) who thought that crofting law is a complete mystery but amused us with his analogy of ‘The Crofting Law Hydra‘.

Returned to Holyrood are Tavish Scott (Liberal Democrat) and Rhoda Grant (Labour). Both of whom participated in Crofting Question Time at the Crofting Law Group Conference in March expressing strong views on the “mess” that is crofting law. I can’t see them holding back on the latest “mess” of ‘The Common Clearances‘.

New to Holyrood are Donald Cameron (Conservative) and Andy Wightman (Green Party). Again they both participated in Crofting Question Time at the Crofting Law Group Conference. Donald Cameron said there that it was “time for crofting law to be for the crofters and not the lawyers”. I think that ‘The Common Clearances’ is a clear testament to that sentiment.

Helping the SNP with the Crofting Bill, and routing out the alleged abuse of power at the Crofting Commission, must surely be all SNP MSPs within the crofting counties. Alasdair Allan (Western Isles) has already spoken out about ‘The Common Clearances’ with two ‘sacked’ grazings committees, that we know of, being within his constituency. Other SNP MSPs in the crofting counties include long time politician Michael Russell (Argyll and Bute) and newbie Kate Forbes (Skye, Lochaber and Badenoch), who I had the pleasure of discussing The Crofting Law Sump with at The Future of Crofting Conference in December. Maree Todd took the SNPs only Regional Seat in the Highlands & Islands so I would think she will take an active interest in crofting law which will affect many of her constituents.

The first opportunity for the new MSPs to flex their muscles on crofting matters might be the Cross-Party Group on Crofting at Holyrood. Expect a large attendance.

Brian Inkster

Image Credit: © BBC

Croft House Grant Scheme Consultation

New Croft HouseThe legal requirement for a crofter to live on or near the croft brings with it a requirement for that crofter to have somewhere to live. This has long been recognised by both Westminster and the Scottish Government. Over the past thirty years, support has been available to meet this need but that support now requires rethinking if it is to meet today’s housing needs. To this end, the Scottish Government are currently seeking responses to its consultation on proposed changes to the Croft House Grant Scheme (CHGS). It is a consultation that many would argue is long overdue.

The Scheme aims to attract and retain crofters by enabling them to build (or improve) housing on their croft. That residency requirement has always been enshrined in the Crofting Acts. A crofter must be resident on, or within 32km, of their croft. This is currently a key driver of Crofting Commission policy. The consultation comes at a time when crofting legislation itself is being closely scrutinised by crofting law practitioners and parliamentary committees.

The current levels of support for the construction of a new house from the CHGS is £22,000 for a ‘high geographical priority area’, £17,000 for a standard priority and £11,500 for low priority. This prioritisation is largely based on the view that building on the islands and some of the more remote parts of the mainland is more expensive, therefore grants are increased accordingly.

To be eligible for the grant you must be a tenant crofter, a Kyles crofter or cottar (the meaning of the latter two is for another blog post). Tenants who have purchased and become owner-occupiers in the last seven years were supposed to be eligible, but this is currently uncertain – see my colleague Eilidh Ross Maclellan’s post on that subject.

The proposed changes increase the rates to £28,000 and £23,000 respectively for a High and Standard priority areas, and introduces just two geographical areas – Island and Non-Island. This change in geographical boundaries will mean an increase in support for some areas compared to the previous scheme, which will be good news for some. However, looking back to the CHGS’s predecessor, it is arguable that the proposals put forward in the consultation will still have little impact.

The previous Croft Building Grant and Loan Scheme (CBGLS) was introduced in 1986. Initially, the scheme contained a loan element – paid back to the Government over a period of time (typically 40 years), and a grant element.

It helped many crofters secure a home on their croft. (In fact, the house I grew up in was, largely, paid for by it. In 1986, my parents would have been some of the first people to build their house with assistance from the CBGLS). Back then, if you were frugal, the loan and grant could go a very long way. Nowadays, the amount offered might barely cover the cost of an average house kit.

The Scottish Crofting Federation recently gave their views on the matter, and highlighted some interesting figures. The average cost of building a house in 1986 was £27,860, and the CBGLS, on average, met 82% of building costs. However, over the years the level of support no longer increased with the rising cost of building a home.  The loan element was withdrawn in 2004, and was not replaced with the introduction of the CHGS. The Federation calculated in 2008 that support was around 14% of total build costs.

The Shucksmith Report of 2008 stated that the support levels were too low, in an age where typical build costs exceeded £100,000 – a figure that has only increased. The only way that most crofters could raise the finance to build was to decroft, in order to obtain commercial lending. This remains the case. Currently, decrofted house sites are not eligible for grant support. However, the consultation proposes that decrofted houses linked to the croft would be eligible for support, as would ‘adjoining or adjacent’ land.

Another question the consultation poses is the size requirements of a house. It is currently the case that only houses of three beds or more will be eligible for funding – a  rule that makes outdated assumptions about the size of a crofter’s family and does not give consideration that houses – like families – can grow and evolve over the years when time and finances allow. The current restriction looks short-sighted.

Any increase if of course welcome, however marginal it may be, but without the ability to obtain the support of a lender, the increase will make little difference, meaning decrofting will continue to be the only route for many. Most crofters are not in the fortunate position of being able to finance the building of a house without a mortgage. If one of the key aims of the Crofting Commission is to retain croft land in crofting tenure, and people working that land, then the Scottish Government may need to consider reintroducing a croft house loan, or, as suggested by the Scottish Crofting Federation, exert some pressure on commercial lenders to consider mortgage products for crofters. The latter may require a change in the law to facilitate mortgages over croft land.

The consultation closes on 31 March 2015 and can be found at http://www.scotland.gov.uk/Publications/2015/01/4893/0

Martin Minton

Image Credit: Urban Realm: Highland Croft House completes

To Buy or Not to Buy?

Buy your croftCroft tenants have enjoyed, since 1976, a right to purchase (1) their croft house and (2) their croft land. These rights differ significantly in that a crofter is ENTITLED to a conveyance of the site of her* croft house, and has a slightly qualified right to purchase her croft land. It is important to distinguish between these two rights during the negotiation of terms and conditions and also the conveyancing to reflect, for example, the different purchase prices for each type of land, and the fact that a landlord can request a security in respect of future claw back and a lease of the sporting rights, over croft land but not a croft house site.

It is interesting to note that the exercise of the right to purchase has differed widely according to geography. The Western Isles, for example, have seen proportionally far fewer croft purchases than on the mainland. These figures are borne out yet again in the latest Crofting Commission Annual Report & Accounts 2013-14.

Reasons to Purchase – 2009

Myself and some other members of the Crofting Law Group delivered a series of lectures to students of Strathclyde University in 2009. I lectured on, amongst other topics, croft purchase, and the reasons I gave at that time for purchase were as follows:-

  1. To remove an uncooperative landlord.
  2. To facilitate the development of the croft – eg. to sell a house site on the open market it is necessary to (a) decroft and (b) obtain a title deed to the site.
  3. Some crofters feel that they have a greater voice politically as owners rather than tenants (although many tenants would use the same argument).
  4. To simplify transferring a croft either within the life of the crofter, or in a crofter’s will:
    a. In a crofter’s lifetime, a croft can be transferred without the consent of the Crofters Commission (as it was in 2009 but now, of course, the Crofting Commission) in respect of the proposed new crofter. The provisions of the Act will still apply, and the Crofters Commission will still regulate in much the same way, but their consent is not required to a transfer.
    b. After death, a croft tenancy can only be left to a single natural person, whereas a croft on a title deed (an owner-occupied croft) can be bequeathed in the same way as other heritable property. Many wills are drafted incorrectly, which could mean (arguably) that the croft in question will fall in to intestacy.

Update for 2015

These reasons still apply, although the development of a croft at (2) above is less significant than it once was, due to both the stance taken on decrofting by the Crofting Commission (who have indicated in the clearest possible terms that they wish to radically reduce the amount of land being decrofted), and also to the extension of the period (to ten years from the date of purchase) during which a former croft landlord can claw back financial benefit obtained by the former crofter by the sale of his croft land.

Furthermore, the 2010 Act provided that a croft tenancy could be left to one person or to more than one person, and so that reason is perhaps less relevant than it once was. That said, I still advise clients to bequeath a tenancy to only one person (or if they wish to bequeath to more than one person, to purchase the croft), because if the Crofting Commission refuse an application by the executor to divide the croft to effect the bequest, the tenancy falls in to intestacy, which is a problem for discussion another day.

For 2015, I would also add that I now find myself advising an increasing number of crofters to purchase to preclude their landlord granting servitude rights over tenanted croft land, in favour of third parties. I cannot account for the increase in landlords doing so, other than to speculate that it is perhaps caused by the ever-increasing value of land in the crofting counties, and perhaps also the increasing financial savvy shown by some landlords.

A landlord can grant servitude rights over tenanted croft land; that much is clear. Suppose a landlord was approached by a third party who owned an area of land adjoining a tenanted croft, and that third party requested the grant of a servitude right of drainage for their septic tank, or perhaps a servitude right of wayleave for a water or electricity supply, over the croft land. The landlord should, of course, seek the consent of his tenant crofter, and perhaps most do, but there is no doubt that some landlords (in my experience an increasing number) either do not seek consent, or they ignore a refusal of consent and grant the servitude regardless.

The crofter’s remedy is then to seek a reduction in her rent. However, every crofter I know would rather retain their original croft, unsullied by the digging of trenches and the uncertainty of whether the neighbour will maintain his septic tank, than a slight reduction in an already low rent. Make no mistake: large areas of croft land could be rendered useless for many months (in the case of a badly maintained septic tank, semi-permanently or permanently) in the event that a landlord grants such rights.

An owner-occupier crofter (and an owner-occupier who is not an owner-occupier crofter) does not have to simply hope that his landlord respects his rights, because she is the one who will be approached by the third party for the grant of the servitude and she may, like any other heritable proprietor, refuse for any reason or for none.

Servitude rights of access carry an even higher degree of risk for a tenant crofter. Perhaps a landlord grants a right to construct a new access road to serve a new residence over tenanted croft land; or perhaps grants a right of access to a third party to use an access road which has been constructed at some expense to the crofter. Both of these actions are grossly unfair to crofters.

Reasons not to Purchase – 2009

The reasons I gave in 2009 against purchasing a croft were as follows:-

  1. Availability of grant assistance.
  2. Feeling of loyalty to the original system of crofting tenure.

Update for 2015

Both of these reasons, to some extent may still influence a crofter’s decision to purchase or not to purchase. Certainly I am aware of a continuing feeling of loyalty to the old system of tenure and this is of course understandable. Whether that explains the lack of take-up in the Western Isles I cannot say, however!

The availability of grant assistance requires a little more explanation, and indeed has inspired its own blog post: Did the 2010 Act Equalise Availability of Crofting Grants? In 2009 grant assistance was certainly a factor in deciding whether to purchase (and indeed may have been the principal factor in deciding whether to do so), but is it still a relevant factor in 2015? After all, the 2010 Act was intended to equalise owner-occupier crofters and tenant crofters, both in terms of the regulatory framework to which they were subject, and also the financial assistance which was available to them.

In short, financial assistance from CCAGS is now available for owner-occupier crofters as well as tenant crofters, but the position with CHGS has not yet been equalised, and crofters purchasing their crofts can only claim this grant within seven years of purchasing their croft – no change from the pre-2010 position. For more discussion on this topic see my separate blog post: Did the 2010 Act Equalise Availability of Crofting Grants?


As ever, the decision whether to purchase will depend largely on an individual crofter’s circumstances. If the crofter has already availed herself of the CHGS, it is difficult to see how purchase could disadvantage her. If the crofter wishes to purchase and is confident of applying to the CHGS within the seven year period, there may be no prejudice. But if a crofter has not yet applied to the CHGS and the building of a croft house is on the back burner for financial or other reasons, yet there is a worry that her landlord may grant servitude rights to third parties, the decision becomes more complex.

*Just to be different, the use of the feminine article is deemed, for the purposes of this blog post, to include the masculine.

Eilidh Ross MacLellan

Did the 2010 Act Equalise Availability of Crofting Grants?

Did the 2010 Act Equalise Availability of Crofting GrantsThe crofting-specific grants, namely the Crofting Counties Agricultural Grant Scheme (CCAGS) and the Croft House Grant Scheme (CHGS) were expected to be extended to owner-occupier crofters by virtue of the Crofting Reform (Scotland) Act 2010.

The former scheme provides grants towards agricultural developments such as sheds, barns, fencing and other permanent improvements; the latter towards the building of a croft house. As one would expect, myriad regulations control the provision of each, but there is little doubt that these grants are still a major draw for those wishing to build croft houses and / or carry on agricultural activities on their crofts. Before 2010, it was the case that both types of grant assistance ceased to be available to owner-occupier crofters, and therefore this was a major reason to remain a tenant crofter.

The Crofting Reform (Scotland) Act 2010 was intended to equalise owner-occupier crofters and tenant crofters, both in terms of the regulatory framework to which they were subject, and also the financial assistance which was available to them. However, the regulations which are required in order to facilitate the extension of financial assistance to owner-occupier crofters have only been passed in respect of the CCAGS, not in respect of the CHGS.

I approached the Scottish Government for a comment on this matter and received the following statement:-

It is the Scottish Government’s intention that the CHGS scheme should accurately reflect the equality intention of the primary legislation, which would mean making CHGS assistance equally available to both tenant and owner-occupier crofters, irrespective of who the croft had been bought from and the length of time the croft house site had been the private property of the crofter.  In order to do this, the Scottish Government is required to amend the CHGS regulations through the Scottish Parliament.  This is under active consideration and, following the Parliamentary process, the scheme would then apply equally to all.

The effect of the current lack of new CHGS regulations is that for crofters who purchased a short time ago, or who have not yet purchased their crofts, must hope that the regulations are indeed passed before the 7 year period expires. That may not happen. Furthermore, crofters who purchased their croft in the mid-noughties are increasingly likely to run out of time.

Eilidh Ross