Tag Archives: croft house

Land Court rule that Crofting Convener has no right to purchase his Apportionment

Apportionment Arinagour Common Grazings Isle of Coll

Colin Kennedy’s Apportionment at Arinagour Common Grazings, Isle of Coll with his wind farm development and excavated house site

The Scottish Land Court has issued a decision to the effect that an application by Colin Kennedy, Convener of the Crofting Commission, to purchase his Apportionment at Arinagour Common Grazings on the Isle of Coll is incompetent.

Mr Kennedy pursued a series of Land Court actions with individuals and also had a long running dispute with the Crofting Commission, on a personal basis, over a number of years seeking to secure rights in the Common Grazings and obtain an Apportionment.

An Apportionment was finally granted in his favour by the Crofting Commission on 31 October 2014 although it did not take in areas of the Common Grazings originally desired by Mr Kennedy.

Having obtained the Apportionment, on which he has erected three wind turbines and a shed with plans to construct a croft house, Mr Kennedy then sought to purchase it from the Landlord, Martin Smith. The Landlord refused to sell and Mr Kennedy brought an application to the Land Court to purchase.

I represented Mr Smith at the hearing before the Land Court.

It has long been established in crofting law that there is no right under the Crofters (Scotland) Act 1993 to purchase an Apportionment that is not adjacent or contiguous to another part of the crofter’s croft. Mr Kennedy’s apportionment was a ‘deemed croft’ under the legislation and it was settled law that such a ‘croft’ could not be adjacent to itself.

However, Mr. Kennedy argued that such settled law was overturned by the registration requirements under the Crofting Reform (Scotland) Act 2010. He maintained that under the 2010 Act a ‘deemed croft’ became a ‘croft’ when registered in the Crofting Register as his Apportionment had been.

Lord Minginish , in delivering the Land Court’s decision said:-

Mr Kennedy’s argument was ingenious and not without a certain logic.  But the problem it cannot evade and fails to deal with satisfactorily is the terms of sec 12(3) of the Act, which remain unamended by the 2010 Act.

In so finding the application was refused as incompetent by the Land Court.

The period of appeal to the Court of Session has expired without an appeal being lodged by Mr Kennedy and the Land Court has found Mr Kennedy liable to Mr Smith for the expenses of the application.

Thus Mr Kennedy remains a tenant of the Apportionment at Arinagour Common Grazings.

Brian Inkster

Notes:-

Read the full decision on the Scottish Land Court website: Kennedy v Smith [SLC/81/15]

Download a copy of the case: Kennedy v- Smith [PDF]

21 crofters to share over £705,000 from Croft House Grant Scheme

Fergus Ewing MSP announces £705,000 of Croft House GrantsCrofters will benefit from better housing through funding under the Croft House Grant Scheme.

Cabinet Secretary for Rural Economy and Connectivity, Fergus Ewing, confirmed 21 crofters will share over £705,000 from the scheme. The funding allows crofters to build or improve homes, helping to retain and attract people to rural communities in the crofting counties of Scotland.

Since the start of 2007, over £15 million of grant payments have been awarded. From 1 April 2016, changes made to the grant support mechanism include a significant increase in individual grants, with some crofters now eligible for £38,000 of funding.

Mr Ewing confirmed the funds on a visit to a recently constructed croft house near Kiltarlity in the Highlands. He said:

Good quality housing is essential for crofters. We need to draw people to Scotland’s most remote and rural communities and the Croft House Grant can do that. Upgrading or building new properties can help crofters fulfil their duty to live on or close to their croft and can help them undertake additional agricultural activity.

This funding will make a real difference to 21 crofters and their families across the Highlands, Western Isles, Northern Isles and Argyll. Since 2007 over 800 homes have been improved or built under the scheme. It is great to see how this support can make a difference and I look forward to hearing many more success stories from the latest awards.

Mark Wiper crofts at Ardendrain near Kiltarlity in Inverness-shire. He received £11,500 through the scheme in 2012, enabling him to build a three bedroom family home on his croft. He said:

The funding from the Croft House Grants Scheme went toward building Tigh Na Cleit. I’ve been there for two years now and being able to live on the croft I’m working on is great. Beforehand, I was living at home with my parents and having my own home has given me much needed independence.

The grant has provided me the opportunity to build a property that is completely fit for purpose, and allows me to still live close to my family. Crofting can be very challenging and any support to help maintain the way of life is welcome.

The 21 grants referred to are being made to crofters in the following locations:-

  • Caithness
  • Inverness-shire
  • Isle of Lewis
  • Isle of Skye
  • Isle of Islay
  • North Uist
  • Ross-shire
  • Shetland
  • Sutherland

For details of the scheme see: The Scottish Government – Rural Payments – Croft House Grant

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?

Conclusion

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