Tag Archives: Crofting Reform (Scotland) Act 2010

The Cross-Party Elephant?

The elephant in the crofting cross-party room

Was there an elephant in the room at the crofting cross-party group meeting?

The cross-party group on crofting met last Wednesday at Holyrood.

It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.

Fergus Ewing MSP, cabinet secretary with responsibility for crofting, was a special guest at the meeting.

Mr Ewing made it clear at the outset that he couldn’t comment in any respect on the current controversy regarding the convener of the Crofting Commission given the allegations made by him against Mr Ewing which are the subject of an independent investigation.

Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.

In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.

Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.

After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.

Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.

Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.

He will refer to the information contained in the crofting law sump and in the Shucksmith Report.

Some questions Mr O’Neil had in mind included:-

  • Why do we need crofting legislation?
  • What changes need to be made to it?
  • How do we go about delivering the changes identified?
  • Are there other options to new legislation?

A small team has been assembled by the Scottish Government to take crofting law reform forward.

It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.

Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.

However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.

This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.

Mr Kennedy has, however, been very vocal in expressing his own personal views (which don’t necessarily coincide with those of the board of the Crofting Commission) in the media over the past few weeks including, in particular, in four successive editions of the Scottish Farmer.

His presence at last week’s cross party group meeting was referred to by some as the elephant in the room. But can the situation simply be ignored?

Brian Inkster

An elective despotism is not the Crofting Commission we fought for

An elective depotisim is not the Crofting Commission we fought forThomas Jefferson said:

An elective despotism is not the government we fought for.

This week the Scottish Crofting Federation called the Convener of the Crofting Commission, Colin Kennedy, a deluded despot. Perhaps they are now thinking that an elective despotism is not the Crofting Commission they fought for.

An elected Crofting Commission (6 out of the 9 commissioners – with the other 3 being appointed) was introduced by the Crofting Reform (Scotland) Act 2010. The Scottish Crofting Federation supported this move. Before that all commissioners of the Crofters Commission were appointed.

At the time the then environment minister, Stewart Stevenson, said:-

The Scottish government wants to give crofters a voice to determine their own future and these first ever Crofting Commission elections is a solid step down that road.

The Scottish government believes crofts that are occupied and worked can be the biggest contribution to the sustainable economic growth and development of our crofting communities. Having an effective regulator is a vital part of achieving that aim.

The first Convener of the new Crofting Commission was Susan Walker who was appointed by the Scottish Government. At the time some thought that process should have been delegated to the commissioners themselves.

Patrick Krause, Chief Executive of the Scottish Crofting Federation, said:-

Clearly the minister doesn’t have enough confidence in the commission to allow them to choose their own convener.

Elsewhere we have heard of the spread of democracy through the Arab Spring.

Is it not time to allow democracy to apply in crofting and to have a Crofting Spring where the commission can be allowed to make its own decisions?

Tavish Scott, Shetland Liberal Democrat MSP, said:-

This is a terrible decision and is consistent with the command and control being exercised by the SNP government on a whole range of issues.

They won’t make an appointment unless they are sure the person passes the Saltire underpants test.

Why do they not trust the people who have been elected by the crofters to make the decision?

Mary Scanlon, Highlands and Islands Conservative MSP, said:-

Given that this was the first time that commissioners were chosen with a mandate from their own communities, it seems high-handed of the minister to appoint the convener himself.

If the nine commissioners were allowed to choose from among their own number the convener would have the confidence and respect of the others. That might not be the case if the appointment is made by the minister.

Rhoda Grant, Highlands and Islands Labour MSP, said:-

To choose the convener in this way, weights the process towards the three commissioners already chosen through the public appointments system.

The minister should allow the commission to choose its own convener.

Alasdair Allan, Western Isles SNP MSP, said:-

There must be a tie between the commission and the minister because it is a public body.

The minister has a choice among all the members.

If the six members chosen by the crofters are unhappy with what the government or the commission is doing they will not be slow to say that.

There is a majority of crofters’ representatives so it is not true to say that this is an attempt to control the commission.

Some commissioners were not too slow to show that they were unhappy and organised a coup against the incumbent convener. They then insisted that they should elect the new one. The minister responsible for crofting at the time, Aileen McLeod, allowed them to do so and Colin Kennedy was duly elected.

The result has been clear for all to see. It could not have been foreseen by the representative bodies and MSPs who called for this democratic process at the outset. In light of what has happened a future crofting minister might think twice about allowing commissioners to choose a convener themselves.

Fergus Ewing MSP, cabinet secretary responsible for crofting, has instituted a governance review of the Crofting Commission. Whatever the outcome of that review it should at least attempt to avoid despotism ever appearing again within the Crofting Commission.

Brian Inkster

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]

Back to the Future of Crofting

Back to the Future of Crofting

But Doc, nothing has changed in 10 years!

If you were to travel back in time 10 years ago to the day you would find a headline in The Scotsman that read ‘MSPs heap pressure on Crofters’ Commission with criticism of bill‘.

It was 5 July 2006 and on that day the Scottish Parliament’s Environment and Rural Affairs Committee released its findings on the Crofting Reform Bill after taking evidence at five meetings that year.

Some salient points from The Scotsman’s report from then:-

Critics of the commission during the evidence-gathering sessions included the National Trust for Scotland, which said the commission’s work is regarded as “inconsistent and ineffective”. The Scottish Crofting Foundation also gave an example of the “long-term regulatory failure” in one township where 11 out of 19 croft holders are absentees despite demand from prospective new entrants.

The report adds: “The committee was struck by the range of negative comments and the depth of frustration and long-standing dissatisfaction expressed by witnesses about the commission’s practice.”

It also said it was “astonished” a proper register of crofts has not been produced despite it being a statutory obligation on the commission for over 50 years.

Rob Gibson, the SNP’s land reform spokesman, said the bill offers no vision for the future of crofting and said successive governments had failed to ensure the commission does it job.

The report in The Scotsman also mentioned Brian Wilson, the former Government Minister, saying of the report:-

The whole thing has turned into an indictment of the Crofters’ Commission and its failure to implement its regulatory role. I think they [the commission board] should now consider their positions.

Fast forward 10 years and not much has changed. It is now called the Crofting Commission as opposed to the Crofters Commission. Similar but perhaps more acute criticism is being laid at its door. Indeed, I was speaking to a crofter just today who said that the Crofting Commission of 2016 is much worse than its predecessor, the Crofters Commission, was 10 years ago.

Headlines in the news over the past few weeks have included:-

Crofting Comission branded as ‘dictatorial, vindictive and unjustified’ by Upper Coll crofters

Row between national body and local crofters on Lewis deepens

Crofting Commission ‘flouting the will’ of Parliament

Crofting commissioner resigns in Lewis grazings row

Pressure grows on Crofting Commission as row over committees continues

Demands intensify for inquiry into operations of Crofting Commission

Crofting Commission “cover-up” blasted

Sleat storm surrounds Crofting Commission

Crofting Commission’s Mangersta U-turn welcomed, but calls for government investigation continue

It was in the wake of the near collapse of the Crofting Reform Bill in 2006 that pressure from the Scottish Crofting Federation led to Scottish Ministers commissioning a Committee of Inquiry on Crofting. This was chaired by Professor Mark Shucksmith. The Committee of Inquiry on Crofting undertook many community meetings throughout 2007 and delivered their final report in 2008.

The Shucksmith Report commented on the Governance of Crofting as follows:-

Crucial issues for the governance of crofting are transparency, source of legitimacy, accountability and the balance of central and local interests. Centralised arrangements,
together with a lack of clear functional boundaries between the key institutions, particularly
between the Crofters Commission and the Scottish Government, cloud the lines of public
accountability for the effective governance of crofting. Recurring themes in the evidence
were that the Commission should be more accountable; have greater area representation;
should enforce regulations more effectively; should be better aligned with other relevant partners; and should have closer communication with local people and Grazings Committees.

All issues that appear to remain today. Perhaps that is because in introducing the Crofting Reform (Scotland) Act 2010 the then Scottish Parliament ignored many of the recommendations actually contained in the Shucksmith Report.

There is currently a major crisis in crofting. The consensus of opinion appears to be that the problems are caused by the Crofting Commission and the decisions taken by them and manner in which they execute those decisions.

A recent online poll conducted by The Scottish Farmer indicated that 96% of readers who took part considered that the Scottish Government should enact an independent inquiry into the workings of the Crofting Commission.

The Scottish Farmer in conducting this poll stated:-

The level of criticism has mounted so quickly that it is now incumbent on the Scottish Government to institute an independent external audit of the commission.

And, if the Crofting Commissioners feel the criticism to be unjust, they too should welcome independent scrutiny of their actions.

One thing is for sure, Scottish ministers cannot continue to sit on their hands on this one. Action must be taken swiftly and decisively!

I sincerely hope that in 10 years from now we don’t look back and say that nothing has really changed and indeed the situation at the Crofting Commission has got worse not better. The Scottish Government has the opportunity to change the future and must now do so.

Brian Inkster

Image Credit: Back to the Future © Amblin Entertainment

Political Consensus on the need for Crofting Law Reform

Crofting Question Time - Crofting Law Conference 2016

 

At the Crofting Law Conference (organised by the WS Society and the Crofting Law Group) held in the Signet Library, Edinburgh yesterday there was cross-party agreement on the need for crofting law reform.

Trudi Sharp, Deputy Director of Agriculture, Rural Development and Land Reform, in the Scottish Government stood in at the last minute for Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform, who was unfortunately unwell and unable to deliver the keynote address on behalf of the Government.

Trudi Sharp - Crofting Law Conference 2016Trudi Sharp indicated that she had yet to speak to anyone who would disagree with the sentiment that there was a need to simplify crofting legislation. She said:-

The Minister is clear that crofting legislation should be well thought through with stakeholders and deliver law that is modern, simple and fit for purpose.

Crofting Law Conference 2016 - Views from the OppositionThe Conference heard the views of the opposition from Rhoda Grant MSP, Scottish Labour; Tavish Scott MSP, Scottish Liberal Democrats; Donald Cameron, election candidate for Scottish Conservative and Unionist Party; and Andy Wightman, election candidate for Scottish Green Party.

Crofting Law Conference 2016 - Jean Urquhart MSPThis was followed by ‘Crofting Question Time’ moderated by Jean Urquhart MSP with the opposition MSPs/election candidates being joined for that session by Rob Gibson MSP, Scottish National Party.

Crofting Law Conference 2016 - Rob Gibson MSPThere was little in the way of disagreement about the need for crofting law reform.

Rhoda Grant MSP - Crofting Law Conference 2016Rhoda Grant MSP said:-

The 2010 Act is a mess and probably needs to be revoked altogether.

Crofting Law Conference 2016 - Tavish Scott MSPThis was echoed by Tavish Scott MSP who said:-

The less said about the 2010 Act the better. It is one of the worst pieces of legislation ever passed by the Scottish Government.

He added:-

Crofting Law has been a mitigated mess and devolution has not helped take it forward.

Crofting Question Time at Crofting Law Conference 2016Both Tavish Scott and Rhoda Grant were of the view that crofting can mean different things in different areas. Shetland, for example, is very different to other areas that may work in a more communal way. They felt the current legislation does not recognise these differences.

Crofting Law Conference 2016 - Donald CameronDonald Cameron was of the view that it was “time for crofting law to be for the crofters and not the lawyers”. He warned though that “if you legislate in haste on crofting law you will repent at leisure”.

Crofting Law Conference 2016 - Andy WightmanAndy Wightman, quoting Dr Jim Hunter, referred to crofting law as a “highly unsatisfactory guddle”.

Crofting Law Conference 2016 - Brian InksterBrian Inkster, Hon Secretary of the Crofting Law Group, commented:-

It is heartening to see such cross-party support for crofting law reform. The word ‘mess’ was used more than once to describe the current state of crofting legislation. It is to be hoped that the next Scottish Government take cognisance of this and put crofting high on their agenda for new legislation during the next parliamentary term.

Photo Credit: All photos are by Rob McDougall for the Crofting Law Group

Setting the Agenda for Crofting Reform

Setting the Agenda for Crofting LawAhead of the Crofting Law Conference in Edinburgh today The Scotsman have published an article with the headline ‘Crofters to lobby for key changes to ‘complicated’ laws‘.

They quote Patrick Krause, Chief Executive of the Scottish Crofting Federation, as saying:-

Crofting law is notoriously complicated and the waters have been further muddied after the 2010 Crofting Act.

Crofting is unique in Scotland by having its own legislation and being a regulated system. It is therefore is essential that the legislation is fit for purpose.

The act needed cleaning up before the 2010 changes. This is unfinished business.

Unfortunately the 2010 introduced further errors and anomalies. The Sump gathered 126 of these and probably the only way to address them is with a new act.

Politicians are a bit reluctant to do this, but SCF is asking parliamentary candidates to finish the job.

And they also quote Brian Inkster, in his capacity as Hon Secretary of the Crofting Law Group, as saying he hopes today’s conference will set the agenda for crofting reform by the next Scottish government. Brian told The Scotsman:-

On Monday I will be spending much of the day arguing before the Scottish Land Court the significance of the Crofting Reform (Scotland) Act 2010 having deleted the word ‘or’ in a section of the Crofters (Scotland) Act 1993.

The result could be an unintended consequence. This is a good example of the problems that the 2010 Act has been causing since its introduction. It was an extremely badly drafted piece of legislation on top of existing complex law.

There remain numerous problems and issues in the legislation that can trip up the unwary on a daily basis. The current government pledged to resolve matters, and the next government really must seize the bull by the horns and sort the mess out once and for all. That will involve a comprehensive new crofting act that is well drafted, easily understood and designed to resolve the existing problems and not create any new ones.

MSP Alex Fergusson has referred to recent crofting legislation being like the Hydra. You think you have solved a problem but suddenly two new ones appear. The next Scottish government simply can’t afford to let that happen again.

We will provide a full report on today’s Conference after the event.

The Future of Crofting Conference

The Future of Crofting Conference 2015Brian Inkster will be speaking about ‘The Sump‘ at The Future of Crofting Conference in Inverness on 4 December 2015. This conference is a joint venture involving the Scottish Parliament Cross Party Group on Crofting, the Highland Council and the Scottish Crofting Federation.

Conference details are:-

Where: Highland Council Chamber, Inverness.

When: Friday 04 December 2015 09.00 – 16.00 (registration opens 08.30).

Background: In the wake of the near collapse of the Crofting Reform Bill in 2006, pressure from the Scottish Crofting Federation led to Scottish ministers commissioning a Committee of Inquiry on Crofting (CoIoC). This was chaired by Professor Mark Shucksmith. The CoIoC undertook many community meetings throughout 2007 and delivered their final report in 2008.

This was the most comprehensive study of crofting since the Taylor Commission, which reported in 1954.

The Scottish ministers used this report to formulate a further bill, its passage through Parliament culminating in the passing of the Crofting Reform (Scotland) Act 2010. Before the 2010 Act was published a conference called ‘The Future of Crofting’ was held in Stornoway in January 2010, hosted by the Comhairle nan Eilean Siar.

The Scottish Parliament Cross Party Group on Crofting agreed at a meeting in April 2015 that it is time to hold a further ‘Future of Crofting’ conference to look at what progress has been made since the CoIoC. The Highland Council have generously offered to host this with funding assistance from HIE.

Conference agenda: the conference offers expert speakers on the CoIoC, including Professor Shucksmith, and on the state of crofting law, regulation and development. There will also be ‘a view from the fank’ – a reflection by crofting activists. The format will give plenty of time for open discussion to gather views from the floor, which will be collated and presented by the Cross Party Group on Crofting, on behalf of the conference, to the Scottish Government.

You can download the conference programme here: Programme – The Future of Crofting Conference – 4 Dec 2015.

The conference is free and as there are limited places, advance registration is essential.

To register please email Maria Scholten.

Owner-Occupier Crofters

Derek Flyn

Derek Flyn

This is a guest blog post by Derek Flyn who is a retired crofting lawyer and an administrator of the Crofting Law Sump. It was written by Derek on 23 October 2013 so reflects his thoughts on owner-occupier crofters as the law stood at that date.

For this article, it would be best that the reader has available to him a copy of the Crofters (Scotland) Act 1993 as amended by 2007 Act and by 2010 Act and by 2013 Act [PDF].  However it is necessary to discuss how some of the provisions of the 1993 Act came into being.

Whilst there appears to have been no mechanism specifically designed to keep track of the ownership of the estates of landlords in whole or in part, changes in occupation of crofts required to be recorded in the Register of Crofts.  This was especially true of vacant crofts and section 16 of the 1955 Act, now section 23 of the 1993 Act, made provisions in respect of vacant crofts, somewhat unusually placing a burden on every crofting landlord.  There was imposed on the landlord an obligation to inform the Commission about any croft that became vacant  [1955 Act, s 16(1); now 1993 Act, s 23(1)]. Failure to do so was to be met by criminal sanction on summary conviction [1955 Act, s 16(10); now 1993 Act, s 23(2)].

Whilst launching the statutory purchase provisions for tenant crofters, the 1976 Act introduced a rather awkward subsection [1955 Act, s 16(14); now 1993 Act, s 23(12)] declaring that,  for the avoidance of doubt section 23 has effect (and shall be deemed always to have had effect since 27th August 1961) as if (a) a person who has become the owner-occupier of a croft were required under subsection (1) above within one month of the date on which he became such owner-occupier to give notice thereof to the Commission; and (b) any reference in the section other than in subsection (1) above to a landlord included a reference to an owner-occupier”.

The effect was to treat any person who had become the owner-occupier of a croft like a landlord who has a vacant croft (although it is not clear how any sanction could be invoked, if ever it was). It was not necessary to define an owner-occupier by the extent of what he owned because the provision did not differentiate between a part croft and a whole croft [1955 Act, s 16(13) inserted by 1961 Act; now 1993 Act, s 23(11)].

Nor did it seek to differentiate between on the one hand a former tenant crofter who had purchased his own croft and continued to occupy it (or his nominee or successor or a later acquirer of his whole interest) and on the other hand a third party who acquired part of a croft intending to use it or occupy it himself.

These differences did not cause difficulties, because a croft was to be taken to be vacant notwithstanding it was occupied, if it was occupied otherwise than by the tenant of the croft [1955 Act, s 16(11); now 1993 Act, s 23(10) but amended in 2010] and that notwithstanding that the tenant crofter had an approved sub-tenant or had purchased the croft himself.

Any occupancy of a croft outwith an approved tenancy was conclusive that the croft was to be considered vacant. So a crofter who purchased his own croft (albeit encouraged by the 1976 Act to do so) was to be in the same position as the landlord of a vacant croft. This nonsensical approach (to any croft purchased by and which remained in the occupancy of its former tenant) was the source of much confusion and annoyance. Despite the opportunity afforded by the 1993 consolidation, no amendments of policy were to be admitted and no legislative attempt was made to sort it out.

It was not until the 2010 Act that there was statutory recognition that tenant crofters who purchased their croft were apt to continue to occupy their own crofts, and this some 34 years after the purchase provisions had been introduced. They were to be recognised as “owner-occupier crofters” and new sections 19B to 19D were inserted into the 1993 Act specifically to cover their now privileged position.

But all was not well.

Who then is an owner-occupier crofter?

The definition is found in section 19B(1) which provides that a person is an “owner-occupier crofter” if the conditions in subsections (2)-(4) are fulfilled:

THE FIRST CONDITION [Section 19B(2)]

The first condition is that the person is the owner of a croft.

The croft: The first problem is what constitutes a croft for this condition to have effect?

The croft needs to be wholly owned.  The whole croft must be owned, identified as a unit. But what does this mean?

One obvious difficulty is that the 1976 purchase provisions did not require the crofter to purchase his whole croft but allowed purchase of part of the croft.

The whole croft would appear to mean, keeping in mind said purchase provisions, (1) the site of the dwellinghouse (if any) and (2) the croft land.  Given the wording of the purchase provisions, can any restricted meaning of croft land be presumed?  For example, does it mean that any apportionments must be owned if they are contiguous and adjacent to the remainder of the croft? One might think not since apportionments are now to have a temporary nature. But the Land Court in an appeal decision by the Full Court as recently as 26 September 2013¹  have opined that, “once granted, an apportionment effectively becomes part of a croft”. It is no help that section 13(3) indicates that, for the purchase provisions, “croft land” includes any land comprising any part of a common grazing that has been apportioned and is adjacent or contiguous to any other part of the croft or consists of arable machair.

Meanwhile, section 3(5) considers the situation where a crofter has acquired his entire croft other than any right in pasture or grazing land and any apportionment. Does such a crofter become an owner-occupier crofter? It seems doubtful that he should be expected to include in his acquisition any right in pasture or grazing land or any apportionment because there is a provision which deems any such unpurchased interest to be held in tenancy until held otherwise. A further provision goes on to deem that interest to be a croft. The Land Court has been “satisfied that the plain intention of sec 3(5) was to allow a grazing share or apportionment which had not been purchased, to be treated as a separate independent croft”².  That being so the person, who now owns the entire croft stripped of that which was not acquired, must be “the owner of a croft”.

Of course, if a croft has been wholly acquired but any part has been conveyed away without decrofting taking place, the person is not the owner of the croft, only the remaining part.

The person:  The second problem is the matter of plurality. There is nothing to suggest that the person must be a singular natural person.

It has been normal for a purchasing crofter to take his title in joint names, for instance himself and his spouse.  If this is permitted, it seems that more than one person can be the owner-occupier crofter of a croft, but those persons must own the entire croft jointly and their title must be in their joint names.

Partial ownership: Persons who own only part of a croft are not considered to be owner-occupier crofters because they cannot satisfy the first condition. Accordingly, they must be regarded as landlords of part of a vacant croft.  Situations like this may have arisen due to the transfer of ownership of parts of a croft on the (mistaken) assumption that the croft would be automatically divided.

It is the clear intention of the 1993 Act, that any division of a croft (whether by a tenant crofter or owner-occupier crofter) can only be effected following an application and subsequent affirmative decision of the Commission. Since 2010, an owner-occupier crofter may not transfer (whether or not for valuable consideration) ownership of any part of the owner-occupier’s croft without first dividing the croft into the part which the owner-occupier crofter proposes to transfer and the part which the owner-occupier crofter proposes to retain³.  Any transfer of ownership of any part of an owner-occupied croft which is not a new croft created by a division under this section, and any deed purporting to transfer ownership of that part, is null and void⁴  and in such a case the Commission can declare the original croft vacant⁵.

THE SECOND CONDITION (Section 19B(3))

The second condition requires that the person (already identified as the owner of the croft):
(a) was the crofter of the croft at the time of acquiring it (or is such a tenant crofter’s successor in title);
(b) acquired title to the croft as the nominee of a crofter (or is such a nominee’s successor in title); or
(c) purchased the croft from the constituting landlord⁶  (or is such a purchaser’s successor in title).

As an aside it will be noted that in some cases acquisition of the landlord’s interest in the croft, where the tenant crofter nominates another person or persons to take title, has avoided the loss of his tenancy. But where that tenancy cannot be held to have continued beyond the date of acquisition, it seems that any person or persons who became the owner of the croft having received the landlord’s interest as nominee of the tenant crofter can claim to be the owner-occupier crofter.

THE THIRD CONDITION (Section 19B(4))

The third condition is that the croft has not been let at any time since it was acquired to any person as a tenant crofter either by an enforced letting of an owner-occupied croft by the Commission or otherwise.

If all the conditions are fulfilled, such a croft is identified as an owner-occupied croft and the properties of an owner-occupied croft therefore attach to the croft itself until it is again a let subject.

But although it is without a tenant, it is not to be taken as being vacant of it is occupied by an owner-occupier crofter. This is stated to be so by subsection 23(10) although it uses a roundabout way of doing so.

Owner-occupier crofters as a sub-set of owner occupiers

Owner occupiers have been recognised by the Crofting Acts since 1976, when they were required to tell the Commission⁷.  The effect of the requirement is not altogether clear although it does say something along the lines that (a) a person who has become the owner-occupier of a croft is required within one month of the date on which he became such owner-occupier to give notice thereof to the Commission and (b) most references to a landlord are to include a reference to an owner-occupier.

But since 2010 this has been qualified by a new subsection 23(12A) which states that where the owner-occupier is an owner-occupier crofter, he must give notice of that fact to the Commission within one month of becoming such an owner-occupier crofter.

It seems that unless or until an owner-occupier crofter gives notice of the fact that he is an owner-occupier crofter, he will not be recognised as such by the Commission.

Not only that, any owner-occupier crofter (or indeed any owner occupier) will be guilty of an offence if he does not inform the Commission within one month of his becoming an owner-occupier crofter (or owner occupier).

If the reader is still with me, then I applaud his tenacity.

It was on Christmas Eve 2012 that I asked myself,
“If an owner-occupier crofter’s croft is not vacant, [subsection 23(10)] then, even if an owner-occupier crofter is to be taken as a landlord, [subsection 23(12A)] then how can subsection 24(3) apply when it reads “Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application”?

I then asked the Commission,
“On what authority does the Commission deal with an application from an owner-occupier crofter to decroft land?”

The answer is now history. The answer is to be found in the Crofting (Amendment) (Scotland) Act 2013.

Derek Flyn – 23 October 2013

Footnotes:-

  1. Kennedy v Smith & Crofting Commission SLC/31/12 at [3]
  2. Reference by Crofters Commission under Sec 53 Crofters (Scotland) Act 1993 SLC/121/11 at [23]
  3. 1993 Act, s 19D(1)
  4. 1993 Act, s 19D(6)
  5. 1993 Act, s 19D(7)
  6. as defined in section 19B(6)
  7. i.e. since s 16(4) was added to the 1955 Act by the 1976 Act, now s 23(12) of the 1993 Act

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