Daily Archives: May 22, 2013

Owners of croft land who are aliens to the Crofting Commission

Some owners of croft land are aliens to the Crofting Commission

We are consulting with Ripley as to your crofting status.

It came to my attention today that there is yet another situation where the Crofting Commission are not currently processing decrofting applications. This one appears to have received no publicity as yet and no policy statement has been issued on it by the Crofting Commission (I assume because they have still to actually formulate one).

The situation is as follows:-

  • A croft house and garden ground is purchased by the crofting tenant without being decrofted.
  • That crofting tenant becomes the owner-occupier of the croft house and garden ground and remains the tenant of the surrounding croft.
  • The now owner-occupier sells the croft house and garden ground onto Mr. A and remains the tenant of the surrounding croft.
  • Mr. A’s solicitor does not pick up on the fact that the croft house and garden ground has not been decrofted.
  • Mr. A, many years later,is in the process of selling the croft house and garden ground to Mr. B. Unfortunately for Mr. A it is picked up by Mr. B’s solicitor that there is no decrofting direction.

The solution to the problem is, of course, for Mr. A to apply to the Crofting Commission for a decrofting direction. He immediately does so but receives this response from the Crofting Commission:-

As the croft house site has not previously been removed from crofting tenure, it remains part of the croft [name of croft given].  Unfortunately, where a croft is partly owned and partly tenanted, as in this case, the status of the owner is currently unclear.  We have sought legal guidance on this matter and are unable at present to determine whether you are entitled to lodge a decrofting application.  We will provide you with an update as soon as this guidance has been obtained.

Incredible! First we had owner-occupiers of a historically ‘divided’ croft not being able to apply for decrofting directions without the consent and concurrence of other owner-occupiers of that croft. Then we had owner-occupier crofters not being able to apply to decroft full stop. Now we have owner-occupiers of croft houses surrounded by tenanted croft land who cannot apply to decroft because “the status of the owner is currently unclear”. Where will this end? The Crofting Law Hydra is certainly in full flight and gaining heads by every turn.

The Scottish Government must seriously question what is going on at Great Glen House. The Crofting (Amendment) (Scotland) Bill, as currently drafted, is clearly seriously deficient in dealing with the decrofting problems that are emerging by the day. The last post on this blog suggested that the Crofters (Scotland) Act 1993 is a mess. There would appear to be no doubt about that given the constant desire by the Crofting Commission to reinterpret it.

Brian Inkster

[Picture Credit: Alien – 20th Century Fox]

The Crofters (Scotland) Act 1993 is a mess

Crofters (Scotland) Act 1993 is a mess

Crofting law may be as messy but not as tasty as eton mess!

Submissions by Eilidh I. M. Ross on the Crofting (Amendment) (Scotland) Bill

The perceived need for, and the technical detail of, the draft Crofting Amendment Bill has been covered by my colleague Brian Inkster in his own submission, which I fully support.

For my own part, I will make a few comments on the limitations of the draft bill, and the need for further, radical, improvement of crofting legislation. I note the Scottish Government’s position that the bill will only be used to address one of the specific (perceived) problems with decrofting of owner-occupier crofts by owner-occupier crofters, namely the issue of whether such crofts can ever be vacant.

Not only are there many anomalies, hiccups, and unforeseen consequences of the provisions currently contained in the Crofters (Scotland) Act 1993 caused by the Crofting Reform (Scotland) Act 2010, but the 1993 Act itself is, in my view, a mess.

Matters are now to be exacerbated by the addition of yet another layer of incomprehensible extra sections and consequential amendments to an Act which was consolidated 20 years ago, and which has been (badly) amended numerous times. If the Act which my fellow crofting solicitors and I work with on a daily basis, and on which we must advise our clients, is in such a poor state of repair, that has serious implications for our profession (not to mention for crofters and landlords).

It is, in my view, now imperative that further steps are taken by the Government to address the wider problems of the 1993 Act. Further amendment is not sufficient, nor even perhaps consolidation, if that would not result in an act which was understandable. The Government know what people want from crofting legislation (that was established by Mark Shucksmith quite recently and, although some do not support his findings, I am not aware of calls for a new committee of enquiry), and the 1993 Act tries to achieve those objectives that but fails in almost countless ways. The Act should be deconstructed and then redrafted in a way which is simple, understandable, and which clearly sets out the rights and obligations of all those whom it regulates (and affects in other ways).

The crofting act is important not simply from a historical perspective (although in my view that element is important); it is an essential part of the economic and social fabric of the Highlands and Islands and it is simply not acceptable that the legislative framework which supports that system is such a shambles. It is now incumbent upon the Scottish Government, once this single problem amongst many has been addressed (albeit in my view doing so complicates matters still further), to address the 1993 Act without delay. It is no exaggeration to say that the future of the crofting system as a legal entity depends upon it.

Eilidh I. M. Ross

[Picture Credit: Channel 4: Very messy Eton mess recipe]

Are owner-occupier crofters a sub-set of owner-occupiers?

Are owner-occupier crofters a subset of owner-occupiers?

Are they really crofters?

At the evidence taking session on the Crofting (Amendment) (Scotland) Bill on 15th May the Convenor, Rob Gibson MSP, asked whether there were any views on my argument that the Bill is not needed?

Richard Frew stated:-

Yes—we have considered Brian Inkster’s view. It is not surprising that different people reach different conclusions on the issue, as a number of people who are involved in this have done. It is clear to us that, although that issue is worth considering, section 23(10) of the 1993 Act clearly sets out that a croft is not vacant if an owner-occupier crofter is on the croft.

Unfortunately, Richard Frew ignores any exploration of section 23(12A) of the 1993 Act but there again that has been a continual failing of both the Crofting Commission and the Scottish Government throughout this process. However, Derek Flyn took up the cudgel on section 23(12A):-

When I brought the matter to the Crofting Commission’s attention, Brian Inkster’s response was pretty immediate. However, having looked very closely at the Crofters (Scotland) Act 1993, as amended, I think that he has missed one thing. The requirement for an owner-occupier to report to the Commission within a month of becoming an owner-occupier is contained in section 23(12) of the 1993 Act, but there is also section 23(12A), which seems to talk about an owner-occupier crofter as a subset of owner-occupiers.

I am sorry—I realise that the issue is complicated, and I know that most people’s eyes glaze over when I start to talk about it. The point is that owner-occupiers are not entitled to occupy their crofts, which can therefore be held to be vacant, and they can be asked to take tenants. However, owner-occupier crofters are entitled to occupy their crofts and must intimate to the Commission the fact that they are owner-occupier crofters. Instead of their being persons who have to give notice, they are persons who give notice as owner-occupiers as well as intimating the fact that they are owner-occupier crofters. I think that Brian Inkster has missed the fact that owner-occupier crofters are a subset of owner-occupiers. The matter is very complicated but, having looked at it many times since Christmas, I cannot see how one can be persuaded that an owner-occupier crofter could have a vacant croft.

The two things that are needed for decrofting are an application by a landlord or landowner and a vacant croft. Although an owner-occupier crofter could be seen as a landlord under the legislation, he certainly could not have a vacant croft.

If your eyes have not glazed over and you are still reading this then I do not believe that owner-occupier crofters are a sub-set of owner-occupiers. Indeed to the contrary an owner-occupier crofter appears to have received special status by way of the Crofting Reform (Scotland) Act 2010 setting them into a category of their own that is very distinct from owner-occupiers. You need look no further than the current controversy over problems associated with applications to decroft by owner-occupiers as opposed to by owner-occupier crofters.

Section 23(12A) is one of those deeming provisions in the 1993 Act which often seem to cause difficulties in understanding and interpretation. It quite simply deems an owner-occupier crofter to have a vacant croft for the purposes of decrofting under section 24(3) of the 1993 Act. If that is not the purpose and intent of section 23(12A) what does that section actually do and why was it introduced by the 2010 Act?

However, as Sir Crispin Agnew QC diplomatically put it:-

I think that the Bill will solve the particular problem by making it clear that the Crofting Commission can decroft owner-occupier crofts. Brian Inkster might well be right but Derek Flyn might well be right that he is wrong. Until a case has gone to the Land Court and it has made a determination, it is sensible to clarify the situation for the avoidance of doubt.

That is indeed where we are at and we shouldn’t, at the moment, whilst some redrafting of the Bill is necessary and hopefully in hand, spend much time debating whether or not the Bill was necessary. There may be a place for a post mortem after the Bill becomes an Act to see if things could have been done differently by the Crofting Commission and or the Scottish Government when the ‘problem’ first manifested itself. From that lessons may be learned for the future to hopefully avoid such a situation arising again.

[NB: This blog post forms part of Submissions (Part 3) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill. See Crofting is not a perfect world and The Crofting Law Hydra which both also form part of those Submissions (Part 3). In addition see Submissions (Part 1): A Sledge Hammer to Crack a Nut; and Submissions (Part 2): An Alternative Crofting (Amendment) (Scotland) Bill]

[Picture Credit: SUbSET via The Presidents of the United States of America]