Crofting briefing

The Crofting Reform (Scotland) Act 2010 (Commencement No 2, Transitory, Transitional and Saving Provisions) Order 2011 brings into force on two appointed days (1 October 2011 and 1 April 2012) those parts of the Crofting Reform (Scotland) Act 2010 which did not come into force on 1 July 2011, with the important exception of the new Crofting Register.

Changes include the reconstitution of the Crofters Commission as the Crofting Commission (which will contain elected members and will be renamed on 1 April 2012), new duties and restrictions to be imposed on croft tenants and owner-occupier crofters alike, and new rules for determining resumption applications and decrofting applications. From 1 April 2012 annual notices to be issued to all occupiers of crofts by the Crofting Commission, and every five years, grazings committee reports are to be submitted to the Commission, both including information on the condition of crofts.

Readers will be aware from previous briefings on the new Act, that those provisions (i) limiting the crofter’s ability on purchase of croft land to nominate a disponee, and (ii) extending the clawback period to 10 years, came into force on 1 July of this year.

From a practitioner’s standpoint, the most important provisions which will be coming into effect on 1 October concern the division of croft land, the new duties now placed on owner-occupier crofters, and new rules for the Crofters Commission and the Land Court when dealing with decrofting applications and resumption applications respectively. (This briefing does not consider the changes to testate and intestate succession to croft land, which the new Act also brought into force on 1 October. These will be dealt with in a separate briefing.)

Division of croft land

From 1 October, any division of owner-occupied croft land will require the consent of the Crofters Commission. It is not known how closely the Crofters Commission will scrutinise requests for consent to the division of croft land, but the Commission’s consent should not be assumed as a mere formality. In terms of s 34 of the Act, any transfer of ownership which does not have the Commission’s consent is “null and void”. This appears to apply to the conveyance itself. Further, the Commission may declare the original croft to be vacant. A saving provision in the commencement order provides that the Commission’s consent to such transfers is not required where missives for that transfer were concluded by 1 October.

The practical effects of this section will catch out the unwary conveyancer. Practitioners will have to adjust their missives and carry out additional investigations regarding the extent of the croft holding. Due to the amalgamation and division of croft land over many decades, this is by no means a straightforward exercise. It is not known if the Land Register will accept an application for registration of croft land without a formal consent from the Crofters Commission (or a declaration from the submitting agent that the croft land does not comprise a divided croft), but the effect of the legislation is that a transfer of land which has been registered can be null and void.

Duties of owner-occupiers

The new provisions concerning duties of owner-occupier crofters address their previously anomalous position. The owner-occupier now has essentially the same duties as a croft tenant (i) to reside on, or within 32 kilometres of, the croft; (ii) not to misuse or neglect the croft; (iii) to cultivate the croft or put it to a purposeful use; and (iv) to keep the croft in a fit state for cultivation.

Under s 37 of the Act, the Commission has new powers and procedures to enforce these duties. The Commission must first issue the crofter or owner-occupier a notice of suspected breach of duty, and then give the crofter or owner-occupier the opportunity to provide an undertaking “subject to such conditions as [the Commission] consider appropriate”. If the undertaking is not provided or is breached, the Commission must then initiate the tenancy termination procedure in the case of a tenant crofter and the letting procedure for an owner-occupier crofter.

New short leases

Where the Commission has approved the sublet of a tenanted croft or a short lease of an owner-occupied croft, the crofter or owner-occupier will be deemed to comply with his obligations provided that his subtenant or tenant complies. The Act introduces a new status of tenant where an owner-occupied croft is let. The tenant under such a lease does not become a crofter and does not acquire any rights under the agricultural holdings legislation. Such leases may be entered into, with the Commission’s consent, for a period not exceeding 10 years. They will provide owner-occupiers who are unable to comply with the new duties with a useful opportunity to let their crofts to third parties, without such parties acquiring long-term security or the tenant crofter’s right to buy.

Resumption applications and decrofting applications

Sections 43 and 44 of the Act redefine the criteria which the Land Court and the Commission must use in determining resumption applications and decrofting applications. Importantly, even where planning permission for a development has been issued by the planning authority, the Land Court or the Commission as appropriate are obliged “to take into account the effect such development would have on the croft, the estate and the crofting community in the locality of the croft”. Readers may be aware that the Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2011 provide that the Crofters Commission is already a statutory consultee with regard to planning applications in respect of croft land.