Who shares in the common grazings?

The Crofters Commission (before it became the Crofting Commission) lodged a reference to the Scottish Land Court for an order, under s 53 of the Crofters (Scotland) Act 1993, determining various matters of law concerning shares in common grazings.

This includes the status of the grazing right linked to a croft, where the croft land has been purchased but the grazing right has not been purchased, and the scope and effect of s 3(4) and (5) of the 1993 Act in relation to such a grazing right and in relation to the assignation of crofts and their grazing rights. A hearing on this reference is set down for 12, 13 and 14 June 2012. The decision of the court will be a significant one for crofting lawyers and will be reported in the Journal in due course. In the meantime the background to the reference can be set out.

The reference was considered necessary to clarify the law following a number of potentially contradictory decisions from the Land Court, some of which did not accord with the Commission’s understanding and administration to date of grazing share issues.

Proposed answers

The Commission took the view that it would be inappropriate for them to promote any particular answer to the questions referred to the Land Court. Accordingly, the Commission requested Inksters Solicitors to instruct Sir Crispin Agnew of Lochnaw QC, on the basis that both Inksters and counsel should act independently of the Commission, to respond to the Land Court’s request to suggest appropriate answers to the questions posed.

The suggested answers to the questions will be tested at the Land Court hearing by Iain Maclean, advocate, who has been appointed amicus curiae by the court, and also by any of the respondents who may have points to make.

General points

The following general comments have been made to the court in relation to a grazing share, in so far as these are generally relevant to the specific questions involved:

Section 3(4) of the 1993 Act is quite clear that “(a) any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others… shall be deemed to form part of the croft”. In Ross v Graesser 1962 SC 66 the Lord President recognised that a grazing right was a pertinent of the croft. The economic importance of the grazing right that is part of the croft is well known. It is therefore submitted that in construing the 1993 Act in relation to grazing rights, that this fundamental attachment of the grazing right to the croft requires to be borne in mind.

It is generally accepted that the croft and the grazings right that is part of the croft retains its status and physical integrity whether or not the croft is vacant, tenanted or owner-occupied – see s 3(1)(a) of the 1993 Act. The crofting status that attaches to the croft and to its grazing right can only be altered or removed by Land Court or by the Crofting Commission in accordance with the statutory provisions in the 1993 Act.

Land, including grazing and other rights, can either be resumed from crofting by order of the Land Court or be decrofted following an order of the Commission. Other changes to the status or integrity of a particular croft require the consent of the Commission: e.g. a grazing share can only be assigned with the consent of the Commission (s 8); a croft cannot be divided without the consent of the Commission (s 9); and this includes attempted division by other means such as partial renunciation of a tenancy (Mackay v Crofters Commission 1997 SLT (Land Ct) 4), or the letting of part of a vacant croft (s 23).

The questions put to the Land Court and the suggested answers and submissions to those questions against the background set out above are as follows:

1. Where a crofter purchases the croft with the agreement of the landlord and the conveyance includes a “parts and pertinents” clause but no specific reference to the grazing share, is the grazing share conveyed as a servitude under the parts and pertinents clause?

Yes – in Trustees for the Proprietors of Halistra Common Grazings v Lambert 1997 SLT (Land Ct) 7 the court held that when the former tenant of a croft purchased his croft, the conveyance of the croft with parts, privileges and pertinents thereof created a servitude of pasture in the common grazings in favour of the croft and the owner-occupier no longer held the right in the grazings in tenancy. The owner-occupier remained subject to the 1993 Act in relation to the common grazings under s 47(10) of the 1993 Act.

1a. Is the answer to question 1 the same, even if there is no parts and pertinents clause, in respect that the law implies a parts and pertinents clause into every disposition, or does the grazing share have to be specifically excluded in the conveyance?

Yes – the grazing share is carried as a part and pertinent of the croft. In Grant v Grant (1850) 13 D 1 at 7 the Lord Justice Clerk said that “A grant of the lands of A is as extensive as a grant of A with parts and pertinents”; see also Menzies on Conveyancing (1900 ed), 514 and 515. Whether a particular right passes as a part or pertinent in context has led to much litigation – see Halliday on Conveyancing Law and Practice (2nd ed), vol 2, para 33-38.

However, as a grazing right is defined to be part of a croft (s 3(4)), it is contended that a disposition of the croft without inclusion of a “parts and pertinents” clause will carry the grazing right whether or not there is a parts and pertinents clause, unless the grazing right is specifically excluded. It is contended that s 3(5) supports this approach, because it only relates to a crofter who has “acquired his entire croft other than any right in grazing”, which suggests that he should specifically have determined not to buy that right.

1b. If a grazing share is included as part of the purchase of croft land, can a rent still be charged in respect of that share and, if so, does this alter the status of that share?

No. It is contended that the owner-occupier having bought both the croft and the grazing right, is no longer required to pay a rent for the grazing rights, because he is the owner of the land with the servitude right of grazing and one does not pay “rent” for a servitude. The purchase price would have been fixed on the basis of the rent and the rent would have been fixed on the basis that the croft had a grazing right.

2. Where a crofter purchases croft land in terms of an order under s 13 of the Crofters (Scotland) Act 1993 and the conveyance includes a parts and pertinents clause but no specific reference to the grazing share, is the grazing share conveyed as a servitude under the parts and pertinents clause?

Yes – for the reasons given in answer 1 and having regard to the answer at 2(b) below.

2a. Is the answer to question 2 the same, even if there is no parts and pertinents clause, in respect that the law implies a parts and pertinents clause into every disposition, or does the grazing share have to be specifically excluded in the conveyance?

Yes, the grazing share passes to the owner-occupier with the purchase – for the reasons given in answer 1 above. If it is intended not to convey the grazing share then the grazing share requires to be specifically excluded, or clearly excluded by implication, on a proper construction of the conveyance.

2b. Does the definition of “croft land” in ss 12 and 13 of Crofters (Scotland) Act 1993 include a grazing right, in respect that the statutory definition of “land” in the Interpretation Act 1978 defines “land” to include “any estate, interest, easement, servitude or any right in, or over, land”?

The definition of “croft land” in s 12(3) is not clear. It suggests that the Land Court may authorise a crofter to acquire the grazing right along with the croft, but the subsequent provision in relation to common grazings may exclude that right. The definition is that “‘croft land’ includes any land being part of a croft”. The Interpretation Act 1978 provides “unless the contrary intention appears” (s 5 of 1978 Act), that “‘Land’ includes… any estate, interest, easement, servitude right in or over land” (sched 1).

A grazing right is a right over land and is a part of a croft – therefore the definition appears to authorise the Land Court to order that a crofter can buy the croft including the grazing right. However, s 12(3) provides that a crofter can buy the land as defined “other than –… (b) any land comprising any part of a common grazing, unless” certain criteria apply. A grazing right does not “comprise any part of a common grazing” because it is an incorporeal right over the whole common grazing – Ross v Graesser 1962 SC 66. Further, having regard to the criteria at (i), (ii) and (iii), these criteria suggest that “land” in s 12(3)(b), in context, is physical land.

Taking these points into consideration, along with the fact that s 12(1) only operates “failing agreement” and there is nothing to prohibit the sale of the croft along with the grazing right, and the fact that s 3(5) only operates where “a crofter has acquired his entire croft other than any such (grazing) right”, this confirms that s 12(1) gives the Land Court power to order the sale of the croft along with the grazing right.

However, s 12(3)(b) could be read as excluding the right to order that the grazing right should be sold along with the land.

2c. If a grazing share is included as part of the purchase of croft land under a purchase authorised by the Land Court, can a rent still be charged in respect of that share and, if so, does this alter the status of that share?

No. It is contended that the owner-occupier having bought both the croft and the grazing right, is no longer required to pay a rent for the grazing rights, because he is the owner of the land with the servitude right of grazing and one does not pay “rent” for a servitude. The purchase price would have been fixed on the basis of the rent and the rent would have been fixed on the basis that the croft had a grazing right.

3. Where a crofter purchases the croft land, but the grazing share is excluded from the sale and the owner of the common grazings is different from the owner of the croft land, should any apportioned rent for the grazing share be paid to the former owner (in respect that the crofter is now the owner of the croft) of the croft land to which the right pertains, or to the owner of the common grazings?

Rent should be paid to the former owner of the croft, but only until the grazing right ceases to be held in deemed tenancy and as a deemed croft and is “held otherwise”.

A grazing right is a part of the croft (s 3(4)) and therefore when the croft was originally let, the landlord let the croft, which included the grazing share, for a rent that reflected the fact that the croft had a grazing right. If the common grazings were in a different ownership, the crofter would not have been obliged to pay anything to the owner of the common grazings – the owner of the croft would have had to have had a right over the other land, probably a servitude right of grazing, which he could let along with the croft. See Crofters Commission v Arran Ltd 1996 SLCR 103 at page 124

3a. If the rent is paid to the owner of the grazings as opposed to the former owner of the croft land, does this alter the status of the grazing share?

If the answer given above is correct this question does not arise.

No – the status of the grazing share as a part of the croft to which it pertains is not altered. While the grazing share is held in deemed tenancy it is deemed to be a deemed croft, but on being “held otherwise” it reverts to being part of the croft to which it pertains for which no rent is paid.

4. Where a crofter purchases the croft land without the purchase of the grazing share in the common grazing, does the grazing right still remain a part of the croft holding as a unit, albeit held in deemed tenancy, until separated therefrom under one of the statutory procedures in the 1993 Act?

Yes. It is recognised that a croft with its grazing right as a part of the croft retains its status and physical integrity whether or not the croft is vacant, tenanted or owner occupied – see s 3(1)(a) and (4) of the 1993 Act: Castle v Philp 2009 SLCR 21. Section 3(4) provides that the grazing right is “deemed to form part of the croft”.

It is submitted that there is nothing in s 3(4) and (5) that alters the position that the grazing right remains part of the croft.

Subsection (5) provides that “where (a) a crofter has acquired his entire croft other than any such right… as is referred to in subsection (4) above… then the person referred to in paragraph (a)… shall be deemed to hold that right… in tenancy until held otherwise and that right… shall be deemed to be a croft”.

Subsection (5) refers to the right as a right which is “referred to in subsection (4) above” and the crofter is then “deemed to hold that right” in deemed tenancy. The words “that right” refer back to the right “referred to in subsection (4) above”. The right referred to in subs (4) is “any right in pasture or grazing” which “shall be deemed to form part of the croft”. The section is therefore still dealing with a “right” and not with a croft.

It is submitted, therefore, that subs (5) does not divide the grazing right from the croft, but recognises that the croft, whose integrity cannot be changed except by the Land Court or the Commission, is now held under two different titles, one of ownership and one of deemed tenancy. The underlying “croft” is unaffected.

It is submitted that the deeming provisions in s 3(5) were required, (i) because a grazing right, which is an incorporeal right, cannot be held in tenancy when separated from the tenancy – Ross v Graesser 1962 SC 66 – and therefore to continue the relationship of landlord and tenant a deemed tenancy was necessary; and (ii) the deemed croft provision was required to keep the grazing right subject to the Act, otherwise it might have become a grazing right to which s 47(10) of the 1993 Act applied.

It cannot have been the intention of Parliament to set about creating new independent crofts by way of s 3(5), when the Crofting Reform (Scotland) Act 1976, which introduced these provisions, also repealed s 2(1) of the Crofters (Scotland) Act 1961 which was the provision that allowed for the creation of new crofts with the consent of the Secretary of State. Further, it is unlikely that this was the intention in a situation where the creation of a new croft would depend on whether or not the crofter buys his grazing right. It is notable that the section describes the subject as a “deemed croft” – had the intention been to create a croft, Parliament could have provided that “that right… shall become a croft”, but the use of “deemed” suggests that it is deemed to be a croft for some purposes, but it is in fact not a croft per se.

This is particularly so where the “deemed croft” only continues to exist until the grazing right is “held otherwise”. It cannot have been the intention of Parliament that there should be a new croft created for a period of time, the existence of which could be terminated on a change of circumstances. The various changes of circumstances that could lead to a grazing right being “held otherwise” are considered in answer 12 below.

It is accepted that Brown v Jackson SLC 100/10 holds otherwise. The issue, as outlined above, was not argued before the divisional court. The problem identified in Brown v Jackson could have been resolved by the Commission, under the law applicable before amendment by the Crofters (Scotland) Act 2010, taking steps to require the owner-occupier to let the croft because the whole croft (i.e. the land and grazing right) was not being adequately worked together.

The approach in Brown v Jackson is also difficult to reconcile with the situation where there is an individual grazing right not shared with others in a common grazing (Macdonald v Prentice’s Trs 1993 SLT (Land Ct) 60). With respect to an individual right of grazing, such a right cannot be apportioned because apportionment applies only to common grazings (s 52(4) and Macdonald v Prentice’s Trs at 65).

4a. Is it competent for an owner occupier, holding a grazing right in deemed tenancy, to assign that grazing right under s 8 to a person who holds no other croft land?

No. Section 8 permits the assignation of a croft, now only with the consent of the Commission. Section 8(7) provides that “Any reference in this section to a croft shall include a reference to a part of a croft, being a part consisting of any right in pasture or grazing land deemed by virtue of section 3(4) of this Act to form part of a croft”. It is therefore clear that a grazing right may be assigned separately from the croft of which it was then a part.

However, as s 3(4)(a) refers to “any right in pasture or grazing land” and deems it to form part of the croft, the grazing right can only be assigned to a crofter or the owner-occupier of a croft, because that grazing right cannot exist independently from a croft and has to be part of a croft. On assignation it becomes part of the croft to which it has been assigned.

4b. Or where a grazing right is assigned under s 8, must it be assigned to a person holding croft land either as a tenant or owner-occupier to attach that grazing share to become part of that croft land?

Yes – for the reasons given in answer a. above

5. In the circumstances described in question 4, where the owner-occupier transfers the croft land to another person either by sale or by the grant of a tenancy of the croft land,

5a. does the grazing right, held in deemed tenancy, transfer automatically with that transfer?

Yes – for the reasons given above it is submitted that the grazing right always remained part of the underlying entity of the croft. It therefore transferred automatically with the transfer of the croft, whether that transfer was by the grant of a lease or by the sale of the land: Castle v Philp 2009 SLCR 21.

5b. Or does the grazing right, held in deemed tenancy, require to be transferred to the new occupier of the croft land separately by way of assignation?

No – for the reasons given at answer a. above.

6. Where the tenant of a croft assigns the croft land to another person,

6a. does the grazing right transfer automatically with that transfer?

Yes – because the grazing right is part of the croft for the reasons given above.

6b. Or does the grazing right require to be transferred to the new tenant separately by way of assignation?

No – because the grazing right is part of the croft and transfers automatically on the transfer of the croft.

7. Is it competent for a crofter who has bought his croft land, but not the grazing share in the common grazings,

7a. to renounce the tenancy of that share under s 7 without the consent of the Crofters Commission?

No – the renunciation of the grazing share would be a partial renunciation of the lease of part of the croft. It would in effect be an attempt to divide the entity of the croft in that it would be an attempt to separate the grazing right from the croft. Therefore the consent of the Commission would be required – Mackay v Crofters Commission 1997 SLT (Land Ct) 4.

b. Or is it competent to make such a renunciation with the consent of the Crofters Commission?

No – it would not be competent to make such a renunciation, because it would have the effect of leaving the grazing right as an incorporeal right unconnected with a croft and that would be contrary to the intent of the Act. If the intention was that the grazing right (deemed croft) should be transferred to another crofter, then that could be accomplished by an assignation under s 8. If the intention was that the grazing share should revert to the landlord to be exercised by him under s 47(10), the landlord should probably seek to resume the grazing right.

8. If the answer to question 7 is in the affirmative:

For the reasons given in answer 7, it is unnecessary to answer this question, but in the event that it is held that the answer to question 7 should be in the affirmative, then the following submission is made.

8a. does that share then revert to the landlord as a landlord’s grazing right removed from crofting control, but subject to s 47(10)?

No – it is submitted that the grazing right would still be subject to the crofting Acts (not just s 47(10)) and would be a vacant share.

b. Or does the share become a vacant “deemed croft” and available for re-letting as a separate croft under s 23?

No – while the grazing right might be a deemed croft it is still a grazing right and it can only continue to be exercised as a part of a croft. Therefore it is only available for re-letting to a crofter or owner-occupier of other croft land.

9. Is it competent for a person to hold a grazing right (not a grazing right subject to s 3(5)) alone in tenancy?

No – a grazing right, as envisaged under the 1993 Act, can only exist in relation to other land, either as giving a s 47(10) right to share in the grazings along with crofters or as a grazing right that is part of an existing croft.

In particular:

9a. Is it competent for a crofter to assign a grazing right under s 8 to a person who holds no other croft land?

No – for the reasons given above.

9b. Or where a grazing right is assigned under s 8, must it be assigned to a person holding croft land either as a tenant or owner-occupier to attach that grazing share to become part of that croft land?

Yes – for the reasons given above.

9c. Is it competent for a grazing right alone to be let to a person who holds no other croft land under s 23, where s 23(11) recognises that the section applies to “part of a croft” and s 3(4) provides that a right of grazing is “deemed to form part of the croft”?

No. While s 23(11) recognises that ss 23 and 24 “shall have effect in relation to a part of a croft as they have in relation to a croft”, it is submitted that “part” means part of the land. Ross v Graesser 1962 SC 66 confirms that a grazing right cannot be “let” under a lease and therefore s 23(11) has to be read in the context of the law – as a grazing right cannot be let, therefore the grazing right as “part of the croft” cannot be let under s 23.

It is also of note that s 8(7) is the only section in the Act specifically to provide that a “part of a croft” includes the “part consisting of any right in pasture or grazing”. This would have been unnecessary if the Act intended that where “part of a croft” was used, it included the grazing right, which would be let separately or divided from the croft. This supports the proposition that “part” in s 23(11) does not refer to a grazing right as a part of the croft which can be let separately. 

10. Where a crofter has purchased the croft land, but not the grazing right, and subsequently obtains the Crofters Commission consent to decroft all the croft land:

10a. Is the grazing right decrofted along with the croft land?

Yes – if the croft is decrofted, then it is submitted that all the rights that pertain to that land, including the grazing right, are decrofted along with the land. The grazing right cannot exist separately from the land and therefore it must be decrofted along with the land.

10a(i). If so, does the right revert to the landlord as a grazing right not subject to crofting, but subject to s 47(10)?

No – the grazing right is attached to the land of the former croft. It cannot revert to the former owner. On decrofting the right comes to be “held otherwise” per s 3(5) and is held as part of the rights of the land that has been de-crofted.

10a(ii). Or does the right remain with the former crofter who has decrofted the land as a right not subject to crofting, but subject to s 47(10)?

Yes – it becomes a right pertaining to the land that has been decrofted as a servitude right.

10b. Does the grazing right remain tenanted by the crofter who decrofted the croft land as a deemed croft available to be dealt with as a croft?

No – for the reasons already given it cannot have been the intention of Parliament that the effect of s 5(4) should be to create new crofts, but only in certain defined circumstances and which would exist only for a period of time “until held otherwise”.

11. Where a crofter has purchased the croft land and grazing right as a servitude and subsequently obtains the Crofters Commission consent to decroft all the croft land:

11a. Does that decrofting also decroft the servitude right of grazing?

Yes – if the croft is decrofted then all rights, including the grazing right pertaining to the croft, will also be decrofted.

11b. If not, does the servitude remain as a grazing right subject to the Act, which can then be assigned to another croft?

No – the servitude right is connected to the land and after decrofting the right will be exercised as a grazing right subject to s 47(10).

12. In what circumstances does a grazing right deemed to be held in tenancy as a deemed croft come to be “held otherwise”?

A number of different circumstances could be envisaged, including where the owner-occupier subsequently buys the grazing right, which then attaches to the croft as a servitude; the right is assigned to another crofter where it become part of that croft; the grazing right is apportioned and bought; the owner-occupied croft is let when the croft and the grazing right are then held in tenancy by the new crofter.

In particular:

12a. If a crofter assigns a grazing right held in deemed tenancy to the tenant of another croft, does that “deemed croft” come to be “held otherwise” as part of the croft to which it has been assigned and so cease to be a “deemed croft”?

Yes – where the grazing right is assigned to another croft, the grazing right becomes part of the croft to which it was assigned and therefore is “held otherwise”.

12b. If a owner-occupier lets his croft land along with the grazing right (whether that right goes automatically with the let or is subsequently assigned), does that right then form part of the croft and cease to be a deemed croft?

Yes – the owner-occupier will have occupied the croft land as owner-occupier and the grazing right as deemed tenant, but on a re-letting of the croft, the new tenant (crofter) would be the tenant of the croft, part of which was the grazing right. The owner-occupier’s “deemed croft” would now be “held otherwise” by the new tenant of the croft as part of the tenancy of the croft.

13. Where a landlord holds non-croft shares in a common grazing, subject to s 47(10), is it competent for the landlord:

13a. to make over all or part of that share to a crofter so as to enlarge the grazing share attaching to the croft and thus bring that part of the share under the Act?

No. Section 4 of the 1993 Act provides for the enlargement of crofts. Section 4(1) provides that “Where the owner of any land which is not itself a croft and which does not form part of a croft agrees to grant a tenant of such land to a crofter, then” in the prescribed circumstances the land can become part of the croft. Section 4(1) cannot apply to a grazing right, because it is not competent to grant the lease of a grazing right – Ross v Graesser 1962 SC 66. It is accepted that if there is a grazing right attached to the land which is to be let, then that grazing right would also be transferred along with the land let to enlarge the grazing rights of the croft. However, s 4(1) does not allow for a grazing right to be let to enlarge a croft.

13b. Or to let all or part of that share to a person who has no croft land, so as to bring the share fully under the Act?

No – the owner could allow the share to be used by anyone by way of licence or by way of attachment to non-croft land, but the grazing right would then be used subject to s 47(10), but not fully under the 1993 Act.