Common grazing shares – where are we now?

Last year the Crofters Commission (before it became the Crofting Commission) made 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. In a previous article (Journal, June 2012) I highlighted the detail behind the reference.

In August the court issued its decision (SLC/121/11) and the Crofting Commission subsequently decided not to appeal that decision. The present article reviews the rulings given.

Parts and pertinents

The court held that 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, the grazing share is not conveyed as a servitude under the parts and pertinents clause.

This differs from the decision in Trustees for the Proprietors of Halistra Common Grazings v Lambert 1997 SLT (Land Ct) 7, where the court held that when the former tenant of a croft purchased his croft, the conveyance of the croft with parts, privileges and pertinents 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 court, this time around, stated that Halistra “was a decision in special circumstances where there was no doubt about the actual intentions of the parties”. It was “not persuaded that grazing shares will normally be carried without express reference although that may depend on the precise terms of the disposition”.

The court does, however, go on to state that it accepts that if a conveyance is expressed in terms of “subjects tenanted with pertinents”, this would indicate an intention to include the grazing share. That is not an exact phrase I have ever seen in a disposition of a croft. What such a disposition is likely to describe is the croft as currently tenanted by the disponee together with the parts, privileges and pertinents. But is that not, in effect, the same thing? If so, does the court not perhaps contradict itself?

From a crofting conveyancer’s point of view the safest course of action is to either expressly include or exclude the share, as the case may be, when drafting the disposition.

Rent

The court held that if a grazing share is included as part of the purchase of croft land, a rent cannot still be charged in respect of that share. Conversely, if the grazing share is excluded from the croft purchase a rent can be charged in respect of that share.

The court also considered the question to whom you pay the rent for a grazing share when a rent is exigible. It held that the crofter’s right is derived from his original landlord and payment for the grazing share should continue to be made to that landlord. In so doing, it observed that “there is no basis for payment to the landowner whose land is burdened by the rights for which payment is being made”.

Does “croft land” include a grazing right?

The court was asked whether the definition of “croft land” in ss 12 and 13 of the 1993 Act included 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”. However, the court declined to answer this question on the basis that it could not arise from any live issue that the Crofting Commission had to determine. So that is a question left over for another day.

The deemed croft

The court held that where a crofter purchases croft land without the purchase of the grazing share in the common grazing, that grazing right does not remain a part of the croft holding as a unit but is deemed to be “a croft” in its own right. As such it can be assigned separately from any transaction involving the croft to which it originally related, and indeed to a person who holds no crofts. Thus on a sale of an owner occupied croft without an owned grazing right, the purchaser would need to ensure an assignation of a tenanted grazing right if they wanted to keep the two together.

This part of the decision has no doubt caused a bit of head scratching at Registers of Scotland over what to do about a deemed croft in the new Crofting Register. They have taken the view that you cannot map a deemed croft and therefore it cannot be entered on the Crofting Register. My view is that of course you can map it. The deemed croft is a specified share in the common grazings. The common grazings can be mapped, as indeed there is provision for in the Crofting Register. It is no different from specifying a pro indiviso share of subjects in the Land Register.

Croft assignations

The court held that where the tenant of a croft assigns croft land to another person, the grazing right transfers automatically with that transfer. It did, however, observe that this was a misleading question, in that a tenant does not assign “croft land”. He or she assigns the tenancy of all or part of the croft.

Renunciations

The court was asked whether it was competent for a crofter who has bought his croft land, but not the grazing share in the common grazings, to renounce the tenancy of that share under s 7 of the 1993 Act without the consent of the Crofting Commission. The court said that it was. The share is held as a separate croft (a deemed croft) in terms of s 3(5) of the 1993 Act and can be treated as such. The court also observed that renouncing a tenancy simply means that the tenancy becomes vacant. The Commission can compel it to be relet. The share does not revert to the landlord, and renunciation does not take the share out of crofting control.

Decrofting

The court held that where a crofter has purchased croft land, but not the grazing right, and subsequently obtains Crofting Commission consent to decroft all the croft land, the grazing right is not decrofted along with the croft land. The grazing right remains tenanted by the crofter who decrofted the croft land, as a deemed croft available to be dealt with as a croft.

If, however, the grazing right has been purchased, then a decrofting of the entire croft would include the grazing share. The court did observe, in this context, that this may be a matter of intention and the Commission in granting a decrofting direction should make its intention clear.

“Held otherwise”

The court was asked in what circumstances does a grazing right deemed to be held in tenancy as a deemed croft, come to be “held otherwise”? The court’s response was that this question was essentially academic. However, it thought that the reference to holding in tenancy in s 3(5) of the 1993 Act appears to be tied to “that person”, and the natural reference to the land being “held otherwise” relates to that person. A purchase would be an obvious way for such a person to change the nature of their relationship with the land.

The court also observed that if the original crofter assigned the deemed croft to another tenant, he would no longer have any relationship with it. But the right would be held in tenancy by another tenant in the same way as the first.

The court was asked, in particular, 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”? The court said no. It may be held otherwise than by the first tenant but that does not change the status of the deemed croft.

The court was also asked, in particular, if an 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? The answer to this one was yes. The court did, however, observe that this was not entirely straightforward and would perhaps be dependent upon intention, best addressed in the context of an identified set of circumstances.

Non-croft shares

Where a landlord holds non-croft shares in a common grazing, subject to s 47(10) of the 1993 Act, the court held that it is competent for the landlord 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 1993 Act. But, the court pointed out, this is a matter of intention and it is not clear what particular actings or procedures would be sufficient to bring this about.

The court also held that a landlord can let decrofted shares as he pleases. If it is let to someone who does not hold croft land, there is no reason for it to fall fully under the 1993 Act although, there may be circumstances in which it will fall under s 47(10).

Conclusion

The Commission set out to obtain clarity on a number of issues concerning grazing shares and on the whole achieved that. However, one or two issues (in particular the question of parts and pertinents) may now be less clear than they once were. I don’t think this will be the last time the Land Court will need to tax itself on questions concerning grazing shares.