Last month’s Journal carried an article from Registers of Scotland on the new Crofting Register. That article, however, possibly did not bring out some of the issues concerning the register that those involved in crofting law should be aware of.
RoS consider that the Crofting Register in time “will provide a definitive record of the extent of, and interests in, land within crofting tenure in Scotland”. That is not perhaps quite correct. Whilst common grazings are to be mapped, there will be no details on the register about what shares are actually held in the common grazings and by whom.
Following the decision by the Scottish Land Court on the Reference by the Crofting Commission (submitted when it was the Crofters Commission) on various issues concerning grazing shares, it is now the case that, in certain circumstances, shares in a common grazing will be treated as crofts in their own right. Surely those “crofts” should have independent entries in the Crofting Register?
RoS have sidestepped that possibility by saying that you cannot map such a croft. That, of course, is not the case as the common grazings can be mapped and the croft in question is simply a share in that common grazings which is capable of being determined and specified. I rather think that with the Land Court’s decision coming out shortly before the Crofting Register went live, it was easier for RoS to find an excuse not to include these crofts in the register than to have to redesign it.
Sublets will not feature in the new register, so a duplicate check of the existing Register of Crofts maintained by the Crofting Commission in Inverness will be necessary to ascertain whether any are in existence. I can see no good reason for this exclusion, and suggest that RoS and the Scottish Government should consider introducing that information to the register.
Most surprisingly, the first purchase of a tenanted croft is not a trigger that induces registration of that croft in the Crofting Register. This I believe was an unintentional mistake on the part of the Scottish Government. It will mean that the register simply will not be populated as quickly as it otherwise would have been. Primary legislation will be necessary to correct this.
I raised all of these issues with the Scottish Government over two years ago, providing it with ample time to address them before the introduction of the Crofting Register on 30 November 2012. I understand that the Government currently has at least some of these points under consideration and it is to be hoped that it acts on them in a positive manner before registration becomes compulsory from 30 November 2013.
Brian Inkster, Inksters Solicitors
