Crofting law reform proposals: consultation analysis

5. Strengthening Residency and Land Use

The consultation paper sets out that since its inception in the late nineteenth century, the crofting system has been based on a requirement for each crofter to reside on or near their croft, not to neglect or misuse their land, and to put it to cultivation or another useful purpose. These duties are enforced by the Crofting Commission, following a four stage process. However, the process is considered unnecessarily complex and lengthy.

This chapter covers multiple proposals which aim to clarify crofters’ roles and responsibilities, ensure new owner-occupiers are ‘natural persons’, and to streamline Crofting Commission processes such as the consideration of breaches of duty and moving from an annual to up to a three-yearly cycle for the Crofting Census.

Breaches and the enforcement of duties

The Scottish Government has proposed to combine the first two stages of enforcing duties to halve the time the process will take, in recognition that most crofters who respond to a breach of duty do not dispute that they are in breach. It is proposed that, in future, the Crofting Commission should be able to start the process by writing one letter to the crofter, inviting them either to say they do not agree they are in breach of duty, or to offer a resolution or an undertaking if they agree that they are. The Commission’s subsequent action would still be subject to appeal to the Scottish Land Court. In addition, there is a proposal to amend the legislation where it appears to compel the Commission to continue with enforcement action at certain stages, even when a solution has been found.

One in five respondents left an open comment in response to Q4.1. In line with the high levels of agreement recorded in the closed question, the majority of those who commented expressed support for the proposals. The most common themes related to agreement that speed, efficiency and strong enforcement were necessary. Less commonly mentioned themes included that compressing the timescale could reduce safeguards for crofters or could reduce scrutiny.

Agreement that efficiency is needed

Some endorsed the Scottish Government view that speed and efficiency are important, the joint most common theme. Views included that this should be a focus to help improve the system and that such cases should be investigated as quickly as possible.

“We welcome changes intended to improve the efficiency of the investigation process, noting that the current process seems unnecessarily cumbersome.” - Law Society of Scotland

Enhanced enforcement is needed

An equally popular view was that more effective enforcement of duties is required. Examples were cited where current enforcement was perceived as inadequate, leading respondents to call for a more stringent approach to enforcement.

Additional considerations

Some respondents raised other aspects to consider. The need for good communication with the crofter was highlighted, for example providing crofters with information on the process, and allowing them sufficient time to respond. One respondent preferred to retain the existing timescales and one felt the landlord should be the decision-maker rather than the Crofting Commission.

A few commented on the residency rule, with one calling for 32km to not be as the crow flies but of travel by road or sea; another called for it to be scrapped. One questioned whether the requirement to reside within a certain area breached the Human Rights Act.

Definition of Crofters’ Duties and Statutory Conditions

The consultation paper notes the impracticalities of expecting a crofter to always be the person to undertake crofting activities. It describes a long recognition that others may assist a crofter to fulfil their duties. The Scottish Government therefore propose to clarify in legislation that the duty on a crofter is to ensure the croft is used and maintained, rather than do it themselves necessarily. As shown in the following table, over seven in ten of those who answered this question indicated support for this proposal.

A tenant crofter has the right to use the croft for anything which comes under the definition of ‘cultivation’. However, if they wish to use it for any other purposeful use, they can only do so with the consent of the landlord or Crofting Commission. The Scottish Government plan to increase the list of standard uses of a croft, including any activity that is environmentally beneficial. Three fifths of those who answered supported this proposal.

Every new owner-occupier crofter must be a natural person

Each tenant crofter must be a ‘natural person’, in other words, a human being, rather than, for example a limited company or charity. However, there is no such control over owner-occupied crofts, meaning these crofts can be run by organisations. The law is not clear how crofter duties apply in situations where crofts are run by such entities.

To ensure consistency across tenures and increase clarity, the Scottish Government proposes to change the law so that any legal person (not a natural person) that acquires ownership of a croft should be required to let the croft to a tenant crofter. It is also proposed that crofts owned at present by non-natural persons must be handed to a natural person in any future transfers.

Over four fifths of those answering agreed with this proposal. Open comments were left by around a third of respondents and, in line with the support recorded, the most common theme was that crofts should only be held by natural persons. Comments on owner-occupier status, followed by other considerations, were the next most common themes.

Crofts should be held by natural persons

Many left open comments expressing support for crofts being held only by a natural person. Respondents argued it was important to protect crofts from companies who did not value crofting principles or had no presence in or commitment to the area. One organisation felt there should be a limit to how many natural persons could become owner-occupiers of a single croft, and that this should align with the joint tenancy proposal.

"We understand the need to maintain the integrity of the crofting tradition and the thinking behind limiting ownership to natural persons. However, this flags up the significant disparity between the rights and responsibilities of crofters versus large landowners. Significant areas of Scotland are owned by limited companies and other complex ownership structures, which the Scottish Government has highlighted as being a potential problem and the need for further land reform. However, we do not support watering down crofting legislation to align with the rights of large absentee landowners, and the power available to large landowners, often companies, should be addressed in Land Reform legislation. Overall, we do agree with this proposal in the hope it will protect and sustain rural communities and ensure that crofted land is managed in line with crofter duties." – Woodland Trust Scotland

Others should have owner occupier rights too

Several respondents left open comments suggesting non-natural persons could have owner occupier rights. These respondents felt this should be feasible, particularly if crofting duties were being met, with safeguards in place to prevent solely commercial ventures. A few felt a nominated person or business representative could take the place of a tenant crofter, who would have responsibility for ensuring the duties were upheld. Singular comments from individuals included that the proposal could inhibit funding opportunities^[8]; that it should be possible to transfer ownership to a natural person as an option rather than being required to find a tenant; and that the change should apply retrospectively to companies and charities that have owner occupier status.

“No. The focus should be on ensuring crofts are cultivated as sustainable and restorative farmlands. If that means under a company then that would be fine. This also may allow a group of young people looking to farm and enter crofting to pool resources and form companies together to do so. As long as the requirements to farm are clear and the Commission can enforce penalties (to both the company and its shareholders) or changes there should not be an issue.” - Individual

Factors to consider in relation to natural persons

Some commented on aspects they felt should be adopted or considered, including:

• The need to be consistent with the broader crofting system, for instance, when considering the residence rule and carrying out other duties.
• How a legal person’s interest would be dealt with in the event of its insolvency, liquidation or dissolution, for example.
• Allowing automatic decrofting of small crofts less than 3ha to help speed up the process of transferring ownership, as the current process is perceived as “long and laborious”.

Four fifths of those who answered agreed with this proposal.

Annual Notices (Crofting Census)

The Crofting Commission has a duty to give notice to each crofter to make a declaration regarding their croft each year through an annual Crofting Census. Acknowledging crofter feedback that much information is the same each year, and to streamline the process and improve efficiency within the Crofting Commission, it is proposed to reduce the Census to at least once every three years. As shown in the following table, three quarters of those who answered agreed with this proposal.

Enforcement of duties when a croft is sublet

A crofter may sublet their croft with the consent of the Crofting Commission. However, legislation currently prevents the Commission from taking enforcement action to terminate the tenancy where the Commission has consented to the sublet. The Scottish Government propose that the Commission should be entitled to withdraw its consent for the sublet if it considers that the subtenant is not complying with the duties of residency, cultivation and maintenance of the croft. In some of these cases it may choose to terminate the sublet as part of regulatory activity. As shown in the table below, the vast majority agreed with the proposal.