Crofting law reform proposals 2024: consultation

4. Strengthening Residency and Land Use

Breaches and the enforcement of duties

A cornerstone of the crofting system, since its first legislation in 1886, has been the requirement for each crofter to be resident on or near their croft, not to neglect or misuse their land, and to put it to cultivation or another purposeful use. The health of crofting communities, and of the broader rural and island communities of which they are part, depends on crofters fulfilling these duties.

Enforcement of these duties by crofters is a key responsibility of the Crofting Commission, as set out in the legislation. The processes (almost identical between those for tenant crofters and for owner-occupier crofters) for investigating and enforcing adherence to the duties are set out in detail in the 1993 Act^[14]. The processes are designed to give any crofter, whom the Commission consider may be in breach, ample opportunity to rectify the position by complying with the duties themselves, or by transferring the croft, temporarily or permanently, to another crofter. However the process is lengthy, and in the interests of swifter and therefore more effective enforcement of duties, the Scottish Government proposes to streamline it.

Legislation sets out the actions the Crofting Commission must take if it is notified of, or otherwise becomes aware of, a suspected breach of duty by a tenant or owner-occupier crofter.

The current sequence is:

1. The Commission writes to the crofter to inform them of a suspected breach of duty and gives them 28 days to respond.

2. If, having considered any response, the Commission decides there is a breach, it writes to the crofter again inviting them to give an undertaking to resolve the breach and to confirm this with the Commission within 28 days.

3. The Commission will then consider any undertaking that is given and may accept it, with or without setting conditions.

4. If an undertaking is not provided, or if it is provided but not fulfilled, the Commission may proceed to terminate a croft tenancy or to require an owner-occupier crofter to let the croft.

At various stages in the process the crofter can appeal to the Scottish Land Court if they do not agree with the decision the Crofting Commission has taken, and the Commission is not able to proceed to the next stage until the 42-day appeal period has expired.

Therefore, if stages 1 to 3 run to their full timetable, even if no appeals are actually made, the basic stages extend for over 6 months before any decisions are made on the way forward. This is not conducive to efficient resolution of breaches.

It is right that this process must be thorough and careful, respecting the rights of the crofter in suspected breach of duty, as well as of the wider community. However, we believe it can be shortened, without any loss of fairness or thoroughness, by combining the first two stages above.

In future, the Crofting Commission should be able to start the process by writing one letter to the crofter, inviting them to say if 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, in either case, would be subject to appeal to the Scottish Land Court.

We know from the data that most crofters responding to a suspected breach of duty do not dispute that they are in breach. Therefore, the changes proposed will allow the Crofting Commission to accelerate these types of cases to a conclusion, saving the Commission and crofter nearly 3 months of processing time.

Question 4.1

Do you agree that the first two stages in the current process for investigating suspected breaches of duty should be combined, in order to streamline the overall process? [Yes/No/Don’t Know - Comment]

In addition, we propose to amend the legislation^[15] where it appears to compel the Crofting Commission to continue with enforcement action at certain stages, even when a solution to the breach has already been found.

See also question 2.3 in this consultation regarding who should be entitled to report a suspected breach of duty.

Definition of Crofters’ Duties and Statutory Conditions

A crofter’s duties are a cornerstone of the crofting system, and we propose to retain the fundamentals of the duties but make changes to the way they are defined.

The first duty of a crofter is to be ordinarily resident within 32 km of the croft.

Secondly, a crofter has duties in relation to how they care for and use their croft. The duties with regard to the land are inter-related, but between them cover two distinct aspects:

• Using the croft, through cultivation or through another purposeful use; and
• Looking after the croft and keeping it fit for use, maintaining it and not misusing or neglecting it. This may include maintaining its drainage and controlling any vermin and weeds, but what “keeping it fit for use” means can vary for each croft according to the uses that are being made of it by the current crofter.

We propose to retain these duties largely unchanged, albeit with the definitions brought up to date, and simplified where possible. Likewise, the Statutory Conditions, which sit separate from the crofter duties and set out a tenant crofter’s additional responsibilities towards their landlord, will be modernised but largely unchanged.

However, with the help of the Crofting Bill Group, we will consider whether complaints about breaches of the Statutory Conditions should in future be decided by the Crofting Commission, with appeal to the Scottish Land Court, rather than going direct to the Land Court in every case.

The duty to be ordinarily resident is a personal duty, which the crofter must meet unless they have consent to be absent or have sublet the croft. It has however, long been recognised that the responsibility to maintain and use the croft can be met if the crofter arranges for someone else to carry out the necessary action. It is common for this to be done by the crofter’s spouse, by other relatives, by a neighbouring crofter or a non-crofter, or by any combination of such persons. This is considered reasonable given, for example, that the crofter’s other commitments or health may make personal work on the croft difficult for them.

We therefore propose that the legislation should in future recognise that the crofter’s responsibility is to ensure the croft is used and is maintained, rather than that they themselves must personally do this.^[16]

Question 4.2

Do you agree that a crofter should not have to use or maintain their croft themselves, so long as they arrange for all the necessary and appropriate work to be carried out on their behalf? [Yes/No/Don’t Know]

We propose one more significant change to the land use duties, which concerns the uses that can be made of a croft by a tenant crofter. A tenant crofter has the right to use the croft for anything which comes under the definition of “cultivation” (which includes horticulture, the keeping or breeding of livestock, poultry or bees, the growing of fruit or vegetables, or use of the land as woodlands). However, if a tenant crofter wishes to use the croft for any other “purposeful use”, they can only do so with the consent of either the landlord or the Crofting Commission.

We propose to broaden the list of “standard uses” of the croft which a tenant crofter can implement without requiring consent. In addition to cultivation as currently defined, this should include any activity that is environmentally beneficial, such as habitat restoration.

Question 4.3

Do you agree that a tenant crofter should not have to obtain consent before making use of the croft for an activity that is environmentally beneficial? [Yes/No/Don’t Know]

Every new owner-occupier crofter must be a natural person

It has long been the case that every tenant crofter must be a “natural person”, the legal term for a human being, rather than, for example, a limited company or a charity. The duties of a crofter – to live within 32 km of the croft and to use and look after the land – make sense when they are duties for natural persons.

However, there has been no such control over who can own an owner-occupied croft, and be a crofter in that sense. There are some owner-occupied crofts that are held by limited companies, and the law is not clear on what the duties mean in such a case.

An owner-occupier crofter is both the owner of the croft land, and subject to the crofting duties described above including the duty to live within 32 km of the croft. This only makes sense if owner-occupier crofters, like tenant crofters, are natural persons.

We therefore propose to change the Act 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.

We do not at this time propose to apply this change to companies and charities that already have owner-occupier crofter status, although the Crofting Commission will seek to ensure that such owner-occupier crofters fulfil the crofting duties in a meaningful way. And, on the next transfer of that croft, the proposal will require that it can only be transferred to one or more people (natural persons).

Question 4.4

Do you agree that only natural persons should be able to become owner-occupier crofters? [Yes/No/Don’t Know – comment]

Question 4.5

Do you agree that where a company or charity is currently an owner-occupier crofter, the croft should require to be transferred to one or more natural persons, the next time it changes hands? [Yes/No/Don’t Know ]

Annual Notices (Crofting Census)

The Crofting Commission has a duty to give notice to each crofter to make an annual declaration regarding their croft through the Annual Notice, otherwise known as the Crofting Census. Crofters are asked every year to give any updates to their croft information and also to provide information on whether they are complying with their duties. This process helps to keep the Commission’s information accurate and up to date, and also forms the basis for a key element of its action to ensure breaches of crofting duties are remedied.

It is considered essential to conduct a census immediately prior to each 5-yearly crofting election, to help ensure the list of eligible voters is as accurate as possible.

However, many crofters have made it clear that there is a frustration at having to repeatedly send the same information every year. In addition, the Crofting Commission has noted that gathering and processing annual census information is a burden on their resources, which might be more usefully re-directed to supplement the carrying out of its regulatory duties and pursuing non-returners and taking action on those that are in breach. Although there is a strong connection between the Annual Notice and crofting duty compliance, we consider that the proposal to amend the Annual Notice to at least once every three years – along with further digitalisation of the census – will provide the Commission with the flexibility to carry-out the exercise as often as it is deemed necessary, whilst ensuring that the Commission still has reliable up-to-date information.

Question 4.6

Do you agree that we amend the Annual Notice requirement to at least once every three years, with the Crofting Commission entitled to choose how often and which years, subject to that constraint? [Yes/No/Don’t Know]

Enforcement of duties when a croft is sublet

A crofter may sublet their croft with the consent of the Crofting Commission^[17].

Where a crofter has sublet their croft, they are deemed to comply with the residency and land use duties (other than not to misuse) if the sub-tenant complies with the duties. Many crofters who are not able to fulfil the duties for a period of time, use sublets as a way of ensuring that the croft is occupied and used in the meantime. However, if the subtenant is themselves not ordinarily resident within 32 km of the croft, or not cultivating and maintaining the croft, it is not clear what remedy is available to the Crofting Commission. Legislation^[18] currently prevents the Commission from taking enforcement action to terminate the tenancy where the Commission has consented to the sublet.

Sometimes in these circumstances the sublet may be terminated by the crofter, but if this does not happen, we propose that the Crofting 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. To assist the Commission in coming to such a decision, the tenant crofter or other members of the crofting community should be entitled to draw a suspected breach of duty to the attention of the Commission, but the subtenant should also have the right of reply.

Question 4.7

Do you agree that if a subtenant is not meeting their statutory duties, the Crofting Commission should be entitled to terminate the sublet? [Yes/No/Don’t Know]