Crofting law reform proposals 2024: consultation

6. Simplifying Crofting

Crofting Register Rectification

The Crofting Register is a public list of crofts, common grazings and land held runrig, and is maintained by the Keeper of the Registers of Scotland. It is the legally-authoritative, map-based register and provides a definitive record of the extent of, and interests in, land within crofting tenure. In addition to showing the boundaries of land, the register also contains information on the tenant and owner-occupier crofter and the landlord of the croft.

An application for first registration is made in the first instance to the Crofting Commission which checks the information contained in the application against the information contained in the Commission’s own Register of Crofts.

Current legislation provides that the Keeper of the Registers of Scotland may rectify the Crofting Register in three instances:

• where a mistake has been made by the original applicant;
• where a mistake has been made by the Crofting Commission; or
• where a mistake has been made by the Keeper.

Around 80% of rectification applications relate to the size of the area of the croft or common grazings. The majority of these errors result from applicant error and there is a financial cost associated with their correction. Currently, unless the Keeper is responsible for the registration error, she/he cannot take the initiative to rectify the mistake but must wait until either the original applicant or the Crofting Commission asks her/him to do so. We are proposing to amend the current rectification provisions to extend the powers of the Keeper to:

• rectify the Register when she/he becomes aware of an inaccuracy, with or without being first requested to do so by either a third party or the Crofting Commission; and
• correct typographical errors in the Register outwith the formal rectification provisions of the Act.

This proposal will provide a simpler and more cost-effective approach to Register rectification for clear and straightforward inaccuracies, allowing greater accuracy to be achieved; and will minimise the number of Scottish Land Court challenges, thereby providing a more cost-effective approach to maintaining the Register for all involved, including crofters.

Question 6.1

Do you agree that we should extend the powers of the Keeper of the Registers of Scotland for correcting errors in the Crofting Register? [Yes/No/Don’t Know]

We also propose to make the following two changes.

Firstly, we propose to extend the definition of “original applicant” to include an executor of an original applicant (and others in an analogous position). This will allow a rectification to be applied for without having to revert to the Scottish Land Court.

Secondly, before submitting a registration application to the Crofting Commission, we propose that a tenant crofter must serve notice of the application on the landlord, giving the landlord a specified period of time to respond to the crofter, if they choose to do so. The Commission will not forward the application to the Registers of Scotland until it has confirmation that it has been shared with the landlord. We believe that letting the landlord see the application will help us achieve a more accurate Register and see fewer rectifications. It will be up to the landlord to decide whether to offer comment to the crofter, and it will be up to the crofter to decide whether to modify the application.

Question 6.2

Do you agree that all registration applications should be copied to the relevant landlord, in order to allow the landlord to comment if he or she chooses to do so? [Yes/No/Don’t Know - comment]

First Registration upon purchase from Landlord

Registration of a croft on the Crofting Register confirms the crofter’s rights to the land and informs others of those rights too. The number of crofts registered with the Crofting Register has been growing steadily, and the Scottish Government is keen to see this accelerate, for the benefit of all.

Many changes involving a croft are ‘triggers’ that require the croft to be registered if it is not already in the Crofting Register. However, an exception is when a tenant crofter exercises the right to buy and becomes an owner-occupier crofter. As this process involves a conveyance of a defined piece of land, the additional administration required for entry in the Crofting Register will normally be straightforward, and we propose that this event should also be a trigger.

Question 6.3

Do you agree that the purchase of title to a croft by a tenant crofter should be a trigger for registration in the Crofting Register? [Yes/No/Don’t Know]

Personal Information for the Register of Crofts

The Register of Crofts is a public list of crofts which contains basic information about the croft and the people associated with it, and is held and updated by the Crofting Commission. Currently, the law requires that the name, age and date of birth for tenants and landlords are included in the Register of Crofts. However, there is no such requirement for owner-occupier crofters.

Question 6.4

Do you agree that owner-occupiers should be required to give the same personal information for the Register of Crofts as tenants? [Yes/No/Don’t Know]

Timescales for Crofting Commission decisions

The current legislation provides for the Crofting Commission to determine four types of application within a fixed period. Other matters that the Commission must determine are not subject to any such statutory deadline.

The legislation does not provide for the consequences of failing to meet a deadline. Also, there does not seem to be any particular reason for those four matters to be treated differently from other functions of the Crofting Commission. It therefore seems arbitrary to single them out, and doing so could lead to a misapplication of resources that might be better used to process other applications and other important matters.

We therefore propose to abolish the statutory deadlines for these four decision types, which are:

• The Crofting Commission has 28 days to decide whether to give its consent to an application by a crofter to put their croft to another purposeful use, in cases where this has not already been approved by the Landlord.
• The Commission has 28 days to decide whether to give its consent to an application by a crofter to be absent from his/her croft for a period of time.
• When engaging with a crofter over a suspected breach of duty, the Commission has 14 days to decide whether a crofter is in breach of duty, in the light of representations put to the Commission by the crofter.
• At the next stage in the current process, the Commission has 28 days to decide whether to accept an undertaking by a crofter as to how and when a breach will be rectified.

(Note that our proposals above for the simplification of the duties enforcement process envisage the latter two processes being combined.)

While we consider these particular deadlines, especially in the absence of specified consequences, to be flawed, the Scottish Government and the Crofting Commission are taking other steps to improve the timeliness of Commission decisions across all application types. Following an independent review of the Commission’s staffing in 2021, the Scottish Government provided the Commission with additional resources to help it improve the turnaround times for processing applications; and the Commission is developing Customer Service Standards which will be published on its website.

Question 6.5

Do you agree that the deadlines for these four particular types of decision should be removed from the legislation? [Yes/No/Don’t Know - comment]

Access rights

In property law, rights of access between neighbouring landowners can be agreed by creating a servitude right of access. One of the owners agrees to have his or her land “burdened” by a servitude right of access in favour of a neighbouring “benefited” owner. These rights are transferred when ownership of the land is transferred.

We propose that there should be an equivalent, straightforward mechanism for setting up a permanent access right across tenanted crofting land, given the many situations where this would be a useful way of ensuring access to different crofts. Currently, the legislation provides only for this to be done by an application to the Land Court, in cases where all the land in question is tenanted from the same landowner. We propose that where all the crofters and the owner(s) are agreed, they should be entitled to set up a crofting right of access simply by drawing it up and notifying the Crofting Commission. This would then become a permanent right of access and binding on their successors, unless one or other party applied successfully to the Land Court to have the right modified.

Question 6.6

Do you agree that where all the crofters and owners of the land in question, wish to set up a permanent crofting right of access, they should be entitled to do so? [Yes/No/Don’t Know]