Crofting law reform proposals 2024: consultation

7. Clarifications and Corrections

Decrofting without a stated purpose

Legislation sets out in some detail how the Crofting Commission is to assess the merits of a decrofting application based on its stated purpose and the amount of land required for that purpose. However, there is further legislation that implies that applications without a stated purpose can also be assessed and based against a different set of criteria. This duplication appears to be unintended, and we want to remove it and ensure that every decrofting application is accompanied by a reasonable purpose.

Registration Requirement – Decrofting perpetual leases

Before tenant crofters were given the right to buy their croft in 1976, the 1955 Crofting Act allowed crofters of a certain age to negotiate with their landlord and get a conveyance of the site of a dwellinghouse and, in exchange, the remaining croft would be regarded as vacant and the landlord would be able to relet it. This policy was seen as a way to allow elderly crofters to stop crofting without them losing their croft house. These croft houses came to be known as section 17/18 conveyances or ‘feus’ – named after the relevant section of the 1955 Act. The 1955 Act also allowed absentee crofters, who had obtained title to their croft house site following an action by the Crofting Commission, to terminate their croft tenancy.

These types of transactions were stopped when the Crofting Reform Act 1976 came into effect, when every tenant crofter was given the right to purchase the site of their dwellinghouse and decroft it.

Currently, all unregistered crofts are required to be registered on the Crofting Register before any part can be decrofted. However, as these feu crofts amount to no more than the croft house site and garden ground, it is considered unnecessary to have these sites registered in advance of a decrofting application, only to be immediately removed from crofting tenure.

Notification of change of ownership of croft land

Owners of croft land have a number of rights and responsibilities in connection with crofting, so it is important that both the Crofting Commission’s Register of Crofts and the Registers of Scotland’s Crofting Register have accurate information about the ownership of croft land, including common grazings. We propose to clarify that the responsibility of a purchaser of croft land to notify the Commission of that purchase applies to all changes of ownership of land subject to crofting tenure, whether that be a croft (tenanted or owner-occupied), crofting estate, all apportionments, or common grazings. In each case the purchaser, whether that be crofter or landlord, will be required to notify the Commission within one month so that the Commission can update its Register of Crofts.

This should be a standard add-on to the conveyancing process, and should normally be undertaken at the same time as the purchaser’s solicitor is updating the Land Register and (where required) the Crofting Register held by the Registers of Scotland.

Until the new ownership has been notified to the Crofting Commission, the owner will not be able to comment on any regulatory applications by the crofters.

Assignations

Currently, there are two separate assignation processes where the assignor and assignee have different roles depending on whether the croft has been registered or not. That no longer seems necessary nor desirable, so we are proposing to introduce one single process for assignation.

In the case of an unregistered croft, the proposal is to decouple the registration process from the assignation process. If the croft has not been registered then it needs to be registered first, then it follows the same assignation process as a registered croft.

Apportionment

It is unclear in law when an apportionment comes into effect. We propose to make it clear that an apportionment comes into effect on the date of its registration. We also propose that all apportionments granted by the Crofting Commission, regardless of when, are reviewable.

Maximum length of sublet

We will put beyond doubt that the maximum duration of any sublet, whether approved by the Crofting Commission and/or by the landlord, is 10 years – although sublets can be considered for renewal by a further application.

Terminology

The current crofting legislation uses the word “crofter” to mean a tenant crofter, with an owner-occupier crofter requiring to be referred to in full. This is different from the popular use of the word “crofter”, which could refer to either. Insofar as the change can be made without introducing new complexities, we propose to amend legislation so that any reference to a crofter will include a reference to an owner-occupier crofter except where the context or statutory provision otherwise provides.

Civil partnerships

We intend that all references to married people in the crofting Acts should in future include civil partners.

Uncompleted titles

There is a technical issue regarding the definition of an owner-occupier crofter when an executor transfers the right to acquire ownership of the property by way of what is known as deduction through links in title, where a docket on the confirmation acts as a link in title or “midcouple.” This is known generally as an “uncompleted title” held by an “uninfeft proprietor”. For instance, it is not uncommon for a widow or widower not to complete title by registering the title in the Land Register or recording the title in the Register of Sasines, until many years later when the property is sold to a third party. It would be good practice for them to complete the title, but it is acknowledged that a beneficiary can competently hold the rights to the land on the basis of a link in title without having to do so.

When the land in question is an owner-occupied croft, this can cause difficulties for the owner and for the Crofting Commission, as it is not clear whether the uninfeft proprietor qualifies as an owner-occupier crofter in their own right. This can leave land without a crofter for an extended period, and exclude the owner from the rights and responsibilities of being an owner-occupier crofter.

We propose to clarify the law in that respect.

More time for the Crofting Commission to develop a Policy Plan

Six out of nine crofting commissioners are elected, and so every five years, when the Crofting elections take place, the Board of the Crofting Commission is liable to see multiple changes of membership and with it, perhaps, a change in the Board’s policies and objectives for crofting. Following each election, the Commission is required to develop a new Policy Plan, setting out its policies, priorities and values; and once the Plan has been approved by the Scottish Government, the Commission must take decisions in accordance with what they have set out in the Plan.

Current legislation requires the Crofting Commission to develop, consult on and submit the new Policy Plan to the Scottish Government within six months following each election, but experience has shown that this period of time is often too short, as it requires a new Board to approve a draft plan for consultation within its first three months or so. In practice, a Board with several new members takes longer than that for the members to get to know each other and to work out their collective ideas.

We therefore propose to extend the deadline for submission of a Policy Plan to 12 months.

Flexibility on who chairs Crofting Commission meetings

The legislation currently specifies that “the Convener must, if present, chair meetings of the Crofting Commission and any of their sub-committees”. This has proved to be quite restrictive. On one occasion when the Convener was attending a hybrid meeting over a weak internet connection, it would have been much more practical for one of the commissioners in the room to chair the meeting. On another occasion the Commission wanted to use a guest chair for a policy workshop, to allow the Convener to join the discussion on an equal basis with others. We propose to amend the current legislation to provide for more flexibility in who chairs Commission and sub-committee meetings.

Jurisdiction of the Scottish Land Court

The vast majority of appeals against Crofting Commission decisions are to the Scottish Land Court. However, this does not apply in the case where the Commission decides to remove one or more members of a grazings committee from office on the grounds that they are not properly carrying out their duties. In such an instance, the only appeal is to the Court of Session. We propose to change this by providing for appeals to be made to the Scottish Land Court.

Question 7.1

If you wish, please add any comments on any of the proposed clarifications set out in section 7 of this consultation. [free text box]