Our ezines of 11 June and 26 November 2009 considered the Scottish Government’s proposals for the reform of crofting and analysed the terms of the draft Crofting Reform Bill and the public responses following conclusion of the first consultation period.  The first version of the Bill included two controversial provisions; the grant of Standard Securities over croft tenancies and an occupancy requirement applying to de-crofted house sites.  The largely negative responses led the Scottish Government to drop these proposals and a second draft was published on 10 December 2009. 

The second draft covers:

The Crofters Commission

The Crofters Commission will become responsible for promoting the interests of crofting and implementing regulation. Crofting development will pass to Highland and Islands Enterprise. Crofting grants therefore fall out of the Scottish Rural Development Programme

The Commission will report annually to Scottish Ministers, assessing issues affecting crofting communities and the contribution crofting makes to sustainable development. 

Creation of a definitive Crofting Register

Registration may be voluntary by a crofter or compulsory at trigger events which are:-  
 
• Transfer of ownership
• Enlargement or division of a croft
• Exchange or assignation
• Succession
• The making, variation or reversion of a Resumption Order
• Approval of letting under Section 23(3) of the 1993 Act
• Consent to the grant of  a “Short Lease “ by an owner/occupier
• A de-crofting direction  
 
Scottish Ministers may modify this list.

Applications will be submitted to the Crofting Commission which will check the application against its existing register and forward it to the Keeper of the Land Register.

If the application is accepted the Keeper will issue a certificate to the applicant and the Commission confirming the registration.

Various interested parties will be notified by the Commission:-

• The owner and the landlord of the croft
• The owner of any adjacent croft
• The landlord of any adjacent croft
• The crofter of any adjacent croft
• The owner occupier of any adjacent croft

A non-crofter neighbour or a township which does not lie adjacent will not be notified. Interested parties will have the right to challenge the registration via the Land Court within six months from the date the Commission receives the Certificate of Registration.

There will be a right of appeal to the Lands Tribunal against any act or omission by the Keeper and a right for anyone suffering loss as a result of a mistake by the Keeper  to be indemnified for that loss. 

Duties of Crofters and Owner/Occupiers

The Bill requires crofters to put crofts to productive use and to reside on or within 16 kilometres of their crofts, unless with the Commission’s consent.

Owner/occupiers will no longer be landlords of vacant crofts but will have their own special status as owner/occupiers with the same obligations as tenants. The Commission may consent to an owner/occupier leasing without conferring security under the Crofting or Agricultural Holdings Acts for a period not exceeding 10 years (a “Short Lease”).

Resumption and De-crofting

The Land Court and the Crofting Commission, as appropriate, will have to take account  of the effect resumption or decrofting will have on the sustainability of (a) crofting (b) the crofting community (c) the landscape or (d) the environment in/of the locality.

The Commission need not consider a de-crofting application if it has asked for the submission of re-letting proposals and the period for submission has not expired or no proposals have been submitted.   Accordingly, de-crofting orders will not be given unless there is evidence that a vacant croft cannot be re-let. 

Clawback provisions

The period in which landlords who have sold croft land to a crofter may share in the value will increase from 5 to 10 years.

This does not address the loophole in MacDonald v Whitbread 1991 SLCR 23 and 1992 SLCR 59 by which the clawback is avoided if the crofter nominates a non- family member to take title and title goes direct to that person.

What happens next?

Consultation in the Bill is continuing via the Rural Affairs Committee and Ministers, both in Edinburgh and locally.

Further information
For further information on this or any crofting issue, please contact Alasdair Fox, Adele Nicol or your usual contact within the Land Resources Department

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.