What is a Crofter’s Right to Buy?

5 February 2024

As a tenant crofter, you benefit from what is commonly referred to as “the right to buy”. But what does this actually mean, and what do you need to consider before proceeding with the purchase?

What is the right to buy?

Although a crofter has a right to purchase their croft, this right isn’t “automatic”. This means the landlord can refuse to sell the croft, but they must be able to establish:

the sale of the croft would result in a substantial degree of hardship; and/or
the sale of the croft would be substantially detrimental to the interests of the sound management of the estate that the croft forms part of.

If a landlord refuses to sell the croft, a crofter can apply to the Scottish Land Court for an order authorising the purchase. The Court will of course need to determine if the sale is reasonable or not considering all the circumstances.

It is important that a crofter’s right to purchase their croft is not confused with a crofter’s right to purchase their dwellinghouse. Unlike the right to buy the croft, a crofter is entitled to decroft and thereafter purchase the site of the dwellinghouse located on or pertaining to the croft. As well as the actual footprint of the house, this also includes garden ground which is reasonable for the enjoyment of the dwellinghouse as a residence. This is an absolute right and cannot be refused by the landlord; however, there are situations where a landlord may challenge the size of the site or surrounding garden ground.

Considerations

If you are thinking about buying your tenanted croft from your landlord, it’s important to consider the following factors:

The price offered

This is based on the “crofting value” of the croft. The starting point for negotiating the price is the current rent multiplied by 15. This is how the Scottish Land Court will determine the price if an action is presented to them. If the rent hasn’t been reviewed for a considerable period, be prepared for the landlord to carry out a rent review before they agree to the terms of the sale.

If the croft purchase includes the site of a dwellinghouse, the price offered may need to be apportioned between the land and the dwellinghouse as different rates will apply.

Extent

This right to buy only applies to “in-bye” croft land and does not incorporate any grazing shares (reference to grazing shares includes apportionments). Nonetheless, where apportionments are adjacent or contiguous to the in-bye croft land, these may be classed as forming part of the in-bye land and, accordingly, a crofter will have the right to purchase these along with the croft. It’s important to remember that apportionments which are not adjacent/contiguous to the in-bye land are not considered part of the croft and therefore there is no right to purchase these.

If you proceed to purchase the in-bye land without the grazing shares, the shares will remain in tenancy and become a separate entry in the Register of Crofts and Crofting Register. They’ll be individually classed as a “deemed croft”. As the tenant of a deemed croft, you will have to pay a rent and there is no right to buy.

Although a landlord is not obliged to sell a grazing shares to a tenant, this is not to say that you can’t enter into negotiations with your landlord to purchase the grazing shares at the same time as the croft purchase; however the rules and procedure applicable to the right to buy process will not apply and you may have to pay a higher price.

A Plan

Once you’ve agreed on the land you are going to purchase (i.e. in-bye land, apportionments etc.) you will need a plan showing exactly what area is being purchased. This will be needed for preparing the title deed in your favour. Your solicitor will be able to assist with this but will need input from you to ensure the boundaries of the croft are accurate.

Although the right to buy does not trigger first registration in the Crofting Register it is also important to check that the boundaries shown on your plan don’t conflict with neighbouring crofts or titles.

Landlord’s Clawback

When a landlord sells a croft to a tenant they usually require what is known as a “clawback”. The consequence of the clawback is that if a crofter sells or develops any part of the croft within 10 years of the croft being purchased, the landlord must consent and will be entitled to 50% of the market value of any such sale or development. Transfers to family members are exempt from this.

The clawback shouldn’t apply to the croft house or any grazing shares which do not form part of the croft and are sold under separate negotiation.

Reserved rights

The mines, metals and minerals do not form part of the croft and, in the majority of cases, a landlord will opt not to sell these rights on to the crofting tenant.

It is also common practice for a landlord to request a lease back of the shooting and/or fishing rights for a nominal rent. Such a lease usually lasts more than 20 years.

Where applicable, the landlord may (in cases where they own the standing timber) reserve a right to the fell and extract timber.

Landlord’s legal fees

It’s not unusual for the landlord to request that the crofter covers their reasonable legal fees and expenses which are incurred because of the croft sale.

As you can see, there is much to consider before requesting to pursue your crofter’s right to buy. For further information on any of the details raised in this article, we highly recommend consulting an expert.

Please get in touch with Laura Sinclair or your regular Anderson Strathern contact for advice relating to your unique situation.

You may also be interested in the following resources:

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