HM Insights

Energy bulletin - Four key areas for crofting law reform in 2021

In our last bulletin, crofting law specialist Calum Macleod provided some commentary on the recent crofting law reform report by the Law Society of Scotland which sets out the proposed changes to crofting law.

The four areas considered in the report are:

  • aspects of succession;
  • owner occupier status;
  • statutory conditions of tenure; and
  • the definition of ‘crofting community’.

Calum opined that the report is a good one, covering many legal issues that arise with crofting law and touching on policy debates currently surrounding crofting reform.

Here, Grant Mills elaborates on some of the recommendations listed by Calum in his November article and discuss how the recommendations contained within the report could impact current crofters, crofting tenants and landlords or those looking to acquire croft land.

Aspects of succession

Crofting law and succession are both complex areas of law. Put them together and you have the potential to end up in a crofting minefield.

The first of the suggested changes in this area is in relation to intestate estates. Currently, the Succession (Scotland) Act 1964 (the 1964 Act) dictates that a crofting tenancy must be transferred within a 24-month period following the date of death of a crofter unless in the instance of a longer period being agreed between the Landlord, the Executor and the Crofting Commission. The Crofters (Scotland) Act 1993 (the 1993 Act) however, provides that this period begins at the “relevant date” which is defined as being either the date (no later than two months after the date of death of the deceased crofter) on which the Commission receive notification of the death or, where no such notification is received, the date of death of the deceased crofter.

The Law Society deems it appropriate that the legislation be amended to provide for a single 24-month period from the date of death to eliminate any confusion. It is also suggested that the legislation should be amended to provide for a flexible process whereby an Executor, Landlord or beneficiary can apply to the Commission to transfer a tenancy outwith this 24-month period and in the absence of an agreement or a court order. This would be done on a ‘on cause shown’ basis and at the discretion of the Crofting Commission having considered the underlying policy of having croft land in use, the reason for the tenancy not being transferred timeously, the Landlord’s views on the intended transfer and the general interests of the crofting community.

Obtaining consent prior to work commencing on the transfer enables an executor to competently make a transfer once confirmation has been obtained and avoids incurring any unnecessary time or expense.

The Law Society’s report is not limited to intestate estates. Where an individual has deceased testate (i.e leaving a Will or testamentary writing), there remains a lack of clarity as to whether a croft tenancy can carry under a residue clause. While the case of Gardner v Curran (Wick, 15 July 2008) suggests it can, this has not yet been tested. To resolve the uncertainty, the report suggests that a statutory definition of ‘bequest’ should be inserted into the 1993 Act as being either a specific legacy or a legacy of residue.

Owner Occupier status of crofts

Issues arise where the required conditions for an owner occupier crofter, set out in section 19B of the 1993 Act, are not met. Individuals, even having acted in good faith, can find themselves in circumstances whereby they are deemed a landlord of a vacant croft as opposed to an owner occupier crofter, leading to further complications.

To avoid this, the Law Society suggests that the legislation should include a provision enabling an application to be made to the Commission to obtain owner-occupier crofter status.

The report highlights the difficulty in establishing the intention of the law with regards to whether a Legal Person (i.e. a limited company or partnership) can be an owner occupier. The legislation seems to have been drafted to apply to natural persons and does not take into account how legal persons would carry out crofting duties. This could result in a legal person being forced to let a croft to a tenant. The report therefore calls for the legislation to clearly state the types of persons who may be owner occupier crofters and goes further to suggest that consideration should be given to limiting owner-occupier crofter status to natural persons.

Statutory conditions of tenure

The statutory conditions of tenure are currently spread across various parts of the 1993 Act. The report highlights the need for everyone entitled to occupy a croft to obey the same statutory duties and that these duties should be consolidated and clearly stated in one prominent place in the legislation.

There is also a suggestion that the requirement to live within 32km of a croft might not be in keeping with modern day life. Given that the feedback received on this issue was mixed, the report suggests that this issue should be fully considered by the Scottish Government and consulted upon with crofters and other stakeholders.

There is also a concern that the terms ‘neglect’ and ‘purposeful use’ are currently unclear. While purposeful use is defined in section 5C(8) of the 1993 Act, the Law Society have suggested that examples should be provided by the Commission to assist and that a statutory definition is provided for “misuse or neglect” to make it clear to crofters and stakeholders as to how their crofts should be cultivated and maintained. In addition, it is suggested that the wording in section 5C(2) should be revised to reflect that family members or hired labour can assist to reflect modern day practices.

Definition of ‘crofting community’

‘Crofting community’ is a difficult term to universally define due to Scotland’s crofting areas differing both circumstantially and geographically. The report recognises the benefit of applying both a narrow and a wider approach when defining ‘crofting community’. A narrow definition would apply to croft tenants, owner occupier crofters, crofters with shares in common grazings and individuals entitled to lodge objections with the Commission under the 1993 Act.

A wider approach would help to promote the interests of crofting more generally and would allow non-crofters to be included, reflecting the social aspects of crofting in Scotland. This does, however, run the risk of crofters being outnumbered and overpowered by non-crofters which is not likely to be a favourable outcome.

Next steps

It will be interesting to observe to what extent the Scottish Government will heed the suggested reform set out in the Law Society’s report and indeed the timescale upon which any reform will be actioned.

Whatever the outcome of the report, there would be merit in carrying out a more complete, single body of work to encourage a consistent and proactive attitude towards reforming this complex area of the law while ensuring that legislation does not prevent peatland restoration projects, renewable energy development projects and enhances biodiversity on crofting and common grazing land.



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If you require any assistance with a crofting matter, please get in touch with Calum or a member of our team.

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