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Are the latest Crofting Law reform proposals a step in the right direction?



Harper Macleod Partner and crofting law specialist Calum MacLeod considers the recent report on proposed reforms to Crofting Law. 

Crofting law is an issue that the Law Society of Scotland has been looking at for a number of years. It’s really pleasing to see this report come out. The report is a good one and cover many of the main legal issues that all practitioners agree cause issues with crofting law. In particular, issues surrounding the definition of an owner occupier crofter, and the difficult issues surrounding crofting succession.

It also tries to touch on some of the policy debates surrounding crofting reform just now, around which there is a bit of disagreement in the crofting fraternity. For example, the ability of owner-occupier crofters to de-croft whole crofts. Part of the issue with crofting reform now is that there is perhaps not yet full consensus on what is required and whether the changes should be restricted to just some specific legal issues or whether there should be more full scale reform. The report does, however, definitely move the debate on.

Watch Calum’s summary

Law Society report on crofting reform

The Law Society of Scotland report sets out proposed solutions to issues in four areas of crofting law: aspects of succession, owner occupier status, statutory conditions of tenure, and the definition of ‘crofting community’.

The Law Society’s Crofting Reform Paper makes proposals to improve the existing legislation, building on work done to date in respect of crofting law, rather than seek to change policy relating to crofting.

The report’s recommendations include:

  • The Succession (Scotland) Act 1964 should be be re-framed to set out the differing rules applying to agricultural tenancies and croft tenancies clearly and the process relating to the 24 month timescale on intestate succession should be reviewed;
  • The position as to whether a croft tenancy can legitimately pass under the residue clause of a will or testamentary writing needs to be clarified;
  • Stakeholders should take steps to generate greater awareness among practitioners of the issues surrounding stand-along grazing rights and the necessity of dealing with them separately in succession;
  • The duties under the Crofters (Scotland) Act 1993 should be consolidated and restated clearly in legislation;
    crofting legislation should not create an impediment to peatland restoration projects, renewable energy developments and projects to enhance biodiversity or habitats on croft and common grazing land. Crofters should be entitled to share in the benefits associated with any such projects and schemes;
  • The definition of “crofting community” should be revised;
  • Improved clarity and consistency is required in the use of the terms “locality”, “area” and “district”;
  • References to a person’s “wife or husband” should be updated to include civil partners and reference to the Secretary of State changes to Scottish Ministers;
  • There should be a review of section 10(1)(b) of the 1993 Act which allows for the possibility of a bequest of a croft tenancy to two beneficiaries with a requirement that the croft be subdivided;
  • Clarification is required on whether joint tenancies could be created in respect of crofts.

This report is intended to contribute to the ongoing work relating to reform of the complex area of crofting law reform and the Law Society is calling for prompt action by the Scottish Government on this.

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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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