"Misuse" is where a crofter (or owner-occupier crofter) wilfully and knowingly uses the croft for the purpose other than for cultivation or another purposeful use,or where the croft is put to no such use. "Neglect" is where a crofter (or owner-occupier crofter) does not manage the croft in a way which meets the standards of good agricultural and environmental condition referred to in Regulation 4 of the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004
Crofters and owner-occupier crofters must cultivate their crofts or else put them to some other purposeful use. "Cultivate" is essentially agricultural use. This includes "the use of a croft for horticulture or for any purpose of husbandry, including keeping or breeding of livestock, poultry or bees, the growing of fruit, vegetables and the like and the planting of trees and use of the land as woodlands. "Purposeful use" means any planned or managed use which does not adversely affect the croft, the public interest, the interests of the landlord or the use of adjacent land.
Yes, the provision for a tenant to use their croft for a purposeful use, other than cultivation, was introduced by the Crofting Reform (Scotland) Act 2007. A tenant must apply to the landlord for written consent before putting the croft to such purposeful use. If the landlord does not consent or applies conditions which the tenant feels are unreasonable, the tenant can apply to the Crofting Commission for consent to the proposed use. The croft should not be put to the proposed purposeful use until consent is either obtained from the landlord or (failing that) from the Crofting Commission.
It is a crofters duty to reside within 32km of their croft (as the crow flies) and the Crofting Commission has a duty to enforce this. In doing so, the Commission will provide the person with notice of the need to comply with this duty and give an opportunity to the crofter to provide an undertaking to do so. In this respect, the Commission has no choice but to adhere strictly to the defined distance set out in the legislation. However, before terminating a tenancy or requiring an absent owner to re-let the croft, the Commission will investigate the circumstances of the individual case, to be satisfied that such action would be in the interests of the crofting community.
Where a beach of duties (for example misuse and neglect) by an owner-occupier crofter has been established, the Crofting Commission must, unless there is a good reason not to direct the owner-occupier crofter to submit to them, a proposal for letting the croft. In response to that Direction, it is open to the owner-occupier crofter to apply to let the croft to a tenant with the full rights retained or they can enter into a contract or agreement with the tenant which excludes certain rights. However, certain rights can only be excluded with the agreement of the Scottish Land Court. Where an owner-occupier crofter either fails to provide letting proposals in response to a Commission request to do so or the proposals they provide are unacceptable to the Commission, we will invite applications for letting the owner-occupied croft and will decide which of the applicants to let the owner-occupied croft to. We will also consult with the owner-occupier crofter on what conditions should be applied to the let. Where an owner-occupied croft has been let on conditions set by the Commission, the owner-occupier crofter may apply to the Scottish Land Court for a variation of the conditions set.
The Commission must investigate whether or not a duty is being complied with where we have received: A report from a Grazings Committee that a tenant crofter or owner-occupier crofter sharing in the grazings is not complying with a duty relating to residence, not to misuse or neglect, or to cultivate and maintain; or information in writing from a Grazings Committee, a Grazings Constable, an Area Assessor or a member of the crofting community within which the croft which is the subject of the suspected breach is situated.
Both tenants and owner-occupiers have a duty to reside within 20 miles (32 kilometres) of their croft/s; both have a duty not to misuse or neglect their croft/s; both have a duty to cultivate their croft/s or put it to another purposeful use. Only a tenant would have to apply for consent from their landlord, or if they are unable to obtain the landlords consent, the consent of the Commission prior to putting the land to a purposeful use. If following investigation the Commission establish that a breach of duty in relation to residence, misuse or neglect or land use has occurred, the ultimate sanction for a tenant would be the termination of their tenancy. The ultimate sanction for an owner-occupier crofter would be the letting of their croft to a tenant crofter. The owner-occupier crofter's status would then change to landlord of the croft.
We wouldn't expect the Court to take any follow-up action once an Order has been issued. If the Commission wish to ensure that a breach has been remedied, the onus is on the Commission to take the necessary follow-up action
Tenants and owner-occupier crofters are required to comply with a range of duties specified in sections 5AA to C and 19C of the Crofters (Scotland) Act 1993 as amended. There is a duty to be ordinarily resident within 32km of the croft. If the croft is the sole dwelling and the crofters family are resident while the croft is away this would probably be accepted as ordinarily resident. Other circumstances involving other places of residence would require to be assessed individually. In addition to the duty of residence tenants and owner occupier crofters are required to ensure the croft is cultivated, maintained and not neglected or misused.
A crofter can be in breach of:Residency duty; Duty not to misuse or neglect the croft; Duty to cultivate and maintain the croft. More information is available under Regulation Crofters Duties.
The Commission may initiate investigations itself arising from policy decisions or ministerial directives. The Commission will also carry out investigations in response to reports submitted by specified people or groups.
The Commission can receive notification of a suspected breach of duty from: a grazings committee; a grazings constable; an assessor; a member of the crofting community. If you are not on this list you can submit notification of a suspected breach but we are not obliged to investigate.
You should complete a Suspected Breach of Duty form which is available on this website. http://www.crofting.scotland.gov.uk/crofters-duties Alternatively if you do not have access to the internet you can contact our office (01463 - 663439) and we will arrange for a form to be sent to you. We will accept notification in the form of a letter as long as it contains sufficient information to enable us to proceed.
Yes, you would effectively be applying to bring your land back into crofting tenure. This is exactly the same procedure as applying to the Commission to create a new croft. Relevant background, guidance and application form can be found under"Creating a new Croft" on the Forms & Guidance page on this website
Up to 12 weeks, it depends on the size of the site, the quality of the ground, how the removal of the site will impact onto the working of the croft and what response the Commission gets to the public notification process. Also depending on whether or not the croft is not registered with Registers of Scotland, if it is not this will extend the process by several weeks.
Yes, providing they remain either the tenant or owner of the area they can make another application to decroft the land.
No. Section 25(4) clearly provides that the land to which the Direction relates must be acquired by the crofter or his nominee within 5 years of the date on which the Direction is made. There is no need for a separate provision in the Act allowing transfer of the Direction to another party.
If the Commission are satisfied that there has been a breach of a condition they can make a further direction that the land in respect of which there has been a breach shall be a vacant croft: Section 25(3) However the Commission cannot make a further direction if more than 20 years have elapsed since the direction was issued, or the land has since been conveyed to a person other than the former crofter or a member of the former crofter's family: or a debt is for the time being secured by way of a standard security over, or over any real right in, the land or any part of it. May a crofter who has successfully applied to have a house plot decrofted but who has not taken the steps necessary to give effect to the direction for example who has not purchased the land from the landlord seek to have the direction recalled?
Section 17/18 Feus Section 17 Feus were granted to absentee crofters, who obtained Title to the croft house site following action by the Commission to terminate their croft tenancy. Section 18 Feus were granted to aged crofters who gave up their croft tenancy on condition they obtained Title to the croft house site. Section 17 and 18 Feus were discontinued when the Crofting Reform (Scotland) Act came into effect on 10th June 1976. However, the land to which they relate continues to be subject to the Crofting Acts until a decrofting Direction has been granted by the Commission.
The Crofters Holdings (Scotland) Act 1886 permitted the landlord a right to apply for authority to resume croft land (remove it from crofting tenure) for a reasonable purpose, subject to payment of compensation to the crofter. The Crofters (Scotland) Act 1955 permitted the landlord of a vacant croft to apply to the Secretary of State for Scotland for a direction that the croft (or part of it) shall cease to be a croft. The Crofting Reform (Scotland) Act 1976 transferred responsibility for decrofting to the Crofters Commission. It also introduced the following: the right to apply for a decrofting direction for a reasonable purpose, the right for a tenant crofter proposing to acquire croft land to apply to decroft, the right to decroft the statutory croft house site & garden ground. The Crofting (Amendment) (Scotland) Act 2013 introduced the right for owner-occupier crofters to apply to the Commission for a decrofting direction.
The process under which a landlord can, with the approval of the Land Court remove land from crofting tenure.
Tenants under a short term lease will be treated as neither a crofter nor as a tenant under the Agricultural Holdings (Scotland) Act 2003. Consequently, they will not have the same legal rights as those types of tenants. However, the Commission may, in giving consent to a proposed lease of an owner-occupied croft for a period not exceeding 10 years (a short lease), impose conditions (other than any relating to rent) which are considered appropriate. In addition, the Commission may terminate any short lease granted if any conditions it imposes are breached or if the tenant fails to comply with a condition of let, other than any relating to rent.
The standard conditions of let are set out in Schedule 2 of the Crofters (Scotland) Act 1993. If a landlord and tenant have entered into a contract or agreement which deprives the tenant of rights in relation to assignation, purchase, sharing in the value of land resumed by the landlord, and/or sharing in the value of land taken possession of compulsorily, the Commission must be provided with a copy of the contract or agreement. In addition, if they have entered into a contract or agreement which deprives the tenant of any other rights, the contract or agreement must also be approved by the Scottish Land Court.
Under Section 16(b) of the Succession (Scotland) Act 1964 a landlord may give notice to the executor terminating the tenancy if it has not been successfully transferred by the executor within 24 months of the death of the crofter. There is no appeal against this notice.
No. the only legal authority for effecting a transfer of tenancy in an intestate succession is by obtaining Confirmation to the intestate estate of the late tenant. Simply being appointed as an executor is not, in itself sufficient to allow an executor to transfer the croft tenancy. In a recent case a Commission decision to approve a transfer by executor application was reduced by the Court of Session once it was established by the Court that the executor had failed to obtain such confirmation.
Prior to 1 October 2011 "owner-occupiers" were, in effect, landlords of vacant crofts. From 1 October 2011, The Crofters (Scotland) Act 1993 (as amended)defines an owner-occupier as a crofter if they are the owner of a croft; and they were either the tenant of the croft when the croft land was acquired or a crofter's nominee or an individual who purchased the croft from the constituting landlord(1) (or a successor in title to any of those persons). In addition the croft must not have been let to any person as a crofter since it was acquired or constituted as a croft. (1)A constituting landlord is the owner of the land at the time it was constituted as a croft under the new croft creation provision, or such an owner's successor in title.
No. in relation to owner-occupier crofters, the definition provided by Section 19B does not include the executor of an owner-occupier crofter. Therefore, it would not be competent for the executor of an owner-occupier crofter to apply to divide.
Yes. Sub-section 19D(1) states that An owner-occupier crofter may not transfer (whether or not for valuable consideration) any part of the owner-occupiers croft without first dividing the croft into the part which the owner-occupier crofter proposes to transfer and the part which the owner-occupier crofter proposes to retain. Sub-section 19D(6) provides that any transfer of ownership of any part of an owner-occupied croft which is not a new croft created by a division under this section, and any deed purporting to transfer ownership of that part, is null and void.
No. The Commission can only give their consent to divide a croft following an application to do so by: (a) a tenant under section 9, or (b) an owner-occupier crofter under section 19D. The Commissions view is that the definition of an owner-occupier crofter in Section 19B excludes persons who own part of a croft (s. 19B (2)). We do not think it possible to read this as owner of a croft or part of a croft, because elsewhere in the Act part of a croft is mentioned in addition to the croft. By this logic, owner occupier crofters can be persons who hold title to a croft either individually or jointly but the definition does not, extend to those persons who own only part of a croft. A consequence of this is that a division application submitted by the landlord of part of a vacant croft is not competent as they are neither tenant nor owner-occupier crofters. A further consequence is that not being owner-occupier crofters they are not required to obtain the Commissions consent to divide the croft prior to transferring, whether or not for value, any part of the croft.
You will have 3 months to complete and return the 2016 Crofting Census form, with all forms to be returned to the Commission by the 31 March 2017.
You are required to complete the Crofting Census each year, under section 40A of the Crofters Scotland Act 1993 as amended by section 36 of the Crofting Reform (Scotland) 2010. If you fail to provide this information without reasonable cause, by the date shown or knowingly provide false information you will be guilty of an offence under this Act. Not returning the census form is a criminal, rather than a civil, offence and may result in a conviction and fine of up to £200.
You have the opportunity to update information on the croft details and your details on the Census form.
After a detailed process of investigation, allowing the tenant to respond to the Commissions enquiries, and if satisfied that it is in the general interest of the local crofting community, and if there is no good reason not to, the Commission must make an order terminating the tenancy. The order will specify the date on which the termination takes effect which must be at least 28 days after the date the order is notified to the tenant and the landlord. The crofter can appeal to the Scottish Land Court against the decision to terminate the tenancy within 42 days of the decision.
After a detailed process of investigation, allowing the owner occupier crofter to respond to the Commissions enquiries, and if there is no good reason not to, the Commission must direct the owner occupier crofter to submit proposals to the Commission for letting the croft. A period of 28 days beginning with the day the direction is given is allowed for the submission of up to three proposals. The Commission has 4 weeks from the end of the initial 28 day period to decide whether to accept or reject any proposal. If the proposal is rejected the Commission will proceed to let the croft by public notification of the tenancy in a local newspaper inviting applications. The crofter can appeal to the Scottish Land Court against the decision to terminate the tenancy within 42 days of the decision.
All multiple owners were contacted prior to the Census being sent out stating which owner would be responsible for completing the Census form. The nominated person should be the only one to receive the Census form. If you would like to change the nominated person you must contact the Commission in writing and the letter must by signed by all of the owners.
Yes, there are larger print versions of the Crofting Census form. To request a copy phone 01463 663439. Due to the format of the Crofting Census including prepopulated information unfortunately we are unable to offer the Census form in Gaelic.
The staff at the Crofting Commission are on hand to help. Call 01463 663439
Every four years the Scottish Government is required to submit a report to the Scottish Parliament on the economic conditions facing crofters. They have commissioned an independent research company, Exodus, to gather data on a range of issues pertinent to crofting businesses. A random sample of around 2,000 Crofters has been selected from the Register of Crofts, all information will be anonymous and were sent the survey on 13 October 2014. This is completely separate from the Crofting Census, surveys or any other information requested by the Crofting Commission. This survey has been commissioned to help inform the Scottish Governments Report to Parliament on the Economic Condition of Crofting 2011-2014 and will be subject to independent analysis outwith the Scottish Government and the Crofting Commission. Questions are about key social and economic issues relating to the croft, including sources of income and the financial running costs of the crofting business.
This normally occurs when you have retained a grazing share that you either own or tenant, this is treated as a croft in its own right so therefore you would have received a Grazings Share Census form.
If you have received a form, the Crofting Commission have not received the appropriate information from the new owner. The new owner needs to advise the Commission and complete a 'Notification of Change of Ownership' form.
The tenant retains the voting rights in the Grazing Committee unless and until these have been transferred either by the grazings regulations or the conditions of sublet.
There are 20,777 crofts and an estimated 11,500 crofters. Some crofters have more than one croft. It is estimated that there are more than 33,000 people living in crofting households.
The Scottish Government has agreed that all registered crofters and owner-occupier crofters can stand for election to the Crofting Commission. . Non-crofting candidates may be nominated by a person who is eligible to vote in the elections.The minimum age for candidates is 16 years. Details of the person nominating a non-crofter must be included and the nominee can only stand in the constituency of the person they are nominated by.
We have limited involvement with renewable energy projects, primarily in the context of decrofting for development. Our application forms and policies are available on our website. Renewables fall within the definition of purposeful use of croft land. You may wish to look at Community Energy Scotland's website www.communityenergyscotland.org.uk
You can download a copy of the Act from our website (see under the Act and Policy) or contact The Stationary Office, PO Box 29, Norwich, NR3 1GN
No, the Commission has no locus in determining croft boundaries. Where there is a dispute regarding the boundaries of a croft it is open to the disputing parties to apply to the Scottish Land Court to determine the boundaries.
The Commission cannot accept, or act upon, any comments made either anonymously or in confidence in relation to regulatory applications. However, we will accept, and act upon complaints made anonymous, providing there is sufficient information for us to do so.
A person with a year to year tenancy of a dwellinghouse with no land attached situated in the crofting counties.
Raised strips of cultivated land found in the Western Isles.
Either case can apply. If an owner-occupier crofter applies to let the tenancy of the croft, they can include the full rights or they can enter into a contract or agreement with the tenant that excludes certain rights, including the right to buy. In such circumstances, you must provide the Crofting Commission with a copy of the agreement and we will enter this in the Register of Crofts. Where a copy is entered, subject to the terms of the contract or agreement, the exclusion in question is binding on the successors to the crofters interest.
If an individual purchases the whole croft as the tenant's nominee then unless the tenant renounces the croft tenancy to the landlord, or the tenant takes co-ownership of the title to the croft with the nominee, the tenancy remains in place and the nominee has effectively purchased the landlords interest in the croft.
The effective date of purchase/transfer of a croft is regarded as the date of entry/settlement referred to in the Title Deed.
An appeal can be lodged under Sections 3A(1) and (2) against the Commission’s decision to create a new croft. Once a decision is made by the Commission, it is open to parties to appeal against the decision to the Scottish Land Court within 42 days from the Commission’s decision on the application. There is no provision in the Act for the Commission to withdraw or reduce their decision.
A tenant crofter has a duty to either “cultivate” his croft or put it to another “purposeful use” as required by sub-section 5C(2) of the Crofters (Scotland) Act 1993. Purposeful use is defined at sub-section 5C(8) as any planned and managed use which does not adversely affect the croft, the public interest, the interests of the landlord or (if different) the owner, or the use of adjacent land. A renewable energy development may qualify as purposeful use.
Under sub-section 5C(4) a tenant may only put the croft to a purposeful use if:
a) the landlord has consented to the use (unconditionally or subject to conditions acceptable to the crofter), or
b) the Crofting Commission have consented to the use.
The Crofting Commission can only consider an application to put the croft to a purposeful use if the landlord has refused consent or granted consent subject to conditions unacceptable to the tenant.
An owner-occupier crofter has a duty to either “cultivate” his croft or put it to another “purposeful use” as required by sub-section 5C(2) of the Crofters (Scotland) Act 1993. However, unlike the tenant crofter there is no requirement in the legislation to obtain consent to put the croft to a purposeful use, rather than cultivate it.
Although a renewable energy development may qualify as another purposeful use of croft land, a tenant or an owner-occupier crofter may require removing the land from crofting regulation in order to secure funding from commercial lenders to support the development. It is open to both tenant and owner-occupier crofters under sub-sections 24(3) & 25(1)(a) to apply to the Crofting Commission for a decrofting direction in order that the croft, or any part of it, may be used for or in connection with some reasonable purpose. “The generation of energy” is included in the list of reasonable purpose examples set out at sub-section 20(3) of the Act.
In considering whether to grant such an application the Commission must satisfy themselves in relation to the good of the croft, the estate, the public interest, and the interests of the crofting community in the locality of the croft. They must also be satisfied that the extent of the land to which the application relates is not excessive in relation to the purpose applied for.
In addition where the purpose is, or is connected with, the development of the croft in respect of which planning permission subsists, the Commission may take into account the effect such development would have on the croft, the estate, and the crofting community in the locality of the croft.
Schemes For Development
Under Section 19A a landlord (or owner) can apply to the Land Court for consent to develop croft land in accordance with a scheme appended to the application. The application can include land near to croft land if rights and liabilities in relation to the croft land would be affected.
In considering the application, consent will not be given unless the Court is satisfied that:
Alternatively the application may simply intimate a scheme to the Court if every person who has rights in or over croft land consents to its being developed under that Scheme.
It is important to note a crucial difference between decrofting/resumption and Schemes for development under Section 19A. Under both decrofting and resumption the land to be used for development is removed from crofting tenure. However under Section19A the rights of the crofters and/or shareholders in relation to the land are suspended for the lifetime of the development, there is no change to the status of the land as croft or common grazings.
The Land Court may authorise, on an application under Section 20 by a landlord, resumption of croft land for a reasonable purpose (including the generation of energy). In considering the application the Land Court must consider the purpose in relation to:
The Court may require the tenant to surrender the croft land to the landlord, upon the landlord making adequate compensation to the crofter. Compensation can be a monetary award, an adjustment of rent, or the letting of land of equivalent value. In addition to compensation for agricultural loss, a crofter, under Section 21, is also entitled to a share in the value of the land resumed. That share is one half of the difference between the market value of the land, as determined by the court (less any compensation payable) and the crofting value.
Common Grazings Land
The provisions set out above at 'Schemes for Development' and 'Resumption' also apply to common grazings land as to croft land.
In addition, under sub-section 21(4) where the resumed land forms part of a common grazings the share of the value of the land shall be apportioned among the crofters sharing in the common grazing according to the proportion of grazing shares that each holds.
Under Section 50B a crofter who holds a right in a common grazing may propose to the grazings committee that a part of the common grazing be used other than for grazings or woodlands. The proposed use must not be detrimental to the use being made of the other parts of the common grazing or the interests of the owner of the grazings
On receipt of a proposal the grazings committee shall summon a meeting of the crofters who share in the grazings, and shall send notice to the owner of the grazings inviting him to give his views and affording him the opportunity to discuss the proposal with a member of the committee.
If the vote is in favour of the proposal, the grazings committee shall apply to the Crofting Commission seeking their approval for its implementation. In considering such an application the Commission are required to take into account:
It is possible that Section 50B could be used for renewable energy development. However the more likelihood is that where these are communal developments, that they will be carried out under Section 19A as a Scheme for development, or that development would be carried out on land resumed under Section 20.
The reason being that the legislative provisions under Section 50B relate solely to the change of use of the land. Unlike Sections 19A and 20, there are no corresponding legislative provisions relating to the financial benefits of the development, fair recompense arrangements for the parties affected by the development, or provisions relating to how the development will happen.
Any land apportioned from the common grazings for a crofters exclusive use is deemed to form part of their croft. If they later purchase their apportionment, they become owner of that part of the croft which forms the apportionment. If the apportionment is obtained by a shareholder who is not a crofter, they will acquire a tenancy right and the apportioned land will become a croft. If they later purchase the apportionment, they will become owner of the area deemed to be a croft. Some apportionments are granted for a fixed term. If these are purchased, the land may be returned back to the common grazings, at the end of the fixed term. In these cases, the owner would become the landowner of a portion of common grazings, to which shareholders would have grazings rights.
Generally speaking, the Grazings Committee is responsible for the management of stock when on the common grazings. If animals cannot be kept on those areas for which the shareholders are paying rent, by normal herding or fencing, then it may be appropriate, in certain circumstances, to return them to the stockowners individual holdings.
The Committee should write to the shareholder concerned, informing them of the need to comply with the regulation(s). If the shareholder fails to follow the Committees instructions, the matter should then be reported to the Crofting Commission as a breach of the Grazings Regulations.
Many crofters may be unaware that following the purchase of croft land, any associated common grazings shares, which remain tenanted, are deemed to be a separate and distinct croft in their own right.
It is important to understand that it is deemed to be a croft only for the purposes of the Crofters (Scotland) Act 1993 and to ensure that the right is still subject to crofting controls and regulations. This is the reason why many owner-occupier crofters receive Crofting Census forms to complete and return to the Commission for both their croft and for their grazings share.
Crofts and deemed crofts (grazings shares and, where appropriate, apportionments) have their own separate entry in the Register of Crofts. When a croft has to be registered in Registers of Scotland’s Crofting Register, the deemed croft has to be registered separately.
The practicalities of having a deemed croft has little implication for crofters. However, when it does become important is with the sale or transfer of a croft and croft succession.
A Grazings Committee is elected by the shareholders of a Common Grazings to administer that Common Grazings.
A person appointed to administer a Common Grazings in the absence of a Grazings Committee.
The interest an individual croft/holding has in the Common Grazings.
A scattald is only found in the Shetland Isles. It is a common grazings with a number of owners, who own defined areas of that Common Grazings. These areas are known as scattalds. A tenant may share in one or more scattald on the same common grazings.
Person with an entitlement to use a Common Grazings.
The number and type of stock an individual croft can graze on a common grazings.
A common grazing where regulations for the management and use of that grazing have not been confirmed by the Commission.
A common grazing where regulations for the management and use of that grazing have been confirmed by the Commission.