Croft Succession & Landlords

Testate Succession 

Testate Succession is the the term used when a crofter makes a Will and names the person(s) they wish to leave the tenancy of the croft and/or grazing shares to.

Relevent Section of the 1993 Act Bequest of a Croft Testate Succession Section 10(2)  

The executor of the deceased crofter or the person to whom the tenancy of a croft/grazing share is left to, must give notice of the acceptance of the bequest to the landlord and send a copy of the notice to the Commission, within 12 months of the death of the crofter. If this does not happen within the required timescale, the bequest will be null and void and will fall to be treated as intestate Succession.

Intestate Succession  

When a crofter dies with no Will or if they did leave a Will, if the bequest subsequently became null and void, then the croft tenancy falls into what is known as intestacy. 

Relavent Section of the 1993 Act Intestacy - Section 11

The Executor of the deceased crofter must take the following steps within 24 months of either: the death of the crofter or the date the Commission was informed of the crofters death (as long as this was within 2 months of the crofters death):

1. (1) Obtain Confirmation from the Sheriff Court to the Estate of the deceased crofter, including his or her crofting estate. The croft tenancy or tenancies and any grazing rights, shares or apportionments should be detailed on the inventory to the Confirmation.
2. (2) Transfer* the tenancy of the croft (including any grazing rights or shares or apportionments); AND
3. (3) Give notice of that transfer (including details of who it is transferred to) to the landlord of the croft, who shall accept the person as the tenant. At the same time, the Executor must also send a copy of the notice to the Commission.

If after 24 months, the Landlord has not received notice from the executor and an extension has not been obtained then Section 11 of the Act states that the Landlord shall notify the Commission to that effect.

The Commission will then give notice:

1. (a) to the landlord;
2. (b) to the executor;  if an executor is confirmed in respect of the intestate estate of the deceased crofter,
3. (c) if no executor is so confirmed, to each person of whom the Commission are aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,that they propose to terminate the tenancy and declare the croft vacant and inviting the recipients of the notice to make representations as respects the proposal to the Commission before the expiry of the period of one month after the date of the notice.

The Landlords engagement in cases of croft succession is vitally important to try and avoid long term unresolved croft succession cases where crofts may be left unused for many years.

* How is a tenancy transferred?

**The case of McGrath –v– Nelson (2010 CSOH 149) established that one way in which to transfer a tenancy was for the confirmed Executor to use a docket endorsed on the Confirmation. 

Notwithstanding the court’s comments in the above case, it would appear that there are various modes of transfer of a croft tenancy in intestacy, it must always however be a transfer from the confirmed executor to the person entitled to succeed in terms of the law of intestate succession.  For further information about the transfers of croft tenancies in intestacy by executors, see Pattinson v Matheson in the Inner House.  

However, it is for confirmed executors and their legal agents to satisfy themselves as to competency of the mode of transfer by an executor of a croft tenancy or any crofting interest in terms of the guidance set out in Pattinson v Matheson [2022] CSIH.  The Commission has no jurisdiction to determine the competency of the mode of transfer by an executor.  Its role is limited to noting any changes in its Register of Crofts.  The Register of Crofts is an administrative register and is not authoritative.