Frequently Asked Questions (FAQs)

Annual Notice (Census)

Can I complete my census return online?

Yes. In fact from the 2021 Annual Notice you must complete your census return online.   Details of how to do this, along with your unique log in password, are provided in the covering letter. 

Where can I get help with completing my Census return?

The staff at the Crofting Commission are on hand to help. Call 01463 663488 or email us at: census@crofting.gov.scot    

How long do I have to complete the Census return?

You will have 3 months to complete your Crofting Census return, with the online portal closing on the 8 April 2024.

How often will I have to complete a Crofting Census?

The Crofting Census will be issued annually.

What is the Crofting Census?

Following the implementation of the Crofting Reform (Scotland) Act 2010, the Crofting Commission has a duty to issue the Crofting Census, which is known legislatively as the Annual Notice. The Crofting Census is a legal requirement and all crofters must complete and return it to the Crofting Commission. The Crofting Commission is required to issue the Crofting Census form to tenant and owner-occupier crofters to ascertain if they are complying with their duties.

Who needs to complete the Crofting Census?

All tenant and owner-occupier crofters need to complete the Crofting Census form.

What will the information be used for?

The Crofting Commission require information on what you do with the croft. This will help the Commission to establish a clear picture of the current state of crofting. We will be able to use the information to advise Scottish Ministers, the Scottish Parliament and other agencies of the value of crofting and its contribution to life in Scotland. With the information provided, the Commission will be able to better understand and raise issues facing the future of crofting. The annual Crofting Census will allow the Commission to gather an evidence base which will grow year on year, helping to develop the case for crofting and creating persuasive arguments for issues such as the Common Agricultural Policy (CAP) reform over the coming years. The Census allows crofters to contribute to shaping the future of the crofting community.

What happens if I don't complete the Census?

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.

I have more than one croft, can I just complete one return?

No, your cover letter will include a unique code that will let you into the system, at which point you will be asked to complete a return for each separate croft we associate you with. Each croft is a separate legal entity and a separate return must be completed for each croft.

What do I do if the information on the Census is incorrect?

You have the opportunity to update information on the croft details and your details on the Census return.

What are the duties a crofter is to comply with?

A crofter has a duty to be resident on or within 32km of their croft, to cultivate and maintain the croft, put the croft to another purposeful use and not to misuse or neglect the croft.

How can I comply with the duties?

If a crofter finds they are not fulfilling their duties the Crofting Commission are on hand to support and advise crofters on the options available to them. If crofters are unable to comply with their duties there are a number of possibilities that can be considered such as: - Cultivate the croft or put it another purposeful use - Return to live on or within 32km of the croft - Apply to the Commission to be absent from the croft - Apply to the Commission to sublet or short term let the croft - Assigning the croft - Transferring ownership of the croft.

What options do I have to comply with the crofting duties?

The best way to address non-compliance is to be ordinarily resident and utilise the croft personally. A tenant crofter may apply to assign or sublet their tenancy, if the Crofting Commission accepts the application, the duties requirement passes to the new tenant or subtenant. A tenant crofter may renounce the tenancy to the landlord; it then becomes the responsibility of the landlord to find a new tenant who will comply with the duties of crofting. An owner-occupier crofter can transfer (sell) the whole croft to a person of their choice. The Commission is not involved in this transfer of crofts but there is a requirement to notify the Commission once the transfer is complete. The new owner of the croft is accountable for the compliance of duties.

What can the Crofting Commission do if I as a tenant crofter am not complying with my duties?

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.

What can the Crofting Commission do if I am an owner occupier crofter not complying with my duties?

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.

Are there different formats of the Census available?

For the 2023 census there is no form that can be sent out as it is a digital only return.  However, if you are not able to do this, due to disability or other accesability issue(s), then please phone 01463 663488 where a member of staff will be happy to assist further.

Who completes the Census return if there are multiple owners of a croft?

Each of the multiple owners will receive a census form to complete.

I have sold/decrofted my croft but I have received a Census letter

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.

I no longer own the croft

If you have received a letter, 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 data used for the 2023 Annual Notice was extracted on 7 December 2023, so any changes we were notified of after this date will not be reflected in the Annual Notice letters sent out. If this applies to you plase continue to complete your return, and use the facility to tell us that you know longer own the croft so that we can investigate further.

I have an informal arrangement for the use of my croft

A tenant crofter is in breach of the statutory conditions if they let their croft or part of it without the consent of the Commission. However, seasonal grazings lets are excluded from this provision. It is in order for a crofter to generate income by letting the land on a seasonal grazing let as part of their planned management of the croft. The Commission would encourage any unofficial use to be formalised either by a tenant crofter applying to the Commission for consent to a sublet of the croft for a period up to 10 years, or an owner-occupier crofter applying to the Commission for a short term let of the owner-occupied croft for up to 10 years. This would enable the sub-tenant or short term tenant to apply for certain types of grant assistance, which would be of benefit to the croft.

Why haven't I received a letter when I have a croft?

If you own your croft the most likely reason for this is that you are not regarded as an owner-occupier crofter but instead as the Landlord of the croft. Landlords are not required to complete the Census. If you require further information on this please contact the Crofting Commission on 01463 663 439.

What are the standards of good agricultural and environmental condition (GAEC)?

The legislative definition of neglect is where the croft is not managed so as to meet the standards of good agricultural and environmental condition referred to in regulation 4 of, and the schedule to, the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 (SSI 2004 No.518). Good agricultural and environmental condition: 4. (1) The standards of good agricultural and environmental condition referred to in Article 5 of the Council Regulation are specified in this regulation and the Schedule to these Regulations. (2) The land must be maintained in a condition that would make it reasonably practicable for an authorised person (and any person who may accompany an authorised person) to exercise any of the powers specified in regulation 6 as necessary to ascertain whether any of the statutory management requirements under Article 3 of the Council Regulation or any requirement of this regulation or the Schedule to these Regulations has been complied with.

Why have I been sent a letter for a digital Census?

Although all returns are all being done 100% digitally for the 2021 Annual Notice onwards, as it is a formal legal notice it must be served and therefore the Commission is required to send a physical notice to all crofters.

Assignation

What is Assignation?

Assignation is the term used to describe the transfer with Commission consent of a croft tenancy from the crofter, referred to as the assignor or outgoing tenant, to a person of their choice referred to as the assignee or proposed new tenant.

Crofters Duties and Statutory Conditions

What are crofters duties?

The same duties apply to both owner-occupier and tenant crofters. Those duties are that you must be ordinarily resident on, or within 32 kilometres of, the croft; you must not misuse or neglect the croft, you must cultivate the croft, or put it to another purposeful use.

What is misuse and neglect?

"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

What does Duty to Cultivate and Maintain mean and how will the Commission define these terms?

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.

Should a tenant apply for approval for purposeful use established prior to 1st October?

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.

How strictly will the residency limit be applied?

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.

In cases of misuse and neglect what happens if the owner is asked to let? Does the new tenant have full rights?

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.

Breach of Duty - Who can ask the Commission to carry out an investigation of a suspected breach of duty?

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.

Could you provide clarification of the respective positions of tenant crofters and owner-occupier crofters in terms of duties and enforcement provisions?

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.

When the Land Court issue an Order under Section 5A(2) that a breach of statutory conditions be remedied, do they make provision for monitoring compliance with the order?

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

What are the duties a crofter may be in breach of?

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.

How does the Commission become involved in a Breach of Duty investigation?

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.

Who can submit a report to the Crofting Commission of a suspected Breach of Duty?

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.

How can I notify the Commission of a suspected Breach of Duty?

You should complete a Suspected Breach of Duty form which is available to download by clicking here. 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.

 

 

Common Grazings/Apportionment

What is the status of a bought apportionment?

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.

Should the Commission grant apportionments on unregulated grazings?

Yes, there are no legal restrictions on the granting of apportionments on an unregulated grazings. The Commissioners can consider applications of this nature, on a case-by-case basis

What happens to the voting rights in a Grazing Committee under a sublet?

The tenant retains the voting rights in the Grazing Committee unless these have been transferred either by the grazings regulations or the conditions of the sub tenancy. There is no legal requirement for them to be transferred.

When will a Grazings Committee be re-elected for our township?

Each grazings committee is usually in office for a 3 year term from the date of appointment. Your Grazings Clerk will be able to tell you when the term for the current Grazings Committee is to come to an end. Before a new Committee is elected, a notice has to appear in a local paper, inviting shareholders to a meeting to elect a new Grazings Committee.

How many persons should form a Grazings Committee?

The size of the Committee is decided by the shareholders at the meeting called to appoint a new Grazings Committee.

Is the size of the Committee is decided by the shareholders at the meeting called to appoint a new Grazings Committee.

Yes. The election of the membership of a Grazings Committee is by the shareholders in the common grazings. The Non-shareholder must be proposed and seconded by shareholders

Can a non-shareholder be elected to be a member of a Grazings Committee?

Yes. The election of the membership of a Grazings Committee is by the shareholders in the common grazings. The Non-shareholder must be proposed and seconded by shareholders

Does the Grazings Clerk need to be an elected member of the Grazings Committee?

No, but if they are not an elected member, they have no voting rights at Committee meetings.

Where a meeting to appoint a grazings committee was properly advertised but the shareholders attending fail to appoint a grazings committee, what can be done to ensure the grazings are properly managed?

While it is always best if shareholders appoint there own grazings committee, where they fail to do so the Commission may after making such inquiry they deem necessary appoint a grazings committee or may appoint a person to be grazings constable

Can ordinary shareholders attend meetings of the Grazings Committee?

No, unless they are specifically invited by the Committee and the party attending cannot participate in the meeting unless the Chairman asks them to contribute.

Who is responsible for fences separating inbye croft land from common grazings?

Where a croft abuts the common grazings the Committee is responsible for the boundary fence between the croft and the common grazings.

Who is responsible for fences separating apportionments from common grazings?

The Commission always impose a condition on the crofter obtaining the apportionment, that they shall erect stockproof fences around the apportionment. Thereafter the crofter, and their successors, shall be responsible for the maintenance of those fences.

How many animals can I put on the common grazings?

The Grazings Regulations specify the number and type of stock each crofter can put on the grazings and is known as the souming.

How long can animals remain on the common grazings?

The Grazings Regulations may state this, or alternatively, it is a matter for the Grazings Committee to decide.

Can I put pigs or horses on the common grazings as part of my souming?

Generally, souming is only expressed in terms of cattle and sheep. Exceptionally, some Grazings Committees may amend their Grazings Regulations to accommodate other classes of stock.

As a shareholder without stock must I pay my share of the costs for the hire or purchase of a township bull?

Yes, if your souming entitles you to graze cattle on the common grazings, unless the Grazings Regulations state anything to the contrary.

What action should be taken when animals are alleged to be straying in the area of a crofting township?

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.

What action can be taken when a shareholder is in breach of the Grazings Regulations?

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.

What is a common grazings?

A common grazings is an area of rough grazing land shared by a number of crofters or other occupiers.

When is a grazings share deemed to be a croft.

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.

Where an individual purchases their croft land, but not the grazing right are they entitled to apply for an apportionment of part of the common grazings under Section 52(4) of the Crofters (Scotland) Act 1993?

Yes. Where a crofter has brought his croft, but not his grazing share, then the grazing share becomes a deemed to be held in tenancy as a deemed croft. As a deemed croft the holder of the right is a crofter and therefore for the purposes of Section 52(4) of the Crofters (Scotland) Act 1993 is entitled to an apportionment.

What is a Grazings Committee?

A Grazings Committee is elected by the shareholders of a Common Grazings to administer that Common Grazings.
 

What is a Grazings Constable?

A person appointed to administer a Common Grazings in the absence of a Grazings Committee.
 

What is a Grazings Share?

The interest an individual croft/holding has in the Common Grazings.

What is a Scattald?

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.

What is a Shareholder?

Person with an entitlement to use a Common Grazings.

What is Souming?

The number and type of stock an individual croft can graze on a common grazings.

What is an unregulated Common Grazings?

A common grazing where regulations for the management and use of that grazing have not been confirmed by the Commission.

What is a Regulated Common Grazings?

A common grazing where regulations for the management and use of that grazing have been confirmed by the Commission.

Crofting Reform (Scotland) Act 2010

What was the reason for the introduction of the Crofting Reform (Scotland) Act?

The Crofting Reform (Scotland) Bill was passed by the Scottish Parliament on 1 July 2010 and received Royal Assent on 6 August 2010. The principle aims of the bill identified by Scottish Ministers are to: Reform the Crofters Commission to make it more democratic and accountable by including elected members. Establish a new Crofting Register that will provide greater legal certainty over the extent and interests in crofts. Place duties on tenant and owner-occupier crofters to live on, or near, their croft and to work the land, and provide the Commission with powers to enforce these duties. Address speculation on the value of croft land, and to protect croft land for the benefit of future generations.

Crofting Register

How to register your croft, common grazings or land held runrig

For information on how to register your croft please see the Crofting Register page on this website

Decrofting

If I want to build a house on my croft, will I need planning permission before applying to decroft the site?

No, a crofter can apply for a decrofting application for a house site prior to the planning authority granting planning consent for the said site, providing the application has been submitted to the planning authority and the crofter is in receipt of a valid planning reference number (which must be entered on the decrofting application form prior to submission)

Can decrofted land be re-registered as croft land?

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

If a tenant or an owner-occupier decrofts a site, for example a croft house site and garden ground or a building plot, and then buys it and sells it on, the decrofting takes it outwith the ambit of the new legislation as it is no longer subject to Crofting Tenure?

Yes, once the land is removed from crofting tenure through decrofting then the provisions of the Crofting Acts would no longer apply.

How long does the decrofting process for a new house take?

Providing your croft is registered with the Keeper of the Registers of Scotland, we aim to take a decision on the application within 16 weeks. If your croft is not registered, we cannot take a decsion on your application until this has happened.

 

 

 

Is there a general time-limit for complying with conditions set out in a decrofting direction. In other words does the direction cease to have effect if the conditions have not been complied with within a particular period?

If it is an advance of purchase direction issued to the tenant of a croft, the direction will not take effect unless the tenant or their nominee purchase the area within 5 years of the date of the direction: Section 25(4) of the Crofters (Scotland) Act 1993. If it is a direction issued to an owner of a croft the Commission may impose conditions (including timescales) relating to the proposed use of the land (Section 24(3)).

If a decrofting Direction is reversed or recalled or ceases to be effective can the crofter make another decrofting application in respect of the same ground in the future?

Yes, providing they remain either the tenant or owner of the area they can make another application to decroft the land.

 

 

 

Is an advance of purchase decrofting Direction exclusive to the person who is the crofter at the time the Direction is granted?

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 a particular condition - say that the area in respect of which the direction has been made is to be fenced off- has a time limit attached to it what is the effect, if any, of failing to comply with the time limit?

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?

 

What are Section 17 and 18 feus?

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.

When was decrofting incorporated into legislation?

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.

 

 

What is Resumption?

The process under which a landlord can, with the approval of the Land Court remove land from crofting tenure.

Digital Applications

What are digital applications?

The Crofting Commission has started moving the core application types to a new digital system that allows the initial application to be made online. This new system is faster than a paper route, more secure, allows multiple parties to complete an application simultaneously, and is better for the environment.

As the system grows more functionality will be added to bring greater benefits to applicants.

Where are the lists of application forms?

As part of the digital application process the Commissions website has been updated to include a new wizard functionality. The website will now ask you 3 questions:

1. The holding that you wish to make an application against
2. To choose who the application is in the name of, from a list of people we associate to the selected holding
3. To choose the type of application you wish to make from a drop down

This wizard makes sure that you are getting the correct application process or form based on the circumstances of the holding and applicant. This helps us to reduce errors caused by incorrect forms being chosen, and saves time.

If you prefer to select from a list instead this option is still available at the last step of the wizard by clicking the link to make an offline applcaition.

Why can't I see the application type I want to make?

When you start an application now, either from the main Commission website or the digital application portal, you are prompted to go through a wizard that asks for the holding the application is against, then the stakeholder that the application is in the name of.

Using these two pieces of known information the wizard will restrict the available application type options to those appropriate for the selected holding and applicant.

If the applicant or application type does not show up it may be that our records need to be updated, or that the application type you are looking to start cannot be made against the holding and stakeholder combination chosen. In this case please email the Commission the details at digitalapplications@crofting.gov.scot

What can I apply for online?

Currently the system is in a soft launch phase and not all applcaition types are available digitally yet. More application types will become available over time and as they become available digitally the option to apply online will automatically appear for each applcaition type.

In the meantime you can still use the paper form application process as normal for any application type.

What if I cannot use the online system, or I do not want to?

Not a problem. The digital application process brings many benefits but is still completely optional and there is no restriction to downloading one of our paper based PDF forms and applying that way instead.

Do I need a solicitor or agent to apply online?

No, the digital system has been designed to be accessible to anyone.

How do I become a recognised solicitor or agent?

If you are one of the solicitors or agents who commonly submit applications to the Commission then you do not need to worry, you are already considered a recognised solicitor or agent and need only create an account with your work email address at the link below:

Crofting Commission digital applications portal

If you are not already in the system please email us at digitalapplications@crofting.gov.scot and we will discuss adding you to the system.

What do you mean by recognised agent?

By a recognised solicitor or agent we mean a member of a professional organisation who has their domain registered on our digital system. This allows organisations with multiple employees to easily manage a caseload of work, and allows the submission of digital applications for Assignations and Letting application types.

NOTE: the Commission does not endorse or recommend any agent or party on the basis of them being considered a recognised solicitor or agent.

What happens after I submit a digital application?

Once a digital application is submitted to the Commission it will be saved on the personal dashboard of the submitting party and will treated like any other application. Once any required paper forms are also sent, such as where a Registers of Scotland for is needed, your application will be progressed with the same priority as a paper based application although preliminary work may commence on the applciation before the additional paper forms are recevied.

Certain types of digital application may require modified documents to be sent after submission, such as a rectified map. Where these can be accepted digitally, these can be added using the digital applications portal.

Once the Commission has made a decision you will be posted a decision letter as normal.

Are digital applications dealt with as a priority?

No, they are not.

Once the application is received by the Commission it is treated like any other application and dealt with in strict time order. Digital applications will never be given priority over paper based applications.

What about Registers of Scotland forms?

Currently these forms still need to be posted to the Commission at the below address:

Crofting Commission,
Great Glen House,
Leachin Road,
Inverness
IV3 8NW

The Crofting Commission is working with Registers of Scotland to allow the submission of their required forms in the future, and once this is possible the application process will be updated to reflect this.

Division

What is the position where a tenant has brought part of his/her croft so that he/she is part owner, part tenant. If he sells the whole of the owned part, is that now a division requiring Commission consent?

In the Commission's view division is not required because a person who has part of the croft is not an owner-occupier crofter. Accordingly there is no requirement to divide, and indeed any such division application would be incompetent. A person who wishes to sell the part croft which he/she owns is free to do so but on the understanding that the croft entity remains whole, and he is not dividing the croft by selling it.

In a situation where a croft is owned and the owner wishes to transfer the croft to two or more people, is the consent of the Commission required to divide the croft prior to the transfer?

It depends on whether the intention is for the new owners to (a) hold title to the whole croft jointly, or (b) to hold title to separately identified parts of the croft. In scenario (a) no division application would be required to divide the land. In scenario (b) an application for the Commission's consent to divide the croft to form 3 crofts owned and registered separately in the names of the individuals would be required.

Is it competent for the executor of an owner-occupier crofter to submit an application for consent to divide the owner-occupied croft?

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.

If a crofter obtained title to their whole croft comprising in bye land and an apportionment, would they have to apply for Commission consent to divide the croft prior to transferring the part comprising the apportionment to another party?

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.

 

Can the landlord of part of a vacant croft apply for the Commissions consent to divide the land they own from the remainder of the croft?

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.

 

 

Letting

Can I let part of my croft to someone without making them a croft tenant?

Yes, an owner-occupier crofter may apply for the Commissions' consent to a proposed lease of their croft for a period not exceeding 10 years (a "short lease"). The Commission may impose conditions (other than any relating to rent) on the let as they see fit.

Are individuals on short term lets exposed to regulation?

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.

Can the Commission regulate tenants under a short lease?

Tenants under a short lease will be treated as neither a crofter nor 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 10yrs (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 tenants fails to comply with a condition of let, other than any relating to rent.

If there are two landlords each owning distinct areas of a vacant croft, will the Commission's consent to one of the landlords letting their land affect the other landlord?

To the extent that the effect of the let will be to create a new croft unit occupied by a tenant crofter, the status of the remaining owner will change from landlord of a vacant croft to either owner-occupier crofter or landlord of a vacant croft, depending on whether they meet the owner-occupier conditions set out in Section 19B.

What are the conditions of let of a croft tenancy?

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.

Miscellaneous FAQs

What is crofting's legal status?

Crofting is system of land tenure regulated through the Crofting Acts found only in the Scottish Highlands and Islands.

How many crofts are there?

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.

What is a croft?

A croft is a unit of land subject to the Crofting Acts. It is not a house.

What is a crofter?

A crofter is the tenant of a croft. Many estates in the Highlands & Islands have crofts and the landowner receives rent from the crofters. The rents reflect the value of the ground before successive generations of crofters improved the land. The house, agricultural buildings, fences, drains and roads are provided by the crofter.

How big is a croft?

Crofts range in size from less than 1/2 a hectare (ha) to more than 50 ha but an average croft is nearer to 5 ha. Most crofts are part of a township and share in hill grazing held in common with other crofters - known as common grazing.

How do crofters use their crofts?

A croft rarely provides a full time income and most crofters have other off-croft employment. Traditionally crofters rear sheep and cattle on the land and many crofters are now using their crofts in other ways to earn income from horticulture, vegetables or tourism for instance.

How can I get a croft?

Few croft tenancies come on to the market and are in great demand. Prospective crofters can look for tenancies in local newspapers or may contact crofting solicitors or estate agents to register their interest. Some have found a croft by placing a 'wanted' advertisement in the relevant local newspaper. 

The Scottish Land Matching Service (SLMS) has recently launched a 'crofting specific' portal to their website. The SLMS maintains a database of; those looking for an opportunity in crofting; and those with a crofting opportunity to offer. It is free to register with SLMS, who will then contact you, to find out a bit more about your situation, and add your listing to their online database.

Please note that the SLMS is separate from the Crofting Commission, and so any regulatory applications that may arise from interaction via the SLMS, will be treated in the same way as any other applications, and will be subject to the same policy and parameters.

For more information please visit Scottish Land Matching Service - Crofting

Must I live on my croft?

Tenant crofters and owner-occupier crofters must be ordinarily resident on, or within 32 kilometres of, their croft. An application may be made to the Commission for consent to be absent and the Commission, in determining whether to grant such consent, must be satisfied that there is good reason to do so.

Can anyone stand for election to the new Commission?

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.

If power of Attorney has been drawn up in favour of more than one person, is it sufficient for any application submitted on behalf of a crofter to be signed by one of the attorneys, or will all parties have to sign?

The signature of one of the attorneys should suffice

Is our township an open township?

The Grazings Regulations will confirm what system of management is in place in the winter months, and your Grazings Clerk will be able to give you this information.

Who should I contact to discuss options available where a wind farm development is proposed on a croft?

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

Who do I notify if there is a dead sheep within our township?

Livestock welfare issues should be reported to your local authority.

Are crofters liable to the provisions of The Animals (Scotland) Act 1987, with particular reference to their obligation to protect the public from injury, and public property from damage caused by crofter's cattle or sheep?

Yes, the provisions of The Animals (Scotland) Act 1987 apply to crofters.

What are the advantages of registering a holding as a croft?

We are not able to give specific advice on whether or not it would be advantageous to register a holding as a croft as it would depend on the individual circumstances. As the regulatory body for crofting who are required to consider the merits of any application to constitute land as a croft, we can only give general guidance to potential applicants which can be found on the Forms & Leaflets page of this website under Creating a new Croft.

What is a vacant Croft?

Section 23(10) of the Crofters (Scotland) Act 1993 establishes that a croft is vacant if it is not occupied by: a croft tenant, an owner-occupier crofter; a subtenant approved by the Commission under Section 27 or a tenant on a short lease approved by the Commission under Section 29A. Therefore anyone who holds title to croft land which is not occupied by one of the above categories must be the landlord of a vacant croft. The Commission can regulate the occupancy of vacant crofts through giving notice to the landlord under Section 23(5) to submit proposals for letting the croft.

Where can I get a copy of the Crofting Acts?

You can download a copy of the Act from our website (see under the Act and Policy) or contact The Stationery Office, PO Box 29, Norwich, NR3 1GN

 

Can the Commission determine the boundaries of a croft?

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.

 

 

Electric Fences - What is the legal obligation on the part of a crofter when he/she has erected an electric fence.

The Commission do not have any locus on the matter of electric fencing (or fencing in general) and as such we do not have any information on the regulations or standards. However, we are aware that it is an accepted agricultural practice to use electric fencing to contain animals as an alternative to conventional fencing. Our understanding is that appropriate signage should be in place where it is being used. The Health and Safety Executive (HSE) may be able to provide advice and guidance on this matter.

How does the Commission treat comments made from people in confidence or those who wish to remain anonymous?

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.

 

What is a Cottar?

A person with a year to year tenancy of a dwellinghouse with no land attached situated in the crofting counties.

 

 

What are Lazybeds?

Raised strips of cultivated land found in the Western Isles.

New Crofts

Can an applicant withdraw their application for Commission consent to have their land or holding constituted as a croft, after the Commission have given their consent to the application?

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.

More information on Creating a New Crofts

Creating a new croft factsheet

Law, policy and rules of procedure for creating a new croft

 

 

Owner-Occupier Crofter

Duties of tenant crofters and owner-occupier crofters?

The same duties apply to both owner-occupier and tenant crofters. Those duties are that you must be ordinarily resident on, or within 32 kilometres of, the croft; you must not misuse or neglect the croft, you must cultivate the croft, or put it to another purposeful use.

I am an owner occupier crofter and I want to sell part of my croft. Is this possible?

An owner-occupier croft may not transfer or sell any part of their croft without first dividing it into the part which they propose to transfer and the part which they propose to keep. The consent of the Commission must be obtained before the division of the croft takes place. If the Commissions' consent is not obtained, the conveyance will be null and void and you should take your own legal advice on this matter because there are significant legal consequences. Tenant crofters have always been required to obtain consent of the Commission before they divide their croft, and this remains unchanged.

Can a legal person e.g. a company, limited liability partnership be an owner-occupier crofter?

For a legal person i.e. a company, limited liability partnership or firm to be precluded from being an owner-occupier crofter, there must be a provision in the Act which stated or implied that they are precluded. In the case or owner-occupier crofters we can find no references which preclude legal persons from holding that position. Therefore it may be the case that legal persons can indeed be owner-occupier crofters. A limited company would still be obliged to fulfil the duties and obligations the Act imposes on owner-occupier crofters, and it would be fair to say that they could only be deemed to be complying if one of its directors or shareholders is cultivating the croft.

Can a landlord of a croft become the owner-occupier crofter if the tenant of the croft renounces their interest?

No, they are the landlord of a vacant croft.

Can the individual owner of a defined part of a croft, apply to let the croft on a short lease?

No, only the owner of a whole croft or owners, who hold the whole croft ownership jointly, can apply for a short lease of a croft tenancy.

Owner - occupier crofter - Definition

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.

 

 

Do persons who only own part of a croft satisfy the conditions to be an owner-occupier crofter?

In order to fulfil the statutory definition of owner-occupier crofter, a person must satisfy the 3 conditions set out in Section 19B of the Crofters (Scotland) Act 1993. The first of those conditions provides that an owner-occupier crofter must be the owner of a croft. The croft can be owned by more than one person, but those persons must own the entire croft jointly and their title deed must be in their joint names. Those persons who own only part of a croft are therefore not considered by the Commission to be owner-occupier crofters because they cannot satisfy all 3 conditions. Accordingly, they are considered by the Commission to be landlords of part of a vacant croft. It is open to the Commission to regulate that person's use of the croft under sections 23 - 25 of the 1993 Act (rather than sections 26A-26K, which apply to owner-occupier crofters. Furthermore, landlords of part of a vacant croft cannot submit an application for division under section 19D because such an application must be made by an owner-occupier croft. Similarly they cannot submit an application to let their part of the croft on a short term lease under section 29A as this option is only available to owner-occupier crofters. Situations like this may have arisen due to the transfer of ownership of parts of a croft on the (mistaken) assumption that the croft would be automatically divided. Any division of a croft (whether by a tenant crofter or owner-occupier crofter) can only be effected by the Commission, following an application and subsequent affirmative decision of the Commission.

Does an owner-occupier crofter for division purposes include the croft house site and garden ground?

Yes, under Section 19D the owner-occupier crofter would have to apply for the Commission's consent to divide the croft into the part he/she wishes to retain and the house site and garden ground area he/she wished to sell/transfer, unless he/she had previously decrofted the house site and garden ground.

If an owner-occupier crofter wishes to let the tenancy of his croft other than on a short lease, does the proposed tenant have the right to buy his croft land and house site, or can the owner-occupier exclude that right?

Either case can apply. If an owner-occupier crofter applies to let the tenancy of the croft, they can include the full rights of they can enter into a contract or agreement with the tenant that excludes certain rights, including the right to buy. In such circumstances they must provide the Commission with a copy of the agreement and we will enter a copy of the agreement in the Register of Crofts. Where a copy is so entered then, subject to the terms of the contract or agreement the exclusion in question is binding on the successor's to the crofter's interest. In either case, once the let has been effected the owner-occupier crofter will become the landlord of the croft.

What is the Constituting Landlord?

The constituting landlord is the owner of the land at the time it was constituted as a croft under the new croft provisions at Section 3A.

Does a constituting landlord satisfy the conditions to be an owner-occupier crofter?

No, the constituting landlord does not fall within the definition of owner-occupier crofter set out at Section 19B(3). A person who purchases the croft from the constituting landlord (or is such a purchaser's successor in title) would qualify providing the owner-occupier crofter conditions set out at Section 19B(2)and 19B(4) are met.

Purchase of Croft Land

What would a croft cost?

The price depends on the area and quality of land on the croft, any buildings and fences and their state of repair, the location and other demand, etc. The price is likely to be similar whether you are buying the tenancy or ownership of the croft. The Commission do not fix the price for the croft.

I used to be the tenant of my croft but I bought it last year. What is my legal status now?

The term "owner-occupier" has now been defined in law. The Commission will recognise a person as an owner-occupier 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 landlord (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 as a croft.

Does the Tenant have the right to buy or can it be excluded?

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.

Does the purchase of part of a croft by a tenant crofter from his landlord require to be preceded by a division application approved by the Commission?

Under Section 19D only an owner-occupier crofter is required to apply to divide the croft into the part he/she intends to retain and the part he/she intends to sell. In our view a tenant purchasing is not required to apply to divide the croft prior to purchasing a part of the croft. Following purchase he/she will be the owner of the part of the croft which was purchased, and tenant of the remainder.

Can the Commission become involved in the price being sought for a croft tenancy?

No, we look at the suitability of the incoming tenant, not the price sought or paid.

If someone buys a croft that is on the open market are they classed as the landlord of a vacant croft or an owner-occupier?

If the new purchaser acquired title from a crofter or his nominee who made the initial acquisition, or from their successors in title, then they could qualify as owner-occupier crofters, providing that the whole croft was included in the purchase. However, if they were purchasing from a landlord (with or without a tenant) they would simply be the landlord's successor in title, and the owner-occupier's designation would not apply.

When a croft is purchased, what is the date on which ownership is transferred?

The effective date of purchase/transfer of a croft is regarded as the date of entry/settlement referred to in the Title Deed.

 

 

Renewable Energy

Renewable Energy Projects on Croft Land and Common Grazings Land

Tenant Crofter

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.

Owner-Occupier Crofter

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.

Decrofting

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.

Landlords

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:

• The development is  for a reasonable purpose (as we have seen, the generation of energy is included in the examples of reasonable purpose);
• To carry it out would not be unfair;
• That the scheme provides for there to be fair recompense to each member of the crofting community affected by the development (including, in relation to the croft land of each member, recompense at least equivalent to the recompense which the member might be expected to have obtained had the croft land been resumed);
• That the community would likely to benefit financially, and such benefit would be at least commensurate with any financial benefit which the members of that community might obtain on the development proceeding by any other means.

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.

Resumption

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 good of the croft;
• the good of the estate;
• the public interest;
• the interests of the crofting community in the locality of the croft.

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

Landlords

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 their right in the common grazings. The Commission understand that this right is in accordance with their souming entitlement in the common grazings.

Grazings Committees

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:

• the interests of the estate which comprises the land to which the application relates;
• the interests of the crofting community in the locality of that land;
• the sustainable development of that crofting community;
• the interests of the public at large;
• any objections received;
• any plan of the Commission;
• any other matter which the Commission consider relevant.

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.

Succession

What happens if a crofter dies without leaving a Will ?

Since 1st October 2011,where a crofter dies without leaving a will or, if a will was made but the bequest became null and void or otherwise was not effected, the executor of a deceased crofter must take the following steps within 24 months of the crofter's death:- (1) obtain Confirmation from the Sheriff Court to the Estate of the deceased crofter. The croft tenancy and any grazing rights or shares must be detailed on the inventory to the Confirmation;(2) transfer the tenancy of the croft (including any grazing rights or shares)*The case of McGarth 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. Executors are urged to take independent legal advice on the question of how to transfer the tenancy and whether the case of McGarth V Nelson is applicable in their particular circumstances. In the event that the Executor considers that it is appropriate to transfer the tenancy by way of a docket, a proforma docket can be found on our website; and (3) give notice of that transfer, (including details of who it is transferred to) to the landlord of the croft, who shall accept that person as the tenant. At the same time the Executor must send a copy of the notice to the Commission. An application for the Commission's consent is no longer required in order to transfer a croft tenancy on intestacy.

Bequest of Crofts - A relative of mine has died and the tenancy of their croft has been left to me in their Will. What do I have to do now?

If you wish to accept the bequest of the tenancy, you (or the Executor of the deceased crofter, if authorised by you) must give notice of the bequest to the landlord of the croft and must send a copy of that notice to the Commission. You MUST do this within 12 MONTHS of the date of the crofter's death or else the bequest will be null and void, and the croft will be dealt with as intestate estate (i.e. as if no Will had been made)

Bequest of Crofts - Can the landlord of the croft object to a bequest?

A landlord must accept the bequest if you (or the Executor of the deceased crofter, if authorised by you)give notice of the bequest to the landlord or the croft and send a copy of that notice to the Commission within 12 MONTHS of the date of the crofter's death.

Bequest of Crofts - Can I bequeath the tenancy of my croft to more than one person?

Yes, the 2010 Act provides that, for the first time, a crofter can bequeath the tenancy of the croft to one or more individuals. If a crofter decides to bequeath the croft to more than one individual they should ensure that all of the croft land subject to the bequest is included in the Will and that no part is left untenanted, as this could result in the bequest becoming null and void, as if the Will had not been written (intestacy). Intestacy could also result if any legatees decline the bequest. If the croft bequeathed to more than one individual, the Executor must apply to the Commission to divide the croft tenancy. If consent is given, new crofts are created. If consent is refused, the bequest fails and the estate will be treated as an intestate estate.

In the event of multiple bequests what happens if one of the successor tenants wishes to dispose of their interest?

The 2010 Act provides that, for the first time, a crofter can bequeath the tenancy of their croft to more than one person. If a crofter decides to bequeath the croft to more than one individual, they should ensure that all of the croft land subject to the bequest is included in the will and that no part is left untenanted. If any part is left out, this could result in the bequest becoming null and void, as if the Will had not been written (intestacy). Intestacy could also result if any of the people named as tenants decline to accept the bequest. If the croft is bequeathed to more than one individual, the Executor must apply to the Commission to divide the croft tenancy. If consent is given, new crofts are created. If consent is refused, the bequest fails and the estate will be treated as if there had been no Will. If new crofts are created, they are separate units and, as they are now separate, it is open to any of the individuals who succeeded to their new croft, to seek to dispose of their interest. They can do this either by applying to the Commission to assign the tenancy to a nominated individual or they can let the landlord know they renounce their interest in the tenancy of the croft.

What steps must an executor take to transfer the tenancy?

Since 1st October 2011,where a crofter dies without leaving a will or, if a will was made but the bequest became null and void or otherwise was not effected, the executor of a deceased crofter must take the following steps within 24 months of the crofter's death:- (1) obtain Confirmation from the Sheriff Court to the Estate of the deceased crofter. The croft tenancy and any grazing rights or shares must be detailed on the inventory to the Confirmation;(2) transfer the tenancy of the croft (including any grazing rights or shares)*The case of McGarth 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. Executors are urged to take independent legal advice on the question of how to transfer the tenancy and whether the case of McGarth V Nelson is applicable in their particular circumstances. In the event that the Executor considers that it is appropriate to transfer the tenancy by way of a docket, a proforma docket can be found on our website; and (3) give notice of that transfer, (including details of who it is transferred to) to the landlord of the croft, who shall accept that person as the tenant. At the same time the Executor must send a copy of the notice to the Commission. An application for the Commission's consent is no longer required in order to transfer a croft tenancy on intestacy.

Would the executor of a deceased crofter be able to apply for Commission consent to divide the croft, in the absence of a specific bequest having been made by the late crofter to transfer the croft tenancy to more than one person?

No. In the absence of any amendment to the 1993 Act extending the definition of "crofter" to include a deceased crofter's executor, our view is that an application by such an executor to divide a croft would not be competent, unless the deceased crofter had bequeather his/her croft to more than one individual.

Deed of family arrangement?

Background: A crofter has died and left a Will bequeathing the croft tenancy to a family member. The family member in question however, has indicated that they did not wish to accept the bequest and a Deed of Family Arrangement has been drawn up transferring the bequest to another family member who will accept the bequest of the croft tenancy.

Bequest of crofts: If a bequest has been subject to a subsequent Deed of Family Arrangement, can you still process the transfer of the tenancy as a bequest of croft tenancy under the provisions of Section 10(1) of the Crofters (Scotland) Act?

Yes. A Deed of Family Arrangement is a form of Deed of Variation. Such deeds may be executed to vary the terms of a will, and this is often done to address inheritance tax issues. To be valid, a deed of variation or deed of family arrangement must be executed by all of the beneficiaries under a will, and must be signed and recorded within 2 years of the testator's death. The time limits contained in section 10 would still apply, so therefore we would require to receive intimation of the bequest within 12 months of the crofter's death.

Bequest of Crofts: Does the Commission require sight of the Deed of Family Arrangement or can this be covered by a solicitor's letter confirming the initial bequest and subsequent Deed of Family Arrangement establishing the individual's entitlement to succeed to the tenancy of the croft under Section 10(1)?

We would need to ask for sight of both the will and subsequent deed of family arrangement.

Can the Commission take enforcement action against the Executor of a deceased Owner-occupier crofter where a breach of duty relating to occupancy or land use has occurred?

The definition of owner-occupier crofter does not extend to the executor of such. To fall within that definition, a person must be the owner of a croft. An executor cannot be the owner and therefore cannot be an owner-occupier crofter. The definition of landlord in s61(1) of the 1993 Act, combined with the provisions in s23(12), give the confirmed executor of a landlord authority to apply to decroft an area of the croft, let the croft etc, and also allows the Commission to require such an executor to let the croft. Any action the Commission take to regulate the executor of an owner-occupier crofter (as the landlord of the croft) will not be under the new breach of duty provisions(ss26A to 26K), but will be under s23.

Can the Commission extend the one year time period stipulated at Section 10(2) of the 1993 Act for a legatee to accept a bequest?

In our opinion there is no mechanism for the Commission to extend the one year time period stipulated by Section 10(2) of the 1993 Act. The Act is quite clear that if the bequest is not accepted by the legatee within that time, the bequest falls to be dealt with as intestate estate.

Is it competent for the executor of an owner-occupier crofter to submit an application for consent to divide the owner-occupied croft?

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.

In what circumstances can the landlord terminate the deceased crofter's tenancy?

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.

 

Can a croft tenancy be transferred in intestate succession without the Executor having obtained Confirmation to the deceased crofter's estate?

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.

 

 

Subletting

Do sublets require Crofting Commission consent?

Yes. All applications to sublet a croft tenancy must be approved by the Crofting Commission. If our consent is not obtained, the sublet will be null and void. However, our consent is not needed to a house or other building on the croft being sublet to holiday visitors.

Can a legal person e.g. a company, limited liability partnership be the subtenant of a croft?

I think by necessary implication that only an individual natural person can be registered as a crofter defined in the Act as "the tenant of a croft" because of provision such as statutory condition 3 and other references throughout the Act to "member of a crofter, or former crofter or deceased crofter's family" as defined in Section 61(2). Also the provisions on succession and acquisition (sections 10-19) imply that a crofter cannot be a "legal person". However, I am not aware of any provision that would preclude a company or partnership from taking a sublease of a croft, or part of a croft, from a crofter, with the consent of the Commission, as required.

What happens to the voting rights in a Grazing Committee when the grazings share is included in a sublet?

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.

 

Owner of a Vacant Croft

Why is my “crofter” status on the ROC online shown as “Owner”?

The Commission considers you to be an “Owner” as:

• You own croft land;
• You do not have a crofting tenant, and
• You do not meet one or more of the three conditions to qualify for “Owner-occupier crofter” as either:
  • You do not own the whole of the croft; or
  • You were not the tenant crofter of the croft at the time you acquired it; or
  • The croft had been let to a person as a crofter since it was acquired.

Does the Commission require me to apply for consent to let the tenancy of the vacant croft?

The Commission can provide an assurance that an owner of a vacant croft will not be called upon for proposals to let the vacant croft providing they are (i) cultivating* the croft or putting the croft to another purposeful use (examples of purposeful use include tourism, the production of renewable energy. livery etc.) and (ii) they are residing on or within 32 kilometres (20 miles of the croft).

*Cultivating includes the use of a croft for horticulture or for any purpose of husbandry, including the 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

Can I be reported to the Commission for not using the croft and/or not residing on or within 20 miles (32 kilometres) of the croft?

The Commission may investigate reports of non-use and non-residence by owners of vacant crofts submitted by Grazings Committees, Grazings Constables or members of the crofting community within which the croft is situated. This may result in the owner being given a notice by the Commission requiring them to submit proposals for re-letting the croft, whether as a separate croft or as an enlargement of another tenanted croft.

Landlord of a Vacant Croft

Why is my “crofter” status on the ROC online shown as “Landlord”?

The Commission considers you to be a landlord as:

• The croft you own is part of a crofting estate (either publicly, privately or community owned)

and/or

• The previous tenant of the croft either renounced their tenancy or had their tenancy terminated either by order of the Crofting Commission or of the Scottish Land Court.

Does the Commission require me to apply for consent to the let the tenancy of the croft?

Yes. As the landlord of a vacant croft you are required to ensure the croft is occupied and worked by applying for Commission consent to let the vacant croft to a crofting tenant who will be required to:

 

• cultivate the croft or put the croft to another purposeful e.g. tourism, renewable energy, livery etc,

and

• to be ordinarily resident on or within 20 miles of the croft.

 

Further details on applying for Commission consent to let the tenancy of a vacant croft can be found at our digital application portal by clicking here.