A croft tenancy can be passed down through the generations by provision made in a crofter's will. Without a bequest in a will or if such provision fails - for example, if the bequest is not accepted or if the beneficiary dies before the crofter - the tenancy can be passed on through the procedure for “intestate succession”.

The recent decision of the Court of Session in the case of Pattinson v Matheson considers intestate succession and whether the tenancies of 2 crofts had been successfully inherited and transferred. The landlord wished to terminate the tenancies and argued that the necessary steps had not been carried out properly and within the required 24-month timescale for the transfer to take place.

Mr Matheson asserted that the tenancies of 2 crofts had been validly transferred to him after his father died. He had therefore registered the crofts on this basis. Mr Pattinson, the landlord, argued that the tenancies had been terminated and that the entries in the Crofting Register were invalid.

The facts

Mr Matheson’s father died on 14 September 2012 without a will. He had been the tenant of 2 crofts, and Mr Matheson was the only person entitled to inherit the tenancies. On 8 September 2014, Mr Matheson sent a letter to Mr Pattinson with a partially completed Crofting Commission (“Commission”) form for notification by an executor of the transfer of a croft in a case of intestate succession. The form named Mr Matheson as executor and as the incoming crofter. However, an executor had not yet been appointed and there had been no grant of “confirmation” – court authorisation for the executor to deal with the deceased’s estate. A copy of the form was sent to the Commission which responded with information about steps which had to be taken to complete the transfer.

Several years passed before Mr Matheson took further action. On 18 September 2018 he was appointed executor and on 30 November 2018 he obtained confirmation. The following June he completed further paperwork intended to effect the transfers and the Commission told Mr Matheson that he would become the tenant once the crofts had been registered in the Crofting Register. Registration took place on 8 October 2019, and on 11 October Mr Pattinson’s agents advised that he did not consent to an extension of the 24-month time limit for transferring the tenancies. On 27 November, notices were served intended to terminate the tenancies. Thereafter, Mr Pattison applied to the Land Court challenging the entries in the Crofting Register.

The Land Court

The Land Court decided that Mr Matheson’s 2014 notice was invalid because it had not been given by an executor and at that time, the transfer of the tenancies had not yet taken place. It was possible for Mr Matheson to transfer the tenancies more than 24 months after the death of his father, but the steps taken in June 2019 had been carried out in the wrong order - a fresh notice of transfer had been sent to the landlord before documentation necessary to effect the transfer had been completed. Consequently, no transfer had taken place. Mr Pattinson had been entitled to terminate the tenancies since more than 24 months had passed, and he had done so.

The Court of Session

The Court of Session considered whether the Land Court had been mistaken in deciding that neither notice was valid. It held that Mr Matheson's letter of 8 September 2014 with the accompanying form would have been sufficient to transfer the tenancy if he had been confirmed as executor at that time. Confirmation was not granted until 2018 – after the 24 month period – but this retrospectively validated the 2014 transfer. Even if the 2014 documentation had been lacking, Mr Matheson's actions in 2019 when he completed further paperwork, were also sufficient to effect the transfer. By the date of Mr Pattinson's notice of termination, the tenancy had already transferred.

The 2014 notice had become valid and the 2019 notice would have been valid if the 2014 notice had not already taken effect. The Land Court had been correct in deciding that Mr Matheson could transfer the tenancies more than 24 months after the death of his father.

Comment

This recent decision means that it will no longer be necessary to follow the established practice of (1) asking landlords to consent to transfers more than 24 months after a crofter's death, and (2) providing written evidence of this consent to the Commission in order to have official records updated. Beyond the 24-month period following a crofter's death, an executor can complete a transfer of a croft tenancy if the landlord has not already served a valid notice to terminate.

This simplification is welcome for crofters and in keeping with the spirit of the crofting legislation; as noted by the Court - "a pillar of which is to ensure that a crofter can secure succession to the family croft “without any expense or process of law”". Landlords should note that tenancies can be transferred after the 24-month period without their consent and should not delay in serving notices of termination when required. This remains a complicated area and it is sensible to obtain legal advice when dealing with the transfer of a croft, either following a death or during lifetime. Drawing up a will can also help avoid some difficulties and smooth the path for a straightforward transfer. If you need help with the transfer of a croft or preparing a will, please get in touch.

Contributors

Ros James

Associate

Karren Smith

Partner