Crofting Consultation 2024 – enhanced Crofting Commission powers and simplified crofting

Currently all proposed assignations, sublets and short-term leases must be reviewed and approved by the Commission. These applications are rarely rejected – in 2022/23, 99% of assignations and 97% of sublets/short-term leases were approved. In comparison, there is no oversight of the transfer of owner-occupied crofts. Anyone who acquires an owner-occupied croft automatically becomes an owner-occupier crofter without requiring approval from the Commission.

Going forward, it is proposed that prior approval will be required for assignations, sublets and short-term leases, and for the transfer of owner-occupied crofts, but onlyin the following circumstances:

• Assignations – where the incoming crofter already holds 3 or more crofts (including grazings shares which form deemed crofts), or where the landlord objects;
• Sublets – where the total period would exceed 5 years, or where the landlord objects;
• Short-term leases – where the lease would exceed 5 years; and
• Owner-occupied crofts - where the proposed owner already holds 3 or more crofts (including grazings shares which form deemed crofts).

Under these changes, in most cases prior approval will not be required, and there will be no advertising requirement, only a requirement to notify any landlord and the Commission. A post-transfer check after 2 years is suggested as an alternative form of regulation - asking new crofters to confirm they are complying with the statutory duties. Those who acquire owner-occupied crofts without necessary prior approval, or who fail to comply with the statutory duties, could have owner-occupier status refused/withdrawn, leaving them liable to let the croft to a tenant crofter.

Under current crofting law, circumstances can arise where an owner inadvertently falls into the category of being a landlord of a vacant croft rather than an owner-occupier. Although they own and physically occupy the croft in question, they do not meet the necessary criteria for owner-occupier crofter status under the legislation. It is suggested that anyone in this predicament should be able to apply to the Commission, who will consider information provided by the applicant and decide whether or not to grant owner-occupier status.

The Commission has power to reorganise crofts within a crofting township, but this used rarely, and generally only where there is consensus between all crofters and landowners in the relevant township. To assist in situations involving only a small number of neighbouring crofts, the Consultation proposes a new power allowing the Commission to change the boundaries of one or more registered crofts on an agreed application submitted by all affected parties.

Directions and orders issued by the Commission are legal documents which can only be changed or overturned by the Scottish Land Court. Sometimes mistakes come to light after they are issued, often with spelling or maps. It is proposed that the Commission could correct these mistakes and issue amended directions/orders in cases where the error is clear and there is no dispute.

A successful decrofting application to the Commission results in land being removed from crofting tenure. Concerns have been raised about the lack of scrutiny applied to decrofting applications, especially where an application involves a crofter who is in breach of their crofting duties (or is suspected to be), and where one or more decrofting directions have been issued previously. To combat these concerns, the Consultation proposes that when considering a decrofting application, material factors will be whether the applicant is complying with their crofting duties, and whether there have been previous decroftings.

Currently, where a crofter fails to comply with their duties or a direction/order of the Commission, a variety of sanctions apply, including criminal sanctions in some cases. Additional administrative sanctions are proposed for regulatory breaches, to be applied by the Commission. For example: revoking Commission approval of an application where conditions are not being followed, and putting applications on hold when a census response has not been provided.

Often elected commissioner posts change at the same time, causing difficulties with continuity of leadership; and sometimes it is necessary to appoint new commissioners with particular skills to support the rest of the Crofting Commission Board. Views are sought on whether there should be a more even split of elected/appointed members than 6/3, and whether there should be restriction on how many times a commissioner can be elected.

The Keeper of the Registers of Scotland may only rectify the Crofting Register in three instances (1) where a mistake has been made by the original applicant; (2) where a mistake has been made by the Commission; and (3) where a mistake has been made by the Keeper. The Consultation notes that around 80% of rectification applications relate to the size of the area of the croft or common grazings. Currently rectification cannot be initiated by the Keeper unless the error is their fault - the original applicant or the Commission must seek rectification. New legislation would extend the Keeper's powers to (a) rectify the Register when they become aware of an inaccuracy, without being asked; and (b) to correct typographical errors. Additional changes would allow executors of original applicants to apply for rectification, and require tenant crofters to notify their landlord of a registration application before submission.

Most actions relating to a croft are 'trigger events' inducing first registration in the Crofting Register, such as decrofting assignation. One notable exception is when a tenant crofter purchases their croft and becomes an owner-occupier crofter. The Consultation proposes including this as a trigger for first registration going forward.

Currently, the Register of Crofts records the name, age and date of birth for tenants and landlords but not for owner-occupier crofters. It is suggested that owner-occupier crofters should be required to provide the same personal details as tenant crofters.