The Scottish Government published its Crofting Consultation 2024 – Proposals for Crofting Law Reform (the 'Consultation') on 6 June. The proposals fall into six main categories: entry to crofting; crofting communities; use of common grazings; strengthening residency and land use; enhancing Crofting Commission powers; and simplifying crofting.
In a series of three blogs we consider these proposals, after looking at the background.
Why reform crofting law?
Crofting law is rooted in legislation passed in 1886 giving rights to crofters for the first time over land which their families had been living and working on for generations. Over the next century, further legislation sought to support this unique system of land holding which is of great cultural significance in rural and island communities. The Crofters (Scotland) Act 1993 is the main piece of legislation today, as amended by reforms passed in 2007, 2010 and 2013.
It is widely accepted, by both crofters and crofting landlords, that in its existing form, the law presents challenges. Most agree change is needed but striking the right balance between the interests of different stakeholders might be hard to achieve in a manner that everyone is happy with.
The current proposals stem from over a decade of work by:
- the Crofting Law Sump (a group established in 2013 to assist the Scottish Government with legal issues relating to crofting law);
- a Scottish Government Crofting Bill Group, meeting during 2018-2019;
- the Law Society of Scotland's Rural Affairs Committee, which produced a 2020 paper on Crofting Law Reform;
- the Scottish Government's Stakeholder Forum, leading to the production of a National Development Plan for Crofting in 2021; and
- the reconvened Scottish Government Crofting Bill Group, meeting again since 2022.
With the overall aim of supporting crofting as a way of life and protecting crofting communities, the Consultation aims to simplify crofting law by proposing some measures which are technical and others which are more substantial. In this first blog, we look at the proposals relating to entry to crofting, and crofting communities.
Entry to crofting
Crofts were traditionally tenanted land holdings allowing families a modest area of land on which to live and raise livestock or grow crops to support themselves, in exchange for a small rent. Changes to the law passed in 1976 gave tenant crofters the right to buy their croft. Those who purchased, became the owner of a croft which was technically 'vacant' on the basis that the land remained subject to crofting law but no longer had a tenant crofter. In 2010 the law was reformed to provide that a tenant purchasing a croft from their landlord became an 'owner-occupier crofter'.
Owned crofts and croft tenancies are sold on the open market (with some controls applying to the assignation of tenancies); and over the years, the demand for crofts has increased, driving up their market value. There are two main proposals for helping those who wish to become crofters – joint tenancies and standard securities.
Joint tenancies
Owned crofts can be held by more than one person, like other land which is owned, and the Consultation reports that around 1500 crofts are owned in this way. However, crofting law currently provides that there can be only one tenant of a croft. Going forward, it is proposed that tenancies could be held by a maximum of two people in a joint tenancy, in keeping with other types of agricultural tenancy. It is hoped that this would make crofts more affordable and encourage succession to croft tenancies, allowing a transitional arrangement for crofters who may prefer a staged approach to passing on their croft.
Standard securities
When money is borrowed against a property which is owned, the borrower grants a standard security in favour of their lender. In theory, crofters who own their crofts could use them as security, but lenders look for assets which can be readily sold if loan repayments are not kept up, and the regulation of crofting is found to be a barrier to such an arrangement. An added complication for tenants is that although croft tenancies command a high price on the open market, there is currently no legal mechanism for granting a standard security over the lease of a croft. The creation of a new process for granting securities is being considered as a way of providing access to finance for those looking to take on, or develop, a croft. Modification of crofting rights and responsibilities in relation to secured crofts is also proposed, for example – requiring creditor consent to specific changes such as assigning or dividing a croft.
Crofting communities
"Crofting Community" is an existing term which has been used inconsistently. To avoid ongoing confusion, the Consultation proposes a clarified definition referring to the crofters within a particular township, or with shares in a particular grazings, as listed in the Crofting Commission's Register of Crofts. Currently, there must be at least two crofts in a township for certain rights relating to members of a crofting community to apply, but it is proposed that this restriction be removed to include those several townships which consist of just one croft.
The Consultation also notes that certain matters are relevant to those outwith the 'crofting community' – for example, decrofting land and removing it from crofting tenure may impact on the wider crofting parish, and reporting suspected breaches of crofting duties for investigation by the Commission may be pertinent to non-crofters with an interest in crofts being made available.
In terms of notifying crofting matters to the public, existing newspaper requirements are found to be rigid, expensive and outdated. Notification via the Commission's website is proposed as an alternative, offering the simplification of everyone with an interest having only one place to look. To offer flexibility, giving the Commission power to set/update notification requirements on an ongoing basis, is also suggested. Building on this flexibility, a further proposal is to allow meetings required by legislation (for example, to appoint a grazings committee) to be held online or in hybrid format.
Full details of these proposals can be found in the Consultation paper - with responses invited by 2 September 2024. In the second blog in our series, we will look at those relating to use of common grazings, and strengthening residency and land use.
For further information or advice, please get in touch with one of our agricultural lawyers or your usual Brodies contact.
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