Section 10: New Crofts
Section 10 inserts a new section 3A into the 1993 Act which allows the creation of new crofts and croft tenancies. Section 3A(1) empowers the Commission to constitute land as a croft in response to an application to that effect from the owner of the land in question. Subsections (2), (3) and (4) specify a process that the Commission are required to follow before deciding whether or not to agree to the owner's application and constitute the land as a croft. Subsection (5) ensures that an agricultural holdings tenant cannot be dispossessed of the tenancy of land as a result of all or part of the holding being designated as a croft. |
PART 2
CROFTS
10 New Crofts
After section 3 of the 1993 Act, there is inserted —
"3A New Crofts
(1) The Commission shall have power, on the application of the owner of any land situated in the crofting counties, to constitute the land as a croft by entering it as such, in accordance with section 41 of this Act, in the Register of Crofts (in this Act referred to as the "Register of Crofts"); but no such entry shall be made until the period mentioned in section 52A(3) of this Act has elapsed without any appeal to the Land Court being made or until any such appeal timeously made is decided or abandoned.
(2) The Commission shall, on receipt of any such application, give public notification of it; and such notification shall specify a period within which written comments as regards the application may be made.
(3) After the period mentioned in subsection (2) above has elapsed the Commission shall —
(a) determine whether to exercise their power under subsection (1) above; and
(b) give public notification of that determination.
(4) In so determining, the Commission shall have regard to —
(a) such written comments, if any, as are timeously made by virtue of subsection (2) above;
(b) the public interest and the interests of the crofting community in the locality of the land; and
(c) whether social or economic benefits might be expected as a consequence of so constituting it.
(5) No application is to be made under subsection (1) above in respect an agricultural holding occupied by a tenant where the tenancy is —
(a) a 1991 Act tenancy (within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11)); or
(b) a short limited duration tenancy or limited duration tenancy (within the meaning of that Act),
without the written agreement of the tenant; and on such a holding being constituted as a croft under that subsection the tenant shall be entitled to be registered, in accordance with section 41(2)(b) of this Act, as its tenant.".
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Section 11: The statutory conditions
Section 11 makes a number of significant changes to the statutory conditions contained in the 1993 Act including changes to the statutory conditions governing a crofter's use of his croft land and to the ability of crofters and landlords to contract to waive rights conferred on the crofter by that Act. Subsection (1)(a) of section 11 adds a new subsection (1A) to section 5 of the 1993 Act which provides that the landlord can serve notice on the croft tenant where there is a breach of a new condition of tenure (new paragraph 3A of Schedule 2 which is inserted by section 11(2)(b)).
Section 11(1)(b) adds new subsections (4) _ (9) to section 5 of the 1993 Act. New subsection (4) provides that any future contract or agreement between a crofter and landlord approved by the Land Court under the provisions of section 5(3) must be recorded in the Register of Crofts and new subsection (5) provides that such contracts or agreements once entered in the Register of Crofts are (depending on the terms of the contract or agreement) binding on the successors to the croft tenancy. This provision is primarily to allow the creation of binding agreements necessary to facilitate energy developments on croft land. However, it also provides the means by which a tenant of a croft can enter into a binding agreement with the landlord undertaking not to exercise his right to buy. It therefore makes it possible for a landowner to create new crofts without the risk of these crofts being subject to the right to buy. |
11 The statutory conditions
(1) In section 5 of the 1993 Act (the statutory conditions)–
(a) after subsection (1) there is inserted–
"(1A) If the landlord considers that the crofter is failing to comply with the condition set out in paragraph 3A of that Schedule he may serve notice to that effect on the crofter."; and
(b) at the end there is added–
"(4) On giving approval under subsection (3) above, the Land Court shall intimate to the Commission that it has done so and provide them with a copy of the contract or agreement; and the Commission shall enter that copy in the Register of Crofts.
(5) Where a copy is so entered then, subject to the terms of the contract or agreement, the deprival in question is binding on the successors to the crofter’s interest. |
New subsections (6) to (9) relate to the modification of paragraph 3 of Schedule 2 to the 1993 Act provided by section 11(2)(a). That modification allows for a croft to be put to a purposeful use other than agriculture. New subsection (6) specifies that a crofter must seek the consent of the landlord (whom failing, the Commission) to do so before putting the croft to a purposeful use other than agriculture and if that consent is obtained may put the croft to the new use subject to any conditions attached to that consent. New subsection (7) allows the crofter to apply to the Commission for consent to a proposed purposeful use if the landlord's consent has been asked for and has not been obtained within 28 days of the application to the landlord. New subsection (8) requires the Commission to consult on the application for consent and check whether any planning or other consents are required for the proposed use and, if so, have been granted before it makes a decision. New subsection (9) requires the Commission to decide an application within 28 days of receiving it and allow it to set conditions for any consent. |
(6) Before the croft is put to any such use as is mentioned in paragraph 3(b) of the statutory conditions, the crofter must apply for the landlord’s written consent and either–
(a) obtain it unconditionally or subject to conditions which the crofter accepts; or
(b) obtain the consent of the Commission.
(7) Any application for consent under paragraph (b) of subsection (6) above is to be made under this subsection but may be made only where consent under paragraph (a) of that subsection (whether unconditional or subject to such
conditions as are mentioned in paragraph (a)) has not been obtained within 28 days after application under paragraph (a).
(8) The Commission shall, on receipt of an application under subsection (7) above–
(a) consult, as regards the proposed purposeful use, the landlord and the members of the crofting community in the locality of the land; and
(b) if the proposed purposeful use–
(i) constitutes a change for which planning permission is required; or
(ii) by virtue of any enactment (other than this Act) requires any other permission or approval,
require it to be shown that the permission or approval has been given.
(9) The Commission shall decide the application within 28 days after receiving it; and if they give their consent may impose such conditions as they think fit.". |
Section 11(2) amends Schedule 2 to the 1993 Act. Subsection (2)(a) amends paragraph 3 of Schedule 2 (the requirement to cultivate a croft). It provides that a crofter can now cultivate the croft or put it to a purposeful use or do both. Subsection (2)(i) inserts a definition of "purposeful use" into paragraph 13 of Schedule 2. In order that the amendment to paragraph 3 has no impact on existing arrangements there is a saving provision at section 11(3) to the effect that existing rights relating to ancillary use are unaffected.
Subsection (2)(b) inserts 2 new paragraphs into Schedule 2. New paragraph 3A is a new condition that requires a crofter to keep his/her croft in a fit state for cultivation. New paragraph 3B defines some of the measures that might need to be taken to ensure that a croft remains fit for cultivation |
(2) In Schedule 2 to that Act (which sets out conditions to which every tenancy of a croft is subject)–
(a) in paragraph 3, for the words from "cultivate" to the end there is substituted "either or both–
(a) cultivate his croft;
(b) put it to some other use, being a purposeful use.";
(b) after paragraph 3 there is inserted–
"3A The croft shall be kept in a fit state for cultivation except in so far as a use to which it is put by virtue of paragraph 3(b) above is incompatible with its being so kept.
3B Without prejudice to the generality of paragraph 3A above, in determining whether that paragraph is complied with regard shall be had to whether appropriate measures (which may include the provision of drainage) are routinely undertaken, where requisite and practicable, to control or eradicate vermin, bracken, whins, broom, rushes, iris and harmful weeds."; |
Subsection (2)(c) modifies and rewords paragraph 5 to provide a new definition of what constitutes injury to a croft.
Subsection (2)(d) inserts in Schedule 2 a definition of what constitutes "relevant notice" by the landlord to the crofter to stop action which would prejudice continuation of a purposeful use. |
(c) in paragraph 5, for the words from "persistently" to the end there is substituted "injure the croft–
(a) by allowing the dilapidation of buildings;
(b) where the croft is cultivated, by allowing, after relevant notice, the deterioration of the soil; or
(c) where the croft is put to some other purposeful use, by actings prejudicial to that use being actings carried out after relevant notice.";
(d) after paragraph 5 there is inserted–
"5A In sub-paragraphs (b) and (c) of paragraph 5 above, "relevant notice" means notice given by the landlord to the crofter not to do, or not to allow, a particular thing or not to engage in a particular course of conduct (being a thing or course of conduct specified in the notice and relevant to the deterioration or prejudice in question)."; |
Subsection (2)(e) inserts new paragraph 6A in Schedule 2 which makes the croft tenant responsible to the landlord for any breach of the statutory conditions by the subtenant of the croft.
Subsection (2)(f) makes a consequential change to paragraph 7 of Schedule 2 to reflect a proposed change to section 9 of the 1993 Act which is detailed at section 14 of the Bill.
Subsection (2)(h) would insert a new paragraph 11A into Schedule 2 which qualifies the landlord's rights set out in paragraph 11 of Schedule 2 such that the crofter does not have to tolerate unreasonable exercise of such rights. |
(e) after paragraph 6 there is inserted–
"6A The crofter shall be responsible for ensuring, where the croft is sublet, that the subtenant adheres to the statutory conditions.";
(f) in paragraph 7, for the word "subdivide" there is substituted "divide";
(g) in paragraph 9, the word "persistently" is repealed;
(h) after paragraph 11 there is inserted–
"11A Nothing in paragraph 11 shall be held to allow, or require the crofter to allow, the landlord, or any person authorised by the landlord, to exercise unreasonably a right enjoyed by virtue of paragraph 11 above."; and
(i) in paragraph 13, at the end there is added–
""purposeful use" is any planned and managed use, being a use which subject to the exception in paragraph 3A above, does not adversely affect the croft, the public interest, the interests of the landlord or the use of adjacent land.".
(3) The amendment made by subsection (2)(a) above does not affect the right conferred by paragraph 3 of Schedule 2 to that Act, as originally enacted, in relation to a use for subsidiary or auxiliary occupations provided that such use subsists (having subsisted from before the coming into force of that subsection). |
Section 12: Complaints as respects breach of the statutory conditions
Section 12 inserts new sections 5A and 5B into the 1993 Act. New section 5A provides a procedure whereby the Commission may take action in place of the landlord where there has been a breach of the statutory conditions and the landlord has not objected. This would include the right to approach the Land Court to determine sanctions against the crofter concerned and these can include terminating the tenancy and declaring the croft vacant. This measure provides the means for dealing with the dereliction of crofts in cases where the landlord has no incentive to act.
The legislation continues to allow the landlord to take action against the croft tenant but provides an alternative approach that the landlord or any other member of the crofting community can complain to the Commission of a breach of statutory conditions. Section 5A(2) provides that if the landlord is not already taking action then the Commission may apply to the Land Court in connection to the breach complained about subject to section 5A(3) which requires that the Commission must give the landlord prior notice of an intended application to the Land Court and if the landlord objects in writing within 14 days may not proceed with the application. Section 5A(4) further requires the Commission to write to the crofter who is alleged to be in breach of the statutory conditions and give that crofter a reasonable time to remedy matters before making the application to the Land Court.
Section 5A(5) specifies what the Land Court may do if it is satisfied that the breach of statutory conditions complained about has occurred. The Land Court can order remedy of the breach by a specific time and payment of compensation to the landlord as it thinks fit. Section 5A(6) provides that if a crofter fails to comply with such an order by the Land Court the croft tenancy can be terminated and the croft declared vacant. |
12 Complaint as respects breach of the statutory conditions
After section 5 of the 1993 Act, there is inserted–
"5A Complaint as respects breach of the statutory conditions
(1) Without prejudice to any right which the landlord has to initiate proceedings in relation to a breach of the statutory conditions as respects a croft, the landlord or any member of the crofting community in the locality of the croft may complain to the Commission that such a breach has occurred.
(2) Provided that no such proceedings as are mentioned in subsection (1) above have been initiated, the Commission may make an application to the Land Court in relation to the breach; but this subsection is subject to subsections (3) and (4) below.
(3) Except where the complaint was by the landlord, the Commission shall give him written notice of their intention to make the application; and if within 14 days after receipt of that notice he gives them written intimation that he objects, they shall not proceed with the application.
(4) Before making the application, the Commission shall give written notice to the crofter of the breach complained of and give him the opportunity to remedy it within such reasonable period as they shall specify in the notice.
(5) Where, on an application under subsection (2) above, the Land Court is satisfied that the breach complained of has occurred, it may–
(a) order that the breach be remedied and specify a time within which that must occur; and
(b) make such order regarding the payment of compensation by the crofter to the landlord as it thinks fit.
(6) Where an order under subsection (5)(a) above is not complied with, the Commission may apply to the Land Court for an order terminating the tenancy and declaring the croft to be vacant. |
New section 5B provides in subsection (1) that irritancy of the tenancy occurs if the crofter misuses or neglects the croft and in subsection (2) goes on to define misuse and neglect. Irritancy is the right of a landlord to terminate a lease (in this case a croft tenancy) early as a result of the breach by the crofter of the terms of the tenancy and the crofter having failed to remedy that breach. |
5B Irritancy
(1) There is irritancy of the tenancy of a croft if the crofter misuses or neglects the croft.
(2) For the purposes of subsection (1) above, a crofter–
"misuses" a croft where he wilfully and knowingly uses it otherwise than for the purpose of its being cultivated or put to such other purposeful use as is duly consented to under section 5(4) of this Act;
"neglects" a croft where he does not keep it in a condition suitable for agricultural purposes or as the case may be for that other use.". |
Section 13: Exchange of crofts or parts of crofts
Section 13 closes a loophole in the current legislation, whereby crofters, with the agreement of their landlord, may exchange croft land without the approval of the Commission. While on the face of it this existing practice allows ease of arrangements and is deregulatory, there has been concern expressed about the longer term effects of such changes. The new section 4A inserted into the 1993 Act by section 13 requires that an exchange of a croft or parts of a croft requires the consent of the landlord, the owner of any common grazing in which any of the crofts involved in the exchange have a share and the Commission. The Commission cannot consent unless the other consents required have already been given. The provisions in new section 58A (inserted by section 5 of the Bill) apply as regards the consent of the Commission with the additional criterion for intervention being that the proposed exchange would be unfair to any of the crofters involved. |
13 Exchange of crofts or parts of crofts
After section 4 of the 1993 Act, there is inserted–
"Exchange of crofts
4A Exchange of crofts or parts of crofts
(1) A crofter may not exchange his croft (or any part of his croft) for another croft (or part of another croft) unless he obtains the consent of–
(a) the landlord of his croft;
(b) the owner of any common grazing in which he shares; and
(c) the Commission.
(2) The consent of the Commission shall not be given unless they are satisfied that the consent mentioned in paragraphs (a) and (b) of subsection (1) above has been obtained.
(3) In the case of an application made by virtue of subsection (1) above, the special condition which applies for the purposes of section 58A(6)(b)(ii) of this Act is that there are reasonable grounds for concern that the proposed exchange would be unfair to any of the crofters who are parties to the proposed exchange.". |
Section 14: Division of croft
Section 14 provides a complete replacement for the existing section 9 of the 1993 Act. The principal change is that the landlord's consent to division of the croft is no longer required. In addition the new procedure for obtaining the Commission's consent in new section 58A applies so that the Commission are only required to make a decision where there is an objection to the application or the Commission's criteria for intervention apply. The landlord has a right to object to the division of the croft by virtue of the provisions of new section 58A(4) (section 58A is inserted by section 5 of the Bill). New section 9(3) specifies that the division of a croft has no legal effect until details of the division are recorded in the Register of Crofts. The landlord's financial interests are secured by new section 9(4) which provides that a rent for a new croft created by division of an existing croft is to be agreed between the crofter and the landlord. In the event that they cannot reach agreement section 9(5) provides that either party can apply to the Land Court to have the rents determined by the Land Court with the fees payable in connection with the application being paid by the crofter. It should be noted that the term "subdivision" is replaced by the term "division". |
14 Division of croft
For section 9 of the 1993 Act (sub-division of croft), there is substituted–
"9 Division of croft
(1) A crofter shall not divide his croft unless he obtains the consent of the Commission.
(2) In the case of an application to divide a croft, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act–
(a) that the application is for the creation of more than two new crofts; or
(b) that the original croft is one created as a consequence of an earlier division (or sub-division).
(3) Any division of a croft to which the Commission have given their consent under this section shall take effect when such details of that division as the Commission may require by virtue of sections 41 and 41A of this Act are entered in the Register of Crofts.
(4) After division, the rent payable for the new crofts shall be that agreed between the landlord and the tenant.
(5) In the event that such agreement cannot be reached, the Land Court, on the application of the landlord or the tenant, shall have the power to determine the rent in accordance with subsections (3) and (4) of section 6 of this Act, the fees payable in connection with such an application being borne by the tenant.
(6) In this section–
(a) "division" means the division of a croft into two or more new crofts ("divide" being construed accordingly);
(b) "original croft" means the croft which is the subject of an application for division; and
(c) "new crofts" mean each of the crofts created by the division of the original croft.".
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Section 15: Subletting
Section 15 modifies the provisions of sections 27 and 29 of the 1993 Act and repeals section 28 of that Act. The main changes to section 27 are to alter subsection (1) to provide that the maximum length of a sublet shall be for a period not exceeding 10 years and to replace subsections (3) and (4) with a new subsection (3) which provides the special conditions which will apply when the consent of the Commission is required in terms of new section 58A (inserted by sections of the Bill).
Section 15(2) repeals section 28 of the 1993 Act, a provision that, had it ever been commenced, would have given the Commission power to impose a sub-tenant on a crofter. |
15 Subletting
(1) In section 27 of the 1993 Act (provisions as to right to sublet)–
(a) in subsection (1), after the words "his croft" there is inserted ", for a period not exceeding 10 years,"; and
(b) for subsections (3) and (4) there is substituted–
"(3) In the case of any application for such consent, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act–
(a) that there are reasonable grounds for concern as regards the use which the proposed subtenant intends to make of the croft; and
(b) that the proposed subtenant will not reside on, or within 16 kilometres of, the croft."
(2) Section 28 of that Act (special provisions regarding subletting of crofts not adequately used) is repealed. |
Section 15(3) amends section 29 by inserting new subsections (2A) and (3A). New subsection (2A) provides that it would be a condition of any sublease that the croft tenant must give the subtenant not less than 6 months notice of an intention by the tenant to assign the croft to a third party and thereby terminate the sublease. New subsection (3A) makes specific provision in relation to the continuation in occupation of the sub tenant on the death of the crofter. |
(3) In section 29 of that Act (miscellaneous provisions regarding subleases of crofts)–
(a) after subsection (2) there is inserted–
"(2A) The conditions of let must specify that the crofter shall give the subtenant not less than 6 months written notice of any intention to assign the croft and that the sublease shall come to an end on such assignation."; and
(b) after subsection (3) there is inserted–
"(3A) Where the tenancy of a croft is terminated by virtue of the death of the crofter, the Commission shall, as part of their consideration in determining whether to make an order under the proviso to subsection (3) above and if so what period of occupation to permit–
(a) consult the deceased crofter’s executor; and
(b) have regard in particular to such hardship as might, according to what they decide, be occasioned–
(i) the former subtenant;
(ii) an assignee or transferee of the interest of tenant.".
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Section 16: Assignation
Section 16 makes significant changes to the provisions of section 8 of the 1993 Act affecting both family and non-family assignation. The replacement of much of the existing wording of subsection 8(1) removes the requirement that a family assignation must have the landlord's consent. Sections 8(2) to 8(4) are replaced. The Bill also provides that new section 58A applies (inserted by section 5 of the Bill) to the process of considering an application. The effect of this is that the landlord along with the other persons specified at section 58A(4) have a right to object to an assignation proposal. So the anomaly requiring a landlord's permission for a family assignation, but not a non-family assignation, to succeed without Commission approval is replaced by the right (shared with others) to object in both cases, requiring the Commission to consider and make a decision.
In the case of an application to assign to a member of the crofter's family (see section 36 of the draft Bill) the Commission's power to intervene where there is no objection by a person entitled to object is as provided in new section 58A(9). However in the case of an assignation to a person who is not a member of the crofters family the new subsection 8(2) inserted by section 16(b) provides a list of additional special conditions which trigger a decision by the Commission to consider an application. |
16 Assignation
In section 8 of the 1993 Act (assignation of croft)–
(a) in subsection (1), for paragraphs (a) and (b) there is substituted "unless he obtains the consent of the Commission";
(b) for subsections (2) to (4) there is substituted–
"(2) In the case of an application made by virtue of subsection (1) above in respect of an assignation to a person other than a member of the crofter’s family, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act–
(a) that the proposed assignee lives within 16 kilometres of the croft;
(b) that he already owns or is tenant of a croft;
(c) that he lacks the knowledge, abilities and experience to cultivate the croft or as the case may be to put it to such other purposeful use as he intends;
(d) that he is the grazings clerk or a member of the grazings committee;
(e) where the landlord is not a natural person, that the proposed assignee is a member or employee, or is a member of the family of a member or employee, of the body which constitutes the landlord;
(f) that there are reasonable grounds for concern over the use to which the proposed assignee intends to put the croft.";
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Section 16(c) is a technical amendment to section 8(5) consequential on the amendment to section 8(1).
Section 16(d) amends subsection 8(6) so as to allow a transfer of a croft tenancy to take place on dates other than Martinmas or Whitsunday. |
(c) in subsection (5), for the words from "in writing" to "above" there is substituted "of the Commission"; and
(d) in subsection (6), for the words from "at the term" to "may be," there is substituted "on such date as the Commission shall specify in the consent (being a date not less than two months after that on which the consent was intimated to the crofter) unless before that date".
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Section 17: Bequest of tenancy of croft
This section amends the provisions of section 10 of the 1993 Act.
Section 17(2) amends section 10(1) to make it clear that a crofter may only leave the tenancy of his croft to a "natural person" i.e. the tenancy must be left to an individual and not to a company or institution.
Section 17(3) amends section 10(2). Section 17(3)(a) introduces a requirement that the legatee must give notice of the bequest to the Commission in addition to the current requirement that notice be given to the landlord. Section 17(3)(b) and (c) extend by 2 months the periods available to the legatee to give notice of a bequest. Section 17(3)(e) repeals the latter half of section 10(2) which is replaced by the new sections inserted by section 17(4). |
17 Bequest of tenancy of croft
(1) Section 10 of the 1993 Act (bequest of croft) is amended as follows.
(2) For subsection (1), there is substituted–
"(1) A crofter may, by will or other testamentary writing, bequeath the tenancy of his croft to any one natural person.".
(3) In subsection (2)–
(a) after the word "landlord", where it first occurs, there is inserted "and send a copy of the notice to the Commission, both";
(b) for the word "2" there is substituted "4";
(c) for the word "4" there is substituted "6";
(d) after the words "the provisions of this subsection", there is inserted "or subsection (2A) below"; and
(e) the words from "The giving of such notice" to the end are repealed.
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Section 17(4) creates 4 new subsections to be inserted in section 10. New section 10(2A) allows the executor to give notice of the bequest of tenancy in addition to the current provision in section 10(2) requiring the legatee to do so. New section 10(2B) provides that the legatee will (provided there is no objection from the landlord in the case of a non family legatee) take control of the tenancy on the date on which the Commission indicate that the information that they require under the provisions of new section 10(2C) has been provided. It also provides that when the legatee takes over the tenancy it will be as if the transfer took place on the date of the death of the previous tenant. |
(4) After subsection (2) there is inserted–
"(2A) Notice under subsection (2) above of the bequest may be given by an executor of the deceased crofter authorised for that purpose by the legatee.
(2B) The giving of notice to the landlord in accordance with the provisions of subsection (2) or (2A) above shall import acceptance of the bequest; and the legatee if–
(a) he is a member of the deceased crofter’s family; or
(b) he is a person other than a member of the deceased crofter’s family and the landlord does not intimate objection to the legatee in accordance with subsection (3) below,
shall come into the place of the deceased crofter (as from the date of death of the deceased crofter) on the relevant date mentioned in subsection (2D) below.
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New section 10(2C) provides that on receipt of notice of a bequest from a legatee or executor the Commission must notify the legatee of the information required by the Commission to update the Register of Crofts. In the case of a legatee who is not a member of the deceased crofter's family they will only do so if there has not been an objection from the landlord and in such cases must also indicate in the notification to the legatee that there has been no objection. |
(2C) Where notice is given in accordance with the provisions of subsection (2) or (2A) above and–
(a) the legatee is a member of the deceased crofter’s family, the Commission shall notify the legatee of the information they require for the purpose of updating the Register of Crofts in relation to the tenancy; or
(b) the legatee is a person other than a member of the deceased crofter’s family and the Commission receive no intimation of objection to the
legatee in accordance with subsection (3) below, they shall notify the legatee–
(i) to that effect; and
(ii) of the information referred to in paragraph (a) above.
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New section 10(2D) requires the Commission to notify the legatee once the information set out in the notification given under section 10(2C) has been provided. |
(2D) The Commission shall notify the legatee when they are satisfied that he has provided the information required by them in their notification to him under subsection (2C) above; and the "relevant date" referred to in subsection (2B) above is the date on which the Commission notify the legatee under this subsection.".
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Section 17(5) replaces section 10(3) with a new but similar provision setting out the detail of how a landlord should exercise the right to object to a bequest to a person other than a member of the deceased crofter's family. |
(5) For subsection (3), there is substituted–
"(3) Where the legatee is a person other than a member of the deceased crofter’s family, the landlord may, within one month (or such longer period as may be determined by the Commission on an application made to them by the landlord) after the date of the notice given to him in accordance with subsection (2) or (2A) above, intimate to–
(a) the legatee; and
(b) the Commission,
that he objects to the legatee becoming tenant of the croft; and any such intimation shall state the grounds of objection.".
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Section 17(6) replaces section 10(4)(b) with a new provision which retains the existing requirement to notify and adds a provision to the effect that the legatee should be notified of the need to provide information to be entered in the Register of Crofts. |
(6) In subsection (4), for paragraph (b) there is substituted–
"(b) not so satisfied, they shall–
(i) notify the landlord and the legatee to that effect; and
(ii) notify the legatee of the information they require for the purpose of updating the Register of Crofts in relation to the tenancy.".
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Section 17(7) inserts seven new subsections into section 10. Section 10(4A) provides that, when the legatee has provided the information that new section 10(4)(b) requires the legatee to supply, the Commission must notify the legatee that this has been done. On receipt of that notice the legatee is empowered to take control of the tenancy except where there has been an appeal under the provisions of section 10(4B). New section 10(4B) sets out the arrangements for appealing a decision made by the Commission in accordance with the provision of section 10(4). New section 10(4C) indicates what happens where the Land Court finds on appeal that a bequest should be upheld. |
(7) After that subsection, there is inserted–
"(4A) In a case where subsection (4)(b) above applies, the Commission shall notify the legatee when they are satisfied that he has provided the information required by them in their notification to him under that sub-paragraph (ii) of that subsection; and, if no appeal is made under subsection (4B) below against the Commission’s decision under subsection (4)(b) above, the legatee shall come into the place of the deceased crofter (as from the date of the deceased crofter’s death) on the date on which the Commission notify the legatee under this subsection.
(4B) The legatee or, as the case may be, the landlord may, within 42 days of the giving of notification of the Commission’s decision under paragraph (a) or (b) of subsection 4 above in relation to the objection, appeal to the Land Court against that decision; and in an appeal under this subsection, the Court may confirm the decision or direct the Commission to come to a different decision.
(4C) Where, on an appeal under subsection (4B) above, the Land Court directs the Commission to decide that a bequest under subsection (1) above be upheld, the legatee shall come into the place of the deceased crofter (as from the date of the deceased crofter’s death) on the date the Court directs under this subsection.
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New section 10(4D) introduces a new provision to the effect that (a) a legatee accepting the bequest of a tenancy assumes responsibility for debts incurred by the deceased as former tenant of the croft and (b) creates arrangements whereby the executor can recover reasonable expenses relating to the management of the tenancy from the legatee including arrangements for the settlement of any disputes in the Land Court. |
(4D) A legatee who comes into the place of a deceased crofter in accordance with subsection (2B), (4A) or, as the case may be, (4C) above, in doing so–
(a) becomes liable for such debts of the deceased crofter’s estate as are attributable to the tenancy; and
(b) shall, if requested to do so by the executor, pay the reasonable expenses necessarily and wholly incurred by the executor in relation to the administration and management of the tenancy during the period beginning with the date of the deceased crofter’s death and ending immediately before the date when the legatee so comes into the place of the deceased crofter; and such expenses–
(i) shall, in the event a dispute as to amount, be determined by the Land Court on the application of the executor or the legatee; and
(ii) shall not fall to be met from the deceased crofter’s estate.
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New section 10(4E) makes it clear that a croft tenancy is an asset of the deceased crofter's estate and so liable to be set against expenses and debts of the estate. This would require the legatee to contribute to such expenses and debts if the legatee chooses to retain the tenancy. |
(4E) Notwithstanding that a legatee comes into the place of the deceased crofter as mentioned in subsection (4D) above, the tenancy (and accordingly its market value as at the date of the deceased crofter’s death) is an asset of the deceased crofter’s estate, available along with the other assets of the estate to meet the other expenses of administration, and debts, of the estate; and any such legatee is liable to contribute to such expenses and debts accordingly.
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New section 10(4F) provides that where it is necessary to determine the value of the croft tenancy for the purposes of section 10(4E), and the executor and legatee fail to agree, the market value of the tenancy will be determined the Land Court. New section 10(4G) defines the market value for this purpose. |
(4F) For the purposes of subsection (4E) above, the market value of the tenancy, failing agreement between the executor and the legatee, shall be as determined by the Land Court under subsection (4G) below on the application of the executor or the legatee.
(4G) The market value of the tenancy as determined by the Land Court shall be the amount which a willing assignee, on the open market, might be expected to pay.".
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Section 18: Prior rights, on intestacy, in relation to tenancy of croft
The whole of section 18 consists of amendments to section 8 of the Succession (Scotland) Act 1964 ("the 1964 Act"). The effect of these amendments is to extend the prior rights of a spouse or civil partner of a crofter to cover the whole of the croft rather than the croft house alone and convey the same rights to a cohabitant where there is no spouse or civil partner (a civil partner is defined in section 1 of the Civil Partnership Act 2004 as a relationship between two people of the same sex which is formed when they register as civil partners of each other in accordance with provisions of that Act).
The effect of these changes is to afford a spouse or civil partner or cohabitant of a deceased crofter the same degree of protection in retaining the croft tenancy as the 1964 Act allows the spouse or civil partner of any other individual in retaining a dwelling-house owned by that person. This essentially means that where there is a house on the croft and the value of the relevant interest in that house is below the statutory threshold (currently £130,000), the spouse or civil partner or cohabitant of the deceased crofter is entitled to the croft tenancy (including the house) up to that amount. Where the value is above that threshold the entitlement is to the sum specified by order under section 8(1)(b) of the 1964 Act.
Section 18(3) provides new sections 8(2A) and 8(2B) in the 1964 Act. New subsection (2A) qualifies the existing provision in subsection (2) of that Act so as to provide that a croft tenancy is treated as being subject to prior rights in the same way as a house owned or leased under other forms of tenure. (Prior rights are the statutory rights of a spouse on intestacy to claim the house (with furniture and plenishings up to a certain value) and a fixed sum of money depending on whether or not the deceased is also survived by issue). New subsection (2B) sets out what happens when there is more than one property over which a spouse, civil partner or co-habitant could exercise a prior right. |
18 Prior rights, on intestacy, in relation to tenancy of croft
(1) Section 8 of the Succession (Scotland) Act 1964 (c.41) (prior rights, on intestacy, in dwelling house and furniture) is amended as follows.
(2) In subsection (1)–
(a) for the words "dwelling house to which this section applies,", there is substituted "dwelling house mentioned in subsection (4)(a) of this section,";
(b) after the words "shall be entitled" there is inserted ", subject to subsection (2B) of this section,"; and
(c) the proviso is repealed.
(3) After subsection (2), there is inserted–
"(2A) Where the tenant of a croft dies intestate leaving a spouse or civil partner or, where he dies leaving no spouse or civil partner, leaving a cohabitant, and the intestate estate includes a relevant interest in a dwelling house mentioned in subsection (4)(b) of this section, the surviving spouse, civil partner or, as the case may be, cohabitant shall be entitled, subject to subsection (2B) of this section, to receive out of the intestate estate–
(a) where the value of the relevant interest does not exceed the amount for the time being fixed by order under subsection (1)(a) of this section, the tenancy of the croft;
(b) in any other case, the sum for the time being fixed by order under subsection (1)(b) of this section.
(2B) If the intestate estate comprises –
(a) a relevant interest in 2 or more dwelling houses mentioned in subsection (4)(a) of this section, subsection (1) of this section shall have effect only in relation to such one of them as the surviving spouse or civil partner may elect for the purposes of that subsection within 6 months after the date of death of the intestate;
(b) a relevant interest in 2 or more dwelling houses mentioned in subsection (4)(b) of this section, subsection (2A) of this section shall have effect only in relation to such one of them as the surviving spouse, civil partner or cohabitant may elect for the purposes of that subsection within 6 months after that date; and
(c) a relevant interest in both–
(i) one or more dwelling houses mentioned in subsection (4)(a) of this section; and
(ii) one or more dwelling houses mentioned in subsection (4)(b) of this section,
the surviving spouse or civil partner shall not be entitled to receive both the entitlement under subsection (1) of this section and that under subsection (2A) of this section and must elect within 6 months after that date whether to take the entitlement under the said subsection (1) or under the said subsection (2A).".
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Section 18(4) modifies section 8(4) of the 1964 Act to distinguish between properties to which prior rights apply which are crofts and those that are not. |
(4) For subsection (4), there is substituted– "(4) The dwelling house is–
(a) in a case mentioned in subsection (1) of this section, any dwelling house in which the surviving spouse or civil partner of the intestate was ordinarily resident at the date of death of the intestate and which did not, at that date, form part of a croft of which the intestate was tenant;
(b) in a case mentioned in subsection (2A) of this section, any dwelling house in which the surviving spouse, civil partner or cohabitant was ordinarily resident at the date of death of the intestate and which, at that date, formed part of a croft of which the intestate was tenant.".
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Section 18(5) inserts a definition of "co-habitant" into section 8(6) of the 1964 Act consistent with that which is inserted into section 61 of the 1993 Act by section 36 of this draft Bill. |
(5) In subsection (6), before paragraph (a) there is inserted–
"(za)"cohabitant" means a person–
(i) who was living with the intestate as if married to him; or
(ii) who was living with the intestate as if in civil partnership with him, and had been so living for at least 2 years.".
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Section 19: Transfer of tenancy of croft by executor: amendment of section 16 of the Succession (Scotland) Act 1964
This section modifies the provisions of section 16 of the 1964 Act relating to the transfer of tenancy by an executor to distinguish between transfer of a croft tenancy which will require the consent of the Commission and transfers of the tenancy of other leases which require the consent of the landlord. This is achieved mainly through section 19(3) which inserts new section (2A) into section 16 of the 1964 Act. The amendment to section 16(9) of the 1964 Act effected by section 19(4) clarifies the definition of croft for the purposes of the 1964 Act. |
19 Transfer of tenancy of croft by executor: amendment of section 16 of the Succession (Scotland) Act 1964
(1) Section 16 of the Succession (Scotland) Act 1964 (powers of executor to assign lease which prohibits assignation) is amended as follows.
(2) In subsection (2), for the words from "shall be entitled" to the end, there is substituted "shall be entitled, subject to subsection (2A) of this section, to transfer the interest.".
(3) After that subsection, there is inserted–
"(2A) Transfer by an executor pursuant to subsection (2) of this section–
(a) of an interest under an agricultural lease which is a lease of a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1993 (c.44) shall require the consent of the Crofters Commission; and
(b) of an interest under any other lease (including any agricultural lease which does not fall within paragraph (a) of this subsection) and which is not a transfer to one of the persons entitled to succeed to the deceased’s intestate estate or to claim legal rights or the prior rights of a surviving spouse or civil partner out of the estate, in satisfaction of that person’s entitlement or claim, shall require the consent of the landlord.".
(4) In subsection (9), in the definition of "agricultural lease", after the words "1955" there is inserted "; and "references to a "croft" include a reference to a part of a croft, being a part consisting of any right of pasture or grazing land deemed by virtue of section 3(4) of the Crofters (Scotland) Act 1993 to form part of a croft". |
Section 20: Transfer of tenancy of croft by executor: special provision relating to the 1993 Act
This section inserts a new section 16A into the Succession (Scotland) Act 1964. The overall effect is to empower executors to transfer croft tenancies as they think fit subject to the same requirements as apply where a crofter assigns the tenancy.
New section 16A(1) provides that the provisions of section 58A of the 1993 Act (inserted by section 5 of the Bill) apply to a transfer covered by new section 16(2A). New section 16A(2) sets down the criteria for intervention by the Commission which will apply where there is an application to assign the tenancy of the deceased crofter to a person who is not a member of the deceased crofter's family. New section 16A(3) provides that if the executor does not seek the consent of the Commission before transferring the tenancy the transfer will be null and void and the Commission can declare the croft vacant. New section 16A(4) indicates what happens to give effect to a transfer if the Commission consent to it. |
20 Transfer of tenancy of croft by executor: special provision relating to the 1993 Act
After section 16 of the Succession (Scotland) Act 1964, there is inserted–
"16A Leases of crofts: special provision relating to the Crofters (Scotland) Act
1993
(1) The requirement in section 16(2A)(a) of this Act to obtain the consent of the Crofters Commission shall be treated as if it were a requirement under the Crofters (Scotland) Act 1993 (c.44) and accordingly section 58A of that Act shall apply for the purposes of the requirement as it applies for the purposes of a requirement under that Act.
(2) In the case of an application for the consent of the Crofter’s Commission made by virtue of section 16(2A)(a) of this Act in respect of a transfer to a person other than a member of the crofter’s family, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of the Crofters (Scotland) Act 1993–
(a) that the proposed transferee lives within 16 kilometres of the croft;
(b) that he already owns or is tenant of a croft;
(c) that he lacks the knowledge, abilities and experience to cultivate the croft or as the case may be to put it to such other purposeful use as he intends;
(d) that he is the grazings clerk or a member of the grazings committee;
(e) where the landlord is not a natural person, that the proposed transferee is a member or employee, or is a member of the family of a member or employee, of the body which constitutes the landlord;
(f) that there are reasonable grounds for concern over the use to which the proposed transferee intends to put the croft.
(3) Where the consent of the Crofter’s Commission to a transfer is required by section 16(2A)(a) of this Act, and the executor transfers the interest without the consent of the Commission–
(a) the transfer and any deed purporting so to transfer the interest shall be null and void; and
(b) the Commission may declare the croft to be vacant.
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New section 16A(5) provides for an appeal against a Commission decision to consent to or refuse consent to the transfer. It indicates the grounds on which an appeal can be made. New section 16A(6) confirms who may appeal. New section 16A(7) requires the appeal to be made within 42 days after the Commission decision. New section 16A(8) applies new sections 52A(4) and (5) of the 1993 Act to appeals under subsection 16A of the 1964 Act. These sections require the appellant to give notice of the appeal to the Commission, require the Commission to provide a written statement setting out the circumstances surrounding the application, the extent that these are agreed with the applicant together with the reasons for their decision and require the Land Court to send a copy of that statement to the applicant. New section 16A(9) provides that the Land Court may uphold the Commission's decision or direct that they should come to a different decision. |
(4) A transfer to which the Crofter’s Commission have given their consent under section 16(2A)(a) of this Act shall take effect on such date as the Commission shall specify in the consent (being a date not less than two months after that on which the consent was intimated to the executor) unless before that date the executor and the transferee jointly give to the Commission notice in writing that they do not intend to proceed with the transfer.
(5) An appeal shall lie on any question of fact or law to the Land Court against a decision of the Crofters Commission on an application made to them under section 16(2A)(a) of this Act.
(6) The appellant may be the applicant or any person with an interest in the application.
(7) An appeal under subsection (5) of this section must be brought within 42 days after the Commission dispose of the application.
(8) Section 52A(4) and (5) of the Crofters (Scotland) Act 1993 shall apply to an appeal by an executor under subsection (5) of this section as it applies to an appeal under that section.
(9) In an appeal under subsection (5) of this section, the Land Court may confirm the decision or direct the Commission to come to a different decision. ". |
Section 21: Amendment to section 11 of the 1993 Act
Section 21 makes a number of amendments to section 11 of the 1993 Act to modify the arrangements that currently apply where the executor in an intestacy fails to find a new tenant. There are a number of changes but the most significant is that the Commission no longer have a role in identifying a tenant from amongst those who might be entitled to inherit the intestate estate of the deceased crofter. Instead, simpler arrangements are put in place, including a declaration by the Commission that the tenancy has fallen vacant. If the tenancy is declared vacant the landlord is then required to re-let in accordance with the provisions of section 23 of the 1993 Act.
Section 21(2) amends section 11(2) of the 1993 Act so as to increase the time limit available to an executor to notify the landlord of the particulars of a proposed new tenant to 12 months from the relevant date. Thus giving the executor more time to find a suitable tenant.
Section 21(3) repeals section 11(3)(a) of the 1993 Act. This provision is no longer necessary because the change made to section 10 of the 1993 Act by section 17(3) of the Bill means that the Commission are informed of a bequest at the same time as the landlord. The change made by section 11(3)(b)(i) is consequential upon the change to 11(3)(a). The change made by section 11(3)(b)(ii) has the effect of giving the executor up to 2 months to notify the Commission of the death of the crofter before the 12 month period allowed for the transfer of the tenancy starts. A failure to notify however means that the 12 month period will start at the date of death of the crofter. So in effect the Bill creates a time penalty for a failure to notify the Commission. The change made by section 11(3)(c) is a technical change. |
21 Amendment of section 11 of the 1993 Act
(1) Section 11 of the 1993 Act (intestacy) is amended as follows.
(2) In subsection (2), for the word "3" there is substituted "12".
(3) In subsection (3)–
(a) paragraph (a) is repealed;
(b) in paragraph (b)–
(i) the word "otherwise" is repealed; and
(ii) after the word "tenancy," there is inserted "the date (no later than 2 months after the date of death of the deceased crofter) on which the Commission receive notification of the death or, where no such notification is received,"; and
(c) in paragraph (d), for the words "on which the Commission notified the landlord and the legatee" there is substituted "of notification by the Commission".
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Section 21(4) deletes subsections (4) to (9) of section 11 of the 1993 Act (measures that give the Commission power to get involved in finding a member of the deceased crofter's family who is suitable to be the new croft tenant and nominating that person as the tenant). In place of these provisions it puts in place new subsections (4) _ (8) setting out a simpler process by which if a suitable tenant is not found by the executor the Commission will eventually declare the croft vacant and thus available for re-let by the landlord.
New subsection 11(4) requires the Commission to notify the landlord, the executor and, if there is no executor, such persons as the Commission know of and believe might have rights in the intestate estate that the 12 months from the relevant date has expired and the Commission propose to terminate the tenancy and declare the croft vacant. It is worth noting that this provision does not require the Commission to take steps to try and identify persons who might be entitled to claim rights in the intestate estate. The Commission are only be required to notify the individuals they were aware of at that time. That notice would invite those to whom it was sent to make representations on the proposal within a month of the date of the notice.
New section 11(5) allows the Commission, after considering any representations, to proceed to terminate the tenancy, if they consider it appropriate to do so and provided that the tenancy had not been terminated already, the executor was not planning to transfer the tenancy or there was not someone entitled to exercise prior rights in relation to the tenancy.
New section 11(6) allows the Commission to issue a further termination notice under the provisions of new subsection 11(4) if they conclude the tenancy is not or cannot be transferred. New section 11(7) allows the Commission to terminate the tenancy following that further notice if they consider it appropriate to do so.
New section 11(8) requires the Commission on deciding to terminate a tenancy to give notice to the same people as received notice under new section 11(4). The notice given to the landlord requires the landlord to submit re-letting proposals. Section 11(8) also provides that when that notice is given the rights any person may have in relation to the tenancy are terminated and the landlord is liable to pay the executor the value of the permanent improvements on the croft. |
(4) For subsections (4) to (9), there is substituted–
"(4) If at the expiry of the period of 12 months referred to in subsection (2) above, it appears to the Commission (whether from notification under that subsection or otherwise) that the executor has not furnished to the landlord particulars of any transferee in accordance with subsection (1) above, they shall give notice in such manner as they think proper, whether by advertisement or otherwise–
(a) to the landlord;
(b) if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and
(c) if no executor is so confirmed, to each person of whom the Commission are aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,
that they propose to terminate the tenancy and declare the croft vacant and inviting the recipients of the notice to make representations as respects the proposal to the Commission before the expiry of the period of one month after the date of the notice.
(5) If, having considered representations (if any) made to them in accordance with subsection (4) above, the Commission are satisfied that–
(a) the landlord or the executor has terminated the tenancy in accordance with section 16(3)(b) of the Succession (Scotland) Act 1964;
(b) the executor is proposing to transfer the tenancy; or
(c) a person is entitled to a transfer of the tenancy in or towards the satisfaction of his claim to prior rights or his entitlement to succeed to the deceased’s intestate estate,
they are not to implement their proposal; but if not so satisfied they may implement their proposal if they consider it appropriate to do so.
(6) If, by virtue of subsection (5) above, the Commission are not entitled to implement their proposal, but it appears to them subsequently (by means of representations made to them or otherwise) that the tenancy is not being transferred or is unable to be transferred, the Commission may give notice again as mentioned in subsection (4) above.
(7) If, having considered representations (if any) made to them in accordance with subsection (4) above as respects a proposal contained in a notice given by virtue of subsection (6) above, the Commission are satisfied that it is appropriate to implement their proposal they may do so.
(8) Where the Commission in pursuance of this section declare the croft vacant–
(a) they shall give notice to that effect–
(i) to the landlord;
(ii) if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and
(iii) if no executor is so confirmed, to each person of whom the Commission is aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,
and any such notice to the landlord shall require him to submit to them such proposals as are mentioned in section 23(5) of this Act;
(b) any right of any person in, or in relation to, the tenancy shall be extinguished; and
(c) the landlord shall be liable to pay to the executor of the deceased crofter the value of the permanent improvements on the croft in so far as those improvements are as described in paragraphs (a) to (c) of section 30 of this Act.".
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Section 21(5) amends section 11(10) of the 1993 Act to leave only a definition of the value of improvements for the purposes of new section 11(8)(c). The effect of the amendment is to end the requirement that the landlord is liable to repay from the value of the improvements any sums due by the deceased crofter to Scottish Ministers.
New section 21(6) is a technical amendment necessary as a consequence of other changes to section 11. |
(5) In subsection (10), for the words from the beginning to "In this subsection", there is substituted "In subsection (8)(c) above,".
(6) In subsection (11)(a), for the words "subsection (8) above" there is substituted "this section". |
Section 22: Determination of the Land Court as to croft boundaries
Section 22 introduces a new section 53A into the 1993 Act. The purpose of this section is to reduce the future incidence and cost of disputes over croft boundaries. Section 53(1)(c) of the 1993 Act provides that the Land Court has power to settle any question relating to the boundaries of crofts. However, croft boundaries are not well documented and therefore it is often difficult to determine what these boundaries are. New section 53A provides that where there is no documentary evidence to the contrary and the current boundaries have been accepted without challenge for a period of twenty years or more, the Land Court will endorse those current boundaries when asked to determine where croft boundaries lie.
New section 53A(1) states the presumption in favour of the boundaries on the ground when the application is made. New section 53A(2) sets out the conditions that must be met for the presumption to be applied. New section 53A(3) states if any one of these conditions does not apply there must be a hearing to determine the application. New section 53A(4) makes it clear that if the court makes a declaration as to the boundaries a further application to the court on a question relating to these boundaries will be incompetent. It also requires the court to send a copy of its declaration as to these boundaries to the Keeper of the Registers of Scotland. New section 53A(5) provides definitions of the terms used in section 53A. New section 53A(6) provides that where a declaration has been made in respect of part only of a boundary it is only that part which is excluded from a further application to the Land Court in terms of section 53A(4)(a). |
22 Determination of the Land Court as to croft boundaries
After section 53 of the 1993 Act, there is inserted —
"53A Extent of boundaries
(1) Where an application is made to the Land Court to determine a question under section 53(1)(c) of this Act (in this section referred to as "the application"), and the conditions in subsection (2) below are met, the Land Court shall declare the boundaries of–
(a) a croft; or
(b) any pasture or grazing land a right in which forms part of a croft, to be those in existence at the time the application is made.
(2) The conditions are that–
(a) the boundaries of the croft to which the application relates are those accepted as existing for the twenty year period (such boundaries being referred to in this section as the "agreed boundaries");
(b) a plan delineating the agreed boundaries has been submitted to the Land Court;
(c) no successful challenge has been made to the agreed boundaries in the twenty year period;
(d) no challenge to the agreed boundaries is extant in respect of which the Land Court’s determination might be made before the expiry of the twenty year period; and
(e) no documentary evidence submitted to the Land Court in connection with the application contradicts or is inconsistent with the agreed boundaries.
(3) If any of the conditions in subsection (2) above is not satisfied, the Land Court shall conduct a hearing to determine the application.
(4) Where a declaration is made under subsection (1) above relating to the boundaries of a croft or of any pasture or grazing land a right in which forms part of a croft–
(a) a further application to the Land Court shall be incompetent insofar as it concerns a question under section 53(1)(c) of this Act which relates to the boundaries of that croft or land; and
(b) the Land Court shall send a copy of the declaration to the Keeper of the Registers of Scotland.
(5) In this section–
(a) "accepted" means–
(i) agreed, expressly or impliedly, by both landlord and crofter; or
(ii) known to, and acquiesced in by, both landlord and crofter;
(b) "boundaries" includes part of a boundary and "agreed boundaries" shall be construed accordingly;
(c) references to "challenge" are references to the making of a claim in an application to the Land Court under section 53(1)(c) of this Act;
(d) "crofter" includes any predecessors in the tenancy;
(e) "landlord" includes any person who, in the past, was entitled to receive the rents and profits, or take possession, of the croft; and
(f) the "twenty year period" is the continuous period of twenty years beginning with the date on which–
(i) the land bounded by the agreed boundaries was first so bounded; or
(ii) the landlord, crofter or, as the case may be, other party challenging the agreed boundaries (including any predecessor in title of such other party) was aware or ought to have been aware of the land being so bounded.".
(6) Where a declaration made under subsection (1) relates only to part of the boundaries of a croft or any pasture or grazing land a right in which forms part of a croft, the reference in subsection (4)(a) to the boundaries of a croft or land shall be read as a reference to that part.". |
Section 23: Reorganisation schemes
Section 23 amends sections 38 and 39 of the 1993 Act, inserts a new section 38A and repeals Schedule 4. These measures together change the approach to reorganisation of crofting townships by reducing timescales and allowing for more extensive consultation. The control exerted by Scottish Ministers under the current legislation is largely replaced by detailed provisions aimed at ensuring that interested parties are made aware of the scheme proposals and final version, coupled with a right of appeal to the Land Court. Scottish Ministers have only a limited role in the process and that is where it might involve acquisition of land which is not in crofting tenure.
Section 23(2)(a) amends subsection 38(1) so that it is clear that the initial scheme prepared by the Commission is a provisional proposal. Section 23(2)(b) inserts new section 38(1A) which requires the Commission to notify the persons identified in new section 38(10) of the intention to prepare a provisional draft reorganisation scheme. These persons are:
- each crofter who is a tenant of a croft in the township,
- the landlord of each croft, each relevant grazings committee,
- each relevant grazings committee,
- the owner of each grazing,
- each shareholder in a grazing and the occupiers of all contiguous land.
Section 23(2)(c) replaces section 38(3) with a new version. The main change is the addition of section 38(3)(a) which is a new provision to allow the Commission to include land which is not croft land in the scheme but only if Scottish Ministers have consented to the inclusion of that land. |
23 Reorganisation schemes
(1) The 1993 Act is amended as follows.
(2) In section 38 (reorganisation schemes)–
(a) in subsection (1), after the words "prepare a" there is inserted "provisional";
(b) after subsection (1) there is inserted–
"(1A) Before proceeding to prepare a provisional draft reorganisation scheme the Commission must give intimation in writing to each of the persons mentioned in subsection (10) below that the Commission are satisfied as is mentioned in subsection (1) above and that they intend so to proceed.";
(c) for subsection (3) there is substituted–
"(3) A reorganisation scheme may, if the Commission–
(a) obtain the prior written consent of the Scottish Ministers, make provision with respect to the inclusion of any land in the vicinity of the township, being land to which this Act does not apply, which in the opinion of the Commission ought to be used for the enlargement of crofts in the township or of a common grazing used exclusively or shared in by the township;
(b) think fit, make provision with respect to all or any of the following matters–
(i) the admission into the township of new crofters and the allocation to them of shares in the common grazing;
(ii) the apportionment for the exclusive use of the township of a part of any common grazing in which it shares;
(iii) the inclusion in any croft formed under the scheme of a part of the common grazing or of any land held in runrig;
(iv) any other matter incidental to or consequential on the provisions of the scheme.";
(d) in subsection (4)–
(i) after the words "reorganisation scheme", there is inserted ", or provisional draft or draft of such a scheme,"; and
(ii) after the words "the scheme" there is inserted " or, as the case may be, of the provisional draft or draft,"; and
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Subsection 23(2)(e) replaces sections 38(5)_(7) with new sections 38(5)_(11). This changes the process for preparing reorganisation schemes and removes the requirement that the scheme must be confirmed by Scottish Ministers. The main change introduced by new section 38(5) is to require the Commission to send a copy of the scheme to and serve notice on the range of people identified in new subsection 38(10) (the current provision only requires that these documents are sent to the tenant of each croft). Some of the content of the notice is different and allows those to whom these documents are sent two months in which to comment (currently four months) and they would not be asked at this stage to indicate specifically whether or not they were in favour of the scheme as had previously been the case. However the notice does still, as at present, indicate a local venue where and times when maps and plans of the reorganisation can be seen.
Where the Commission have received comments on the provisional draft and is still satisfied that there ought to be a reorganisation new section 38(6) requires them to prepare a draft plan which takes account of the comments. The Commission on completion of that draft are required to issue copies and give notice as provided in new subsection 38(5) except the period for responding is one month and that on this occasion the persons to whom the notice is sent are asked to indicate whether or not they are in favour of the draft scheme.
New section 38(7) provides that a failure to respond to the notice given under new section 38(6) is deemed to be an intimation that the person who failed to respond is in favour of the scheme. This provision more or less replicates the last paragraph of the current section 38(5).
New section 38(8) authorises the Commission to finalise a reorganisation scheme provided the majority of the crofters previously given notice of the draft scheme have intimated that they are in favour of the scheme. It also provides that the finalised scheme must be copied to all the persons previously given notice of the draft scheme and they are again given notice of where and when maps and plans can be inspected. In addition the notice advises of the new right to appeal the decision to reorganise the township which section 23(3) of the draft Bill provides (see below). |
(e) for subsections (5) to (7), there is substituted–
"(5) Where, in relation to any township, the Commission prepare a provisional draft reorganisation scheme under subsection (1) above, they shall serve on each of the persons mentioned in subsection (10) below a copy of the provisional draft together with a notice–
(a) naming a place within the locality in which the township is situated where a copy of the maps and plans prepared by the Commission under subsection (4) above in relation to the provisional draft scheme may be inspected at all reasonable hours;
(b) inviting the person on whom the provisional draft and notice are served, within two months of the date of such service, to make in writing to the Commission such comments as they may wish to make on the provisional draft, maps or plans.
(6) Where, having taken into account comments (if any) made to them by virtue of subsection (5) above, the Commission are still satisfied as mentioned in subsection (1) above, they shall–
(a) prepare a draft reorganisation scheme in relation to the township taking into account such comments;
(b) serve on each of the persons mentioned in subsection (10) below a copy of the draft scheme together with a notice–
(i) naming a place within the locality in which the township is situated where a copy of any maps and plans prepared by the Commission under subsection (4) above in relation to the draft scheme may be inspected at all reasonable hours; and
(ii) requesting that the person on whom the draft and notice are served, within one month from the date of such service, intimates to the Commission in writing whether or not that person is in favour of the draft scheme.
(7) Where any person on whom a notice has been served under subsection (6) above fails to comply with the request contained in the notice, that person shall for the purposes of this section be deemed to have intimated to the Commission, in compliance with the request, that the person is in favour of the draft scheme.
(8) If, within the period of one month mentioned in subsection (6)(b)(ii) above, a majority of the crofters on whom a copy of a draft reorganisation scheme and a notice have been served under that subsection have intimated to the Commission, in compliance with the request contained in the notice, that they are in favour of the draft scheme, the Commission shall, where they remain satisfied as mentioned in subsection (1) above–
(a) prepare a reorganisation scheme in relation to the township;
(b) serve on each of the persons mentioned in subsection (10) below a copy of the scheme together with a notice–
(i) naming a place within the locality in which the township is situated where a copy of any maps and plans prepared by the Commission under subsection (4) above in relation to the scheme may be inspected at all reasonable hours;
(ii) advising of the right of appeal to the Land Court under section 38A of this Act against the Commission’s decision to reorganise the township or the scheme and the time limit within which an appeal may be made.
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New subsection 38(9) provides that if the Commission proceed with the preparation of a reorganisation scheme in accordance with new section 38(8)(a) that means that the Commission have decided to reorganise the township and therefore a decision which can be appealed has been made. |
(9) For the purposes of section 38A of this Act, the Commission’s proceeding, under subsection (8)(a) above, to prepare a reorganisation scheme shall be taken to comprise their decision to reorganise the township.
(10) The persons referred to in subsections (1A), (5), (6)(b) and (8)(b) above and section 38A(2)(b) of this Act are–
(a) each crofter who is the tenant of a croft situated in the township;
(b) the landlord of each such croft;
(c) each grazings committee appointed under section 47 of this Act in respect of any common grazing shared in by each such crofter;
(d) each person occupying land which is contiguous to a croft situated in the township;
(e) the owner of, and each person who holds shares in, a common grazing associated with the township.
(11) The requirements of subsections (1A) and (6)(b)(ii) above that intimation be in writing and in subsection (5)(b) above that comments be made in writing are to be taken to be satisfied by the giving of intimation or, as the case may be, the making of comments in a form other than writing which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape).". |
Subsection 23(3) inserts a new section 38A into the 1993 Act. New section 38A(1) specifies that any tenant of a croft in the township, the landlord of any such croft and the owner of any associated common grazing is able to appeal a Commission decision to reorganise a township or the reorganisation scheme. It further specifies that the appeal is to the Land Court and must be lodged within 42 days of the date a copy of the reorganisation scheme was issued to the appellant under the provisions of new section 38(8). |
(3) After that section, there is inserted–
"38A Appeal to Land Court: special provision as respects reorganisation schemes
(1) Any crofter who is the tenant of a croft situated in the township in relation to which a reorganisation scheme is made or the landlord of any such croft or the owner of any common grazing associated with the township may, within 42 days after the Commission serve a copy of the reorganisation scheme on him under section 38(8)(b), appeal to the Land Court against–
(a) the Commission’s decision to reorganise the township; or
(b) the scheme.
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New section 38A(2) sets out what the Land Court may determine in an appeal. It also provides that if the Court requires the Commission to modify the scheme the Commission must send a copy of the modified scheme to all those who previously had an opportunity to comment on the scheme. |
(2) In an appeal under this section, the Court may–
(a) confirm the decision and the scheme;
(b) confirm the decision and require the Commission to–
(i) make such modifications to the scheme as the Court directs by the date specified by it; and
(ii) serve a copy of the modified scheme on each of the persons mentioned in section 38(10) of this Act; or
(c) revoke the Commission’s decision.".
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Section 23(4) amends section 39 of the 1993 Act. Section 23(4)(a) replaces section 39(1) with a new version, the effect of which is that instead of the Commission, as at present, having a duty to proceed with a reorganisation when the scheme is approved by Scottish Ministers the Commission will instead be constrained not to start to implement the scheme until the period allowed for lodging an appeal has ended, every appeal has been decided and any modification required as a consequence of a successful appeal effected. Section 23(4)(a) also inserts a new section 39(1A). This requires the Commission to give effect to the reorganisation in accordance with the scheme previously prepared (or modified where required to do so by the Land Court on appeal).
Sections 23(4)(b)&(c) make amendments to sections 39(3)&(4) to take account of the fact that the Commission will no longer require to have the scheme confirmed Scottish Ministers. |
(4) In section 39 (putting schemes into effect)–
(a) for subsection (1), there is substituted–
"(1) The Commission shall not take any steps in discharge of their duties or powers under this section in relation to a reorganisation scheme until (whichever first occurs)–
(a) the period of 42 days mentioned in section 38A(1) of this Act has elapsed without any appeal to the Land Court under that section being made; or
(b) every such appeal timeously made is–
(i) decided and, where by virtue of subsection (2)(b)(i) of section 38A of this Act the Land Court has required modifications to be made to the scheme, those modifications have been made and the Commission have complied with subsection (2)(b)(ii) of that section; or
(ii) abandoned.
(1A) The Commission–
(a) shall put into effect a reorganisation scheme–
(i) prepared by them under section 38(8)(a); or
(ii) where by virtue of subsection (2)(b)(i) of section 38A of this Act the Land Court has required modifications to be made to the scheme, of which they have served a copy by virtue of subsection (2)(b)(ii) of that section; and
(b) may do all such things as are required for that purpose.";
(b) in subsection (3), for the words "shall, on a reorganisation scheme being confirmed by the Secretary of State," there is substituted "may";
(c) in subsection (7), the words ", on the scheme being confirmed by the Secretary of State," are repealed;
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Section 23(4)(d) amends section 39(8) so that the role of Scottish Ministers in serving notice on occupiers and owners is taken on by the Commission. It also provides for copies of these notices to be sent to Scottish Ministers. |
(d) in subsection (8)–
(i) for the words "Secretary of State shall, on confirming the scheme," there is substituted "Commission shall"; and
(ii) at the end of paragraph (b), there is inserted ",
and shall send a copy of each notice served by them under this subsection to the Scottish Ministers" ;
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Section 23(4)(e) amends section 39(10) to reflect the repeal of Schedule 4 and section 23(5) repeals Schedule 4. |
(e) in subsection (10)(b), for the words "of the confirmation of the scheme is served on him under paragraph 7 of Schedule 4 to this Act" there is substituted "is served on him under subsection (6) above".
(5) Schedule 4 (confirmation of schemes by Scottish Ministers etc.) is repealed. |
