Crofting Commission halts decrofting process for owner-occupier crofters

26 February 2013

The Crofting Commission has issued a statement concerning decrofting applications made by owner-occupier crofters who occupy their crofts, which could have major implications for those concerned.

The Commission have taken legal advice on the question of whether or not an owner-occupier crofter (OOC) can decroft part or all of their croft. They have now stated that they believe the amendments introduced by the 2010 Act do not make provision for an owner-occupier crofter to decroft if he is occupying his croft.

Furthermore, the Commission have indicated that they have been advised that they would be acting outwith their statutory authority if they approve any application made to decroft, and that no further applications will be considered until a remedy is found, with applications currently in process being placed in abeyance.

While the Commission state they are working to resolve the situation, the implications of the statement could, on the face of it, cause many problems for owner-occupier crofters  wishing to decroft, and indeed those who have decrofted since the amended legislation was enacted on 1st October 2011.

There have been various reasons to look to decroft. Tenant crofters may have applied to decroft perhaps prior to building a house in order to obtain mortgage finance (croft land is unmortgageable). Or, those who had purchased may have applied to decroft an area in order to sell and raise capital to invest in the croft, or decroft the house and garden to sell, while retaining the land. It can also be used to formally separate the house from the croft land to bequeath it to two separate parties in a will.

The reason for the situation arising appears to come from the legislative changes in status for those crofters who have obtained a title deed to their land. Prior to the commencement of the Crofting Reform (Scotland) Act 2010, which amended the Crofters (Scotland) Act 1993, there were two categories of person who might apply for a decrofting direction. One was a tenant crofter; the other was a tenant crofter who had purchased his land who was, in law, the landlord of a vacant croft. The term ‘owner-occupier’ was commonly used to describe such a person, but the term “owner-occupier crofter” was only defined once the 2010 Act came in to effect.

The reason for the definition was that crofters who purchased their crofts ought to be legally defined so that they could be brought wholly within the regulatory structure of the 1993 Act. The definition of “owner-occupier crofter” is therefore now contained in s. 19B of the amended 1993 Act.

Although provision has been made for an “owner-occupier crofter” to be able to decroft their croft (or part thereof),   a decrofting application by such an individual is incompetent if that person is occupying his croft (see s. 23 (10).

It appears that legislative drafting has again caused the problem. Various crofting law practitioners have raised concerns about the lack of clarity in various provisions of the Act. Meanwhile, this will be little help to those who are trying to decroft, or those who have done so who will have to wait and see whether such orders are in fact invalid. In turn, lenders may also have concerns too as most will not lend on croft land.

Meanwhile, the Scottish Crofting Federation have called on the Crofting Commission to sort out the confusion regarding this legislative glitch "with the utmost urgency."

Inksters are considering the implications of this development and will provide a follow up article shortly with our thoughts on it and possible remedies that may exist.

We are well equipped to advise you on any aspect of crofting law and are experienced practitioners in this area. With offices in Glasgow and Inverness, we can provide help and advice if you think you might be affected by this latest development. Contact Brian Inkster in Glasgow or Eilidh Ross in Inverness.


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