Land Reform Review Group consultation - Brian Inkster's response

11 January 2013


As a solicitor in private practice who specialises primarily in crofting law (with also a specialist interest in the law of servitudes and a general interest in property law) my response will be limited to crofting law issues only.

There has, in recent years, been new legislation introduced by the Scottish Parliament affecting crofting law: the Crofting Reform etc. Act 2007 and the Crofting Reform (Scotland) Act 2010. I provided detailed responses to the Scottish Government on the draft Bills that preceded those Acts. I have also provided comments following the passing of the Acts on omissions that I consider the Scottish Government should consider remedying. This response will, in effect, go over those matters again in the hope that the LRRG will actively consider these issues in a way that the Scottish Government have perhaps to date failed to do.

Removing land from crofting tenure if already developed for 20 years or more

There is an ongoing issue in the crofting counties in relation to land that has not been used for crofting purposes for a considerable time but remains subject to crofting tenure. Where land has been developed for a period of more than 20 years and clearly not been used for crofting purposes for 20 years should it not simply be stated that such land is removed from crofting tenure without the need for a Resumption Order or Decrofting Direction? This is a recurring problem in conveyancing throughout the crofting counties and one where a great deal of time and effort often requires to be employed by conveyancers in ascertaining the historical position of the land involved sometimes dating back to 1886 in order to ascertain whether or not a Decrofting Direction or Resumption Order should have been applied for in respect of the land in question.

Situations arise where houses were built on common grazings after 25th June 1886, being the relevant date on which the term “crofter” was defined by the Crofters Holdings (Scotland) Act 1886 and at which point a crofter obtained security of tenure with there being reserved to the landlord a right to seek resumption of croft land for a reasonable purpose, subject to payment of compensation to the crofter. There are instances where crofters as far back as say 1887 allowed individuals to develop croft land without seeking any compensation in respect thereof. It appears inequitable that more than 100 years later the successors of the crofters in question should now be able to seek compensation on resumption for developments that have taken place over 100 years ago at a level reflecting current day valuations.

A rule could easily be introduced to ensure that if croft land has been developed and not used as croft land for a period of more than 20 years then it shall be deemed to no longer be subject to crofting tenure. This is a much needed reform of crofting law which would simplify conveyancing in the crofting counties and reduce the work of the Land Court, the Crofting Commission and solicitors who are involved in resolving such situations on a regular basis. It would also remedy the arguable injustice caused to owners of properties who through no fault of their own have inherited a problem created by their predecessors in title often some considerable time ago and with the obvious consent and concurrence of the crofters involved at the time.

A croft that has not been registered in the Register of Crofts is not a croft

The Crofting Reform etc. Act 2007 introduced new subsections (1)(f) and (1)(g) to the 1993 Act extending the definition of a croft to include any holding which at the date of commencement of section 21 of the Crofting Reform etc. Act 2007 or on any subsequent date has been entered in the Register of Crofts for more than 20 years. The converse should also be the case with any holding that has not been entered in the Register of Crofts by a specified date not being a croft. This will avoid the ongoing problems in the crofting counties where people try to establish that a holding is a croft when it has never been openly recognised as such. The history of the holding has to be traced from 1886 and the legislation that applied over the years looked at in great detail with the Land Court often being involved to resolve the issue. One final window of opportunity could be given for those that want to establish the position before the door is closed on them.

Why drop the provisions in respect of standard securities?

Gone completely from the last Bill [as introduced] and thus not part of the Crofting Reform (Scotland) Act 2010 was the proposal that was contained in the original Draft Bill to provide crofters with the option of using their tenancy as security for a loan. The Policy Memorandum states that “although the Committee of Scottish Clearing Bankers indicated that they were satisfied that the proposals provided a sufficient framework for lending, other responses to the consultation indicated that crofters would prefer to continue with current arrangements where they decroft a house site in order to access loan finance. As a result, this proposal has been dropped from the Bill.” I am unsure of the logic in this given that it perhaps contradicts the provisions that seek to prevent decrofting in respect of speculation of croft land. Furthermore, it does not address the situation of young crofters wishing to raise finance to actually purchase a croft as opposed to “a house site” on a croft. What would have been the harm of leaving these provisions in the Bill and giving crofters the option of granting securities with or without decrofting? Consideration should be given to re-introducing these provisions.

I wrote an article on this topic which was published by The Firm Online on 31 May 2010:- Should a Crofting Mortgage Bill be introduced?

Crofting Register

A letter by me on issues concerning the new Crofting Register was published in the Journal of the Law Society of Scotland in December 2012:- Letter: Gaps in the Register

Deemed Crofts

The Consultation Paper (published in March 2005) on the then Draft Crofting Reform (Scotland) Bill under the heading “Deemed Crofts” stated:-

“The current legislation provides at section 3(4) and (5) of the 1993 Act that tenanted rights in a common grazing, runrig land and apportionment which are not part of a croft (i.e. they are tenanted separately), should be deemed to be a croft. This wording has allowed confusion as to whether the deemed croft should be entered in the Register of Crofts, thus giving the tenant all the associated rights and duties of a crofter under the current Act.”

The Consultation Paper went on to say:-

“Section 7 of the draft Bill therefore makes new provisions for recording details of such land or rights in the Register of Crofts.”

Section 7 of the draft Bill introduced amendments to section 41 of the 1993 Act. However, I was never able to see where exactly, either in the Bill as a consultation draft, as introduced, amended or passed the position was actually covered. I suggested to the Scottish Government that this point should be addressed and dealt with once and for all in the last Draft Crofting Reform (Scotland) Bill. I do not believe that it was. Perhaps the LRRG could look at this afresh. It would, of course, now be appropriate for details of such land or rights to be recorded in the new Crofting Register.

The Deemed Croft and resolving an anomaly

Following the decision in Bowman v Guthrie 1997 SLCR 40 it was held that a deemed croft, if not purchased at the same time as the croft to which it pertained, became a stand alone croft which fell outwith the definition of ‘croft land’ in section 12(3) of the 1993 Act as there was no other relevant part to it. Thus there was no right to purchase it even if adjacent or contiguous to the original croft. There appears to be no good reason for this anomaly and it is one that could be easily resolved by future Land Reform.

Parts and Pertinents

As a result of the Reference by the Crofting Commission (submitted when it was the Crofters Commission) on various issues concerning grazing shares, the Land Court has held that where a crofter purchases the croft with the agreement of the landlord and the conveyance includes a “parts and pertinents” clause but no specific reference to the grazing share, the grazing share is not conveyed as a servitude under the parts and pertinents clause [Crofters Commission v Richard Mackenzie Hughes and Others SLC/121/11 - 3 August 2012].

This differs from the decision in Trustees for the Proprietors of Halistra Common Grazings v Lambert 1997 SLT (Land Ct) 7 where the court held that when the former tenant of a croft purchased his croft, the conveyance of the croft with parts, privileges and pertinents created a servitude of pasture in the common grazings in favour of the croft and the owner-occupier no longer held the right in the grazings in tenancy.

The Court, this time around, stated that Halistra “was a decision in special circumstances where there was no doubt about the actual intentions of the parties”. They are “not persuaded that grazing shares will normally be carried without express reference although that may depend on the precise terms of the disposition.”

The Court does, however, go on to state that they accept that if a conveyance is expressed in terms of “subjects tenanted with pertinents” this would indicate an intention to include the grazing share. That is not an exact phrase I have ever seen in a disposition of a croft. What such a disposition is likely to describe is the croft as currently tenanted by the disponee together with the parts, privileges and pertinents. But is that not, in effect, the same thing? If so does the Court not perhaps contradict themselves?

This may be an area worth looking at for legislative reform to ensure actual clarity.

Absenteeism and Neglect

The Crofting Commission appears to be directing much energy towards removing crofters from crofts if they reside more than 32 km therefrom even if those crofts are being cultivated and even where the crofter is residing regularly (but perhaps not a majority of the time) on the croft. Whereas they appear to be doing nothing about crofters who reside on the croft but neglect it completely. Arguably, the latter should be tackled before the former. The Crofting Commission are also in these situations forcing the decrofting and purchase of croft houses by the existing crofter and the separation of the croft therefrom with it being transferred to third parties as a bare land croft. Invariably the bare land croft will end up in the hands of an existing crofter with available unsecured finance rather than a new entrant due to the inability (but usual need) of new entrants to gain secured finance (see above). It will also be taken away from a family that was ensuring its active use and preserving it for future generations of that same family. The end result is actually reducing the number of people in rural Scotland with a stake in ownership, governance, management and use of land leading to less diversity of land ownership, and ownership types, in Scotland.

There has recently been a lot of publicity concerning the case of Jeremy Gow. See, for example, in The Telegraph: The crofters living in the shadow of the 'second Highland clearances'

This whole area is one that requires more careful scrutiny with consideration being given to the emphasis being put on neglect rather than residency. The current situation is not necessarily resolving the perceived problems and is not providing realistic opportunities to new crofters.


In terms of Section 52 of the Crofting Reform (Scotland) Act 2010 The Scottish Ministers may, by order, make modifications of enactments relating to crofting which they consider facilitate, or are desirable for, consolidating the law on crofting. They are, however, prevented from making such an order unless a crofting consolidation bill has been introduced to the Scottish Parliament with the order modifying enactments coming into force immediately before the commencement of a consolidation Act resulting from such a Bill. There has been no real movement to date towards consolidation. With several Crofting Acts now to cross reference it is an area ripe for consolidation and perhaps the LRRG could consider pushing the Scottish Government in that direction.

Brian H. Inkster
Glasgow, 11 January 2013


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