Crofters (Scotland) Act 1993

The Crofters Commission

Constitution and general functions of Crofters Commission

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• (1) The Crofters Commission (“the Commission”) established by section 1 of the 1955 Act shall continue in being.

• (2) The Commission have—

• (a) the general functions of—

• (i) regulating crofting;

• (ii) reorganising crofting;

• (iii) promoting the interests of crofting;

• (iv) keeping under review matters relating to crofting; and

• (b) such other functions conferred on them by or under this Act or under any other enactment.

• (2A) In exercising their functions under subsection (2), the Commission must have regard to—

• (a) the desirability of supporting population retention—

• (i) in the crofting counties; and

• (ii) in any area for the time being designated as mentioned in section 3A(1)(b) and in which there are crofts; and

• (b) the impact of changes to the overall area of land held in crofting tenure on the sustainability of crofting.

• (3) The Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) The provisions contained in Schedule 1 to this Act shall have effect in relation to the Commission.

Renunciation of tenancy.

2

• (1) In the exercise of their general functions of reorganising, ... and regulating crofting, it shall be the duty of the Commission—

• (a) to keep under general review all matters relating to crofts and crofting conditions, including, without prejudice to the foregoing generality, land settlement...;

• (b) to collaborate so far as their powers and duties permit with any body or person in the carrying out of any measures for the economic development and social improvement of the crofting counties;

• (c) to advise the Secretary of State on any matter relating to crofts and crofting conditions which he may refer to them, or on which they may think fit to submit advice to him;

• (d) to exercise the powers conferred on them by this Act in such manner as may seem to them in each case desirable.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) The Commission shall send to the principal clerk of the Land Court to be recorded in the Crofters Holdings Book every order, determination, consent, authorisation or other proceeding of theirs which they may think proper to be recorded therein.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of croft and crofter

Reversion of resumed land

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• (1) Subject to subsection (2) below and to section 3ZA(2)(a) , in this Act “croft” means—

• (a) as from 1st October 1955, every holding (whether occupied by a landholder or not) situated in the crofting counties to which any of the provisions of the Small Landholders (Scotland) Acts 1886 to 1931 relating to landholders applied;

• (b) as from 1st October 1955, every holding situated as aforesaid to which section 32 of the Small Landholders (Scotland) Act 1911 applied (statutory small tenants);

• (c) as from the date of registration, every holding situated as aforesaid which was constituted a croft by the registration of the tenant thereof as a crofter in the Crofters Holdings Book under section 4 of the 1955 Act;

• (cc) as from the date of registration, every holding situated—

• (i) as aforesaid; or

• (ii) as is mentioned in subsection (1)(b) of section 3A of this Act,

and registered by virtue of an application under that section;

• (cd) as from the date of reversion, every holding reverting under section 20(1B), or by virtue of section 21A(1), of this Act;

• (d) as from the date of the direction, every holding situated in the crofting counties which was constituted a croft by a direction of the Secretary of State under section 2(1) of the 1961 Act;

• (e) as from the date of entry, every holding entered in the register of crofts by the Commission in accordance with their decision under section 15(4) of the 1955 Act where—

• (i) the decision was notified to the landlord and the tenant of the holding; and

• (ii) neither the landlord nor the tenant successfully challenged the decision on an application for a declarator as to the status of the tenant made to the Land Court within 2 months of the giving of such notification.

• (f) as from the relevant commencement date, every holding—

• (i) entered in the Register of Crofts on that date which has been so entered for a continuous period of at least twenty years ending with that date; and

• (ii) in respect of which no application or reference seeking a declaration or order that the holding is not a croft is on that date pending before any court;

• (g) as from the date twenty years after registration, every holding—

• (i) entered in the Register of Crofts for a continuous period of twenty years ending after the relevant commencement date; and

• (ii) in respect of which no application or reference seeking a declaration or order that the holding is not a croft is at the end of that period pending before any court

• (1A) In paragraphs (f) and (g) of subsection (1) above, “the relevant commencement date” is the date on which section 21 of the Crofting Reform etc. Act 2007 (asp 7) comes into force.

• (2) Subsection (1) above is without prejudice to the effect of—

• (a) section 24(1) of this Act and the corresponding provision of the 1955 Act which is repealed by this Act (that is to say section 12(4));

• (b) a direction under section 24(2) or (3) or 24B(1) of this Act and the corresponding provisions of the 1955 Act which are repealed by this Act (that is to say section 16(7) or (9)).

• (3) Subject to section 3ZA(2)(c), In this Act “crofter” means the tenant of a croft.

• (4) For the purposes of this Act—

• (a) any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others, and

• (b) any land comprising any part of a common grazing which has been apportioned for the exclusive use of a crofter under section 52(4) of this Act, and,

• (c) any land held runrig which has been apportioned under section 52(8) of this Act,

shall be deemed to form part of the croft.

• (5) For the purposes of this Act, where—

• (a) a crofter has acquired his entire croft other than any such right or land as is referred to in subsection (4) above; or

• (b) any person, not being a crofter, has obtained an apportionment of any land under section 52 of this Act,

then the person referred to in paragraph (a) or (b) above shall be deemed to hold the right or land referred to therein in tenancy until held otherwise and that right or land shall be deemed to be a croft.

Enlargement of crofts

Provisions as to right to sublet.

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• (1) Where the owner of any land which is not itself a croft and which does not form part of a croft agrees to grant a tenancy of such land to any crofter, then—

• (a) except in such a case as is mentioned in paragraph (b) below, if the owner of the said land and the crofter agree that such land will form part of any croft of which the crofter is tenant, the land shall, as from the date of entry under the said tenancy, form part of such croft and this Act shall apply accordingly to the croft as so enlarged;

• (b) in a case where the area of the croft (exclusive of any common pasture or grazing land held therewith) together with the area of the land exceeds 30 hectares ..., the Commission may, on an application being made to them jointly by the owner of the land and the crofter, direct that the land shall form part of the croft and, if they make such direction, then as from the date of the direction or the date of entry under the said tenancy, whichever is the later, the land shall form part of the croft, and this Act so far as relating to crofting shall apply accordingly to the croft as so enlarged.

• (2) The Commission shall make a direction under subsection (1)(b) above only if they are satisfied that such a direction—

• (a) would be of benefit to the croft; and

• (b) would not result in the croft as enlarged by the land referred to in that subsection being substantially larger than 30 hectares ...

• (2A) The crofter shall pay to the landlord such rent as they shall agree for the croft as enlarged under subsection (1) above (section 6 of, and paragraph 1 of Schedule 2 to, this Act being construed accordingly).

• (3) Where any such land as is mentioned in section 38(3)(a) of this Act is included in a reorganisation scheme made under that section and confirmed by the Secretary of State, then as from the date on which the scheme is put into effect this Act shall apply to such land.

• (4) The owner of any land which becomes part of a croft by virtue of subsection (1)(a) above shall give notice to the Commission of the enlargement of such croft.

The conditions of tenure

The statutory conditions

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• (1) Every tenancy of a croft shall be subject to the conditions set out in Schedule 2 to this Act (in this Act referred to as “the statutory conditions”).

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) A crofter shall not be subject to be removed from the croft of which he is tenant except—

• (a) where one year’s rent of the croft is unpaid;

• (b) in consequence of the breach of one or more of the statutory conditions, other than the condition as to payment of rent; or

• (c) in pursuance of any enactment, including any enactment contained in this Act.

• (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Any contract or agreement made by a crofter by virtue of which he is deprived of any right conferred on him by—

• (a) a provision of this Act not mentioned in paragraph (b) below, shall to that extent be void unless the contract or agreement is approved by the Land Court;

• (b) any of sections 8, 12 to 19, 21 and 37 of this Act, may be intimated to the Commission by a party to the agreement (the intimation being in such form as the Commission may specify and there being provided to the Commission, along with the intimation, a copy of the contract or agreement).

• (4) On giving approval under subsection (3)(a) 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.

• (5) On receiving a copy, provided under subsection (3)(b) or (4) above, of a contract or agreement the Commission shall enter the copy in the Register of Crofts.

• (6) 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.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Access to croft

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• (1) The rent payable by a crofter as one of the statutory conditions shall be the yearly rent, including money and any prestations other than money, payable for the year current at the commencement of this Act or, in the case of a croft let after the commencement of this Act, fixed at the date of the letting, unless and until that rent is altered in accordance with the provisions of this Act.

• (2) The rent may be altered by agreement in writing between the landlord and the crofter to such amount and for such period as may be so agreed; and thereupon the rent so agreed shall be the rent payable by the crofter so long as the agreement subsists and thereafter so long as—

• (a) no new agreement between the landlord and the crofter shall have been made; or

• (b) no different rent shall have been fixed by the Land Court under this Act.

• (3) The Land Court may, on the application of the crofter or the landlord, determine what is a fair rent to be paid by the crofter to the landlord for the croft or for any part of the croft , and may pronounce an order accordingly; and the rent so fixed by the Land Court shall be the rent payable by the crofter as from the first term of Whitsunday or Martinmas next succeeding the decision of the Land Court:

• (a) where the rent payable for the croft or for any part of the croft has been fixed by the Land Court it shall not be altered, except by mutual agreement between the crofter and the landlord, for a period of 7 years from the term at which it first became payable; and

• (b) where a croft is let after the commencement of this Act, the rent for it or for any part of it shall not be altered by the Land Court for a period of 7 years from the term at which it first became payable or for such longer period as may have been agreed upon between the crofter and the landlord.

• (3A) The proviso to subsection (3) above does not have the consequence that a determination which is not to take effect during any period mentioned in that proviso cannot competently be made under that subsection during that period.

• (4) Before determining what is a fair rent for a croft or for any part of a croft , the Land Court shall hear the parties and shall take into consideration all the circumstances of the case, of the croft and of the district, and in particular shall take into consideration any permanent or unexhausted improvements on the croft and suitable thereto which have been executed or paid for by the crofter or his predecessors in the tenancy.

Renunciation of tenancy

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• (1) A crofter shall be entitled, on one year’s notice in writing to the landlord, to renounce his tenancy as at any term of Whitsunday or Martinmas.

• (2) If a crofter renounces his tenancy the landlord shall be entitled to set off all rent due or to become due against any sum found to be due by the landlord to the crofter or to the Secretary of State by way of compensation for permanent improvements made on the croft.

Application of Act to Crown.

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• (1) A crofter shall not assign his croft— unless he obtains the consent of the Commission

• (1A) Where a crofter applies for consent to assign a croft by virtue of subsection (1), the crofter must

• (a) notify the Commission as to where the proposed assignee would intend, following any such assignation, ordinarily to reside; and

• (b) provide the Commission with any other information it requests in connection with the application.

• (1B) Where consent is applied for under subsection (1) in relation to an unregistered croft, the Commission—

• (a) may not grant that consent unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for consent was made;

• (b) need not, during that 6 month period, consider the application for consent until an application for first registration of the croft is submitted.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) Where a crofter assigns his croft otherwise than with the consent of the Commission , such assignation and any deed purporting so to assign the tenancy shall be null and void and the Commission may declare the croft to be vacant.

• (6) In relation to an unregistered croft or a first registered croft, An assignation to which the Commission have given their consent under this section 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 crofter) unless before that date the crofter or his executor or legatee and the assignee jointly give to the Commission notice in writing that they do not intend to proceed with the assignation.

• (6A) In relation to a registered croft (other than a first registered croft)—

• (a) any consent of the Commission given under this section to an assignation expires at the end of the period of 3 months beginning with the date on which such consent was given unless an application for registration of the assignation is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

• (b) the assignation takes effect on the date of registration.

• (7) Any reference in this section to a croft shall include a reference to a part of a croft, being a part consisting of any right in pasture or grazing land deemed by virtue of section 3(4) of this Act to form part of a croft.

Sub-division of croft

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• (1) A crofter shall not divide his croft unless he obtains the consent of the Commission.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In relation to a registered croft (other than a first registered croft)—

• (a) any consent of the Commission given under this section to a division of the croft expires at the end of the period of 3 months beginning with the date on which such consent was given unless an application for registration of the division is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

• (b) the division takes effect on the date of registration.

• (3A) The Keeper must make up and maintain a registration schedule in accordance with section 11 of the 2010 Act in respect of a new croft created by a division under this section.

• (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.