5 Crofting Myths for 2022
I’d like to shed some light on some myths which have developed about the crofting system.
This article originally started out discussing complex croft registrations. However, in the course of writing that piece I realised that the publicity around the Crofting Register when it was established in 2010, namely that croft registration was a simple process, is but one of the crofting myths which circulate freely.
Here I address that and 4 other common myths.
MYTH 1 – CROFT REGISTRATION IS EASY
The map-based Crofting Register was established by the Crofting Reform (Scotland) Act 2010. The old Register of Crofts, held by the Crofting Commission, remains in its original form (and has been available online since 2017, see here).
The Crofting Register came in to effect in 2011. It is managed by the Registers of Scotland, although the Crofting Commission do retain what appears to be rather an onerous role in the processing of croft registration applications.
The rationale behind the creation of the Crofting Register was the requirement for clarity and certainty in relation to croft boundaries, in the event that a particular croft was to be used as security for a mortgage (there was, back in 2008/2009, the prospect of croft mortgages on the legislative table; the mortgage provisions did not make it in to the 2010 legislation but the Crofting Register itself did).
The Scottish Government and the Registers of Scotland were at pains, back in 2010 and 2011, to tell crofters and agents how easy and inexpensive the process would be. Crofters were assured that they could do the applications and the mapping required, for themselves. No professional input would be required.
While some croft registrations are indeed as straightforward as we were all told, in my experience that is very rarely the case. Complex croft registrations comprise much of my caseload; a good proportion of those are corrective cases, where the original registration has been incorrectly executed, and action is required to ensure that the correct legal position is reflected.
My next article will give more detail on complex and / or corrective croft registrations.
MYTH 2 – YOU WILL ALWAYS BE ABLE TO OBTAIN PLANNING PERMISSION ON CROFT LAND
If only I had a pound for every time I hear, “oh you’ll get a house on the croft no problem, the planners have got to give you a house on your croft”.
Not so.
Even more cynical is when this sort of claim appears in writing, usually in sales particulars, designed to heat up an already overheated market in croft land and feed in to the ‘croft land is development land’ narrative.
It is possible, of course, to use the statutory duties and conditions which affect crofters as arguments in any planning application or planning appeal, i.e. the applicant must be resident and work the croft therefore planning should be granted.
Agricultural considerations can also be used to seek to persuade the local authority (LA) that planning should be granted, i.e. the applicant has X number of sheep on their holding, therefore a residential base on the holding is required, therefore planning should be granted.
However, LAs are not obliged to grant planning on croft land, even if these arguments are employed. LAs can and do refuse planning applications on croft land, just as they refuse planning applications in respect of non-croft land.
MYTH 3– SUB-TENANTS CAN ESTABLISH SECURITY OF TENURE
This is a deep rooted fear amongst crofters, who have likely heard historic township or family accounts of a crofter allowing a sub-tenant (a sub-tenant here meaning one who has been authorised by the Crofting Commission) to use their croft, only to lose the croft to the sub-tenant at some point in time.
Happily, it is and has been for many years, settled law that a sub-tenant cannot establish security of tenure and cannot somehow convert their sub-tenancy in to a full croft tenancy.
MYTH 4 – CROFTS CAN BE LET SEASONALLY
The first point to make here is that land can either be designated as croft land OR as agricultural holdings land. The two designations are mutually exclusive.
Land designated under the Agricultural Holdings legislation (i.e. not croft land) is usually let either on some form of tenancy, or it is let seasonally. Indeed, it is important that some form of paperwork, however rough and ready, is agreed between parties and duly executed, because in the absence of such paperwork longer term tenancy rights may be established.
However, this is not the case where the land is croft land. Any tenancy arrangements over croft land must go through the Crofting Commission (see myth 3). If an arrangement has not been authorised by the Crofting Commission, it has no legal effect.
Furthermore, if there is occupation but no paperwork at all (whether via the Crofting Commission or otherwise), the person occupying cannot and does not establish any rights of tenancy over the land. This is the case even if money is changing hands or has changed hands.
MYTH 5 – A CROFT HOUSE IS ALWAYS A CROFT HOUSE
Not every house on a croft will be built on the ‘site of a croft house and garden ground’ in terms of the crofting acts. The key is to establish the designation of the land beneath a house; it has very little to do with age or history of a building; ‘croft houses’ do tend to be older buildings, but they need not be.
A croft house?
The decrofting and purchase provisions within the crofting acts differentiate between (1) the site of a Croft house and garden ground and (2) croft land.
The former enjoys greater benefits even than croft land:-
The site of a croft house and garden ground qualifies for a simplified and faster decrofting procedure because the Commission must grant a decrofting direction if the area sought is reasonable for the enjoyment of the house as a dwelling house.
In the case of a tenanted croft, a landlord is obliged to grant a title deed to such an area, and the objections which are available under the purchase provisions do not apply to the site of a croft house (only to croft land).
A landlord granting a title is not entitled to clawback or a sporting lease over a croft house and garden ground.
To establish if land qualifies as the site of a croft house and garden ground, no land must previously have been designated as such, and any house built on the land must be wind and watertight and fit for human habitation. If these tests are not met, any decrofting and / or purchase will need to be progressed by treating the land as croft land, rather than as the site of a croft house and garden ground.
To discuss any of these myths or any crofting problem you may have, email eilidh@camus.scot or call me on 07876513404.
Photo credit to Angus Mackay Photography.