Croft purchase - part 1
CROFT PURCHASE AND SALE (PART I)
I am often asked to assist tenant crofters and landlords in negotiating the terms of a croft purchase or sale. Usually, these matters are relatively straightforward, but some become a little more protracted and, in the odd case, agreement is simply not possible and the matter is referred to the Scottish Land Court.
In a series of posts over the next 4 weeks, I will analyse a few of the most common reasons for crofters and landlords finding difficulty in reaching agreement. Please note that these posts all assume that the landlord involved is willing in principle to proceed with a sale (i.e. where the statutory grounds for refusing a croft purchase are not being invoked).
The topics will be:-
Landlord’s reservation of minerals.
Reservation and granting of servitudes and title conditions (including rights of pre emption).
Purchase price.
Landlord’s claw back and reservation of sporting rights.
PART I – RESERVATION OF MINERALS
The right given to a landlord under section 12 (4) of the 1993 Act to reserve “any right to mines, metals or minerals” from a conveyance was the subject matter in the case of Anderson v Williamson 1997 SLCR 23. In that case the Scottish Land Court was asked to specify, as part of an application by a crofter to acquire his croft land, the exact scope of this right.
Definition of “Mines, Metals or Minerals”
The Court was not asked to determine what substances could be classified as mines, metals or minerals, but simply stated that such a question is one of fact which may be explored by, for example, reference to the Encyclopaedia of the Laws of Scotland Volume 10, paragraphs 1-10.
However, Sir Crispin Agnew of Lochnaw Bt, QC, refers in “Crofting Law” (2000) to Borthwick-Norton v Gavin Paul & Sons 1947 SC 569, in which Lord Mackay found that the two main principles to be applied in any question of definition are (1) that “minerals” means substances exceptional in use, value, and in character, and (2) that the true test of such a definition is to be found in the vernacular meaning of the word in the mining and commercial world, and amongst landowners at the time of the grant.
Mining v Quarrying
Returning to Anderson v Williamson, the crofter’s agent submitted that the distinction apparent in Schedule 2, between (a) “mining or taking minerals, or digging or searching for minerals”, and (b) quarrying or taking stone, marble, gravel, sand, clay, slate or other workable mineral”, indicated that the reservation provided for by Section 12 related only to the former and not the latter.
The Court did not find his argument compelling, and stated in their decision that they did not consider that Parliament could have intended such a distinction. A reservation of minerals therefore includes the rights set out in Condition (b).
Right to Minerals includes right to work
The Court also found that a reservation of minerals must also include a right to work those minerals, and therefore also an implied right of access in order to work the minerals. The Court referred to Rankine’s observation that “a grant or reservation of minerals, or a right to take them, implies those uses of the surface which are reasonably required for the purpose of mining even though the usual clauses setting forth this accessorial right are omitted”.
The Court did, however, state that a distinction may be made between surface and subterranean access in built up areas, and recognized the crofter’s right to be compensated for any damage caused.
Right to Search
The Court found the right to search for minerals, etc, as provided for also in Schedule 2, Condition (a), more problematic. The Court indicated that no express right to stage a “free ranging hunt for minerals” could be construed by the legislation, but in that case is it was not felt necessary to impose any limitation on the right to search for minerals.
A landlord, in the exercise of either the right to work mines, minerals etc, or to search for such substances, may not prejudice the crofter’s security of tenure, as indicated by Sir Crispin Agnew of Lochnaw, Q.C., in “Crofting Law” at page 166. Reference is made to Strathern v McColl 1992 SC 399 and to Macaskill v Basil Baird & Sons Ltd 1987 SLT (Land Ct) 34, quoting the Court in the former case, “If the purported exercise of any of the rights mentioned in para (11) would render the crofts or any of them incapable of crofting tenure, we would regard the exercise as illegal”.
