CROFTING LAW v LAND REFORM LAW

This is the eighth of 11 posts ( it was to be 12 but two were amalgamated) serialising my chapter on crofting law which appeared in “Land Reform in Scotland” edited by Malcolm Combe, Jayne Glass and Annie Tindley and published by Edinburgh University Press in 2020.

The first 6 posts charted the development of crofting law from 1886-2019. 

The last 5 posts discuss the challenges to crofting law. The first challenge (crofting legislation itself) was the subject of last week’s post. This week we deal with the difficult interface between crofting law and wider land reform law.

Section II: challenges for the crofting system

(ii) Crofting Law v Land Reform Law

Although the reform of crofting law is a type of ‘land reform’ in that it relates to the reform of laws affecting land, it has arguably been developed in a vacuum; separated from concepts of community ownership, community engagement, and all other elements of wider land reform. Furthermore, crofting law affects a statutorily defined group of people, and therefore is restrictive in nature, whilst the movement for wider land reform is, at heart, inclusive rather than exclusive.[i] In some circumstances, crofting law operates in opposition to the wider land reform agenda. Crofters may belong to the wider non-crofting community as well as the crofting community, but the extra rights enjoyed by crofters are sometimes found to be the cause of tension and discord.[ii] For example, in circumstances where a community body purchases a crofting estate, either via the specialist crofting community buyout legislation[iii] or otherwise,[iv] it purchases only the landlord’s interest in any tenanted crofts, and rights to purchase do not extend to crofts which have been acquired by crofters under the crofting acts. Furthermore, crofters who have a community body as their landlord can still exercise their rights under sections 12-19 of the 1993 Act to acquire their croft land and the site of their house and garden ground. Similarly, other rights held by crofters under the crofting acts are unaltered by a change of landlord. In some cases, community bodies are surprised to be held to the same standards as any other landlord when approached by a crofter looking to exercise a right to purchase. Some request a ‘top up’ payment to reflect the fact that land is to be removed from community ownership. Others suggest rights of pre-emption or other onerous title conditions and servitude rights; none of which a crofter is obliged to agree to.

These matters relate only to the acquisition of land by a crofter. Landlords (whether private, public or community body) have, in addition, rights in relation to tenanted crofts, such as the right to construct roads and tracks, quarry for minerals, and to shoot deer.[v] These are generally exercised so infrequently that crofters often forget they exist. More proactive community landlords may take a different approach. There is no provision in the crofting acts for a community landlord to be treated differently to a private landlord, and it remains the case that the crofting system is an onerous system when viewed from a landowner’s perspective. The crofting acts, despite their many flaws, still deliver unrivalled protection to crofters, and this can act in opposition to the rights held by communities, acquired via land reform legislation. The body of landlord and tenant law has developed because as the rights of one are advanced, so the rights of the other must necessarily be tempered. This principle applies regardless of whether the landlord is a private individual, a company, a community organisation, or a trust.[vi] The conflict between land reform law and crofting law may be brought in to focus  when the Scottish Government’s strategic review of crofting law is undertaken. The solution from a community perspective is to amend the crofting acts to confer different rights on different types of landlord, but that is likely to be energetically resisted by the crofting lobby, who are likely to view it, correctly, as an infringement of their historical and hard-won rights.

[i] For further discussion of the separateness of crofting law, see MacAskill, J. (2004) ‘The crofting community right to buy in the Land Reform (Scotland) Act 2003’ – Scottish Affairs, No. 49 Autumn 2014 104-133.

[ii] Combe, M. M. (2006), ‘Parts 2 and 3 of the Land Reform (Scotland) Act 2003: A Definitive Answer to the Scottish Land Question?’, 2006 Juridical Review 195-227.

[iii] Land Reform (Scotland) Act 2003 Part 3.

[iv] The Transfer of Crofting Estates (Scotland) Act 1997.

[v] Schedule 2, Crofters (Scotland) Act 1993.

[vi] See MacDonald & Others v South Uist Estates Limited RN/SLC/37/08 - <http://www.scottish-land-court.org.uk/decisions/SLC.37.08.rub.html> (accessed 14 March 2019) – this case serves as a reminder that (1) a community landlord is still a landlord, and (2) that a crofter’s rights in a common grazing differ very much from a crofter’s rights in and to their own croft. A right in common grazing is simply a right to graze a certain number of livestock, and so long as the landlord’s plans do not infringe the crofter’s ability to do so, then the land can be developed. If the landlord requires to remove land from the crofters, thus reducing the livestock which can be grazed, then the landlord must resume, or enter in to a scheme for development, and in either case the crofters would be compensated.

The next post examines the conflicting priorities the crofting system must content with. 

See note below for details of all (now) 11 posts.

As always, if you need help or wish to discuss crofting law, do get in touch.

Eilidh

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Note Referred To:-

Introduction

Development of Crofting Law

1886-1911

1911-1955

1955-1976

1976-1993

1993-1997 & 1997-2019

Challenges

Crofting legislation

Crofting law v land reform

The Conflicting Priorities of the Crofting System

The Impossibility of Purchase

Conclusion