How to Decroft Without Decrofting

(kind of, and why it’s not a good idea)

I’m using my first article in a while to highlight a scenario which is becoming a bit of a problem in the world of crofting law. It involves 2 simple steps and results in land being excluded from the registered boundaries of a croft (as they appear on the Crofting Register) without any process of decrofting or resumption. The only prerequisite is that the croft in question is not registered yet on the map-based Crofting Register.

The steps are as follows:-

1.     The owner or landlord of a croft land conveys an area of that croft to a third party (careful, remember S. 19D).

2.     When the croft is registered (as it must be at some point), and you are asked if the land you purchased is croft land or not, you say that it is not.   

That’s it!

By way of example, let’s assume that you are registering a croft (tenanted or owned; it does not matter), in the middle of which a fenced house site is located.  A title deed was granted some time ago to the fenced area, but no decrofting direction was ever obtained from the Crofting Commission to the area, nor any resumption order from the Scottish Land Court. Furthermore, the owners of the plot are not listed on the Register of Crofts as having any interest in the croft (this latter scenario is frustratingly common) because they did not tell the Commission they had bought an area of croft land.

In my experience it is highly unlikely that a pocket of land within a croft and entirely surrounded on all sides by a croft (such the house site in our example) could be anything other than croft land. The law provides that if land was ever croft land, and has never been formally removed by process of decrofting or resumption, then it remains croft land.  Therefore it is a reasonably safe assumption that the fenced house site in our example remains croft land.

An appropriate way to proceed would be to include the fenced house site on the croft registration plan; perhaps coloured differently to reflect the fact that it is owned separately. I would then also draft the form A (the croft registration form) so that the owners of the fenced house site are listed as landlords or owners of part the croft. I would also, in my covering letter, tell the Commission that the Register of Crofts was incorrect, and I would enclose a copy of the relevant title deed.

However, if one proceeds in this way, the Commission will respond by writing to the owners of the fenced house site to ask them if their land is part of a croft, or not. Invariably, the owners of the land reply in the negative.

For the croft registration application to proceed, my client then has the option of either (1) amending the croft registration plan and form A to exclude the fenced house site and its owners from the scope of the croft registration plan, or (2) entering in to a dialogue with the owners of the fenced house site to explain to them what has happened and why the correct course of action is to have their land registered as part of the croft even if the only reason to do so is to allow them to then obtain a decrofting direction.

If my client instructs me to proceed per option A, or if the owners of the site do not wish to engage with the problem, then the fenced house site will be excluded from the registered boundaries of the croft.

Voila!

However, although on the face of it, it might be a “win win” to have managed to “decroft” some land without obtaining a decrofting direction or a resumption order, that confidence would be misplaced. It is foreseeable that at some point in the future, when the owner of the land in question comes to sell, they will be asked by the purchasing solicitor to produce evidence that the land has been decrofted (or resumed). Exclusion is not the same as a decrofting direction (and the lack of any mention of “croft” on a Land Certificate is not evidence that the land is not croft land). 

So this will likely become a problem for the owners of the site when they come to sell. There may be a remedy available to them at that stage, but not necessarily, depending on the circumstances of the case.

It's even worse if you are the tenant of a croft, because your landlord could convey any area of land to any third party, with no involvement from the tenant, and when the croft is eventually registered, simply claim that the land was not croft land. An easy whizz to remove land from the crofting acts, with the Commission’s assistance.

This situation is all completely avoidable by the Commission choosing to take a more constructive and pragmatic  view of the legislation, by including the land as part of the croft as it quite obviously should be. The owners of the house site in our example would be notified of the registration, and would have an opportunity to take advice at that stage, but the messy situation whereby land can be excluded from a  croft without being decrofted, would be avoided.

I now have considerable experience of the Commission taking this ill-founded approach; I deal with dozens of croft registration applications at any one time, most of them complex to some degree or another, and in my experience this is now the Commission’s accepted procedure in these types of cases.

To discuss croft registrations or any crofting problem you may have, email eilidh@camus.scot or call me on 07876513404.