What changes are proposed for Scotland's crofting laws?
Sponsored Editorial with Brodies LLP
Crofting law is rooted in legislation from 1886, establishing rights for crofters over land which their families had been living and working on for generations.
Now, the Scottish Government is looking to make changes - with the aim of simplifying current law, supporting crofting as a way of life and protecting its communities. Those proposed changes are currently at the consultation stage, and outlined in its Crofting Consultation 2024 – Proposals for Crofting Law Reform.
What are some of the key proposed changes?
Entry to crofting
Owned crofts and croft tenancies are sold on the open market, and the demand for crofts has increased over the years, driving up their value. There are two main proposals for helping aspiring crofters – joint tenancies and standard securities.
Crofts can be owned by more than one person, but currently, there can be only one tenant. New proposals would allow tenancies to be held by a maximum of two people in a joint tenancy.
When money is borrowed against an owned property, the borrower grants a standard security in favour of their lender. Crofting regulation is found to be a barrier to borrowing against an owned croft, and there is currently no legal mechanism for creating a security over a croft tenancy. A new process for granting securities is being considered, as a way of providing access to finance for those looking to take on or develop a croft.
Use of common grazings
Traditionally, crofts comprised an area of inbye croft land together with a grazings share – a right to put a certain number of livestock out to graze on the common grazing land of the township.
The consultation proposes to encourage active use of common grazings – which comprise about 550,000 hectares (7% of Scotland). For example, extending existing provisions for forestry to include schemes for peatland restoration, biodiversity activities, carbon sequestration, habitat restoration or environmental improvements.
Strengthening residency and land use
The statutory duties of a crofter are to (1) be resident on or within 32km of the croft, (2) not misuse or neglect the croft, and (3) cultivate the croft or put it to another purposeful use.
New legislation may mean that a crofter is not required to use/maintain their croft personally; and the list of uses for which a tenant crofter does not require landlord consent, may be extended to include any environmentally-beneficial activity.
Enhanced Crofting Commission powers
The Crofting Commission is the public body responsible for promoting and regulating crofting in Scotland.
Various proposals relate to improving the Commission's efficiency; e.g. regarding prior approval. Currently all assignations, sublets and short-term leases must be approved by the Commission. These applications are rarely rejected – in 2022/23, 99% of assignations and 97% of sublets/short-term leases were approved. Approval is not required for the transfer of an owner-occupied croft.
Going forward, prior approval may be required in all cases, but only where the incoming croft tenant/owner already holds three or more crofts, where the sublet/short-term lease would exceed five years, or where a landlord objects to a sublet. In most cases, prior approval will not be required.
Under current crofting law, a croft owner can own and physically occupy it but fail to meet the statutory criteria for 'owner-occupier status'. In future, such owners may be able to correct this by application to the Commission.
What are the crofting community's views?
Generally, crofters and crofting landlords agree change is needed to current legislation. However, reaching an outcome that satisfies all stakeholders is likely to be challenging.
How do I share my views on the proposed changes?
You can submit your responses to the consultation by 2 September.
Ros James is an associate at Brodies LLP, and advises clients in the rural sector.
