Wednesday, 4 February 2015

Decrofting pre-1955: are there still crofts on St Kilda?

Crofts are a species of agricultural smallholding found in the north and west of Scotland governed by a unique statutory regime which began in 1886. Although some have become owners (freeholders) under a right to buy introduced in 1976, most crofters remain tenants at a nominal rent under statutorily protected tenancies which confer security of tenure, can be passed down an infinite number of generations and also include a right of lifetime assignation (assignment: transfer of the tenancy to a new tenant).

North Erradale, Wester Ross

Crofting tenancies seldom terminate nowadays (because a tenant wanting to move away can usually sell his tenancy for pretty close to the unrestricted freehold value by invoking the right to assign) and the commonest scenario for one coming to an end is when a tenant dies without heirs. [1] But that doesn’t mean a windfall for the landlord because, ever since the Crofters (Scotland) Act 1955, whenever a croft becomes “vacant” (i.e. has no tenant for whatever reason), the landlord is obliged immediately to re-let it to another crofter approved by the Crofting Commission failing which the CC can let it for him. And any re-let by the landlord without the CC’s approval is null and void.

It's this compulsory re-letting feature of crofting tenancies which marks them out from all other types of regulated tenancy: it may be difficult to terminate a protected lease of a house or a farm but if it does happen the landlord can take it back in hand or change the use as he pleases. Not so with crofts, though: “once a croft, always a croft”. That is unless the landlord obtains from the Crofting Commission an order called a “decrofting direction” under a procedure introduced by the 1955 Act whereby a vacant croft (or part of one) is removed from the crofting law regime altogether and the landlord becomes free to do with it what he pleases with no obligation to re-let.

Thus, anybody buying land in an intensely crofted area (such as Skye, the Western Isles or Shetland) for a non-crofting purpose (such as a holiday home) will want to see a decrofting direction for it. But what if the croft became vacant before the decrofting procedure was introduced in 1955? Did it cease to be croft land merely by virtue of the tenancy ending and not being re-let to another crofter at a time when there was no obligation on the landlord to do so? And crofts did become vacant before 1955 much more often than they do nowadays because, in the first half of the 20th century the population of the crofting areas was shrinking and the right to assign (i.e. sell) the tenancy to a third party didn’t exist: a crofter wishing to emigrate had little option but to renounce his tenancy back to his landlord.

South Erradale, Wester Ross
Before the 1955 Act, the law on the landlord’s duties in relation to a croft which became vacant was contained in section 17 of the Small Landholders (Scotland) Act 1911. This  provided that the landlord could only re-let it to another crofter unless the Board of Agriculture for Scotland (a now defunct quango) agreed to it being let to a different type of tenant. But crucially there was nothing obliging the landlord to re-let and, even if there was demand for it, he could keep a vacant croft in hand (un-let) and use it for a different purpose if he wanted to.

Compulsory re-letting of vacant crofts was introduced for the first time by the 1955 Act. But what about crofts which were already vacant when it came into force? Section 16(4) was quite explicit:

"Where a croft is vacant the [Crofters] Commission may – (a) in the case of a croft which is vacant at the commencement of this Act, at any time after … the expiry of four months from the commencement of this Act … give notice to the landlord requiring him to submit to them his proposals for re-letting the croft … and if … no such proposals are submitted or … are submitted but the Commission refuse to approve them, the Commission may … themselves let the croft”

On the face of it, that wording (“at any time after … the expiry of four months” from the 1955 Act coming in to force), allows the CC to force the re-let of a croft vacant for decades to a new crofter tomorrow but let’s first check the definition of “croft” that the 1955 Act applied to. It is (s.3(1)(a)):-

“… every holding (whether occupied by a landholder or not) … which was, immediately before the commencement of this Act, a holding to which any of the provisions of the Landholders Acts relating to landholders applied;”

The vocabulary there alludes to the fact that, in 1911, the crofting law regime contained in the original Crofters Holdings (Scotland) Act 1886 and which had hitherto applied only in the Highlands and Islands was extended to the whole of Scotland but with a new terminology of “landholder” in place of “crofter”. In 1955, in recognition of the peculiarities of what was then termed “the Highland Problem”, a new statutory code was put in place applying to just “the Crofting Counties” and officially reviving the terms “croft” and “crofter”.

Anyway, by section 2 of the Small Landholders (Scotland) Act 1911, the Landholders Acts applied to:-

“every holding which at the commencement of this Act is held by a crofter … to whom the Act of 1886 applies”

So the 1955 Act applied to holdings which the 1911 Act applied to and the 1911 Act applied to holdings (i.e. crofts) which the 1886 Act applied to. But – crucially – notice that the Landholders Acts only applied to a holding which was “held” – i.e. actually occupied – by a crofter. In other words, if a holding which became a croft in 1886 had become unoccupied by the time the 1911 Act came into force on 1 April 1912, then the Landholders Acts didn’t apply to it and therefore neither did the Crofting Act 1955. And in consequence of that, the Crofting Commission has no power to insist on it now being re-let to a new crofter.

In short, a croft abandoned before 1 April 1912 ceased legally to be a croft by the mere fact of being abandoned whereas one still occupied in 1912 but abandoned thereafter remains legally a croft to the present day (meaning the Crofting Commission can insist on it being re-let) despite having been empty for up to a century. The only way it can be taken out of crofting (i.e. have the threat of compulsory re-let permanently lifted) is by getting the CC to issue a decrofting direction. [2]

Let’s take an example: perhaps the most famous abandoned crofts of all are those on St Kilda, evacuated in 1930 when the islanders formally renounced their tenancies to the landlord, Macleod of Dunvegan. In 1956, the island became the property of the National Trust for Scotland and, shortly after, a radar station was established by the Ministry of Defence including a camp for service personnel in the former village. Legal relations between the NTS as owner and the MoD are currently governed by a 25 year lease running from 2003. [3]

Village Bay, Hirta, St Kilda - MoD camp at top left. Picture credit John Wishart

Now, if you’ve been following me so far, you will realise that the holdings on St Kilda, were still legally crofts when the 1955 Crofting Act came into force, albeit abandoned (“vacant”) ones. That’s because they were still occupied in 1912. I wrote to the Crofting Commission to ask if any part of St Kilda had been decrofted or whether it had consented to any leases of parts of the island to the MoD (or anyone else). The answer to both questions was in the negative. That means the MoD’s lease of its camp at Village Bay on Hirta is null and void! [4]

Now, in practical terms, considering St Kilda’s status as a UNESCO World Heritage Site under which the principal management prescription is to maintain it in as pristine a state of nature as is possible compatible with the continued existence of the radar station, the Crofting Commission is unlikely to call upon the NTS for its proposals for re-letting the vacant crofts to new crofters and could probably be prevailed upon to grant a decrofting direction for the MoD sites and thereby retrospectively legitimise their lease. But in almost any other location, such an attitude by the CC cannot be taken for granted (even – since a change in the law in 2010 to prevent land being lost to crofting – when planning permission for an alternative use exists).

If a holding became a croft in 1886, then it is still legally a croft today unless it was vacant (empty, without a tenant) on 1 April 1912 and has remained untenanted ever since. If you are buying croft land for a non-crofting purpose, don’t be fobbed off with vague assurances from the seller like “Oh, but it hasn’t been used as a croft for decades, certainly since before the war …” If they can’t prove it’s been empty since before 1912, then you need a decrofting direction from the Crofting Commission before completing the purchase.

Houses at Village Bay, St Kilda - picture credit Mairi M Martin

[1] The knowlegeable reader will react immediately that, in reality, by far the commonest scenario of a croft becoming vacant nowadays is when the tenant exercises his right to buy. But I don't want to go there for present purposes.

[2] The compulsory re-letting and decrofting of vacant crofts provisions contained in section 16 of the 1955 Act were repealed and re-enacted in sections 23 and 24 of the Crofters (Scotland) Act 1993. A croft created after 1 April 1912 (of which there are many) also remains legally a croft (i.e. subject to compulsory re-letting) irrespective of how long it has been vacant for. 

[3] The foregoing is something of a simplification: for more detail on the history of St Kilda post-evacuation see pages 84-88 of the St Kilda Management Plan

[4] That's assuming the MoD facilities are built on land which been crofts on the island. That's a reasonable assumption, I think.

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