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).
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| 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.
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| South Erradale, Wester Ross |
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]
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.
Footnotes
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]
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| 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.
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| 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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