Highland Titles: personal rights and personal rights

There's been a lot in the Scottish legal twitt- and blogospheres recently about the activities of a company called Highland Titles - see #highlandtitles and here and here for examples. They're a very easy target for lawyers but here's my (belated) tuppenceworth on the thing. It's prompted by the fact that, after initially just dismissing their detractors, earlier this week HT came out on a charm offensive.

For anyone not aware, Highland Titles are the most sophisticated version of a common scheme of selling plots as small as a foot square in scenic bits of Scotland. The idea is that purchasers can not only claim the cachet of being "landowners" but also take advantage of a supposed feature of Scottish law whereby the owner of land here can call himself a "laird" or - to translate that into English - lord. This sort of thing appeals to Americans and other vain and pretentious types.

Close up of the wood near Duror where Highland Titles are selling souvenir plots; note that the "estates" of Lord Lance & Lady Peggy Goodman and Lord Byron Downs have been identified.

I'm not interested in the laird/lord thing: Scottish law allows you to call yourself whatever you like, without the need for any formality like "deed poll" and irrespective of whether you own any land. Rather, I want to talk about whether a purchaser from Highland Titles (HT) actually acquires any right to land in Scotland as they claim: see here and scroll down to “Can I really own one square foot of land?” 

The problem is that Scottish law prohibits registration in the Land Register of what are called "souvenir plots": those defined in the land registration legislation as a "plot of land of inconsiderable size and of no practical utility". And if you can't register your plot, then you don't legally become its owner. This is uncontroversial and, in fairness to HT, they are upfront about it. But they do claim that, even without registration, you nevertheless get something legally worthwhile called a "personal right" to your plot.

They're probably thinking of the judgement of the Whole Court of the Court of Session in the 1862 case of Earl of Fife v Duff in which it was said:-

"... the legal effect of such a disposition [Scottish word for deed of conveyance], even before it is followed by tradition [i.e. registered] of the subject disponed, is twofold. In the first place, it operates as an actual alienation of the subject to the disponee [purchaser]; and it vests in him most of the essential attributes of ownership. In particular it vests in him not only a right to possess the subject and to reap its fruits but also a power to sell it; to dispone it for either onerous or gratuitous causes; ... and on the death of any person, in whom it is vested, it is transmissible to his heir ...; and each person in whom it is vested successively has the powers and privileges of ownership above mentioned. This right is usually called a personal fee ... ."  

This was endorsed by the late Lord Rodger of Earlsferry in the leading judgement of the seminal 2004 Scottish House of Lords property law case Burnett's Trustee v Grainger:

"The decision of the Whole Court, as affirmed by this House, in the Earl of Fife's case therefore constitutes the most authoritative possible licence for describing the holder of the personal fee, personal title or uncompleted title as an "owner" and his rights as "powers and privileges of ownership": the execution and delivery of the disposition can be said to vest in him "most of the essential attributes of ownership".

From this it would appear Highland Titles are vindicated and, despite their critics, justified in claiming their purchasers do indeed, in a sense acknowledged by the highest legal authority, become owners of their plots even though they can't be registered.

Actually, no. That's because the type of ownership referred to by the Court of Session in Earl of Fife and Lord Rodger in Burnett's Trustee only comes into existence after the seller has delivered a disposition (Scottish word for a formal deed of conveyance) of the land concerned to the purchaser. Don't take my word for this: try the Lord President of the Court of Session in Gibson v Hunter Homes Designs Ltd:-

"In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition."  

Nothing answering the description of a disposition is sent to you if you buy one of HT's plots: as part of your gift pack you get a "certificate of ownership" but that's about as much use in conveyancing terms as a Tesco Clubcard. [Edit - See UPDATE 1 at the end] So, absent a disposition, how do Highland Titles still justify buying a plot from them gives their purchasers a "personal right to (and, therefore, beneficial ownership of) their land"? 

They used to have on their website a letter from their solicitors explaining it. I think it's been taken down since the stooshie erupted and I can't now remember exactly what it said. But I think the argument ran that it's perfectly legal to make a contract with HT to buy a souvenir plot from them and anyone making such a contract thereby obtains a "personal right". Thus far, I am in total agreement. But the personal right you get from the contract is not "to a piece of land". It's a right against - the clue's in the name! - a person (namely HT). That right is to compel the person (HT) to sign and deliver a disposition of the land. The notion of a "personal right to a piece of land" arising out of a contract not yet implemented by delivery of the disposition is a contradiction in terms: you can't make an inanimate object like a piece of land sign a deliver a disposition of itself! [Edit - See UPDATE 2 at the end]

A disposition - Dornoch History Links

But even after a disposition has been delivered, calling the step up thereby achieved before it's been registered described by the Court of Session in Earl of Fife and endorsed by Lord Rodger in Burnett's Trustee a "personal right to a piece of land" is gruesomely confusing: "personal fee" is better but ideally the word "personal" should be avoided as tending to provoke the sort of error Highland Titles have fallen into. What about "semi-ownership"? Personally I think it's academic because the court in Earl of Fife, in a classic piece of judicial understatement, described the status as one "attended with some risks and disadvantages" - minor annoyances like having it taken off you to pay that bloke you bought it from's creditors when he goes bust years later. That sort of thing ...

This is getting too technical for anyone still reading who's not a property lawyer so lets simplify it: the statement on HT's website:-

"Our customers obtain a personal right to (and, therefore, beneficial ownership of) their land."

... is just not true [but see UPDATE below]

HT are confusing two different types of personal right: the one properly so called which arises against a person (seller) out of an as yet unimplemented contract of sale but confers no right whatever to the subject of purchase and the other, confusingly so called, which arises to a piece of land after delivery but before registration of the disposition. It's yet another example (like the multiple senses of the word feu/feudal) of terminological confusion in the law. 

The irony, though, is that, by including in their "gift pack" a disposition of the plot, HT could ramp up exponentially the credibility of their claims to ownership by bringing themselves squarely within dicta of the Court of Session and House of Lords. These dispositions could form part of the marketing package: "a genuine Scottish deed" in cursive writing, with a seal, uniquely inscribed on vellum if you select Executive Membership ... etc.

They're missing a trick!

UPDATE 1 - 28/2/15

It's been drawn to my attention by Love and Garbage that the certificates of ownership issued by HT (picture of one here) contain the following wording which could be contrued as a disposition:-

Highland Titles, in CONSIDERATION of all sums due and paid to us by THE LORD [previously defined earlier in the certificate as being the purchaser with his name and address] of which we acknowledge the receipt and discharge him HAVE SOLD and DO HEREBY DISPONE to and in favour of THE LORD and to his executors and assignees all and whole the plot [defined earlier in the certificate as "1 square feet [sic] of Glencoe Wood, Keil Hill, which for the purpose of identification is plot number #######, and is precisely defined as a plot 1 foot by 1 foot with the south west corner of the said plot resting on the Ordnance Survey Reference point ######### #########] but without rights thereto over the larger subjects [not defined but seems to be a reference to the remainder of Glencoe Wood] reserving those rights and the rights over the plot to Highland Titles and its successors in title of the larger subjects and all others authorised by it; WITH ENTRY as at the below date. This deed shall be governed by the Law of Scotland. THE LORD hereby covenants with Highland Titles that THE LORD and successors in title shall not sell sell the plot number ####### except as a whole, specifically not in such a way that it could be registered or owned in separate titles or in separate ownerships. In witness whereof Highland Titles has affixed its common seal at the place and on the date above mentioned. HIGHLAND TITLES Director [illegible signature] [date] Secretary [illegible signature] [date] [seal saying "Highland Titles Glencoe"]

The question (I think) is - is that a disposition as recognised in Scottish law and therefore of the sort contemplated by the Whole Court in Earl of Fife?  Because if it is, then HT's claim that their customers obtain a "personal right to their land" is true.

The wording quoted above was plainly not drafted by a Scottish conveyancing lawyer but there's no fixed statutory form of words for a disposition: according to Professors Reid & Gretton (who between them have four brains): "any form can be used provided it is clear"[1] HT's wording contains a lot of meaningless guff which can be ignored but strongly in its favour is the unequivocal phrase "do hereby dispone to" an identified person an identifiable and unique piece of ground and that might be enough for it to qualify as a disposition. It has also been validly executed according to the Requirements of Writing (Scotland) Act 1995 by the signature of a director and the addition of the secretary's signature makes it probative as well.[2] 

The biggest problem with HT's purported disposition is that the granter is not designed. According to the Professors: "The parties to a deed - granter, grantee and consenter - must be designed (i.e. described and identified)." But the granter - "Highland Titles" - is neither described nor identified. We're not told whether it's a company (and, if so, where incorporated) or a partnership etc. or given its address or registered number. To my mind that's a wack-wack oops! epic fail for a disposition. But there's more. 

If you buy a part of a seller's ground and your part is entirely surrounded ("landlocked") by the rest of the seller's ground which he's retaining, then it's implied - even if the disposition doesn't explicitly say so - that you get a right of access to your part through the rest of the seller's ground: that's because ownership of a piece of ground you have no right to get to is a nonsense. Note, then, the words in HT's purported disposition "but without rights thereto [i.e. the plot] over the larger subjects [i.e. remainder of Glencoe Wood". These words can't receive effect but what is their result - are they simply pro non scripto ("ignored as if they weren't there") with the result that you will have your implied right of access anyway? Or is this an attempt to dispone a legal nonsense - a plot of ground you can't get access to - and therefore not a disposition at all?

One could no doubt think of other criticisms. But the above ones could very easily be cured by changing the wording a bit!

UPDATE 2 - 28/2/15

The solicitors' letter can be seen via Andy Wightman's website. The key sentence is the third of the third paragraph: "The purchase gives the purchaser a personal right to the land ..." With respect to J & H Mitchell, that sentence is only true if by "purchase" you include "delivery of a disposition" as to which vide supra.          

Footnote
[1] - Conveyancing, 2nd ed., 1999, para. 11.02
[2] - ROW(S)A95 Section 3(1A)(b) as applied by Schedule 2, para. 3(5)(a)              

Land Registration (Scotland) Act 2012: what is a "suitable" examination of title?

Because our Land Register hasn’t been running for as long, there’s a lot more unregistered land in Scotland – 42% of properties covering 74% of the land mass [1] – than in England so it’s important to know what the rule for a good legal title to it is.

It is that you have a good title to unregistered land if you have possessed it, openly and without judicial challenge, for at least ten years and that possession followed the recording in the Register of Sasines of a disposition (Scottish word for a deed of conveyance) of the property to you. If, as is common, there have been changes of ownership more frequently than ten years, the rule is satisfied once a succession of owners builds up an aggregate of ten years’ continuous possession between them and the possession of each follows a recorded disposition to him. This is called “prescriptive possession” and needs an example to explain it:- 

Prescriptive possession in action: Rose Cottage 

Rose Cottage belongs to Martin who bought it in 1971 except in 2002, whether by cock-up or conspiracy, John dispones (Scottish word for “conveys”) it to Frank. In 2007, Frank dispones the cottage to Mary who, in 2009, dispones it on to Bruce. Dispositions to Frank, Mary and Bruce were all duly recorded in the Register of Sasines immediately following the respective transfers to them. Provided Frank, Mary and Bruce all openly possessed the cottage subsequent to the conveyances in their favour without judicial challenge from Martin (or anyone else), Bruce is now the undoubted owner of it, even though it wasn’t John’s in 2002 to sell and even if Frank, Mary and Bruce all knew that: in 2012, Martin’s right reclaim his property was cut off by the intervening ten years possession by Frank, Mary and Bruce following the recorded dispositions to them respectively. [2]

When you’re buying a house or land, one of the things your solicitor does is a due diligence exercise to verify that the seller has a good title to pass on to you. This is called “examination of title”. Thus, suppose you’re buying unregistered Rose Cottage from Bruce: your solicitor will take its title deeds (which basically consist of a bunch of dispositions of it from one owner to the next since it was first owned separately from any larger surrounding property), look for the first one recorded in the Register of Sasines more than ten years ago (this is called the “foundation writ”: in the case of Rose Cottage, it’s the Disposition by John to Frank in 2002) and then look for an unbroken series of Dispositions (called the “prescriptive progress”), all duly recorded in Sasines, linking the disponee in the foundation writ (Frank) with the seller (Bruce). He also searches the Register of Sasines to check there are no conflicting dispositions to any third party.

Assuming there are none, that all proves Bruce has a good title, right? Wrong. Bruce does not have a good title to sell to you unless he and Mary and Frank before him have all actually possessed Rose Cottage since 2002. But verifying that is not something a solicitor can do as a desk top exercise: to go into the historical facts of its possession each time a property was sold would be awesomely expensive and time consuming and bring the property market to a halt. Thus, in practice, the industry standard norm is that purchasers’ solicitors’ due diligence is restricted to the half of the equation for a good title to unregistered land (the desk top examination of the prescriptive progress of dispositions and search) that is feasible at reasonable cost and timescale.

Search of the Register of Sasines - Dornoch History Links

Land registration

Registration of land in Scotland was introduced by the Land Registration (Scotland) Act 1979. The new Land Register was phased in gradually, county by county, beginning with Renfrewshire in 1981 and the last counties becoming “operational” in 2003. Whenever a property was sold for the first time after the county it was in became operational, that triggered its registration in the Land Register. Since 8 December 2014, all transfers (i.e. not just sales but also transfers by inheritance, gift or for any other reason) of unregistered property now trigger registration.

When a disposition is sent for recording in Sasines, Registers of Scotland (RoS – the equivalent in Scotland of HM Land Registry and sometimes also known after the office held by its chief executive as “the Keeper”) stamps it with the date of receipt and sends it back to the disponee (person to whom the land is thereby conveyed, whether by purchase, inheritance, gift or otherwise). But although it’s a sine qua non for legally transferring the property to the disponee, the recorded disposition is not a certificate of good title – that only comes from the facts of ten years prescriptive possession as described above. But when a disponee applies for registration in the Land Register, RoS issues him with a document called a Land Certificate and that is a certificate of good title. Before issuing one, therefore, RoS used to conduct the same examination of title that purchasers’ solicitors did when buying unregistered property. And like them, did not enquire into the history of possession beyond asking the applicant for registration (i.e. disponee) to respond in the negative to a question on the application form:

“Is there any person in possession or occupation of the subjects [i.e. property being sold] adversely to the interest of the applicant?”

If you’ve been following me, you'll realise that’s the wrong question: it should really be something more like: “Is there any reason to believe the disponer (and/or, as the case may be, his predecessors in title) have not possessed the subjects for at least the last ten years?” But that’s largely academic now because, since the Land Registration (Scotland) Act 2012 came into force in December 2014, RoS no longer examine title themselves and, instead, rely on the disponee (in practice, his solicitor) to certify the title to them in terms of a new statutory application form.[3] And this self certification is underpinned by new statutory offences of making false statements or failing to disclose material facts in connection with applications for registration and an explicit statement of civil liability to RoS. [4]

Apparently reflecting realities, the new application form [5] no longer asks about possession at all but instead now concentrates on the desktop exercise, asking:- 

"Has there been any limitation or restriction on the examination of title?”

This immediately raises the question of what RoS considers an “unlimited” or “unrestricted” examination of title to be.

It’s generally understood amongst the conveyancing profession that, in relation to unregistered property, it involves looking at all the dispositions in the prescriptive progress: there could be little doubt that looking at fewer than these (for example just the disposition to the seller if it was recorded less than 10 years ago) would be regarded as a “restricted” examination of title. But practice varies, for example, as regards how far back you search the Register of Sasines for any conflicting deeds: many solicitors (most, I would say) regard 40 years back as the industry norm while others (a minority, I think, but including RoS) think it necessary only to go back as far as the foundation writ. In view of the lack of uniformity of practice [6], therefore, it’s curious that, while RoS's guidance notes for the application form are detailed enough to explain that “Agent’s telephone number” means “The full telephone number of the presenting party should be entered (direct dial where appropriate)”, they don’t explain what’s meant by an “unlimited” or “unrestricted” examination of title beyond the rather unhelpful statement (page 14) that it must be “suitable to the application”. [7]

Of course, to keep himself in the clear, a solicitor always has the option of erring on the side of caution and looking at the whole of the prescriptive progress and a 40 year search but even that's trumped by the declaration at the end of the form:- 

"I/We apply for registration of the [disposition to the disponee] and certify that this application complies with the general application conditions in section 22 [of the Land Registration (Scotland) Act 2012] and the particular applicable conditions mentioned in section 21(2).” [Emphasis added]

Amongst the s.21(2) particular applicable conditions is that the disposition to the applicant (disponee) is “valid”. That’s defined (s.113(2)) as meaning that “by the registration applied for, a right would be acquired, varied or extinguished [by the disposition]”. And that’s a long winded way of saying that the disponer has a good title (because if he doesn’t, then no right could be acquired by it).

So, purchasers’ solicitors are expected to certify that a seller of unregistered land has a good title which (at the risk of labouring the point) is something no solicitor can do without enquiring into the history of possession of the property, something they do not do and never have done. [8] 

The Death Star - RoS's HQ at Meadowbank House, Edinburgh- picture credit Dave Henniker

Now, as I type this, I realise that solicitors routinely certify good titles to lending institutions without investigating possession. But these certificates would probably be construed to mean “… a good title in so far as that can be ascertained from the sort of title investigation carried out by the averagely competent solicitor which does not involve any enquiry into possession”. [9] The certificate on the registration application form, on the other hand, refers to the words of a statute which are in explicitly defined terms and don’t really admit of much leeway in interpretation.

No doubt when it happens that RoS pay out under the state indemnity implied by land registration because someone didn’t have as good a title as it looked on paper due to an absence of the requisite possession they will not seek to recover from the solicitor who signed the application and the Procurator Fiscal will not consider it to be in the public interest to prosecute when all he did was follow the universal practice of his profession and not enquire into the history of possession. But such a “Don’t worry, because that's what will happen in practice” approach seems unsatisfactory considering that a large part of the Land Registration (Scotland) Act 2012 was to give statutory force (or in some cases to put an end) to the practices developed to supplement the gaps in the original very short 1979 Act. [10] 

The fault doesn’t lie in the 2012 Act itself but rather in its implementation through the statutory instruments prescribing the new application form. I think the issue I’m highlighting here could be remedied by RoS publishing more meaningful guidance on what they mean by an “unlimited” or “unrestricted” (or “suitable”) examination of title and confirming that that means no enquiries into possession are required. The certificate on the application form should then be reworded to something like:-

I/We apply for registration ... and certify that this application complies with the general application conditions in section 22, and, insofar as may be ascertained from the title investigation carried out, the particular applicable conditions mentioned in section 21(2).

Disposition of unregistered land - Dornoch History Links

Footnotes:-

[1] - according to Registers of Scotland here

[2] - There are those who imagine prescriptive possession to be a thief’s charter but in practice it doesn’t work like that. Principally because the circumstances in which someone would sit back and do nothing to reclaim property being wrongly occupied by third parties for ten years are very rare.

[3] - This change to self certification is not a cost cutting measure to finance a diversion of RoS's resources into a politically motivated push to complete coverage of the Land Register at the risk of its integrity as has been claimed in some quarters (e.g. here). Rather, it's entirely consistent with conceptual changes to the Register being brought about by the 2012 Act.      

[4] - Land Registration (Scotland) Act 2012, sections 111 & 112    

[5] - see it here

[6] - Another example is when the original deeds have been lost. Some solicitors insisted on extracts from the Register of Sasines (which by statute have the same evidential status as the originals) of the prescriptive progress whilst others (the majority, I think) were content with “quick copies”. I was in the latter category but I can imagine that, with concerns over fraud having grown in the last nine years since I retired, a stricter line may since have come to prevail.

[7] - I wrote to RoS asking them if they had any definition of what they regarded as a “suitable” examination of title and got back the following rather surprising reply: 

“I’m sorry but it is not for the Keeper to advise on what type of title check constitutes a reasonable check, or what length of time the check should be for. That is a legal matter, and it is for the applicants or their agents to decide what title investigation is required.” 

The reply did however contain more detail on the contents of the new “Legal Report – Unregistered Land” as follows (and maybe this is the answer to the question):-

The report over unregistered subjects with a title held in the General Register of Sasine comprises 5 sections:

• Section 1 : Prescriptive Progress of Titles
• Section 2 : Outstanding Securities
• Section 3 : Discharges
• Section 4 : Miscellaneous Deeds that affect
• Section 5:  Advance Notices

The report will check the Sasine Register for prescriptive period:

• 10 year period
• 20 year period for leases
• 40 year for Securities recorded on the Sasine Register
• 5 years for Discharges on the Sasine Register
• 40 years for miscellaneous deeds that affect
• Disclose an Advance Notices that affect the subjects

[8] - except for asking the wrong question about whether there is anyone presently in adverse occupation.

[9] - In this respect, Part 1 of the Council of Mortgage Lenders’ Handbook (the standard instructions to solicitors engaged by lenders who are members of the CML) is silent about whether enquiries into the history of possession of the property are required. But it does say (para. 1.4): “The standard of care which we expect of you is that of a reasonably competent solicitor”.

[10] - “Pumping concrete into the foundations” was how the Scottish Law Commission described this in their report (2010, Report No. 222) which gave rise to the 2012 Act. See paras. 3.5 & 3.6.

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 20^th 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

Footnotes

[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.