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Crofting law — common grazings and joint tenancies

In this second article on the future of crofting in Scotland — and how we can strengthen and protect those businesses, and even attract newcomers to the sector — I’ll take a further look at legal reform.

This time, specifically at joint tenancies as well as deemed crofts and common grazings.

As I said in my first article, crofting law is seen as rather complex and, with simplification in mind, last year the Law Society of Scotland set out proposed solutions across a range of areas.

This paper suggests updating existing legislation rather than an overhaul of policy and acts as, hopefully, a starting point for government action.

Common grazings

In its report, the society identifies issues with deemed crofts.

When a crofter purchases their croft, more often than not they don’t buy the associated shares in the common grazings.

These remain held in tenancy and become ‘deemed’ separate and distinct crofts in their own right under the Crofters (Scotland) Act 1993. It’s not unusual to find crofters (and solicitors) who don’t realise this.

Being unaware of the status of these deemed crofts has obvious implications when it comes to succession or subsequent sales, for example. They are often overlooked, either because no-one is aware of their existence or because it is wrongly assumed they automatically transfer along with the croft.

I have encountered situations where the croft has changed hands multiple times, but the deemed croft has remained in the name of the original crofter. Where the original crofter has died with the deemed croft still in their name, often the 24-month period for dealing with this will have expired, creating a risk of the tenancy being terminated. I risk I covered in another post.

The paper’s recommendations here include stakeholders taking steps to generate awareness among practitioners of the issues around stand-alone grazing rights, and the need to deal with them separately in succession.

Undoubtedly this will help. If more people are aware of how deemed crofts operate then the risk of them being overlooked is reduced.

On top of these proposals, which are rightly focused on solving the issue but may take some time to “bed in”, I suggest entries in the Register of Crofts and the Crofting Register for owner-occupied crofts should include a section that highlights the existence or otherwise of a deemed croft.

Or, at least, say whether the croft, before it was bought, had associated grazing shares that became a deemed croft on purchase.

While I appreciate this is an additional administrative burden on the Crofting Commission and the Registers of Scotland, this would provide some much-needed clarity to unaware practitioners, would help stop deemed crofts being overlooked in the short term and would also assist with the longer-term aim of raising awareness of how deemed crofts operate.

Joint tenancies

One issue that isn’t dealt with in-depth in the society’s recommendations — though it doesn’t claim to be a comprehensive review of course — is joint tenancies. This is an area that’s ripe for modernisation.

Joint tenancies aren’t possible under crofting law as it stands.

This is pretty outdated and, I believe, creates unnecessary issues when it comes to succession planning or for couples looking to get into crofting. It leaves people acquiring a croft tenancy with a tricky decision about whose name to put the croft tenancy into.

It also leaves existing crofters with difficult decisions about which beneficiary to leave the croft to and executors with the dilemma of trying to avoid an intestacy when a tenancy is bequeathed to multiple people. Joint tenancies would provide simple solutions to all these issues.

I see no reason why a concept of joint tenancies for crofts should not be introduced and legislation amended to bring this in line.

The next in the series will deal with issues of succession in more detail, and watch this space for future posts about financing and diversification in the sector.

Meanwhile, I hope that the Law Society of Scotland’s paper on crofting legislation reform provides the Scottish Government with a focal point for efforts. Fundamentally, just a few changes, done well, can transform the operation of crofting law and make the lives of crofters, and indeed their solicitors, much simpler.

Gary Webster

Gary is a partner based in Inverness. He has extensive experience in the agricultural and rural sectors with a strong background in areas including agricultural tenancies, crofting law and rural business restructuring and succession.

Posted, 16 March 2021 by Gary Webster
Categories: Insights | Private client | Rural