Looking to become a Crofter? What you need to know
Becoming a Crofter is an opportunity to enjoy a land tenure and way of life unique to Scotland, and to contribute to the culture, economy, community and environment of the Highlands and Islands. There are many things to consider before acquiring a croft, including what it means to be a crofter. This is a short guide, which will explain some of the key points around Crofting and the legal responsibilities of a Crofter.
Please note this is a general guide and does not contain legal advice. You are advised to seek legal advice before acquiring a croft.
Crofting regulation is underpinned by Crofting legislation, mainly the 'Crofters (Scotland) Act 1993' and the 'Crofting Reform (Scotland) Act 2010.'
Assignation of Croft Tenancy: The tenant of a croft is entitled to transfer (assign) the tenancy of the croft to another individual, subject to the approval of the Crofting Commission.
Transfer of Ownership: Where a croft has been purchased by the tenant from a landlord, the new owner of the croft is normally defined as an owner-occupier crofter. An owner-occupier crofter does not require the consent of the Crofting Commission to transfer the ownership of the croft, but a new owner is legally obliged to inform the Crofting Commission of the change in ownership.
Vacant Crofts: A number of purchased crofts do not fall within the statutory definition of an owner-occupied croft and are legally vacant. In such situations the Crofting Commission can require the owner of the vacant croft to let the croft to a tenant. It is important to ascertain the status of a croft before any transfer.
All crofters, both tenant and owner-occupier crofter, are legally required to comply with Statutory Duties, relating to residency and management of their crofts. This is something that many prospective purchasers may not be clear about but should be aware of in advance of any purchase. These duties are:
Where a Crofter fails to comply with their duties, the Crofting Commission can investigate the breach of duty and take enforcement action. This can result in the termination of a Croft tenancy, or in the owner occupier situation, the requirement to let the croft, if not resolved.
What does 'ordinarily resident' mean?
A crofter must live on the croft or within 32km of their croft. A crofter who does not reside on the croft or within 32km is considered to be in breach of their residency duty.
What does ‘cultivate’ mean?
All crofters must cultivate their crofts or else put them to 'purposeful use’. "Cultivate" is essentially agricultural use. This includes "the use of a croft for horticulture or for any purpose of husbandry, including;
What does 'purposeful use' mean?
A croft can also be put to another purposeful use, with the consent of the landlord or Crofting Commission. "Purposeful use" means any planned or managed use, which does not adversely affect the croft, the public interest, the interests of the landlord, or the use of adjacent land, which will not prevent the croft from being used for cultivation in the future.
What is 'misuse' and 'neglect'?
"Misuse" is where a crofter wilfully and knowingly uses the croft for a purpose other than for cultivation or another purposeful use, or where the croft is not used at all. "Neglect" is where a crofter (or owner-occupier crofter) does not manage the croft in a way which meets the standards of good agricultural and environmental condition, referred to in Regulation 4 of the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004.
Can I buy a croft house without any land?
If a registered croft is being sold with a house, the house may be part of the croft and subject to crofting legislation. It is important to ascertain the status of the house before any purchase.
This can be important if the buyer needs a mortgage as lenders may only offer financial assistance if the house is free of crofting legislation.
What is Decrofting?
If a registered croft is being sold with a house, the house and garden may have been de-crofted, which means that while the land around it remains under crofting tenure, the house (and often garden ground) is no longer subject to crofting legislation. More information on decrofting can be found by clicking on the hyperlink; Decrofting | Crofting Commission (scotland.gov.uk)
Making an Offer
If you are considering buying a croft, speak to the selling agent and your solicitor to make sure you are fully aware of what it will mean to become a crofter. In the case of a croft tenancy, it is usual to make a formal offer subject to getting approval from the Crofting Commission. This means that if your offer is accepted, the current tenant will then make an application to the Crofting Commission for you to be approved as the tenant of the croft.