Succession – Passing on your croft

Why should I consider passing on my croft?

Crofting plays a vital role in the life of the Highlands and Islands and has the potential to address some of the significant challenges the region faces regarding population retention, economic diversification, land management, biodiversity and climate change, to mention just a few. Croft tenancies are in great demand and so crofts which are not being cultivated and maintained or put to a purposeful use, are a missed opportunity. The longer that a croft is not being worked, the more the land, fencing, buildings and drainage will inevitably deteriorate, making it more difficult for the next tenant to bring it back into use.  Failure to work the croft allows invasive plants to take over the croft and eradicating these can be expensive and time consuming. 

When the time comes that you no longer use your croft, choosing to pass it on during your lifetime has several benefits to you and your successor(s).
• Your wishes are clear and can be carried out during your lifetime
• The croft is passed on in the best possible condition for the new crofter so it can remain active
• It avoids the prospect of intestate succession
• You will have the opportunity to oversee the process
• You can share your knowledge and experience of crofting with your chosen new crofter
• It avoids potential disputes between possible successors
• It allows you to see the croft in new hands and the many benefits it can bring to the area

As a tenant Crofter you can apply to: 

Apply to Assign your Croft

Assignation is the permanent transfer of a tenancy to a person of your choice, which is subject to approval by the Crofting Commission. This can be a family member or you can transfer your tenancy to a proposed assignee. If you have a croft house, this can be decrofted (made separate from the Croft) in advance of the assignation, or you can include it in the transfer if you have or are moving into separate accommodation. 

You should always seek independent legal advice before assigning a croft tenancy, as the transfer is permanent and cannot be reversed, should you change your mind. 

Further details on Assignation, and the application forms and guidance, can be found by clicking on the hyperlink; Assignation | Crofting Commission (scotland.gov.uk)

Apply to Sublet your Croft

Subletting is the term used to describe the arrangement where a croft tenant can apply to the Commission to allow another person to work all, or any part, of their croft and/or the shares in a common grazing for a fixed period.  In terms of succession, this can be a useful exercise to allow your future successor to begin working the croft while remaining tenant. It can also be useful to ensure the croft is worked by someone else for a set time frame, if your chosen successor is unable to take over the tenancy and meet their crofting duties. 

It is the Commission’s policy that subletting approvals in respect of applications by non-resident crofters are normally limited to 5 years or less.  The Commission does not see subletting as a long-term solution to non-residency on a croft. Further details on Sublets and the application forms and guidance can be found here Subletting | Crofting Commission (scotland.gov.uk).

As an Owner-Occupier crofter you can: 

Transfer the land ownership using a solicitor. 

You should seek independent legal advice before transferring ownership of any croft land. 

Apply for someone to have a short let of the croft. 

A short-term let is the term used when an owner-occupier crofter lets his or her croft to a tenant for a period not exceeding 10 years. (The Commission will normally restrict short term lets where the owner-occupier crofter is non-resident to 5 years or less) Further details on Short Lets and application forms and guidance can be found here. Short Term Let | Crofting Commission (scotland.gov.uk)

Succession to your croft in your Will

If you would rather keep your croft during your lifetime, you should be aware that, for as long as you are a crofter, you are required to comply with all crofting duties, including the duty to cultivate the croft. Succession can seem a daunting subject and something people do not necessarily want to think about. When it comes to crofting, however, succession is very important, and it is prudent to have given it some thought and to have a Will drafted. 

Intestate Croft Succession

When a crofter dies with no Will or the Will is not able to be given effect to, then the croft tenancy falls into what is known as “intestacy”. Intestate croft succession is a complex area of law, which can sometimes take a long time to resolve, and sometimes there is no clear line of succession, and on occasion several parties can have an interest in the tenancy.  It can also be expensive.  In intestacy, the croft will often not pass directly to the person you might have expected or intended would succeed. It is important that when making a Will, that you instruct a solicitor with knowledge and experience of dealing with Wills involving crofting interests. 

Key Points of Croft Wills

1. Ensure the solicitor you use has experience of dealing with crofting matters in a Will
2. Make sure you know your croft status(are you a Tenant or an Owner-Occupier)
3. Make sure you know the status of any grazings shares,whether they form part of the croft tenancy or whether they are stand-alone shares.(The status of your croft and shares can be checked on the Register of Crofts)
4. Be specific as to who you are leaving the croft to
5. Ensure grazings shares are dealt with in the Will, particularly if they are stand-alone shares (Deemed Croft)
6. Make specific provision for who is to inherit the house on the croft, if it has been decrofted(If the house is still part of the croft, whoever succeeds to the croft, may also acquire the croft house)
7. Keep your Will up to date; make sure any material changes to your croft or circumstances are included

For further information and guidance on all the regulatory applications mentioned above including, assignation, decrofting, subletting, short term lets and succession, please go to the Regulatory Applications pages, by clicking on the hyperlink; Regulatory Applications | Crofting Commission (scotland.gov.uk)

Further Help & Support

Farm Advisory Service Funding

Crofters can now access up to £1,000 in funding through the Farm Advisory Service (FAS) for specialist advice on succession planning – without the need for a prior Integrated Land Management Plan (ILMP). Please visit www.fas.scot/succession-planning-crofting or Telephone 0300 323 0161

Scottish Land Matching Service

The Scottish Land Matching Service holds details of those looking for an opportunity in crofting and also offers a place to register an opportunity, which may be of interest to aspiring crofters. Please visit www.slms.scot Telephone 07741 902648

Scotland’s Citizens Advice

Advice provided by this service is free, independent, confidential, impartial and available to everyone.               Free Helpline 0800 028 1456

Royal Scottish Agricutural Benevolent Institution (RSABI)

RSABI can discuss any concerns over succession and point you in the direction of professional support and advice. Please visit www.rsabi.org.uk Freephone 0808 1234 55

Law Society of Scotland

Want to know more about some common legal issues and how a solicitor can help you?                                  Please visit www.lawscot.org.uk/for-the-public/ or Telephone 01312267411