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. 

Passing on your croft during your lifetime has real benefits: 

• your wishes are clear and can be put into effect during your lifetime and you will have the opportunity to oversee the process 
• you have the opportunity to share your wealth of knowledge and experience of crofting with your chosen new crofter 

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 after death 

If you would rather keep your interest in the croft until your death, 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. 

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. 

Further detail on croft succession can be found by clickin on the hyperlink; Succession | Crofting Commission (scotland.gov.uk)

Key Points of Croft Wills

1. Make sure you know your croft status and the status of any grazings shares, and whether they form part of the croft tenancy or whether they are stand-alone shares. Register of Crofts (ROC) | Crofting Commission (scotland.gov.uk)
2. Make sure you have a Will and that it is updated if there are any material changes to your circumstances, including your croft.
3. Make sure grazings shares are dealt with in the will, particularly if they are stand-alone shares (which usually happens when a croft is purchased).
4. Make sure your solicitor has experience of dealing with crofting matters in any Will.     
5. Make sure you are specific as to who you are leaving the croft to.
6. Is your house part of the croft or is it de-crofted? Have you made specific provision for who inherits the house, if it has been decrofted?  If the house is still part of the croft, whoever succeeds to the croft tenancy will also obtain the croft house.

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)

Farm Advisory Service Funding

Did you know that Crofters can now access up to £1,000 in funding, through the Farm Advisory Service (FAS) for specialist advice on succession planning?  This is without the need for a prior Integrated Land Management Plan (ILMP). Please visit the FAS website, by clicking the hyperlink; Farm Advisory Service Succession Planning Funding for further information