Crofters across the Highlands and Islands will recently have received notification from the Crofting Commission that they must return the annual Crofting Census form. A legal duty introduced as a result of the Crofting Reform (Scotland) Act 2010, in imposes a requirement on crofters to inform the Commission whether or not they are complying with their crofting duties. The deadline for submitting the return is getting closer; crofters have until 31 March 2022 to complete this.
Those key legal duties are to reside on (or within 32km) of the croft, to cultivate and maintain the croft, and not to misuse or neglect the croft. Where a census return indicates the crofter isn't complying with their duties, the Commission will typically issue a letter to the crofter asking what steps the crofter intends to take to remedy the situation. It's therefore in crofters' interests to think about the options open to them if they are not meeting the legal requirements.
Where a crofter is not complying with their duties, there are a number of options open to them to remedy the situation. Some of the options are only a temporary solution; some are permanent.
Short term let:
An owner occupier has the ability to let their croft to someone for up to 10 years through the 'short term let' procedure. It is important to distinguish this from 'letting' the croft to someone, in that tenant of a short term let doesn't acquire crofter status, meaning they don't obtain security of tenure beyond that agreed in the short term let, and, crucially for the owner occupier, the tenant doesn't obtain the right to buy. While a period of up to 10 years can be applied for, recent Commission policy states that any application for beyond 5 years will require further scrutiny (and therefore obtaining a decision will take longer). The owner occupier remains ultimately responsible for ensuring the short term tenant meets the crofting duties.
An owner occupier could let the croft to a tenant through the standard letting procedure, although the tenant would obtain the status of crofter, with all the protection that affords them, and the right to buy. For that reason, there would be very limited circumstances where an owner occupier would want to let the croft.
Subletting: A crofting tenant can apply to sublet their tenancy to someone. This can be for up to 10 years (but once again, the Commission's policy is to further scrutinise any application beyond 5 years).
Assignation: A crofter might decide to permanently give up their tenancy. One of the ways they can do that is by assigning the croft to another person. An application for assignation must be made to the Commission, who will determine whether to grant the application, depending on whether the proposed tenant is deemed suitable. The crofting tenant may seek a payment for the assignation of the croft.
Renunciation: Less common is for a tenant to decide to renounce their tenancy. In that case, they are entitled to be compensated for the value of any improvements they have made (and where the level of compensation can't be agreed between landlord and tenant, the Scottish Land Court will determine this).
Consent to be absent: In certain circumstances, the Commission will give the tenant permission to be absent for a period of time, depending on the circumstances and if they consider there is good reason for the tenant being absent. An owner occupier can also apply for consent to be absent.
It is also important to note that it is a legal requirement to return the census; failure to do so is a criminal offence which could result in a fine. This year, the return must be made online – perhaps less convenient for those crofters who don't have access to, or are not familiar with using a computer.
Morton Fraser's Agricultural & Rural Team regularly act for crofters in making regulatory applications to the Commission, as well as advising crofters and landowners on matters relating to crofting duties. If you think we can assist you, please get in touch.
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