The Rights of Crofters and the Duties of Grazings Committees and their Grazings Clerks

The Commission is unable to comment on current ‘live’ cases. However, with the increased focus on common grazings, grazings committees and shareholders, we do think that it is a good time to remind shareholders in common grazings what their rights are and what the duties of the grazings committee and their grazings clerk are.

The Crofting Commission wants to encourage good shared management of common grazings to help foster stronger communities, deliver economic benefits and to reduce the likelihood of these areas being abandoned or overgrown. The role of common grazings is central to the crofting system and properly constituted grazings committees are the most effective way to safe guard the future common grazing land for the benefit of all crofters.

We would like to provide a brief overview of the key points that everyone with an interest in crofting and common grazing should understand.  Many crofters may feel that the process is overly bureaucratic but the Commission is carrying out what is contained in the Crofting Acts and regulating crofting within current legislation.

Shareholders

Crofters who share in a common grazing have certain rights over the land.  These rights, or pertinents, include the grazing of stock, access to a house or pier or foreshore, an area for laying up a boat, the right to collect seaware, the right to cut peat and the right to use heather and grass for thatching.  These rights, shared with others, are over the whole area comprising the common grazing. There are also certain common grazings used as arable machairs, particularly in the Western Isles, where the crofters may have a right of cropping.

The Crofting Acts state that the only way these rights can be changed is:-

• If the landlord resumes an area of the grazings for a reasonable purpose and the shareholders are compensated for their loss and obtain a share of the development value of the resumed land
• An individual gets an apportionment when his souming may be adjusted
• If shareholders enter into a forestry project in terms of either section 50 or 50A of the Crofters (Scotland) Act 1993 (“the Act”)
• If the Land Court has agreed to a scheme for development under section 19A of the Act which is binding on all parties
• If the majority of the shareholders voting and the grazings committee or constable have obtained the Commission’s consent to use part of the grazings for some other purpose under section 50B of the Act
• Through compulsory purchase by an acquiring authority with powers of compulsory purchase under section 37 of the Act, subject to compensation and share in the development value as with resumption
• By a reorganisation scheme under section 38 of the Act

Any other local grazings arrangement is not binding on shareholders who, if they choose to do so, retain the right to graze stock equivalent to their souming over the whole grazings. The grazings committee and clerk should ensure that any shareholder wishing to use the grazings is accommodated.

Grazings Committees

The most important thing that shareholders in a common grazings need to understand is that the grazings committee act as trustees of the shareholders.

The Scottish Land Court has stated that:-

 …”they (that is the grazings committee) have clear duty to act as trustees of the whole shareholders in the grazings and therefore it is their duty to act impartially and judicially, keep in view what is their paramount consideration – how the common grazings can best be administered to the greatest advantage of all of the tenants sharing in the grazings”…

The general responsibilities of the Committee are to:-

• Make regulations (which require to be confirmed by the Commission) and should be in the spirit of their primary duty to accommodate the requirements of all shareholders. Regulations cannot themselves curtail the right of any shareholder to graze his souming across the whole grazings other than in the circumstances detailed under the paragraph entitled ‘Shareholders’ or to meet any specific environmental designations
• Hold an annual general meeting at which the clerk should give an account of the work of the committee and of the financial position.  At this meeting the committee should answer the questions of the shareholders whom they represent
• Maintain the grazings and any fixed equipment.  They can do this without reference to the shareholders and they should claim back any costs incurred from each of the shareholders whether they are actively using the common grazing or not.
• Should the committee wish to carry out any improvements to the grazings they cannot do so unless they have served notice on each shareholder and told them how much the shareholder’s proportion of the cost will be.  This gives the shareholder the opportunity to make representations against any such proposal to the Commission.

Financial management

As trustees, any money received by the committee belongs to the shareholders and should be distributed to them as soon as is reasonably practicable.  It is not the township’s or the committee’s money and as such it is the duty of the grazings clerk to distribute any money received from whatever source, but in particular resumptions, according to each individual shareholder’s share entitlement whether or not they are active in the grazings. It is important that all monies are distributed to all shareholders timeously in order to assist correct financial accounting by each individual shareholder should they require to make an annual return to the HMRC

When the grazings committee require monies to maintain the common grazings and the fixed equipment or to carry out works for improvements, the committee must levy and recover the required monies directly from the shareholders for onward payment to any third parties.

The rights of crofters have been detailed above and there is no explicit provision in the Crofting Acts for the grazings committee or clerk to be involved in the administration or coordination of schemes falling within the provisions of IACS regulations. Any involvement or concern regarding this should be directed to the scheme administrators.

Development, renewables, or putting a common grazings to other purposeful use are covered elsewhere in the Crofting Acts and require particular actions to validate them. Village improvement works are not within the auspices of the Crofting Acts.  These activities should be kept separate from any activity relating to grazings regulations and should ideally be administered by some sort of community company or organisation. Any monies relating to these activities should be lodged in a separate bank account and administered in an appropriate way. Should townships wish to do this they should set up a separate, appropriate, mechanism to do so and gather in any necessary funds from those willing to participate. Anyone becoming involved in such activity needs to seek their own advice on the implications.

The Crofting Commission is keen to see, wherever possible, that crofting communities regulate themselves. It is important therefore that shareholders and the committee hold a meeting to discuss how to work together to ensure the grazings committee functions within the requirements of the Crofting Acts. We have created a standard set of regulations to give clearer guidance for committees and shareholders about how their common grazings is regulated.

For further information please visit our website: www.crofting.scotland.gov.uk/common-grazings or phone 01463 663439.

When is a grazings share deemed to be a croft?

Many crofters may be unaware that following the purchase of croft land, any associated common grazings shares, which remain tenanted, are deemed to be a separate and distinct croft in their own right for the purposes of the Crofters (Scotland) Act 1993.

This is to ensure that the right to graze is still subject to crofting controls and regulations, which is why many owner-occupier crofters will have received several Crofting Census forms to complete and return to the Commission for both their croft and for their grazings share.

The Crofting Commission has completed, as it is required to by crofting legislation, the separation of crofts and deemed crofts (grazings shares and, where appropriate, apportionments) in the Register of Crofts. 1,952 deemed crofts now have their own separate entry as a croft with their own unique register number. Where the croft has to be registered in Registers of Scotland’s Crofting Register, the deemed croft will have to be registered separately.

The practicalities of having a deemed croft has little implication for crofters in that the grazings shares remain active. However, when it does become important is with the sale or transfer of a croft and croft succession on the death of a crofter.

Where an owner-occupier crofter sells or transfers their croft, only the owner-occupied croft will transfer to the new owner. The deemed croft (whether it is a right to graze or an apportionment) remains held in tenancy and it can only be transferred by making an assignation application to the Commission. Similarly, any let or short lease of the     owner-occupied croft will not include the deemed croft. It is not uncommon for a deemed croft, comprising a right to graze in a common grazings, to be forgotten about in the sale of a croft.

The other situation where deemed crofts can cause problems is in connection with the transfer of crofting interests on death. Executors should identify whether the crofting interests of the deceased crofter include a deemed croft. Where the deceased crofter purchased their croft, any right to graze or apportionment that was not included in the purchase will be a deemed croft, and will be deemed to be held in tenancy.

Executors need to be aware that any deemed croft must be transferred in terms of the Succession (Scotland) Act 1964 and it is recommended that legal advice is sought. If the deemed croft is not transferred within 24 months of the crofter’s death, or 24 months after the Commission was notified of the death (which must be within 2 months of the date of death), the executor may lose the ability to transfer the deemed croft and the landlord may terminate the tenancy of the deemed croft. The Commission may also then take steps to declare the deemed croft to be vacant.

www.crofting.scotland.gov.uk

Mull Tea Vicar?

Mull crofter, Liz Gibson, tells her story of how her and her husband found a new use for their croft whilst building on their passion for tea.

Mention growing tea in Scotland and most people’s reaction is surprise, often disbelief. The idea isn’t actually new but only in the last few years has the possibility been taken seriously. The Wee Tea Plantation, along with the Wee Tea Company, leads the way. I first read about them in an article some time before we moved to Mull. It was interesting but I didn’t think any more about it. Around the same time we went on a Fairtrade tour in Peru and got the opportunity to pick some tea on a small plantation with exotic fruit growing on trellises above the tea plants. Again, interesting but no thoughts of taking it any further.

Fast forward and we’d been living on the croft for nearly a year. How we ended up with a ten acre croft is a different story. Our intention was and is to grow soft fruit and fruit trees, vegetables, and herbs, all as organically as possible and with the hope of contributing to the local food economy. We welcome Wwoofers (World Wide Opportunities on Organic Farms) for a week or two at a time and have had a couple of seasons of international help and mutual learning. Bracken has been cleared by pulling, cutting and digging.

I read another article about the success of the Wee Tea Plantation in Perthshire. This one ended with the suggestion to get in touch if we were up for trying to grow some ourselves. So we did. It was on an area cleared of bracken that we planted our first fifty Camellia Sinensis in October 2014. Half a dozen of us worked hard to get some wind breaks up and get the plants in. We had space so we gave them plenty of room for growing. The hillside is quite exposed but being a slope meant the water would keep moving and not leave the tea sitting in puddles. Unfortunately the corrugated iron windbreaks weren’t up to the strength of the wind and themselves got blown away. When the plants didn’t revive as everything else was turning green in spring we thought we’d made an expensive mistake and were about to admit defeat.

We hadn’t reckoned with the persistence and support of Tam O’Braan of Wee Tea fame. He came to have a look and said he’d take away the original plants to see if he could revive them. Meanwhile he suggested a different spot and closer planting to give the new plants better protection. We decided to try hurdle fences. A number of folk helped create the distinctive wind breaks that our three little plots now boast. We didn’t pick more than a few handfuls of leaves in 2015 in order to get the plants properly established. They’re looking healthy and we look forward to picking the first flush probably in late March 2016.

Meanwhile the original plants got a new lease of life, but not by growing. Some did start to revive but Tam had tried making what turned out to be a delicious and delicate stem tea. A new concept for us but one which made Isle of Mull “Scottish Antlers” Stem Tea hit the headlines. It was one of four Scottish Teas given by First Minister Nicola Sturgeon to President Barack Obama. Extra interest was generated because like many crofters we have more than one job. I am a Church of Scotland minister so “More tea Vicar” was almost an inevitable headline. Such interest would be the proverbial storm in a teacup if it wasn’t a good product. We’ve sold some locally and it is doing well online at the Wee Tea Company as well as garnering some good reviews. Learning about the world of specialist tea is an ongoing process and we look forward to being part of it in the years to come.

Liz & Martyn Gibson

Isle of Mull Tea and our croft Mo Dhachaidh both have Facebook Pages if you want to follow the ongoing stories.

Where there’s a Will, there’s a way

I G MacDonald, Crofter, Vice Convener of the Crofting Commission and Commissioner for Skye and the North West Highlands tells us of the importance of considering what to do with your croft when you can no longer work it. 

Many of us are getting to an age where we start to think, “What will happen to my croft when I am no longer able to work it?” and I’m often asked by folk what is the best thing to do. It’s obviously a matter of personal choice on whether you do something now or make provision in a Will for the transfer of the croft.

I have 2 crofts so I thought the best thing for me to do was to assign (transfer) one of the crofts to my daughter. She’s always been keen on crofting so it made sense to do the transfer now while we can still operate together and she can take on the heavier work.

So what are the options? Well that will depend on whether you are the tenant or an owner-occupier crofter.

If you are a tenant you could, like myself, consider assigning your croft to a younger person, or you could sublet the croft to someone who will cultivate and maintain it.

But if you decide to assign the croft tenancy remember this is a permanent transfer – you cannot subsequently change your mind! And if you want to keep the croft house you need either decroft or purchase it before transferring the croft land. Why? Well when you assign a croft everything that is held in tenancy is transferred to the new tenant and that would include the croft house if you don’t decroft or purchase it beforehand.

On the other hand a sublet is NOT a permanent transfer and you will remain the principal tenant of the croft with the subtenant having the right to use the croft for the term of the sublet which can be up to 10 years. Both assigning and subletting need the consent of the Crofting Commission and you’ll find the application forms for these on our website.

So that’s options for a tenant. What if you are an owner-occupier crofter? An owner-occupier could consider a short-term let of the croft or let the tenancy to a younger person.

A short-term let is similar to a sublet and is NOT a permanent transfer of the croft land. However, if you decide to let the tenancy this is a permanent transfer and you would become the new tenant’s Landlord. Even if the tenant decided to give up (renounces) the tenancy for whatever reason you would not revert to being an owner-occupier crofter but become the landlord of a vacant croft.

What if I don’t want to transfer the croft during my life time? If you don’t want to transfer the tenancy now the best advice is to arrange for a solicitor, who has some knowledge of crofting law to draw up a Will and make provision for the succession to the tenancy of the croft. You’ll need to make sure that all interests of the croft (such as grazing shares where the croft has been purchased) are clearly dealt with in the Will. It is easy to get caught out by an imprecise Will, for example “I bequeath my croft tenancy to my son.” When you do not actually name your son, the croft or you have purchased the croft from the landlord several years ago and are no longer classed as a tenant but an owner-occupier crofter.

If you make a Will then, after your death, there is a period of 12 months during which the executor or the legatee (the person you nominate to get the croft tenancy) must notify the Landlord and the Commission that they accept the bequest.

You have a basic right to bequeath (leave) a croft tenancy to a natural individual – it doesn’t have to be a family member. It is also possible to bequeath a croft tenancy to more than one individual, but in most circumstances it is not to be recommended because the croft must be divided so each person gets the bit they are bequeathed (left). The Commission consent is required for such a bequest to be effective. If the Commission refuse – if for instance the croft is too small to divide, the bequest falls into intestacy. Similarly if the 12 month deadline for notifying the landlord and Commission is missed, then an intestacy arises!

If intestacy arises the executor has 24 months to notify the Landlord and the Commission.

If there is no Will, or the Will does not clearly deal with the crofting interests, get specialist legal advice as soon as possible as the rules of intestacy are complicated and can, in certain circumstances result in loss of the croft tenancy.

As I said there is a 24 month period during which an executor can transfer a croft tenancy in intestacy. It is surprising how frequently this deadline is missed as the following must take place which can be very time consuming:

• An executor must be found (usually the closest family member) and confirmed by the Sheriff Court;
• The executor must identify those with an interest in the croft under the rules of intestate succession
  • A professional valuation of the croft must be carried out;
  • The executor must decide if there is a suitable tenant amongst those entitled to succeed, who can afford to “buy out” the other entitled parties;
• If there is no suitable tenant, the croft may be marketed on the open market. Estate agents must be instructed, maps drawn up etc.

All of this takes time. If the croft is not transferred within the 24 months, there are circumstances where the landlord can bring the croft tenancy to an end – and all that the beneficiaries are entitled to is compensation for any permanent improvements on the croft.

The Commission cannot be flexible with these timescales and deadlines, as they are set out in the Crofters (Scotland) Act 1993.

So remember make a Will, make a Will, make a Will.

Have a look at the Factsheets on our website for more detailed information or check out my short film on succession planning.

There are also a couple of case studies on assignation and subletting on our website that are great examples of crofters planning for the future and helping younger crofters.

Spotlight On…

The Spotlight On is to provide a snapshot and insight into Assessor’s lives and regions.

This month the spotlight is on Joyce Wilkinson.

Joyce is the Assessor for Kilmonivaig, Kilmallie, Arisaig & Moidart, North Morar District of Glenelg and the Small Isles.

Joyce lives on a 9ha croft which is one of several small crofts in the township of Bunacaimb in Arisaig, the croft also has shares in the common grazing.

The croft has been in Joyce’s late father’s family for over 250 years and her Mum, Beatrice lives next door in the original croft house.  The croft consists of machair soil running down to the beach and back onto a common grazing of peat and heather. Joyce keeps 5 registered Luing cows that calve to the Simmental bull.

Joyce said, “I also have a small 18 pitch caravan site, and two self-catering cottages, that are very busy throughout the season. The caravan site shop sells local meat, eggs and home-made tablet.  The meat is mostly from Highland bullocks that I buy in, store, take them through to finishing and take to the nearest abattoir on Mull.  I stay on the croft with my daughter Roslin, who is 14, and my 24 year old son Calum is studying in Glasgow.

When I am not looking after the cows and caravan site I also keep a small breeding herd of Highland ponies and like to get away to shows now and then.”

“As an Area Assessor I enjoy being able to meet local crofters and help them with some of the complexities of croft regulation, from croft registration to filling in the new crofting census, Assessors have a role to play in helping active crofting continue.”

Joyce is also a Grazing clerk for the Back of Keppoch, Glenan, Achnaskian Etc Common Grazings and a Director of the Scottish Crofting Federation and of the local Community Trust.

Spotlight On…

The Spotlight On is to provide a snaphsot and insight into Assessor’s lives and regions.

The spotlight is on Sandy Murray, Area Assessor for Farr.

Sandy was born and brought up in Strathalladale, Sutherland and is tenant of 4 crofts, totalling 360 hectares, which form part of Bighouse Estate. Sandy took over the crofts from his father in 1975, in a family tradition of crofting which goes back several generations. There are 30 hectares of grass land and 83 hectares of forestry, with the remainder consisting of rough grazing of heather upland. Sandy also has shares on the Halladale and Havaig common grazing which is designated as a Site of Special Scientific Interest (SSSI) and a Special Area of Conservation (SAC). Sandy has been an Assessor with the Crofting Commission since the late 1970’s.

Sandy runs 300 North Country Cheviot sheep and 22 spring-calving cows. The 83 ha of forestry are made up of conifer and broadleaved plantings, shelterbelts, some amenity and Christmas trees. More recently Sandy has installed a 20kw wind turbine on one of his crofts, providing power for his home and feeding into the national grid.

Sandy has converted the old Corn Mill, which is situated on one of his crofts, into a Bunkhouse, with a view to providing affordable and comfortable accommodation for visitors to the area. The mill was built in the early 1800s by Sandy’s ancestors and was active until around 1926, milling oats for the crofters of Halladale, Reay and Melvich. Activities that visitors can take part in are Laser Combat and Clay Pigeon Shooting.

As well as his Assessors role, Sandy is also a Grazing Clerk, Chairman of North Sutherland Community Forest Trust, Chairman of the NFUS Crofting Committee, sits on the LFA Committee and the Dyslexia Working Group and serves on the North West Sutherland Football association, along with a few other local committees.

Welcome to the Crofting Commission’s Blog!

The Crofting Commission are entering the blogosphere! 

Key members of the crofting community will be blogging here with regular features by the Crofting Commissioners and staff and guest bloggers from our partner organisations.  We will be blogging about key issues affecting crofting today and topical debates which are of interest to crofters and crofting communities across Scotland.