Crofting law gives crofters security from eviction but the crofters need to follow the rules and work to improve their plot of land
The old joke is that a croft is a small piece of land completely surrounded by legislation and there are certainly some complications about crofting law. Crofting is unique to Scotland so we can’t look elsewhere for enlightenment. Basically, crofting was set up by the Napier Commission and the Crofters Holdings (Scotland) Act of 1886 to give crofters security from eviction by landlords after they (the crofters) had worked to improve their plot of land.
The Act set up both rights and responsibilities. The crofter had to pay their rent, live on or near the croft, and work the land. In return, they had a fair rent, security of tenure, the right to pass on the croft and the right to be compensated for the improvements that they had made.
These rights and responsibilities have been added to and amended by subsequent acts of parliament but the basics remain the same. Fulfil your responsibilities and you earn the rights that go with it.
There have been a succession of acts over the past 130 years and a major change was the 1976 Crofting Reform (Scotland) Act which gave crofters the absolute right to buy their house and garden site and the conditional right to buy the whole croft from the landlord for a price of 15 times a fair rent (but you have to pay the landlord’s solicitor’s fees). The croft once bought is still subject to crofting law so the crofter still has to work the land and live on or near the croft. This is a point often lost on people coming from outwith the Crofting Counties (and their solicitors): you still have to follow the rules even if you are not a tenant. The ability to buy and sell on the open market has put a price on crofts and has led to many going purely as house sites rather than as agricultural units which happen to have a house on them. This can put crofts out of the price range of young people who want to work them.
The Crofting Commission in Inverness is the arm of the Scottish Government who oversee the regulations and make sure that crofters are fulfilling their responsibilities: if they aren’t then the Commission has powers to enforce the legislation. If a crofter is not making purposeful use of the croft or if they don’t live close by, then the Commission could remove the tenancy or, if the croft has been bought, force the owner to put in a tenant. The Commission’s stated aim is to regulate and promote “the interests of crofting in Scotland to secure the future of crofting”. However, they only have the resources to pursue a small number of cases where the rules are being flouted.
It is possible to take land out of crofting tenure by decrofting it and this is often done for house sites in order to get a mortgage. There have been cases of whole crofts being decrofted but the Commission should refuse most of these cases as the loss of any croft land can affect the viability of the local crofting community.
Grazing Committees are also unique to crofting and are reckoned to be the smallest democratic unit in the country. They are made up of the crofters themselves and exist to regulate and maintain the grazings – every croft is assigned a number of animals (the souming) that they are allowed to graze on the hill.
A Practical Guide to Crofting Law by Brian Inkster is a readable introduction to some of the intricacies and the Commission website can also help. The Scottish Crofting Federation runs a free legal helpline for members. Good luck!
by Russell Smith, Scottish Crofting Federation Director and Airdens Crofter