Crofting Reform etc. Act 2007 Explanatory Notes

Schedule 1

160.This Schedule sets out certain amendments to existing legislation.

161.Paragraph 1 amends a provision of the Crofters Holdings (Scotland) Act 1886 which is still in force.

162.All amendments under paragraph 2 of Schedule 1 are amendments made to the 1993 Act. Paragraph 2(3) leaves the determination of the initial rent of an enlarged croft to be settled between landlord and tenant.

163.Paragraph 2(4) amends section 6 of the 1993 Act. Paragraph 2(4)(b) provides that a rent assessment can be made during a period when a change of rent is not permitted if the change of rent is to take effect at the end of that period. Paragraph 2(4)(a) amends section 6(3) to allow the Land Court to fix a rent for part of a croft. Paragraph 2(4)(c) amends section 6(4) to apply it also to the assessment of rent for part of a croft.

164.Paragraph 2(5) allows the Land Court, in authorising a tenant to purchase croft land, to direct that the costs of the action be borne by the tenant. This is consistent with the arrangements that already apply when the croft tenant is acquiring a house site.

165.Paragraph 2(6) extends the provisions of section 24(1) permitting enlargement of crofts to new crofts and land reverting to being crofts under the respective provisions in sections 6 and 22 of the Act.

166.Paragraph 2(7) means that the Commission is no longer required to publicise an application to decroft land conveyed as a feu under the provisions of the Crofters (Scotland) Act 1955. This means that, in this respect, such applications are treated in the same way as an application to decroft a house site.

167.Paragraph 2(8) amends section 26(1) to make it clear that an order by the Land Court in relation to non-payment of rent or a breach of statutory conditions involves terminating the tenancy and declaring the croft vacant as well as removal of the crofter and extends the provision to apply this sanction to cases where the order has been the subject of an application under either new section 5A or new section 5B inserted by section 8 of the Act.

168.Paragraph 2(9) makes a technical amendment to section 41(1) and amends section 41(2) to provide that the Register of Crofts includes details of common grazings and require owners and those who have shares in the grazings to provide information about the grazings in the same way as landlords and croft tenants are required to do for crofts.

169.Paragraph 2(10)(a) amends subsection (1) of section 42 of the 1993 Act to widen the use to which grants paid to crofters by Scottish Ministers may be put. It, together with paragraph 2(10)(c), (d)(ii), (e) and (j), by repealing any mention of “loan”, withdraws from the Scottish Ministers the right to make loans under this section (new section 46A (inserted by section 32 of the Act) provides Scottish Ministers with a revised power to make loans). Paragraph 2(10)(b) inserts a new subsection 42(1A) into the 1993 Act and this requires that grant schemes shall have specific criteria as to who may receive grant (which, for example, opens up the possibility of applying an economic status test to applicants who are crofters). Paragraph 2(10)(d)(ii) removes the power of Scottish Ministers to supply crofters with building materials. Paragraph 2(10)(f) provides for recovery of grant by the Commission acting on behalf of Scottish Ministers. Paragraph 2(10)(g) extends the existing prohibition on double funding from public sector sources. Paragraph 2(10)(h) extends entitlement to persons who become owner occupiers after making a grant application. Paragraph 2(10)(i) makes clear that economic status can be one of the criteria for determining eligibility for grant.

170.Paragraph 2(11) removes provisions enabling the Scottish Ministers to make loans or supply building materials to cottars.

171.Paragraph 2(12) is a consequential amendment to section 45 resulting from the changes in the power of Scottish Ministers to provide loans.

172.Paragraph 2(13) removes provisions in section 46 enabling the Scottish Ministers to make loans or supply building materials to owners of crofts and persons of like status to crofters. It also modifies the test of status for determining eligibility and makes consequential changes resulting from the changes in the power of Scottish Ministers to provide loans.

173.Paragraph 2(14) modifies section 47(1) to apply the provisions of section 35 of this Act to the process of convening a meeting to appoint a grazing committee and repeals section 47(2) which as a consequence is no longer required. There are also technical amendments to sections 47(6) and (8) relating to the description of the clerk to a grazings committee and technical changes to do with rationalisation of the use of “common grazing” and “common grazings” in the legislation.

174.Paragraph 2(15) amends section 48 of the 1993 Act to empower the grazings committee to put the common grazing to any wider use approved under the provisions of new section 50B (inserted by section 26 of the Act), to carry out works for that purpose and to maintain the common grazing for that use. It also empowers the committee to raise funds to implement a wider use approved under section 50B(11) but only if a majority of the grazings committee votes to do so. It also contains technical changes to do with rationalisation of the use of “common grazing” and “common grazings” in the legislation.

175.Paragraph 2(16) makes technical changes similar to those mentioned in relation to paragraph 2(15) and to substitute “owner” for “landlord” in relation to common grazings. It also makes further changes to ensure that the substantive changes made in paragraph 2(15) are given effect in common grazings regulations.

176.Paragraph 2(17), as elsewhere, changes the reference in section 52 of the 1993 Act to “grazings” to the singular and the description of a crofter “interested” in the grazing to one who holds a right in a common grazing.

177.Paragraph 2(18) clarifies the postal method required for notices which require to be sent by post.

178.Paragraph 3 introduces a technical amendment to the Scottish Land Court Act 1993 to update the jurisdiction of the Scottish Land Court following devolution.

179.Paragraph 4 introduces a change to the Deer (Scotland) Act 1996 which enables a grazings committee to appoint a person to shoot deer marauding in enclosed areas of the common grazing.

180.Paragraph 5 makes a number of amendments to various sections of the 2003 Act, all of which are consequential on the changes to that Act included in section 31 of the Act.

181.Paragraph 5(2) amends section 68 of the 2003 Act. It makes the right to buy eligible croft land subject also to the right to buy the tenant’s interest in a lease over that land.

182.Paragraph 5(3) amends section 73 of the 2003 Act to make it clear that section 73 will also apply to an application for a right to buy a tenancy under the provisions of new section 69A. It further provides that the application to buy can include the tenant’s interest in a lease where that interest may be held by one individual or jointly or in common with other parties. It also applies the requirements of the application to buy to the tenant’s interest in the lease in the same way as they apply to the land or sporting interests which may be subject to the application.

183.Paragraph 5(4) amends section 74 of the 2003 Act to the effect that whilst an application to buy must relate to eligible croft land (as that term is defined) that land might also be subject to a tenancy.

184.Paragraph 5(5) amends section 75 of the 2003 Act to make it clear that a ballot must be conducted in accordance with the provisions of section 75 in connection with an application for a right to buy a tenant’s interest in a lease under the provisions of new section 69A and that a failure to conduct a ballot will result in the application being extinguished. It also modifies the section in order to define who may vote as a croft tenant in the ballot.

185.Paragraph 5(6) amends section 76 of the 2003 Act to provide also for a tenant’s interest in a lease. It also amends section 76(4) to provide that the tenant under any lease which is the subject of the application should be notified of the application.

186.Paragraph 5(7) amends section 81 of the 2003 Act to provide that the person who makes a reference to the Land Court should include the tenant under any lease, where the interest of that tenant is the subject of the application. In terms of subsection (2) the Land Court should also have regard to the representations made by such tenant.

187.Paragraph 5(8) amends section 82 of the 2003 Act and provides for notification of the Minister’s decision on an application.

188.Paragraph 5(9) amends section 85 of the 2003 Act to include arrangements for confirming the intention to purchase the tenancy or withdraw an application for a right to buy a tenancy under the provisions of new section 69A.

189.Paragraph 5(10) amends section 86 of the 2003 Act to make it clear that where a crofting community body have been given Ministerial consent to their buying a tenant’s rights in an area of eligible croft land the owner and the tenant will be required to make deeds and other documents needed to complete the purchase (which will include the assignation of the tenant’s interest in the lease) available to the crofting community body.

190.Paragraph 5(11) amends section 87 of the 2003 Act to make it clear that the provisions of that section regarding the consideration payable, the date for settlement and what should happen if the consideration is not paid on time will also apply to the exercise of a right to buy a tenancy. Also where the tenant’s interest in the lease is subject to a standard security that security will not be discharged to the extent that it burdens any part of the interest which is not assigned to the crofting community body.

191.Paragraph 5(12) amends section 88 of the 2003 Act to specify how the assessment of the value of a tenant’s interest in a lease being acquired under the right to buy will be conducted.

192.Paragraph 5(13) amends section 89 of the 2003 Act to make it clear that the provisions of section 89 regarding payment of compensation will also convey an entitlement to compensation to the tenant of a lease which was the subject of an application for a right to buy a tenancy under the provisions of new section 69A.

193.Paragraph 5(14) amends section 90 of the 2003 Act to make it clear that grants may also be given to a crofting community body which has a liability to pay compensation under section 89 in connection with an application to purchase a tenant’s interest in a lease under section 69A.

194.Paragraph 5(15) amends section 91 of the 2003 Act to make it clear that a Ministerial decision on an application for a right to buy a tenant’s interest in a lease under the provisions of new section 69A may be the subject of an appeal to the Sheriff Court.

195.Paragraph 5(16) amends section 92 of the 2003 Act to make it clear that a valuation in connection with a right to buy a tenant’s interest in a lease under the provisions of new section 69A may be the subject of an appeal to the Land Court.

196.Paragraph 5(17) amends section 95 of the 2003 Act to also apply the anti-avoidance measures in that section to the acquisition of the tenant’s interest in a lease where Scottish Ministers have consented to an application for a right to buy that interest under the provisions of new section 69A.

197.Paragraph 5(18) extends the limitation on Part 3 of 2003 Act to ensure that a crofting community body is not prevented from acquiring a tenancy of eligible croft land by agreement.

Back to top