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Crofters (Scotland) Act 1993

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The Crofters CommissionS

1 Constitution and general functions of Crofters Commission.S

(1)The Crofters Commission (“the Commission”) established by section 1 of the 1955 Act shall continue in being.

[F1(2)The Commission have—

(a)the general functions of—

(i)regulating crofting;

(ii)reorganising crofting;

(iii)promoting the interests of crofting;

(iv)keeping under review matters relating to crofting; and

(b)such other functions conferred on them by or under this Act or under any other enactment.

(2A)In exercising their functions under subsection (2), the Commission must have regard to—

(a)the desirability of supporting population retention—

(i)in the crofting counties; and

(ii)in any area for the time being designated as mentioned in section 3A(1)(b) and in which there are crofts; and

(b)the impact of changes to the overall area of land held in crofting tenure on the sustainability of crofting.]

[F2(3)The Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers.]

F3(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The provisions contained in Schedule 1 to this Act shall have effect in relation to the Commission.

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Amendments (Textual)

F1S. 1(2)(2A) substituted for s. 1(2) (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 2(1), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

2 Particular powers and duties of the Commission.S

(1)In the exercise of their general functions of reorganising, F4... and regulating crofting, it shall be the duty of the Commission—

(a)to keep under general review all matters relating to crofts and crofting conditions, including, without prejudice to the foregoing generality, land settlementF5...;

(b)to collaborate so far as their powers and duties permit with any body or person in the carrying out of any measures for the economic development and social improvement of the crofting counties;

(c)to advise the Secretary of State on any matter relating to crofts and crofting conditions which he may refer to them, or on which they may think fit to submit advice to him;

(d)to exercise the powers conferred on them by this Act in such manner as may seem to them in each case desirable.

F6(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The Commission shall send to the principal clerk of the Land Court to be recorded in the Crofters Holdings Book every order, determination, consent, authorisation or other proceeding of theirs which they may think proper to be recorded therein.

F7(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

[F82AMinisters' power to modify functions of CommissionS

(1)The Scottish Ministers may, by order—

(a)confer functions on;

(b)remove functions from;

(c)otherwise modify functions of,

the Commission.

(2)The Scottish Ministers may make an order under subsection (1) only where they consider it appropriate to do so to ensure that the Commission carry out their functions efficiently and effectively.

(3)An order under subsection (1) may—

(a)confer on the Commission a function exercisable under this Act by the Scottish Ministers (other than a function to make regulations or orders);

(b)modify any enactment (including this Act).

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Amendments (Textual)

F8Ss. 2A-2D inserted (1.10.2011 for the insertion of s. 2A, 1.4.2012 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 2(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4); S.S.I. 2011/334, art. 3, sch. Pt. 2 (with art. 4, art. 5(2)(3) )

2BAnnual reportS

(1)The Commission must make an annual report, on the exercise by them of their functions, to the Scottish Ministers.

(2)That report must also contain the Commission's assessment of—

(a)the issues affecting crofting communities; and

(b)the contribution crofting has made to sustainable development.

(3)Before making an annual report, the Commission must consult—

(a)each local authority in the area of which there are crofts; and

(b)Highlands and Islands Enterprise.

(4)The Scottish Ministers must lay before the Scottish Parliament a copy of each annual report made to them under this section together with any comments on the report that they consider appropriate.

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Amendments (Textual)

F8Ss. 2A-2D inserted (1.10.2011 for the insertion of s. 2A, 1.4.2012 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 2(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4); S.S.I. 2011/334, art. 3, sch. Pt. 2 (with art. 4, art. 5(2)(3) )

2CDuty to produce planS

(1)The Commission must, before the expiry of the period mentioned in subsection (2), prepare and submit to the Scottish Ministers a plan setting out their policy on how they propose to exercise their functions.

(2)That period is the period of 6 months beginning with the day after—

(a)the day of the first election held in accordance with paragraph 7 of schedule 1 to elect persons to be members of the Commission;

(b)the day of each subsequent election.

(3)The Commission must, before preparing a plan under this section, consult—

(a)each local authority in the area of which there are crofts;

(b)Highlands and Islands Enterprise; and

(c)such other persons or bodies as the Commission consider appropriate.

(4)The Scottish Ministers may—

(a)approve the plan (with or without modifications); or

(b)reject the plan and direct the Commission to submit a revised plan.

(5)Where the Scottish Ministers approve the plan submitted under subsection (1) (including a revised plan submitted under subsection (4)(b)), the Commission must—

(a)send a copy of it to each local authority in the area of which there are crofts;

(b)make a copy of it available for public inspection at reasonable times; and

(c)publish it in such manner as the Commission consider appropriate.

(6)The Commission—

(a)may, from time to time;

(b)must, if required to do so by the Scottish Ministers,

vary the plan.

(7)Where the Commission, under subsection (6), vary the plan—

(a)the Commission must submit it to the Scottish Ministers; and

(b)subsections (3) to (5) apply to the variation of a plan as they apply to the preparation of a plan under subsection (1).

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Amendments (Textual)

F8Ss. 2A-2D inserted (1.10.2011 for the insertion of s. 2A, 1.4.2012 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 2(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4); S.S.I. 2011/334, art. 3, sch. Pt. 2 (with art. 4, art. 5(2)(3) )

2DStatus of planS

(1)The Commission, in exercising their functions, must have regard to any plan approved and published under section 2C.

(2)The Land Court may have regard to any such plan when considering an appeal against—

(a)any decision, determination or direction of; or

(b)the imposition of a condition by,

the Commission on an application made to them under this Act.]

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Amendments (Textual)

F8Ss. 2A-2D inserted (1.10.2011 for the insertion of s. 2A, 1.4.2012 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 2(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4); S.S.I. 2011/334, art. 3, sch. Pt. 2 (with art. 4, art. 5(2)(3) )

Meaning of croft and crofterS

3 Meaning of croft and crofter.S

(1)Subject to subsection (2) below [F9and to section 3ZA(2)(a)] , in this Act “croft” means—

(a)as from 1st October 1955, every holding (whether occupied by a landholder or not) situated in the crofting counties to which any of the provisions of the Small Landholders (Scotland) Acts 1886 to 1931 relating to landholders applied;

(b)as from 1st October 1955, every holding situated as aforesaid to which section 32 of the M1Small Landholders (Scotland) Act 1911 applied (statutory small tenants);

(c)as from the date of registration, every holding situated as aforesaid which was constituted a croft by the registration of the tenant thereof as a crofter in the Crofters Holdings Book under section 4 of the 1955 Act;

[F10(cc)as from the date of registration, every holding situated—

(i)as aforesaid; or

(ii)as is mentioned in subsection (1)(b) of section 3A of this Act,

and registered by virtue of an application under that section;

(cd)as from the date of reversion, every holding reverting under section 20(1B), or by virtue of section 21A(1), of this Act;]

(d)as from the date of the direction, every holding situated [F11in the crofting counties] which was constituted a croft by a direction of the Secretary of State under section 2(1) of the 1961 Act;

(e)as from the date of entry, every holding entered in the register of crofts by the Commission in accordance with their decision under section 15(4) of the 1955 Act where—

(i)the decision was notified to the landlord and the tenant of the holding; and

(ii)neither the landlord nor the tenant successfully challenged the decision on an application for a declarator as to the status of the tenant made to the Land Court within 2 months of the giving of such notification.

[F12(f)as from the relevant commencement date, every holding—

(i)entered in the Register of Crofts on that date which has been so entered for a continuous period of at least twenty years ending with that date; and

(ii)in respect of which no application or reference seeking a declaration or order that the holding is not a croft is on that date pending before any court;

(g)as from the date twenty years after registration, every holding—

(i)entered in the Register of Crofts for a continuous period of twenty years ending after the relevant commencement date; and

(ii)in respect of which no application or reference seeking a declaration or order that the holding is not a croft is at the end of that period pending before any court]

[F13(1A)In paragraphs (f) and (g) of subsection (1) above, “the relevant commencement date” is the date on which section 21 of the Crofting Reform etc. Act 2007 (asp 7) comes into force.]

(2)Subsection (1) above is without prejudice to the effect of—

(a)section 24(1) of this Act and the corresponding provision of the 1955 Act which is repealed by this Act (that is to say section 12(4));

(b)a direction under section 24(2) or (3) [F14or 24B(1)] of this Act and the corresponding provisions of the 1955 Act which are repealed by this Act (that is to say section 16(7) or (9)).

(3)[F15Subject to section 3ZA(2)(c),] In this Act “crofter” means the tenant of a croft.

(4)For the purposes of this Act—

(a)any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others, and

(b)any land comprising any part of a common grazing which has been apportioned for the exclusive use of a crofter under section 52(4) of this Act, and,

(c)any land held runrig which has been apportioned under section 52(8) of this Act,

shall be deemed to form part of the croft.

(5)For the purposes of this Act, where—

(a)a crofter has acquired his entire croft other than any such right or land as is referred to in subsection (4) above; or

(b)any person, not being a crofter, has obtained an apportionment of any land under section 52 of this Act,

then the person referred to in paragraph (a) or (b) above shall be deemed to hold the right or land referred to therein in tenancy until held otherwise and that right or land shall be deemed to be a croft.

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Amendments (Textual)

F11Words in s. 3(1)(d) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 21(a)(ii), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F14Words in s. 3(2)(b) inserted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 3, 6, sch. para. 1(2)

Marginal Citations

[F163ZARegistered croftsS

(1)This section applies where a holding situated—

(a)in the crofting counties; or

(b)as is mentioned in section 3A(1)(b),

is registered in the Crofting Register.

(2)For the purposes of this Act—

(a)the holding is, from the date of registration, a croft;

(b)the land which comprises the croft (including any right or land mentioned in section 3(4)) is determined by the description of that land in the registration schedule of the croft; and

(c)from the date of registration, any person for the time being entered in the registration schedule of the croft as the tenant of the croft is a crofter.

(3)Section 3 (other than subsection (2)) does not apply.

(4)Section 3(2) applies to subsection (2)(a) of this section as it applies to subsection (1) of section 3.

(5)Nothing in this section affects whether, before the date of registration, the holding was a croft or any person was the tenant of it.]

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Amendments (Textual)

[F173ANew croftsS

(1)The Commission shall have power, on the application of the owner of any land situated—

(a)in the crofting counties; or

(b)in an area outwith the crofting counties which is, by order made by statutory instrument, designated for the purposes of this paragraph by the Scottish Ministers,

to constitute the land as a croft F18....

(2)The Commission shall have power—

(a)on the application of the tenant of any holding situated as is mentioned in subsection (1)(b) above; and

(b)provided that subsection (3) below is complied with and that the conditions set out in subsection (12) below are met,

to constitute the holding as a croft F19....

(3)Any application under subsection (2) above must be accompanied by a certificate of the Land Court to the effect that the Court is satisfied that, as at the date of the certificate—

(a)the tenancy of the holding is one to which—

(i)section 32 of the Small Landholders (Scotland) Act 1911 (c. 49) applies; or

(ii)any of the provisions of the Small Landholders (Scotland) Acts 1886 to 1931 applies; and

(b)no part of the holding is leased other than as a tenancy mentioned in paragraph (a) above.

F20(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The Commission shall, on receipt of an application under subsection (1) or (2) above, give public notification of it.

(6)Notification under subsection (5) above shall specify a period within which comments as regards the application, being comments of the description given in subsection (10) below, may be made.

(7)After the period mentioned in subsection (6) above has elapsed the Commission shall—

(a)determine whether to exercise their power under subsection (1) or as the case may be (2) above; and

(b)give public notification of that determination.

(8)In so determining, the Commission shall have regard to—

(a)such comments, if any, as are duly made by virtue of subsection (6) above;

(b)the public interest and as the case may be the interests of the crofting community in the locality of the land; and

(c)whether social or economic benefits might be expected as a consequence of so constituting it.

(9)No application is to be made under subsection (1) above in respect of an agricultural holding occupied by a tenant where—

(a)the tenancy is—

(i)a 1991 Act tenancy (within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11)); or

(ii)a short limited duration tenancy[F21, limited duration tenancy, modern limited duration tenancy or repairing tenancy] (within the meaning of that Act); or

(b)it is competent for the tenant to make an application under subsection (2) above,

if the written agreement of the tenant has not been obtained; and on such a holding being constituted as a croft under subsection (1) above the tenant shall be entitled (unless not a natural person) to be registered, in accordance with section 41(2)(b) of this Act, as its tenant.

(10)The description is that the comments are made in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape).

(11)For the purposes of subsection (10) above (and without prejudice to the generality of that subsection), comments are to be treated as made in writing where they are—

(a)transmitted by electronic means;

(b)received in legible form; and

(c)capable of being used for subsequent reference.

(12)The conditions are—

F22(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)that the tenant is a natural person; and

(c)that such fixed equipment on the holding as is necessary to enable the tenant to cultivate the croft is not provided by the landlord.

(13)An order under subsection (1)(b) above is not made unless a draft of the statutory instrument containing the order has been—

(a)laid before; and

(b)approved by a resolution of,

the Scottish Parliament.

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Amendments (Textual)

F21Words in s. 3A(9)(a)(ii) substituted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 4(2) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 9)

[F233AARegistration of new croftsS

(1)This section applies where the Commission make a determination to exercise their power under section 3A(1) or, as the case may be, (2), to constitute land or, as the case may be, a holding as a croft.

(2)The application for registration of the land or holding in the Crofting Register must not be forwarded to the Keeper under section 7(3)(b) of the Crofting Reform (Scotland) Act 2010 (asp 14)—

(a)until the period mentioned in section 52A(2)(b) has expired without any appeal to the Land Court being made; or

(b)where such an appeal is made, until it is abandoned or the Court confirms the Commission's determination under section 3A(1) or, as the case may be, (2).

(3)In the case of an application for registration of a holding in relation to which a determination under section 3A(2) is made, the Commission must not forward the application unless they are satisfied—

(a)that agreement has been reached between the applicant and the owner of the land as to an amount to be paid by the applicant to the owner in compensation for the holding being constituted as a croft and that the amount has been duly paid;

(b)that the applicant and the owner have agreed that no amount in compensation is to be so payable; or

(c)that any such amount found, by virtue of section 3B, to be so payable has been duly paid.]

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Amendments (Textual)

3BCompensation for constituting holding outwith crofting counties as croft on application of tenantS

(1)Where, in relation to an application under subsection (2) of section 3A of this Act, there is no such agreement as is mentioned in [F24section 3AA(3)(a) or (b)] , the compensation payable by the applicant to the owner in compensation for the holding being constituted as a croft is to be the difference between—

(a)the value of the holding assuming that it is not to be so constituted; and

(b)its value assuming that it is so constituted,

and is to be assessed by a valuer appointed by the applicant and the owner.

(2)But where the applicant and the owner are unable to agree as to such an appointment the valuer is to be appointed by the Land Court or by a person nominated by the Court.

(3)The valuer is to assess the value of the holding—

(a)as at the date of the relevant application under section 3A(2);

(b)having regard to the value that would be likely to be agreed between a reasonable buyer and seller of such a holding assuming—

(i)that the buyer and seller are, as respects the transaction, willing; and

(ii)that the buyer is a sitting tenant;

(c)taking account, in so far as a buyer and a seller of the holding would do so, of any factor attributable to the known existence of a person who (not being the applicant) would be willing to buy the holding at a price higher than other persons because of a characteristic of the holding which relates peculiarly to that person's interest in buying it; and

(d)taking account of the terms and conditions of any lease of sporting interests affecting the land.

(4)The valuer is to invite the owner and the applicant to make written representations about the valuation of the holding under this section and is to have regard to any such representation.

(5)The valuer may—

(a)enter onto land; and

(b)make any reasonable request of the owner or the applicant,

for the purpose of any assessment under this section.

(6)The valuer must, within 6 weeks after being appointed, send to the owner and the applicant a notice in writing specifying the compensation payable and setting out how its amount was calculated.

(7)The expenses of the valuer accrued in carrying out his functions under this section are to be met by the applicant.

(8)In this section “valuer” includes two valuers with an oversman.

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Amendments (Textual)

3CAppeal against assessment under section 3BS

(1)The owner or the applicant may appeal to the Lands Tribunal for Scotland against an assessment carried out under section 3B.

(2)An appeal under this section—

(a)shall state the grounds on which it is made; and

(b)shall not be lodged more than 21 days after the date of the notice under section 3B(6) of this Act.

(3)In an appeal under this section, the tribunal may reassess any value (and any factor affecting any value).

(4)The valuer may be a witness in the appeal proceedings.

(5)And in those proceedings, in addition to the owner and the applicant, any creditor in a standard security over the land or any part of it is entitled to be heard.

(6)The tribunal is to give reasons for its decision on an appeal under this section and is to issue a written statement of those reasons.

(7)The decision of the tribunal in an appeal under this section is final.]

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Amendments (Textual)

Enlargement of croftsS

[F254 Enlargement of croftsS

(1)This section applies where an owner of land—

(a)which is not a croft; and

(b)which does not form part of a croft,

agrees to grant a tenancy of that land to a crofter.

(2)The owner and the crofter may apply jointly to the Commission for a direction that the land is to form part of a croft of which the crofter is tenant.

(3)Where a croft such as is mentioned in subsection (2) is an unregistered croft, the Commission—

(a)must not make a direction under subsection (4) unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for the direction is made;

(b)need not, during that 6 month period, consider the application for the direction until an application for first registration of the croft is submitted.

(4)The Commission may make a direction if they are satisfied that the enlargement of the croft—

(a)would be of benefit to the croft or to the crofter;

(b)would not result in the area of the enlarged croft substantially exceeding 30 hectares.

(5)Where the Commission make a direction in relation to an unregistered croft or a first registered croft, the land forms part of the croft with effect from the later of—

(a)the date of the direction; or

(b)the date of entry under the tenancy.

(6)Where the Commission make a direction in relation to a registered croft (other than a first registered croft)—

(a)the direction expires at the end of the period of 3 months beginning with the date on which the direction is made unless an application for registration of the enlargement of the croft is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the enlargement takes effect on the date of registration.

(7)For the purposes of section 6 and paragraph 1 of schedule 2, the rent payable for the enlarged croft is the rent agreed by the landlord and the crofter.

(8)In subsections (5) and (6), “first registered croft” means a croft mentioned in section 5(2) of the 2010 Act.]

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Amendments (Textual)

F25S. 4 substituted (1.10.2011 for specified purposes, 30.11.2012 for specified purposes, 30.11.2013 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 46, 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3)); S.S.I. 2012/288, art. 3(1)(b), (2), Sch. 1 Pt. 2 (with sch. 2 para. 1(k), (l)); S.S.I. 2012/288, art. 3(1)(c) (with sch. 2 para. 7)

[F26Exchange of croftsS

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Amendments (Textual)

F26S. 4A and cross-heading inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 9, 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

4AExchange of crofts or parts of croftsS

(1)A crofter may not exchange his croft (or any part of his croft) for another croft (or part of another croft) unless—

(a)he obtains the consent of—

(i)the landlord of his croft; and

(ii)the Commission;

(b)the exchanging crofters have the same landlord; and

(c)that landlord is the owner of any common grazing in which the crofters share.

(2)The consent of the Commission shall not be given unless they are satisfied that the consent mentioned in paragraph (a)(i) of subsection (1) above has been obtained.

[F27(2A)Where consent is applied for under subsection (1) in relation to an unregistered croft (or any part of such a croft), the Commission—

(a)may not grant that consent unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for consent was made;

(b)need not, during that 6 month period, consider the application for consent until an application for first registration of the croft is submitted.

(2B)In relation to a registered croft, or any part of such a croft, (other than a first registered croft)—

(a)any consent of the Commission to the exchange of the croft expires at the end of the period of 3 months beginning with the date on which such consent was given unless an application for registration of the exchange of the croft is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the exchange takes effect on the date of registration.]

F28(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)A new croft is not created by virtue only of such exchange.]

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Amendments (Textual)

F27S. 4A(2A)(2B) inserted (30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(5)(a) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 paras. 1(m) 9)

The conditions of tenureS

5 The statutory conditions.S

(1)Every tenancy of a croft shall be subject to the conditions set out in Schedule 2 to this Act (in this Act referred to as “the statutory conditions”).

F29(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)A crofter shall not be subject to be removed from the croft of which he is tenant except—

(a)where one year’s rent of the croft is unpaid;

(b)in consequence of the breach of one or more of the statutory conditions, other than the condition as to payment of rent; or

(c)in pursuance of any enactment, including any enactment contained in this Act.

F30(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(2B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F32(3)Any contract or agreement made by a crofter by virtue of which he is deprived of any right conferred on him by—

(a)a provision of this Act not mentioned in paragraph (b) below, shall to that extent be void unless the contract or agreement is approved by the Land Court;

(b)any of sections 8, 12 to 19, 21 and 37 of this Act, may be intimated to the Commission by a party to the agreement (the intimation being in such form as the Commission may specify and there being provided to the Commission, along with the intimation, a copy of the contract or agreement).

(4)On giving approval under subsection (3)(a) above, the Land Court shall intimate to the Commission that it has done so and provide them with a copy of the contract or agreement.

(5)On receiving a copy, provided under subsection (3)(b) or (4) above, of a contract or agreement the Commission shall enter the copy in the Register of Crofts.

(6)Where a copy is so entered then, subject to the terms of the contract or agreement, the deprival in question is binding on the successors to the crofter's interest.

F33(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(10)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F32S. 5(3)-(10) substituted for s. 5(3) (25.6.2007 for specified purposes, 28.1.2008 in force in so far as not already in force) by Crofting Reform etc. Act 2007 (asp 7), ss. 7(1)(c), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.; S.S.I. 2007/568, art. 2

[F345AComplaint as respects breach of the statutory conditionsS

(1)Without prejudice to any right which the landlord has to initiate proceedings in relation to a breach of the statutory conditions as respects a croft, the landlord or any member of the crofting community in the locality of the croft may complain to the Commission that such a breach (other than a breach of the condition as to payment of rent) has occurred.

(2)Provided—

(a)that no proceedings—

(i)such as are mentioned in subsection (1) above; or

(ii)under [F35section 26C] of this Act,

have been initiated; and

(b)that the period allowed the crofter by virtue of subsection (4) below has elapsed,

the Commission may make an application to the Land Court in relation to the breach; but this subsection is subject to subsection (3) below.

(3)Except where the complaint was by the landlord, the Commission shall give him written notice of their intention to make the application; and if within 14 days after receipt of that notice he gives them intimation that he objects, being intimation of the description given in subsection (7) below, they shall not proceed with the application.

(4)Before making the application, the Commission shall give written notice to the crofter of the breach complained of and give him the opportunity to remedy it within such reasonable period as they shall specify in the notice.

(5)Where, on an application under subsection (2) above, the Land Court is satisfied that the breach complained of has occurred, it may—

(a)order that the breach be remedied and specify a time within which that must occur; and

(b)make such order regarding the payment of compensation by the crofter to the landlord as it thinks fit.

(6)Where an order under subsection (5)(a) above is not complied with, the Commission may apply to the Land Court for an order—

(a)terminating the tenancy;

(b)declaring the croft to be vacant; and

(c)for the removal of the tenant from the croft.

(7)The description is that the intimation is given in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape).

(8)For the purposes of subsection (7) above (and without prejudice to the generality of that subsection), an intimation is to be treated as given in writing where it is—

(a)transmitted by electronic means;

(b)received in legible form; and

(c)capable of being used for subsequent reference.

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Amendments (Textual)

[F36Crofters' duties relating to residency, use, misuse and neglect of croftsS

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Amendments (Textual)

F36S. 5AA and cross-heading inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 33(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

5AACrofters: residency dutyS

A crofter must be ordinarily resident on, or within 32 kilometres of, that crofter's croft.]

[F375BTermination of tenancy for misuse or neglectS

(1)A crofter must not misuse or neglect the crofter's croft.

(2)A crofter misuses a croft where the crofter—

(a)wilfully and knowingly uses it otherwise than for the purpose of its being cultivated or put to such other purposeful use as is consented to under section 5C(4);

(b)fails to use the croft for the purposes of its being cultivated; or

(c)fails to put the croft to any such purposeful use.

(3)A crofter neglects a croft where the croft is not managed so as to meet the standards of good agricultural and environmental condition referred to in regulation 4 of, and the schedule to, the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 (SSI 2004 No. 518).

(4)But where the crofter, in a planned and managed manner, engages in, or refrains from, an activity for the purpose of conserving—

(a)the natural beauty of the locality of the croft; or

(b)the flora and fauna of that locality,

the crofter's so engaging or refraining is not to be treated as misuse or neglect as respects the croft.

(5)If, immediately before the coming into force of section 7 of the Crofting Reform etc. Act 2007 (asp 7), the croft was being used for a subsidiary or auxiliary occupation by virtue of the right conferred by paragraph 3 of schedule 2 to this Act (as that paragraph then applied), any continuation of use for that occupation is not to be treated as misuse or neglect as respects the croft.

(6)The Scottish Ministers may, by order, amend the meaning of neglect in subsection (3) so as to substitute different standards for those for the time being mentioned in that subsection.]

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Amendments (Textual)

F37Ss. 5B, 5C substituted for s. 5B (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 33(3), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

[F365CCrofters: duty to cultivate and maintainS

(1)A crofter must comply with each of the duties set out in subsection (2).

(2)Those duties are that the crofter—

(a)must—

(i)cultivate the croft; or

(ii)put it to another purposeful use,

so that every part of the croft which is capable of being cultivated or put to another purposeful use either is cultivated or is put to such use;

(b)must keep the croft in a fit state for cultivation (except in so far as the use of the croft for another purposeful use is incompatible with the croft being kept in such a state).

(3)Without prejudice to the generality of paragraph (b) of subsection (2), in determining whether that paragraph is complied with, regard is to be had to whether appropriate measures (which may include the provision of drainage) are routinely undertaken, where requisite and practicable, to control or eradicate vermin, bracken, whins, broom, rushes and harmful weeds.

(4)A crofter may only put the croft to a use mentioned in subsection (2)(a)(ii) if—

(a)the landlord has consented to the use (unconditionally or subject to conditions acceptable to the crofter); or

(b)the Commission have consented to the use.

(5)But a crofter may not apply to the Commission for consent under subsection (4)(b) until—

(a)the landlord has refused consent (or granted consent subject to conditions unacceptable to the crofter); or

(b)the period of 28 days, commencing with the date on which the request for the consent of the landlord was made, has expired,

whichever occurs first.

(6)The Commission must, on receipt of such an application for consent—

(a)consult, as regards the proposed purposeful use, the landlord and the members of the crofting community in the locality of the land; and

(b)if the proposed purposeful use—

(i)constitutes a change for which planning permission is required; or

(ii)by virtue of any enactment (other than this Act) requires any other permission or approval,

require it to be shown that the permission or approval has been given.

(7)The Commission must decide the application within 28 days after receiving it; and if they give their consent may impose such conditions as they think fit.

(8)In this Act—

  • cultivate” includes the use of a croft for horticulture or for any purpose of husbandry, including the keeping or breeding of livestock, poultry or bees, the growing of fruit, vegetables and the like and the planting of trees and use of the land as woodlands;

  • purposeful use” means any planned and managed use which does not adversely affect—

    (a)

    the croft;

    (b)

    the public interest;

    (c)

    the interests of the landlord or (if different) the owner; or

    (d)

    the use of adjacent land.]

6 Rent.S

(1)The rent payable by a crofter as one of the statutory conditions shall be the yearly rent, including money and any prestations other than money, payable for the year current at the commencement of this Act or, in the case of a croft let after the commencement of this Act, fixed at the date of the letting, unless and until that rent is altered in accordance with the provisions of this Act.

(2)The rent may be altered by agreement in writing between the landlord and the crofter to such amount and for such period as may be so agreed; and thereupon the rent so agreed shall be the rent payable by the crofter so long as the agreement subsists and thereafter so long as—

(a)no new agreement between the landlord and the crofter shall have been made; or

(b)no different rent shall have been fixed by the Land Court under this Act.

(3)The Land Court may, on the application of the crofter or the landlord, determine what is a fair rent to be paid by the crofter to the landlord for the croft [F38or for any part of the croft] , and may pronounce an order accordingly; and the rent so fixed by the Land Court shall be the rent payable by the crofter as from the first term of Whitsunday or Martinmas next succeeding the decision of the Land Court:

Provided that—

(a)where the rent payable for the croft [F39or for any part of the croft] has been fixed by the Land Court it shall not be altered, except by mutual agreement between the crofter and the landlord, for a period of 7 years from the term at which it first became payable; and

(b)where a croft is let after the commencement of this Act, the rent [F40for it or for any part of it] shall not be altered by the Land Court for a period of 7 years from the term at which it first became payable or for such longer period as may have been agreed upon between the crofter and the landlord.

[F41(3A)The proviso to subsection (3) above does not have the consequence that a determination which is not to take effect during any period mentioned in that proviso cannot competently be made under that subsection during that period.]

(4)Before determining what is a fair rent for a croft [F42or for any part of a croft] , the Land Court shall hear the parties and shall take into consideration all the circumstances of the case, of the croft and of the district, and in particular shall take into consideration any permanent or unexhausted improvements on the croft and suitable thereto which have been executed or paid for by the crofter or his predecessors in the tenancy.

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Amendments (Textual)

7 Renunciation of tenancy.S

(1)A crofter shall be entitled, on one year’s notice in writing to the landlord, to renounce his tenancy as at any term of Whitsunday or Martinmas.

(2)If a crofter renounces his tenancy the landlord shall be entitled to set off all rent due or to become due against any sum found to be due by the landlord to the crofter or to the Secretary of State by way of compensation for permanent improvements made on the croft.

8 Assignation of croft.S

(1)A crofter shall not assign his croft— [F43unless he obtains the consent of the Commission]

[F44(1A)Where a crofter applies for consent to assign a croft by virtue of subsection (1), the crofter must

(a)notify the Commission as to where the proposed assignee would intend, following any such assignation, ordinarily to reside; and

(b)provide the Commission with any other information it requests in connection with the application.

(1B)Where consent is applied for under subsection (1) in relation to an unregistered croft, the Commission—

(a)may not grant that consent unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for consent was made;

(b)need not, during that 6 month period, consider the application for consent until an application for first registration of the croft is submitted.]

F45(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F46(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F46(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Where a crofter assigns his croft otherwise than with the consent [F47of the Commission] , such assignation and any deed purporting so to assign the tenancy shall be null and void and the Commission may declare the croft to be vacant.

(6)[F48In relation to an unregistered croft or a first registered croft,] An assignation to which the Commission have given their consent under this section shall take effect [F49on such date as the Commission shall specify in the consent (being a date not less than two months after that on which the consent was intimated to the crofter) unless before that date] the crofter or his executor or legatee and the assignee jointly give to the Commission notice in writing that they do not intend to proceed with the assignation.

[F50(6A)In relation to a registered croft (other than a first registered croft)—

(a)any consent of the Commission given under this section to an assignation expires at the end of the period of 3 months beginning with the date on which such consent was given unless an application for registration of the assignation is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the assignation takes effect on the date of registration.]

(7)Any reference in this section to a croft shall include a reference to a part of a croft, being a part consisting of any right in pasture or grazing land deemed by virtue of section 3(4) of this Act to form part of a croft.]

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Amendments (Textual)

F43Words in s. 8(1) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 12(a), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F44S. 8(1A)(1B) inserted (1.10.2011 for specified purposes, 30.11.2013 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(8)(a) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4); S.S.I. 2012/288, art. 3(1)(c) (with Sch. 2 para. 10)

F46S. 8(2) substituted for s. 8(2)-(4) (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 12(b), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F47Words in s. 8(5) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 12(c), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F49Words in s. 8(6) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 12(d), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

[F519Division of croft S

(1)A crofter shall not divide his croft unless he obtains the consent of the Commission.

[F52(1A)Where consent is applied for under subsection (1) in relation to an unregistered croft, the Commission—

(a)may not grant that consent unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for consent was made;

(b)need not, during that 6 month period, consider the application for consent until an application for first registration of the croft is submitted.]

F53(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F54(3)In relation to a registered croft (other than a first registered croft)—

(a)any consent of the Commission given under this section to a division of the croft expires at the end of the period of 3 months beginning with the date on which such consent was given unless an application for registration of the division is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the division takes effect on the date of registration.

(3A)The Keeper must make up and maintain a registration schedule in accordance with section 11 of the 2010 Act in respect of a new croft created by a division under this section.]

(4)After division, the rent payable for the new crofts shall be that agreed between the landlord and the tenant.

(5)In the event that such agreement cannot be reached, the Land Court, on the application of the landlord or the tenant, shall have the power to determine the rent in accordance with subsections (3) and (4) of section 6 of this Act, the fees payable in connection with such an application being borne by the tenant.

(6)In this section—

  • division” means the division of a croft into two or more new crofts (“divide” being construed accordingly);

  • original croft” means the croft which is the subject of an application for division; and

  • new crofts”mean each of the crofts created by the division of the original croft.]

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Amendments (Textual)

Succession to croftS

10 Bequest of croft.S

[F55(1)A crofter may, by will or other testamentary writing, ]

[F56(a)bequeath the tenancy of the whole of the crofter's croft to any one natural person; or

(b)bequeath the tenancy of that croft to two or more natural persons provided that—

(i)each person would come into the place of the crofter in relation to the tenancy of part of the croft; and

(ii)no part of the croft would, were all the bequests accepted, be untenanted.]

[F57(2)A person to whom the tenancy of a croft (or of part of a croft) is bequeathed (in this section, the “legatee”) must, if the legatee accepts the bequest—

(a)give notice of the bequest to the landlord; and

(b)send a copy of the notice to the Commission,

before the end of the period of 12 months beginning with the death of the crofter.]

[F58(2A)Notice under subsection (2) above of the bequest may be given by an executor of the deceased crofter authorised for that purpose by the legatee.]

[F59(3)The bequest is null and void if—

(a)in the case of a bequest such as is mentioned in subsection (1)(a), no notice is given (and no copy sent) in accordance with subsection (2) or (2A);

(b)in the case of a bequest such as is mentioned in subsection (1)(b), any legatee fails to give notice (and send a copy) in accordance with subsection (2) or (2A).

(4)Where, in the case of a bequest as is mentioned in subsection (1)(a), notice is given (and a copy sent) in accordance with subsection (2) or (2A), the legatee comes into the place of the deceased crofter (as from the date of death of that crofter) on the relevant date of registration.

(4A)Where—

(a)a crofter bequeaths the tenancy of a croft as mentioned in subsection (1)(b); and

(b)each legatee gives notice (and sends a copy) in accordance with subsection (2) or (2A),

the deceased crofter's executor must apply to the Commission for consent under section 9 to divide the croft accordingly.

(4B)Where the Commission give their consent to the division of the croft under section 9, each legatee comes into the place of the deceased crofter in relation to that legatee's new croft (as from the date of death of that crofter) on the relevant date.

(4C)The bequest is null and void if—

(a)the Commission do not give their consent to the division of the croft under section 9; or

(b)such consent is given but an application for registration of the division is not made in accordance with subsection (3)(a) of that section.]

F59(4D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4E)[F60Subject to subsection (4EA),] A legatee who comes into the place of a deceased crofter in accordance with subsection [F61(4) or, as the case may be, (4B)] above, in doing so—

(a)becomes liable for such debts of the deceased crofter's estate as are attributable to the tenancy; and

(b)shall, if requested to do so by the executor, pay the reasonable expenses necessarily and wholly incurred by the executor in relation to the administration and management of the tenancy during the period beginning with the date of the deceased crofter's death and ending immediately before the date when the legatee so comes into the place of the deceased crofter; and such expenses—

(i)shall, in the event of a dispute as to amount, be determined by the Land Court on the application of the executor or the legatee; and

(ii)shall not fall to be met from the deceased crofter's estate.

[F62(4EA)Where, as a result of the Commission giving their consent to the division of the croft under section 9, two or more legatees come into the place of the deceased crofter, those legatees are jointly and severally liable for—

(a)the debts mentioned in subsection (4E)(a); and

(b)any expenses mentioned in subsection (4E)(b).]

(4F)Notwithstanding that a legatee comes into the place of the deceased crofter as mentioned in subsection (4E) above, the tenancy is an asset of the deceased crofter's estate, available along with the other assets of the estate to meet the other expenses of administration, and debts, of the estate; and any such legatee is liable to contribute to such expenses and debts accordingly.

(5)If the bequest becomes null and void under this section, the right to the croft shall be treated as intestate estate of the deceased crofter in accordance with Part I of the 1964 Act.

(6)Subject to the foregoing provisions of this section, any question arising with respect to the validity or effect of the bequest shall be determined by any court having jurisdiction to determine the validity and effect of the whole testamentary writings of the deceased crofter.

[F63(7)In subsection (4), the “relevant date of registration” is—

(a)where the croft was unregistered, the date of registration in relation to the application for registration of the croft by virtue of section 4(4)(e) of the 2010 Act;

(b)where the croft was registered, the date of registration in relation to the application for registration of the notice by virtue of section 5(3)(e) of that Act.

(8)In subsection (4B)—

  • legatee's new croft” means the new croft, formed by division under section 9, which corresponds to the part of the original croft bequeathed to the legatee (“division”, “new croft” and “original croft” being construed in accordance with section 9(6));

  • relevant date” means—

    (a)

    where the croft was unregistered, the date the Keeper receives notification of the Commission's consent to divide the croft by virtue of section 10(7) of the 2010 Act;

    (b)

    where the croft was registered, the date of registration in relation to the application for registration of the division by virtue of section 5(3)(d)(i) of that Act.]

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Amendments (Textual)

F59S. 10(3)-(4C) substituted for s. 10(2B)-(4D)(1.10.2011 for specified purposes, 30.11.2012 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 49(4), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4, 5(3)); S.S.I. 2012/288, art. 3(1)(b), (2), sch. 1 Pt. 2

11 Intestacy.S

(1)Where, owing to the failure of a crofter to bequeath the tenancy of his croft or of such a bequest to receive effect, the right to the tenancy of the croft falls to be treated as intestate estate of the deceased crofter in accordance with Part I of the 1964 Act, and the tenancy is transferred in pursuance of section 16(2) of that Act, the executor of the deceased crofter shall as soon as may be [F64give notice of the transfer containing] particulars of the transferee to the landlord, who shall accept the transferee as tenant; and [F65at the same time as giving the notice the executor must send a copy of the notice to the Commission] .

[F66(1A)A transfer such as is mentioned in subsection (1) takes effect in relation to an application for registration of—

(a)the giving of notice under that subsection by virtue of section 4 of the 2010 Act; or

(b)the transfer by virtue of section 5 of that Act,

on the date of registration.]

(2)If at the expiry of a period of [F6724] months commencing with the relevant date the executor has not [F68given the landlord any notice] in accordance with subsection (1) above, the landlord shall forthwith notify the Commission to that effect.

(3)In this section “the relevant date” means—

F69(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)where the deceased crofter has F70... failed to bequeath the tenancy, [F71the date (no later than 2 months after the date of death of the deceased crofter) on which the Commission receive notification of the death or, where no such notification is received,] the date of death of the deceased crofter;

(c)where the deceased crofter has bequeathed the tenancy and the bequest has become null and void under section [F7210] of this Act, the date on which the bequest became null and void as aforesaid;

F73(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F74(4)If at the expiry of the period of [F7524] months referred to in subsection (2) above, it appears to the Commission (whether from notification under that subsection or otherwise) that the executor has not [F76given the landlord any notice] in accordance with subsection (1) above, they shall give notice in such manner as they think proper, whether by advertisement or otherwise—

(a)to the landlord;

(b)if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and

(c)if no executor is so confirmed, to each person of whom the Commission are aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,

that they propose to terminate the tenancy and declare the croft vacant and inviting the recipients of the notice to make representations as respects the proposal to the Commission before the expiry of the period of one month after the date of the notice.

(5)If, having considered representations (if any) made to them in accordance with subsection (4) above, the Commission are satisfied that—

(a)the landlord or the executor has terminated the tenancy in accordance with section 16(3)(b) of the Succession (Scotland) Act 1964;

(b)the executor is proposing to transfer the tenancy; or

(c)a person is entitled to a transfer of the tenancy in or towards the satisfaction of his claim to prior rights or his entitlement to succeed to the deceased's intestate estate,

they are not to implement their proposal; but if not so satisfied they may implement their proposal if they consider it appropriate to do so.

(6)If, by virtue of subsection (5) above, the Commission are not entitled to implement their proposal, but it appears to them subsequently (by means of representations made to them or otherwise) that the tenancy is not being transferred or is unable to be transferred, the Commission may give notice again as mentioned in subsection (4) above.

(7)If, having considered representations (if any) made to them in accordance with subsection (4) above as respects a proposal contained in a notice given by virtue of subsection (6) above, the Commission are satisfied that it is appropriate to implement their proposal they may do so.

(8)Where the Commission, in pursuance of this section, declare the croft vacant—

(a)they shall give notice to that effect—

(i)to the landlord;

(ii)if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and

(iii)if no executor is so confirmed, to each person of whom the Commission is aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,

and any such notice to the landlord shall require him to submit to them [F77, before the expiry of the period of 4 months beginning with the day on which the notice is given,] such proposals as are mentioned in section 23(5) of this Act;

(b)any right of any person in, or in relation to, the tenancy shall be extinguished; and

(c)the landlord shall be liable to pay to the executor of the deceased crofter the value of the permanent improvements on the croft in so far as—

(i)the improvement is suitable to the croft;

(ii)the improvement was executed or paid for by the deceased crofter or by any of the predecessors of the deceased crofter in the tenancy; and

(iii)either the improvement was executed otherwise than in pursuance of a specific agreement in writing under which the deceased crofter was bound to execute the improvement or, if the improvement was executed in pursuance of such an agreement, the deceased crofter did not receive and his executor has not received, by way of reduction of rent or otherwise, fair consideration for the improvement.]

F78(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)[F79In subsection (8)(c) above, the expression “the value of the permanent] improvements on the croft” means such sum as may be agreed, or as, failing agreement, may be determined by the Land Court, to be the sum which would have been due by the landlord by way of compensation for permanent improvements if the deceased crofter had immediately before his death renounced his tenancy.

(11)Where—

(a)a croft has been declared under [F80this section] to be vacant consequent on the death after 27th August 1961 of a crofter who immediately before his death was qualified as mentioned in subsection (12) below; and

(b)the value of the improvements on the croft is determined by the Land Court under subsection (10) above,

the executor of the crofter may request the Land Court to determine what would have been the value of the improvements on the croft if the M2Crofters (Scotland) Act 1961 had not been passed; and if the value last mentioned is greater than the value determined by the Land Court under subsection (10) above, the difference between the two said values shall be payable to the executor by the Secretary of State:

Provided that the Secretary of State shall be entitled to set off any amount due to him by the crofter at the date of his death in respect of a loan made under section 42(4) or (5) of this Act, section 22(2) or (3) of the 1955 Act or section 7(7) or 9 of the M3Small Landholders (Scotland) Act 1911 against any sum payable to the executor by the Secretary of State under this subsection.

(12)The reference in subsection (11) above to a crofter who immediately before his death was qualified is a reference to a crofter—

(a)whose tenancy of the croft in question began before 27th August 1961, or

(b)who held the tenancy of such croft as statutory successor to his immediate predecessor in the tenancy and each of whose predecessors (being in each case a person whose tenancy of the croft began after 27th August 1961) held such tenancy as statutory successor to his immediate predecessor.

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Amendments (Textual)

F70Word in s. 11(3)(b) repealed (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(3)(b)(i), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F71Words in s. 11(3)(b) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(3)(b)(ii), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F74S. 11(4)-(8) substituted for s. 11(4)-(9) (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(4), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F77Words in s. 11(8)(a) inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 44(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F78S. 11(4)-(8) substituted for s. 11(4)-(9) (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(4), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F79Words in s. 11(10) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(5), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F80Words in s. 11(11)(a) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(6), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

Marginal Citations

Rights of crofters and cottars to acquire their subjectsS

12 General provision.S

(1)A crofter may, failing agreement with the landlord as to the acquisition by the crofter of croft land tenanted by him, apply to the Land Court for an order authorising him to make such acquisition.

(2)A crofter shall be entitled to a conveyance of the site of the dwelling-house on or pertaining to the croft tenanted by him, and a cottar shall be entitled to a conveyance of the site of the dwelling-house on or pertaining to his subject, and the crofter or cottar may, failing agreement with the landlord, apply to the Land Court for an order requiring the landlord to grant such a conveyance.

(3)In this Act “croft land” includes any land being part of a croft, other than—

(a)the site of the dwelling-house on or pertaining to the croft;

(b)any land, comprising any part of a common grazing, unless the land has been apportioned under section 52(4) of this Act and—

(i)is adjacent or contiguous to any other part of the croft; or

(ii)consists of arable machair;

(c)any right to mines, metals or minerals or salmon fishings (not being salmon fishings in Orkney or Shetland) pertaining to the croft.

(4)In this Act, “the site of the dwelling-house” includes any building thereon and such extent of garden ground as, failing agreement with the landlord, may be determined by the Land Court by order under 15(1) of this Act to be appropriate for the reasonable enjoyment of the dwelling-house as a residence but does not include—

(a)any right to mines, metals or minerals pertaining thereto; or

(b)where there is more than one dwelling-house on or pertaining to a croft or, as the case may be, the subject of a cottar, the site of more than one dwelling-house; or

(c)where the site of the dwelling-house on or pertaining to a croft has been acquired by the crofter after 10th June 1976, the site of any dwelling-house erected after such acquisition on or pertaining to the remainder of the croft.

(5)In this Act “cottar” means the occupier of a dwelling-house situated in the crofting counties with or without land who pays no rent, or the tenant from year to year of a dwelling-house situated as aforesaid who resides therein and who pays therefor an annual rent not exceeding £6, whether with or without garden ground but without arable or pasture land.

13 Authorisation by Land Court of acquisition of croft land.S

(1)The Land Court, on an application made to it under section 12(1) of this Act, may make an order—

(a)authorising the crofter to acquire such croft land as may be specified in the order, subject to such terms and conditions as, failing agreement with the landlord, may be so specified, and requiring the landlord to convey the land to the crofter or his nominee in accordance with such terms and conditions; or

(b)refusing the application.

[F81(1A)For the purposes of subsection (1)(a), only a member of the crofter's family may be the crofter's nominee.]

(2)The Land Court shall not make an order in accordance with subsection (1)(a) above where it is satisfied by the landlord as to either or both of the following matters—

(a)that, in all the circumstances pertaining to the landlord and having regard to the extent of land owned by him to which this Act applies, the making of such an order would cause a substantial degree of hardship to the landlord;

(b)that the making of such an order would be substantially detrimental to the interests of sound management of the estate of the landlord of which the croft land to which the application relates forms part.

(3)The Land Court, in making an order in accordance with subsection (1)(a) above, may provide that the authorisation to acquire is conditional on the crofter granting a lease to the landlord of the shooting rights over or the fishing rights pertaining to the croft land and shall so provide where it is satisfied that if such a lease were not granted the interests of the landlord in the shooting or fishing rights of which the rights being acquired by the crofter form part would be materially affected; and any such lease shall be at such nominal annual rent, for such period of not less than 20 years and subject to such other terms and conditions as the Land Court may specify.

(4)The Land Court, in making an order in accordance with subsection (1)(a) above, may include the condition that the crofter shall grant a standard security in favour of the landlord to secure any sum which may become payable to him or his personal representative under section 14(3) of this Act in the event of disposal of the croft land or any part thereof.

(5)Where the Land Court proposes to make an order authorising the crofter to acquire—

(a)land comprising any part of a common grazing which had been apportioned under subsection (4) of section 52 of this Act; or

(b)land held runrig which has been apportioned under subsection (8) of that section,

and it is satisfied that the apportionment has been made subject to conditions imposed by the Commission under subsection (6) or, as the case may be, subsection (8) of that section, it shall have regard to the conditions so imposed.

[F82(6)The Land Court, in making an order under subsection (1)(a) above, may determine that any of the expenses of the conveyance of the land and other expenses necessarily incurred by the landlord in relation to that conveyance shall be borne by the crofter.

(7)Failing agreement between the landlord and the crofter as to the amount of such expenses, the auditor of the Land Court may, on the application of either of them—

(a)determine that amount; and

(b)determine that the expenses of taxing those expenses are to be borne by them in such proportion as the auditor thinks fit.]

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Amendments (Textual)

14 Consideration payable in respect of acquisition of croft land.S

(1)Where the Land Court makes an order in accordance with section 13(1)(a) of this Act and the crofter and the landlord have failed to reach agreement about the consideration payable in respect of the acquisition, the consideration shall, subject to subsection (3) below, be the crofting value of the croft land specified in the order as determined by the Land Court under subsection (2) below.

(2)The crofting value of the croft land, as determined by the Land Court for the purposes of subsection (1) above, shall be such amount as the Land Court may determine to be the proportion attributable to the croft land of the current rent payable for the croft of which the croft land forms part, such amount being multiplied by the factor of 15:

Provided that the Land Court, on an application made to it by the landlord at any time before it makes a final order under section 13(1) of this Act, may determine a fair rent for the croft which shall be deemed to be the current rent for the purposes of this subsection; and section 6(4) of this Act shall apply for the purposes of this proviso as if for the word “parties” there were substituted the words “ landlord and the crofter ”.

(3)If the person who has acquired croft land by virtue of section 13(1) of this Act (“the former crofter”) or a member of the former crofter’s family who has obtained the title to that land either—

(i)as the nominee of the former crofter, or

(ii)from the former crofter or his nominee,

disposes of that land or any part of it (“the relevant land”) to anyone who is not a member of the former crofter’s family, by any means other than by a lease for crofting or agricultural purposes, forthwith or at any time within [F83ten] years of the date of its acquisition by the former crofter then, subject to subsection (6) below, the person disposing of the relevant land shall pay to the landlord referred to in the said section 13(1) or to his personal representative a sum equal to one half of the difference between—

(a)the market value of the relevant land (on the date of such disposal) which, failing agreement between the parties concerned, shall be as determined by the Land Court under subsection (4) below on the application of such landlord or personal representative; and

(b)the consideration which was paid under subsection (1) above in respect of the relevant land.

(4)The market value of the relevant land as determined by the Land Court shall be the amount which the land, if sold in the open market by a willing seller, might be expected to realise assuming that on the date of the disposal—

(a)there were no improvements on the land which, if the land were let to a crofter, would be permanent improvements in respect of which the crofter would be entitled to compensation under section 30 of this Act on renunciation of the tenancy of the croft of which the land formed part;

(b)no other development had been carried out on the land (not being development carried out on the land, when it was subject to the tenancy of the former crofter or any of his predecessors in the tenancy, by a person other than that crofter or any of such predecessors); and

(c)no development of the land which consisted of the making of such an improvement as is referred to in paragraph (a) above were or would be permitted in pursuance of [F84the 1997 Act].

(5)If the relevant land comprises only part of the land which was acquired under section 13(1) of this Act, the Land Court may, failing agreement between the parties concerned, on an application made to it by the person disposing of the relevant land or the landlord referred to in the said section 13(1) or his personal representative, determine for the purposes of subsection (3)(b) above the proportion of the amount of the consideration which was paid under subsection (1) above in respect of the relevant land.

(6)No payment shall be made under subsection (3) above in respect of the disposal of the relevant land in a case where payment is made in respect of such disposal in accordance with an agreement entered into between the landlord and the person disposing of that land.

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Amendments (Textual)

F83Word in s. 14(3) substituted (1.7.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 41, 57(2) (with s. 57(4)); S.S.I. 2010/437, art. 3, sch. (with arts. 4, 5(2))

F84Words in s. 14(4) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 55(1).

15 Determination by Land Court of terms and conditions for conveyance of the site of the dwelling-house.S

(1)The Land Court, on an application made to it under section 12(2) of this Act, may make an order requiring the landlord to convey the site of the dwelling-house to the crofter or cottar or his nominee with such boundaries and subject to such terms and conditions as, failing agreement, may be specified in the order.

(2)Where the parties have failed to reach agreement about the consideration payable in respect of the conveyance the consideration shall be—

(a)the amount as determined by the Land Court which the site, if sold in the open market by a willing seller, might be expected to realise assuming that—

(i)there were or would be no buildings on the site;

(ii)the site were available with vacant possession;

(iii)the site were not land to which this Act applies; and

(iv)no development of the site were or would be permitted in pursuance of [F85the 1997 Act];

and in addition, in a case where the landlord has provided fixed equipment on the site—

(b)an amount equal to one half of the proportion attributable to that fixed equipment, as determined by the Land Court, of the value of the site, such value being the amount as so determined which the site, if sold as aforesaid, might be expected to realise making the assumptions referred to in sub-paragraphs (ii), (iii) and (iv) of paragraph (a) above.

(3)The Land Court in making an order under subsection (1) above may determine that any of the expenses of the conveyance of the site and other expenses necessarily incurred by the landlord in relation thereto shall be borne by the crofter or cottar:

F86...

(4)Failing agreement between the parties as to the amount of such expenses, the auditor of the Land Court may, on the application of either party, determine such amount; and may determine that the expenses of taxing such expenses shall be borne by the parties in such proportion as he thinks fit.

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Amendments (Textual)

F85Words in s. 15(2)(a)(iv) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 55(2).

F86Words in s. 15(3) repealed (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 2 (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

16 Provisions relating to conveyance.S

(1)A landlord shall have power to execute a valid conveyance in pursuance of sections 12 to 15 of this Act, notwithstanding that he may be under any such disability as is mentioned in section 7 of the M4Lands Clauses Consolidation (Scotland) Act 1845.

(2)Where the Land Court is satisfied, on the application of the crofter or cottar or his nominee that the landlord has failed to execute a conveyance of land in favour of such person in compliance with an order under section 13(1) or 15(1) of this Act within such time as the Land Court considers reasonable, it shall make an order authorising its principal clerk to execute the conveyance and such other deeds as adjusted at his sight as may be necessary to give effect to the order; and a conveyance executed by the principal clerk under this subsection shall have the like force and effect in all respects as if it had been executed by the landlord.

(3)Where the principal clerk of the Land Court has executed a conveyance in pursuance of subsection (2) above, the Land Court may make such order as it thinks fit with regard to the payment of the consideration in respect of the conveyance and in particular providing for the distribution of the sum comprised in the consideration according to the respective F87... interests of persons making claim to such sum.

(4)Notwithstanding that the Land Court has made an order under section 13(1) or 15(1) of this Act determining the terms and conditions on which land is to be conveyed, the crofter or, as the case may be, the cottar and the landlord may arrange for the conveyance of the land on any other terms and conditions that they may agree.

(5)Where a person other than the landlord [F88has a completed title to] the subjects to be conveyed, the second references in sections 12(2) and 13(1) of this Act and the reference in the said section 15(1) and in the foregoing provisions of this section to the landlord shall be construed as references to the landlord and such other person for their respective rights.

(6)The Land Court in specifying in an order under the said section 13(1) or 15(1) the terms and conditions on which land is to be conveyed shall have regard to any existing [F89title conditions, within the meaning given by section 122(1) of the Title Conditions (Scotland) Act 2003 (asp 9),] relating to such land.

F90(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Where the Land Court is satisfied, on the application of the landlord, that the crofter or his nominee has failed to execute a standard security in favour of the landlord in compliance with a condition imposed by the Land Court under section 13(4) of this Act within such time as the Land Court considers reasonable, it shall make an order authorising its principal clerk to execute the standard security; and a standard security executed by the principal clerk under this subsection shall have the like force and effect in all respects as if it had been executed by the crofter or his nominee.

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Amendments (Textual)

F89Words in s. 16(6) substituted (28.11.2004) by Title Conditions (Scotland) Act 2003 (asp 9), ss. 122(1), 129(2), sch. 14 para. 11 (with ss. 119, 121) (see S.S.I. 2003/456, art. 2)

Marginal Citations

17 Provisions supplementary to sections 13 and 15.S

(1)An order of the Land Court under section 13(1)(a) or 15(1) of this Act shall have effect for a period of 2 years from the date of intimation of the order or for such other period as may at any time be agreed to in writing by the crofter or, as the case may be, the cottar and the landlord or as may be determined by the Land Court on the application of either party.

(2)Where an order has been made by the Land Court under the said section 13(1)(a) or 15(1) in relation to croft land or the site of the dwelling-house on or pertaining to a croft or under the said section 15(1) in relation to the site of the dwelling-house on or pertaining to the subject of a cottar, then, so long as the order has effect—

(a)the crofter shall not be entitled under section 30(1) of this Act to compensation for any permanent improvement made on the croft land or site; and

(b)the landlord of the croft shall not be entitled under section 30(6) of this Act to recover from the crofter compensation for any deterioration of, or damage to, any fixed equipment provided by the landlord in respect of the croft land or site; or

(c)the cottar shall not be entitled under section 36(1) of this Act to compensation for any permanent improvement made on the site,

being compensation to which the crofter and the landlord or, as the case may be, the cottar would be entitled but for this subsection.

(3)Any condition or provision to the effect that—

F91(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any F92... person with an interest in land shall be entitled to a right of pre-emption in the event of a sale thereof or of any part thereof by the proprietor for the time being,

shall not be capable of being enforced where the sale is by a landlord to a crofter or his nominee of croft land or to a crofter or a cottar or his nominee of the site of the dwelling-house on the croft or on or pertaining to the subject of the cottar in pursuance of an order under the said section 13(1) or, as the case may be, 15(1).

(4)Where the landlords are the National Trust for Scotland, the Land Court, in making an order under the said section 13(1) or 15(1), shall have regard to the purposes of the Trust.

(5)A compulsory purchase order which authorises the compulsory purchase of land, being land which was held inalienably by the National Trust for Scotland on the date of the passing of this Act and was acquired from the Trust by a crofter in pursuance of an order under section 13(1) or 15(1) of this Act, shall in so far as it so authorises be subject to special parliamentary procedure in any case where an objection has been duly made by the Trust under the M5Acquisition of Land (Authorisation Procedure)(Scotland) Act 1947 and has not been withdrawn; and in this subsection “held inalienably” has the same meaning as in section 7(1) of the said Act of 1947.

(6)Where the site of the dwelling-house on or pertaining to a croft has been acquired after the passing of this Act by a person, who immediately before the acquisition was the tenant of the croft, that person and the wife or husband of that person may, so long as either of them continues to occupy the subjects conveyed, enjoy any right to cut and take peats for the use of those subjects which that person enjoyed immediately before the acquisition:

Provided that this subsection is without prejudice to any right to cut and take peats effeiring to the tenancy of the remainder of the croft.

(7)Any person acquiring croft land shall, unless and until the land ceases to be a croft by a direction of the Commission under section 24(3) [F93or 24B(1)] of this Act, be required to give notice to the Commission of the change of ownership of the land.

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Amendments (Textual)

F93Words in s. 17(7) inserted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 3, 6, sch. para. 1(3)

Marginal Citations

18 Adjustment of rent for remainder of croft where part conveyed to crofter.S

Where a crofter acquires the site of the dwelling-house on or pertaining to his croft or any croft land forming part of his croft, then, notwithstanding that it is less than 7 years since the term at which the existing rent for the croft first became payable, the Land Court may, on the application of the crofter or his landlord, determine a fair rent for the part of the croft which remains subject to the tenancy of the crofter, and accordingly subsections (3) and (4) of section 6 of this Act shall apply for the purposes of such a determination as if the provisos to subsection (3) were omitted; but thereafter the said provisos shall apply to a rent so determined.

19 Provisions relating to existing loans and heritable securities.S

(1)Where—

(a)a crofter who acquires the site of the dwelling-house on or pertaining to his croft is on the date of the acquisition under any liability to the Secretary of State or Highlands and Islands Enterprise (“HIE”), or

(b)a cottar who acquires the site of the dwelling-house on or pertaining to his subject is on the date of the acquisition under any liability to the Secretary of State,

in respect of any loan, the amount outstanding in respect of such liability shall be deemed, as from the last day on which the crofter or cottar was liable to pay rent in respect of that site or on which the cottar was entitled to occupy the site as a cottar, to be a loan by the Secretary of State to the crofter or cottar or, as the case may be, by HIE to the crofter, and the provisions of Schedule 5 to this Act shall apply in relation to any such loan by the Secretary of State and, subject to any necessary modifications, to any such loan by HIE.

(2)Any question arising under subsection (1) above as to the day from which the outstanding amount is deemed to be a loan shall be determined by the Land Court.

(3)Any rights of HIE created under subsection (1) above shall be postponed to any rights, whensoever constituted, of the Secretary of State under that subsection; and such rights of the Secretary of State and HIE shall have priority over any other loan in respect of which the crofter or the cottar or his nominee as owner of the site of the dwelling-house is under any liability and shall be postponed only to such items as are referred to in F94... paragraph 4(b) of Schedule 9 to the M6Housing (Scotland) Act 1987.

(4)Any heritable security which immediately before the execution of a conveyance in pursuance of sections 12 to 18 of this Act burdened the subjects conveyed shall, as from the date of recording of the conveyance in the Register of Sasines or of registration of the interest conveyed in the Land Register of Scotland (as the case may be)—

F95(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)in the case of a conveyance F96... where the heritable security burdened only the subjects conveyed, cease to burden those subjects;

(c)in the case of a conveyance F96... where the heritable security also burdened other land, burden only that other land;

and, unless the creditors in right of any such security otherwise agree, the landlord shall pay to them according to their respective rights and preferences any sum paid to him by the crofter or cottar as consideration for the subjects conveyed.

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Amendments (Textual)

Marginal Citations

[F9719ASchemes for developmentS

(1)The landlord (or owner), or any person acting with the consent of the landlord (or owner)—

(a)may by application to the Land Court seek its consent to—

(i)croft land or common grazing; or

(ii)land near to croft land or common grazing if rights and liabilities in relation to the croft land or common grazing would be affected,

being developed in accordance with a scheme appended to the application; or

(b)may intimate to that Court that every person who has rights in or over croft land or a common grazing consents to its being developed in accordance with a scheme appended to the intimation,

and the applicant shall send a copy of the application or as the case may be of the intimation (and, in either case, of the appended scheme) to the Commission.

(2)Consent under paragraph (a) of subsection (1) above is not to be given unless the Court is satisfied—

(a)that the development is for a reasonable purpose;

(b)that to carry it out would not be unfair;

(c)that the scheme provides for there to be fair recompense to each member of the crofting community in the area affected by the development for the effects of the development (including, in relation to the croft land of each such member, recompense at least equivalent to the recompense which the member might be expected to have obtained had that croft land been resumed); and

(d)that, were the development carried out—

(i)that community would be likely to benefit financially; and

(ii)such benefit would be at least commensurate with any financial benefit which the members of that community might obtain on the development proceeding other than by virtue of this section.

(3)For the purposes of subsection (2) above—

(a)the definition of “reasonable purpose” in subsection (3) of section 20 of this Act applies as it does for the purposes of subsection (1) of that section;

(b)it is unfair to carry out a development only where to do so would have significant adverse consequences for one or more of the members of the crofting community in the area affected by the development and either those consequences would be disproportionately greater than the adverse consequences for the other members of that community or there would be no adverse consequences for those other members;

(c)whether recompense is fair is to be determined having regard both to the value of the development and to its effect on the member in question; and

(d)an effect for which there is to be fair recompense may be an effect of any kind whatsoever (and in particular need not be an effect on a croft qua croft).

(4)An application under paragraph (a) of subsection (1) above or intimation under paragraph (b) of that subsection shall—

(a)be made in such form; and

(b)be accompanied by such fee,

as the Court shall specify; and the Court may make different provision for different categories of case.

(5)Provision made under subsection (4)(a) above shall include provision as to the form and content of the appended scheme.

(6)A person making an application under paragraph (a) of subsection (1) above or giving intimation under paragraph (b) of that subsection shall forthwith give public notification of the application or intimation.

(7)Within 28 days after the public notification is given (including the day on which given)—

(a)the Commission; or

(b)any other interested party,

may submit to the Court written objections, on one or more of the grounds mentioned in subsection (8) below, as respects the application or intimation; and the Court shall hear the objectors (if any) before determining whether to give consent under this section or as the case may be before determining whether to proceed under subsection (10) below as respects the intimation.

(8)The grounds are—

(a)that the development is not for a reasonable purpose (the definition of “reasonable purpose” in subsection (3) of section 20 of this Act applying for the purposes of this paragraph as it applies for the purposes of subsection (1) of that section);

(b)that to carry out the development would be unfair to the crofting community;

(c)in the case of a submission under paragraph (a) of subsection (7) above, that the scheme does not provide for there to be fair recompense to each member of the crofting community;

(d)in the case of a submission under paragraph (b) of subsection (7) above—

(i)that to carry out the development would be unfair to the objector;

(ii)that the scheme does not provide for there to be fair recompense to the objector;

(e)that, were the development to be carried out, the crofting community would be unlikely to benefit financially;

(f)that, were the development to be carried out, any financial benefit to the crofting community would not be as mentioned in sub-paragraph (ii) of subsection (2)(d) above.

(9)The Court shall, whether or not there is a hearing under subsection (7) above, give reasons for any such determination.

(10)On—

(a)giving consent under this section; or

(b)determining to proceed under this subsection as respects an intimation,

the Court shall advise the Commission that it has done so and provide them with a copy of the scheme in accordance with which the development is to take place; and the Commission shall enter that copy in the Register of Crofts.

(11)When so entered the scheme shall, in so far as its terms so provide, be binding on—

(a)the landlord (or owner);

(b)any member of the crofting community in the area affected by the development;

(c)any person who, though not described in paragraph (b) above, is—

(i)a tenant of a croft; or

(ii)a holder of grazing rights,

in that area; and

(d)the successors to the persons mentioned in paragraphs (a) to (c) above.]

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Amendments (Textual)

[F98Owner-occupied crofts: duties of certain ownersS

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Amendments (Textual)

F98Ss. 19B-19D and cross-heading inserted (22.12.2010 for the insertion of s. 19B for specified purposes, 1.10.2011 for the insertion of s. 19B otherwise and ss. 19C, 19D(1)(2)(6)(7)(8), 30.11.2012 for the insertion of s. 19D(4)(5)) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 34, 57(2) (with s. 57(4)); S.S.I. 2010/437, art. 3, sch. (with art. 4); S.S.I. 2011/334, art. 3, Sch. Pt. 1 (with art. 4, art. 5(2)(3)); S.S.I. 2012/288, art. 3(1)(b) (2), Sch. 1 Pt. 2, (with Sch. 2 para. 1(q), 4(2))

19BMeaning of “owner-occupier crofter” etc.S

(1)In this Act, a person is an “owner-occupier crofter” if all the conditions in subsections (2) to (4) are satisfied.

(2)The first condition is that the person is the owner of a croft.

(3)The second condition is that the person—

(a)was the crofter of the croft at the time of acquiring it (or is such a crofter's successor in title);

(b)acquired title to the croft as the nominee of a crofter (or is such a nominee's successor in title); or

(c)purchased the croft from the constituting landlord (or is such a purchaser's successor in title).

(4)The third condition is that the croft has not been let to any person as a crofter either by virtue of section 26J or otherwise—

(a)at any time since it was acquired as mentioned in subsection (3)(a) or (b); or

(b)at any time since it was constituted as mentioned in subsection (6)(a).

(5)In this Act, an “owner-occupied croft” means a croft owned by an owner-occupier crofter; and “owner-occupier's croft” is to be construed accordingly.

(6)For the purposes of subsection (3)(c), the “constituting landlord” is—

(a)the owner of the land at the time the land was constituted as a croft under section 3A; or

(b)such an owner's successor in title immediately before the croft is sold to the purchaser mentioned in subsection (3)(c).

19CDuties of owner-occupier croftersS

(1)An owner-occupier crofter must comply with each of the duties set out in subsection (2).

(2)Those duties are that the owner-occupier crofter—

(a)must be ordinarily resident on, or within 32 kilometres of, the owner-occupier's croft;

(b)must not misuse or neglect the croft;

(c)must—

(i)cultivate the croft; or

(ii)put it to another purposeful use,

so that every part of the croft which is capable of being cultivated or put to another purposeful use either is cultivated or is put to such use;

(d)must keep the croft in a fit state for cultivation (except in so far as the use of the croft for another purposeful use is incompatible with the croft being kept in such a state).

(3)For the purposes of subsection (2)(b), an owner-occupier crofter misuses an owner-occupied croft where the owner-occupier crofter—

(a)wilfully and knowingly uses it otherwise than for the purpose of its being cultivated or put to another purposeful use;

(b)fails to use the croft for the purpose of its being cultivated; or

(c)fails to put the croft to any such purposeful use.

(4)For the purposes of subsection (2)(b), an owner-occupier crofter neglects an owner-occupied croft where the croft is not managed so as to meet the standards of good agricultural and environmental condition referred to in regulation 4 of, and the schedule to, the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 (SSI 2004 No. 518).

(5)Without prejudice to the generality of paragraph (d) of subsection (2), in determining whether that paragraph is complied with, regard is to be had to whether appropriate measures (which may include the provision of drainage) are routinely undertaken, where requisite and practicable, to control or eradicate vermin, bracken, whins, broom, rushes and harmful weeds.

(6)But where the owner-occupier crofter, in a planned and managed manner, engages in, or refrains from, an activity for the purpose of conserving—

(a)the natural beauty of the locality of the owner-occupied croft; or

(b)the flora and fauna of that locality,

the owner-occupier crofter's so engaging or refraining is not, for the purposes of subsection (2)(b), to be treated as misuse or neglect as respects the croft.

(7)If, immediately before the coming into force of section 34 of the Crofting Reform (Scotland) Act 2010 (asp 14), the owner-occupied croft was being used for a subsidiary or auxiliary occupation by virtue of the right conferred by paragraph 3 of schedule 2 to this Act (as that paragraph applied immediately before the coming into force of section 7 of the Crofting Reform etc. Act 2007 (asp 7)), any continuation of use for that occupation is not, for the purposes of subsection (2)(b), to be treated as misuse or neglect as respects the croft.

(8)The Scottish Ministers may, by order, amend the meaning of neglect in subsection (4) so as to substitute different standards for those for the time being mentioned in that subsection.

19DDivision of owner-occupied croftsS

(1)An owner-occupier crofter may not transfer (whether or not for valuable consideration) ownership of any part of the owner-occupier's croft without first dividing the croft into the part which the owner-occupier crofter proposes to transfer and the part which the owner-occupier crofter proposes to retain.

(2)The owner-occupier crofter may so divide that owner-occupier's croft only if the owner-occupier crofter first obtains the consent of the Commission to that division.

(3)Where consent is applied for under subsection (2) in relation to an unregistered owner-occupied croft, the Commission—

(a)must not grant that consent unless an application for first registration of the owner-occupied croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for consent was made;

(b)need not, during that 6 month period, consider the application for consent until an application for first registration of the owner-occupied croft is submitted.

(4)In relation to a registered owner-occupied croft (other than an owner-occupied croft which is a first registered croft)—

(a)any consent of the Commission given by virtue of subsection (2) to a division of the owner-occupied croft expires at the end of the period of 3 months beginning with the date on which such consent was given unless an application for registration of the division is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the division takes effect on the date of registration.

(5)The Keeper must make up and maintain a registration schedule in accordance with section 11 of the 2010 Act in respect of a new croft created by a division under this section.

(6)Any transfer of ownership of any part of an owner-occupied croft which is not a new croft created by a division under this section, and any deed purporting to transfer ownership of that part, is null and void.

(7)Where the transfer of ownership of a part of an owner-occupied croft is null and void under subsection (6), the Commission may declare the original croft vacant.

(8)In this section—

  • division” means the division of an owner-occupied croft into two or more new crofts; and cognate expressions are to be construed accordingly;

  • original croft” means the owner-occupier's croft mentioned in subsection (1); and

  • “new crofts” mean each of the crofts created by the division of the original croft.]

Provisions relating to termination of tenancy and de-croftingS

20 Resumption of croft or part of croft by landlord.S

(1)The Land Court may, on the application of the landlord and on being satisfied that he desires to resume the croft, or part thereof, for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest [F99or the interests of the crofting community in the locality of the croft] , authorise the resumption thereof by the landlord upon such terms and conditions as it may think fit, and may require the crofter to surrender his croft, in whole or in part, to the landlord accordingly, upon the landlord making adequate compensation to the crofter either by letting to him other land of equivalent value in the neighbourhood or by compensation in money or by way of an adjustment of rent or in such other manner as the Land Court may determine.

[F100(1ZA)Where an application is made under subsection (1) to resume an unregistered croft (or any part of such a croft), the Land Court—

(a)may not authorise the resumption unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application to resume the croft was made;

(b)need not, during that 6 month period, consider the application to resume the croft until an application for first registration of the croft is submitted.

(1ZB)In relation to a registered croft, or part of such a croft, (other than a first registered croft)—

(a)any authorisation under subsection (1) expires at the end of the period of 3 months beginning with the date on which such authorisation was given unless an application for registration of the giving of that authorisation is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the resumption takes effect on the date of registration.

(1ZC)In its application to a registered common grazing, subsection (1ZB) is to be construed as if the reference in paragraph (a) to section 5 of the 2010 Act were a reference to section 25 of that Act.]

[F101(1A)A landlord making application under subsection (1) above must give notice of it to the Commission; and the Commission may, if they think fit, oppose or support the application.

[F102(1AA)In determining whether it is satisfied as mentioned in subsection (1) above (and, in particular, whether the reasonable purpose mentioned there relates to the public interest) the Land Court—

(a)may take into account the effect that purpose (whether alone or in conjunction with other considerations) would have on the matters mentioned in subsection (1AC) below; and

(b)where the purpose is, or is connected with, the development of the croft in respect of which planning permission subsists, may take into account the effect such development would have on the croft, the estate and the crofting community in the locality of the croft,

and must authorise, or refuse to authorise, the resumption of the croft by the landlord accordingly.

(1AB)Subsection (1AA) above is without prejudice to subsection (1D) below.

(1AC)The matters mentioned in subsection (1AA)(a) above are—

(a)the sustainability of—

(i)crofting in the locality of the croft or such other area in which crofting is carried on as appears to the Land Court to be relevant;

(ii)the crofting community in that locality or the communities in such an area;

(iii)the landscape of that locality or such an area;

(iv)the environment of that locality or such an area;

(b)the social and cultural benefits associated with crofting.

(1AD)In subsection (1AA) above—

  • development” has the meaning given by section 26 of the Town and Country Planning (Scotland) Act 1997 (c.8);

  • planning permission” is to be construed in accordance with Part 3 of that Act;

  • effect” includes both a positive and negative effect.]

(1B)Without prejudice to the generality of subsection (1) above, resumption may be authorised under that subsection for a specified period of time (such resumption being in this Act referred to as “temporary resumption” and resumption other than for a specified period of time as “ordinary resumption”) and the land shall revert to being a croft (or to being part of a croft)—

(a)on the date on which the period (or as the case may be the period as extended under subsection (1D) below) elapses; or

(b)on such earlier date as the Land Court may specify in an order under section 21A(1) of this Act.

(1C)Subject to subsection (1D) below, the Land Court may, on the application of the landlord, extend the period specified under subsection (1B) above.

[F103(1CA)In relation to a registered croft, or part of such a croft—

(a)the granting of any extension under subsection (1C) expires at the end of the period of 3 months beginning with the date on which the extension was granted unless an application for registration of the granting of the extension is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the extension takes effect on the date of registration.

(1CB)In its application to an extension relating to a registered common grazing, subsection (1CA) is to be construed as if the reference in paragraph (a) to section 5 of the 2010 Act were a reference to section 25 of that Act.]

(1D)Where a planning permission granted for a limited period subsists for a change of the use of the land, being a change for which resumption was authorised, the Land Court must, on such application, extend the period so specified; but not to a date later than the end of the period specified in the condition under subsection (1)(b) of section 41 of the Town and Country Planning (Scotland) Act 1997 (c. 8) to which the permission is subject.

(1E)In subsection (1D) above, “planning permission granted for a limited period” shall be construed in accordance with subsection (3) of that section.

(1F)The Land Court may, on the application of the landlord made before the expiry of the specified period of time referred to in subsection (1B) above, determine that a resumption authorised as a temporary resumption is to be taken to be an ordinary resumption; and where such a determination is made—

(a)subsections [F104(1B), (1C) and (1D)] above and the exception to subsection (2)(b) of section 21A of this Act shall cease to be applicable as respects the resumption; and

(b)the Land Court may determine (either or both)—

(i)that the landlord shall make further compensation under subsection (1) above;

(ii)that the crofter shall, under section 21(1) of this Act, be entitled to a further share in the value of the land.]

[F105(1G)In relation to a registered croft, or part of such a croft—

(a)any determination under subsection (1F) expires at the end of the period of 3 months beginning with the date on which the determination was made unless an application for registration of the making of the determination is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the conversion of the temporary resumption into an ordinary resumption takes effect on the date of registration.

(1H)In its application to a determination relating to a registered common grazing, subsection (1G) is to be construed as if the reference in paragraph (a) to section 5 of the 2010 Act were a reference to section 25 of that Act.]

(2)A sum awarded as compensation under subsection (1) above shall, if the Land Court so determines, carry interest as from the date when such sum is payable at the same rate as would apply (in the absence of any such statement as is provided for in Rule 66 of the Act of Sederunt (Rules of Court, consolidation and amendment) 1965) in the case of decree or extract in an action commenced on that date in the Court of Session if interest were included in or exigible under that decree or extract.

(3)For the purposes of subsection (1) above “reasonable purpose” shall include—

(a)the using, letting or [F106disposing] of the land proposed to be resumed for—

(i)the building of dwellings;

(ii)small allotments;

(iii)harbours, piers, boat shelters or other like buildings;

(iv)churches or other places of religious worship;

(v)schools;

(vi)halls or community centres;

(vii)planting;

(viii)roads practicable for vehicular traffic from the croft or township to the public road or to the seashore;

[F107(viiia)the generation of energy;] or

(ix)any other purpose likely to provide employment for crofters and others in the locality;

(b)the protection of an ancient monument or other object of historical or archaeological interest from injury or destruction.

(4)Where an application is made, with the consent of a majority of the persons sharing in a common grazing and with the approval of the Commission, for authority to resume any land forming part of the common grazing for the purpose of using, letting or otherwise disposing of it for the planting of trees, the Land Court shall not withhold its authority for such resumption.

(5)Where a grazings committee have, under section 48(4) of this Act, planted trees on land forming part of a common grazing, it shall not be competent for an application to be made under subsection (1) above in respect of that land while it continues to be used as woodlands.

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Amendments (Textual)

F99Words in s. 20(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 22(1)(a), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F100S. 20(1ZA)-(1ZC) inserted (30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(11)(a) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 para. 1(r) 13)

F107S. 20(3)(a)(viiia) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 22(1)(c), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

21 Crofter’s right to share in value of land resumed by landlord.S

(1)Where the Land Court authorises the resumption of a croft or a part thereof under section 20 of this Act, the crofter shall be entitled to receive from the landlord, in addition to any compensation payable to him under that section, a share in the value of the land so resumed the amount whereof shall be one half of the difference between, subject to subsection (5) below, the market value of the land (on the date on which resumption thereof is so authorised) as determined by the Land Court in accordance with subsections (2) and (3) below (less any compensation payable as aforesaid) and the crofting value thereof.

[F108(1A)If it thinks fit the Land Court may, having regard to how the purpose for which resumption is authorised is to be carried out, determine that a sum awarded under this section shall be payable in instalments of such amounts and on such dates as it shall specify in the determination.

(1B)On making a determination under subsection (1A), the Land Court shall intimate to the Commission that it has done so and provide them with a copy of the determination; and the Commission shall enter that copy in the Register of Crofts.

(1C)When so entered the determination shall bind any successor to the landlord as it binds the landlord.]

(2)Where the resumption of the land is so authorised for some reasonable purpose which has been or is to be carried out by the landlord or by any person not being an authority possessing compulsory purchase powers, the market value for the purposes of subsection (1) above shall be a sum equal to the amount which the land, if sold in the open market by a willing seller, might be expected to realise.

(3)Where the resumption is so authorised for some reasonable purpose which has been or is to be carried out by an authority possessing compulsory purchase powers (not being the landlord) on the acquisition by them of the land so resumed, the market value for the purposes of subsection (1) above shall be a sum equal to the amount of compensation payable by the authority to the landlord in respect of the acquisition:

Provided that, where the land so resumed forms part only of the land acquired from the landlord by the authority, the market value shall be a sum equal to such amount as the Land Court may determine to be the proportion of the amount of compensation so payable by the authority which relates to the land so resumed.

(4)Where the land so resumed forms or forms part of a common grazing—

(a)the share of the value of that land payable to the crofters sharing in the common grazing shall be apportioned among such crofters according to the proportion that the right in the common grazing of each such crofter bears to the total of such rights;

(b)any sum so apportioned to such a crofter shall be deemed to be the share in the value of such land resumed to which he is entitled under subsection (1) above, and

(c)the share so payable shall, if a grazings committee or a grazings constable has been appointed under section 47 of this Act, be paid by the landlord to the clerk of the committee or the constable for distribution by him among the crofters concerned:

Provided that, if any crofter wishes the proportion of the share payable to him to be paid directly to him by the landlord, the landlord shall comply with his wishes.

(5)For the purposes of this section, where any development has been carried out by any person, other than the crofter or any of his predecessors in the tenancy, on the land which the Land Court has authorised the landlord to resume before such authorisation, there shall be deducted from the market value such amount thereof as, in the opinion of the Land Court, is attributable to that development.

(6)A sum awarded under this section shall, if the Land Court so determines, carry interest as from the date when such sum is payable [F109, or in the case of payment by instalments as from the date when the unpaid balance of such sum is payable,] at the same rate as would apply (in the absence of any such statement as is provided for in Rule 66 of the M7Act of Sederunt (Rules of Court, consolidation and amendment) 1965) in the case of a decree or extract in an action commenced on that date in the Court of Session if interest were included in or exigible under that decree or extract.

(7)In this section—

  • crofting value”, in relation to land resumed, has the same meaning as it has in section 14 of this Act in relation to croft land;

  • reasonable purpose” has the same meaning as in section 20(3) of this Act.

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Amendments (Textual)

Marginal Citations

[F11021AReversion of resumed landS

(1)The Land Court may, on the application of any relevant person and on being satisfied that the conditions specified in subsection (2) below are met, make an order that land resumed by virtue of section 20(1) of this Act shall revert to being a croft (or to being part of a croft).

[F111(1A)In relation to land which, before being resumed as mentioned in subsection (1), was an unregistered croft (or part of such a croft), an order under that subsection does not take effect until the croft is registered by virtue of section 4 of the 2010 Act.

(1B)In relation to land which, before being resumed as mentioned in subsection (1), was a registered croft (or part of such a croft)—

(a)an order under that subsection expires at the end of the period of 3 months beginning with the date on which the order was made unless an application for registration of the making of the order is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the order takes effect on the date of registration.

(1C)In its application to a registered common grazing, subsection (1B) is to construed as if the reference in paragraph (a) to section 5 of the 2010 Act were a reference to section 25 of that Act.]

(2)The conditions are—

(a)no debt is for the time being secured by way of a standard security over, or over any real right in, the land or any part of it;

(b)except in the case of a temporary resumption, not less than 5 nor more than 20 years have elapsed since the resumption of the croft was authorised;

(c)the purpose for which the landlord desired to resume the croft has not been carried out;

(d)no planning permission relating to a change of the use of the land subsists;

(e)the land remains suitable for use by crofters for cultivation; and

(f)the land is owned by the person who was authorised to resume the croft.

F112(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Where land reverts by virtue of subsection (1) above, the Land Court may make such order (if any) as it thinks fit as to the repayment, in whole or in part, of any sum awarded as compensation under section 20(1), or any share in value paid by virtue of section 21(1), of this Act.

(5)Where land which reverts by virtue of subsection (1) above or under section 20(1B) of this Act comprises a common grazing, the Land Court may make such order as it thinks fit as to shares in the common grazing.

(6)Relevant person”in subsection (1) above means the Commission, the landlord, the person who surrendered the land or, where the land comprises a common grazing, the owner or the grazings committee.]

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Amendments (Textual)

F111Ss. 21A(1A)-(1C) inserted (30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(12)(a) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 para. 14)

[F113Consent for absence from croftS

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Amendments (Textual)

F113Ss. 21B-21D and cross-heading inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 35, 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

21BCommission consent for absence from croftS

(1)A crofter or an owner-occupier crofter may apply to the Commission for consent to be ordinarily resident other than on, or within 32 kilometres of, the croft or, as the case may be, the owner-occupied croft.

(2)Where an application under subsection (1) is made by a crofter, the crofter must send a copy of the application to the landlord of the croft.

(3)The Commission may grant consent only if they consider that there is a good reason for the person not to be ordinarily resident on, or within 32 kilometres of, the croft or, as the case may be, the owner-occupied croft.

(4)The Commission may grant consent subject to such conditions as they consider it appropriate to impose which may, in particular, relate to the duration of absence.

(5)The Commission must make their decision on an application under subsection (1) before the expiry of the period of 28 days beginning with the date on which the application is made.

(6)The Commission must notify—

(a)the applicant; and

(b)if the applicant is a crofter, the landlord of the croft,

of their decision and the reasons for making it.

21CExtension of consent for absenceS

(1)Where the Commission have granted consent under section 21B subject to a condition as to the duration of absence, the applicant may, before the expiry of the period for which consent has been granted, apply to the Commission to extend the duration of the consent.

(2)Subsections (2) to (6) of section 21B apply to an application under subsection (1) of this section as they apply to an application under section 21B(1).

21DVariation of condition in consent for absenceS

(1)Where the Commission have granted consent under section 21B subject to a condition (other than a condition as to the duration of absence), the applicant may, before the expiry of the period for which consent has been granted, apply to the Commission to vary the condition.

(2)Subsections (2) to (6) of section 21B apply to an application under subsection (1) of this section as they apply to an application under section 21B(1).]

F11422 Absentee crofters.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

23 Vacant crofts.S

(1)Where—

(a)the landlord of a croft receives from the crofter a notice of renunciation of his tenancy or obtains from the Land Court an order for the removal of the crofter; or

(b)the landlord of the croft either gives to the executor of a deceased crofter, or receives from such an executor, notice terminating the tenancy of the croft in pursuance of section 16(3) of the 1964 Act; or

(c)for any other reason the croft has become vacant otherwise than by virtue of a declaration by the Commission in the exercise of any power conferred on them by this Act;

the landlord shall within one month from—

(i)the receipt of the notice of renunciation of the tenancy, or

(ii)the date on which the Land Court made the order, or

(iii)the date on which the landlord gave or received notice terminating the tenancy, or

(iv)the date on which the vacancy came to the landlord’s knowledge,

as the case may be, give notice thereof to the Commission.

(2)Any person who, being the landlord of a croft, fails to comply with the requirements of subsection (1) above shall be guilty of an offence and shall be liable on summary conviction to a fine of an amount not exceeding level 1 on the standard scale.

[F115(3)The landlord of a croft shall not, without the approval of the Commission, let the croft or any part of it to any person; and any letting of the croft otherwise than with such approval shall be null and void.

[F116(3ZA)Where approval is applied for under subsection (3) in relation to an unregistered croft (or any part of such a croft), the Commission—

(a)may not grant that approval unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for approval was made;

(b)need not, during that 6 month period, consider the application for approval until an application for first registration of the croft is submitted.

(3ZB)In relation to a registered croft, or any part of such a croft, (other than a first registered croft)—

(a)any approval under subsection (3) expires at the end of the period of 3 months beginning with the date on which such approval was granted unless an application for registration of the letting of the croft (or part of the croft) is made by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the letting of the croft (or part of the croft) takes effect on the date of registration.]

F117(3A)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Where any person is in occupation of a croft under a letting which is null and void by virtue of subsection (3) above [F118, subsection (5ZD) or subsection (5D),] the Commission may serve on him a notice in writing requiring him to give up his occupation of such croft on or before such day as may be specified in the notice, being a day not less than one month from the date of the service of the notice; and if he fails to give up his occupation of the croft on or before that day, [F119subsections (5) and (6) of section 26H] of this Act shall, subject to any necessary modifications, apply as [F120they apply] where a crofter fails to give up the occupation of a croft as mentioned in [F121subsection (5) of that section] .

(5)[F122Subject to subsection (5A) below,] where a croft is vacant the Commission may, at any time after the expiry of one month from the occurrence of the vacancy, give notice to the landlord requiring him to submit to them [F123, before the expiry of the period of 2 months beginning with the day on which the notice is given,] his proposals for re-letting the croft, whether as a separate croft or as an enlargement of another croftF124...[F125.

[F126(5ZA)No more than three proposals may be submitted to the Commission in response to a notice given under subsection (5).

(5ZB)Where a proposal for letting the croft is submitted to the Commission in response to a notice given under subsection (5), they must approve or reject the proposal—

(a)in a case where the croft is declared vacant under section 11(8), within the period of 5 months beginning with the day on which the notice under section 11(8)(a) is given; or

(b)in any other case, within the period of 3 months beginning with the day on which the notice under subsection (5) was given.

(5ZC)The Commission must (as soon as is reasonably practicable) proceed in accordance with subsections (5B) and (5C) if—

(a)no proposals for letting the croft are submitted by the landlord before the expiry of the period of 2 months mentioned in subsection (5);

(b)the landlord has submitted one or two proposals for letting the croft within the period of 2 months mentioned in subsection (5) and—

(i)all such proposals are rejected by the Commission; and

(ii)the period of 2 months mentioned in subsection (5) has expired; or

(c)the landlord has submitted three proposals for letting the croft (within the period of 2 months mentioned in subsection (5)) and the Commission have rejected all three.]

[F127(5ZD)Any re-letting of an unregistered croft in accordance with proposals submitted under subsection (5) is null and void unless an application for first registration of the croft is submitted before the expiry of the period of 3 months beginning with the date of the re-letting.

(5ZE)In relation to a registered croft—

(a)any approval under subsection (5ZB) of proposals to re-let the croft under subsection (5) expires at the end of the period of 3 months beginning with the date on which such approval was given unless an application for registration of the re-letting of the croft is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the re-letting of the croft takes effect on the date of registration.]

(5A)[F128Where a croft is declared vacant under section 11(8), the Commission must (as soon as is reasonably practicable) proceed in accordance with subsections (5B) and (5C) if—

(a)no proposals for letting the croft are submitted by the landlord before the expiry of the period of 4 months mentioned in section 11(8)(a);

(b)the landlord has submitted one or two proposals for letting the croft within the period of 4 months mentioned in section 11(8)(a) and—

(i)all such proposals are rejected by the Commission; and

(ii)the period of 4 months mentioned in section 11(8)(a) has expired; or

(c)the landlord has submitted three proposals for letting the croft (within the period of 4 months mentioned in section 11(8)(a)) and the Commission have rejected all three.]

(5B)The Commission shall, by public notification, invite applications for tenancy of the croft within such period as shall be specified in the notification.

(5C)When that period has elapsed, the Commission shall determine—

(a)to which of the applicants (if any) to let the croft; and

(b)in consultation with the landlord, on what terms and conditions.]

[F129(5D)Any letting of an unregistered croft pursuant to a determination under subsection (5C) is null and void unless an application for first registration of the croft is submitted before the expiry of the period of 3 months beginning with the date of the letting.

(5E)In relation to a registered croft—

(a)any determination under subsection (5C) to let the croft to an applicant is, at the end of the period of 3 months beginning with the date on which the determination was made, to be treated as if it had not been made unless an application for registration of the re-letting of the croft is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the letting of the croft takes effect on the date of registration.]

(6)Where a croft has been let on terms and conditions fixed by the Commission, the landlord may within [F13028 days] from the date of the letting apply to the Land Court for a variation of the terms and conditions so fixed, and any variation made in pursuance of such application shall have effect as from the date of the letting.

(7)Where the Commission have under subsection (5) above let a vacant croft as an enlargement of another croft, and any of the buildings on the vacant croft thereby cease to be required in connection with the occupation of the croft, the Commission shall give notice to that effect to the landlord, and thereupon—

(a)the buildings shall cease to form part of the croft; and

(b)the landlord may, at any time within 6 months after the giving of such notice, give notice to the Secretary of State requiring him to purchase the buildings.

(8)If the landlord, within one month after the Commission issue a direction under section 24(2) of this Act that a croft shall cease to be a croft, gives notice to the Secretary of State requiring him to purchase the buildings on the croft, the Secretary of State shall purchase such buildings.

(9)Where a notice has been duly given under subsection (7)(b) or (8) above, the Secretary of State shall be deemed to be authorised to purchase the buildings compulsorily and to have served notice to treat in respect thereof on the date on which the notice aforesaid was given:

Provided that the consideration payable by the Secretary of State in respect of the purchase of the buildings shall be such sum as may be agreed by the Secretary of State and the landlord, or, failing agreement, as may be determined by the Land Court to be equal to the amount which an out-going tenant who had erected or paid for the erection of the buildings would have been entitled to receive from the landlord by way of compensation for permanent improvements in respect of the buildings as at the date on which notice was given as aforesaid to the Secretary of State requiring him to purchase the buildings.

(10)For the purposes of this section and sections 24 and 25 of this Act, a croft shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than [F131by—

(a)the tenant of the croft;

(b)the owner-occupier crofter of the croft;

(c)the subtenant of a sublet to which section 27 applies; or

(d)the tenant of a let to which section 29A applies.]

(11)The provisions of this section and sections 24 [F132, 24A to 24D] and 25 of this Act shall have effect in relation to a part of a croft as they have effect in relation to a croft.

(12)[F133Subject to subsection (12A),] This section and section 24 of this Act shall have effect as if—

(a)a person who has become the owner-occupier of a croft were required under subsection (1) above within one month of the date on which he became such owner-occupier to give notice thereof to the Commission; and

(b)any reference in this section and section 24 of this Act, other than in subsection (1) above, to a landlord included a reference to an owner-occupier.

[F134(12A)Where the owner-occupier is an owner-occupier crofter, this section [F135has] effect as if—

(a)the owner-occupier crofter were required under subsection (1) of this section, within one month of becoming such an owner-occupier crofter, to give notice to the Commission of that fact; and

(b)the reference to a landlord in subsection (2)F136... included a reference to an owner-occupier crofter.]

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Amendments (Textual)

F115S. 23(3)(3A) substituted for s. 23(3) (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 24(a), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F116S. 23(3ZA)(3ZB) inserted (30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(14)(a) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 para. 1(s) 15)

F122Words in s. 23(5) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 24(b)(i), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F125Words in s. 23(5) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 24(b)(ii), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F127S. 23(5ZD)(5ZE) inserted (30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(14)(d) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 para. 15)

F129S. 23(5D)(5E) inserted (30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(14)(e) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 para. 15)

F132Words in s. 23(11) inserted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 3, 6, sch. para. 1(4)(a)

F135Word in s. 23(12A) substituted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 3, 6, sch. para. 1(4)(b)(i)

F136Words in s. 23(12A)(b) omitted (retrospective to 1.10.2011) by virtue of Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 3, 6, sch. para. 1(4)(b)(ii)

24 Decrofting in case of resumption or vacancy of croft.S

(1)This Act shall cease to apply to any land on its being resumed in pursuance of an order authorising its resumption made under section 20 of this Act by the Land Court, without prejudice, however, to the subsequent exercise of any powers conferred by this Act for the enlargement of existing crofts [F137and to sections 3A and 21A of this Act] .

(2)Where a croft has, in consequence of the making of an order under [F138section 26H(1)] of this Act, become vacant and has remained unlet for a period of 6 months beginning with the date on which the croft so became vacant, the Commission shall, if the landlord at any time within 3 months after the expiry of the period aforesaid, gives notice to the Commission requiring them to do so,

[F139(a)forthwith or on the refusal of an application made under paragraph (b) below; or

(b)at the end of such further period as the Land Court, on the application of the Commission, may allow,]

direct that the croft shall cease to be a croft.

[F140(2ZA)But the Commission may not make a direction in accordance with subsection (2) in relation to an unregistered croft—

(a)unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which notice under that subsection is given; and

(b)until such an application is submitted.]

[F141(2A)Where a further period is allowed by virtue of subsection (2)(b) above, the Commission shall be liable to the landlord for an amount equal to the rent which would have been payable for the croft in respect of that period.]

(3)Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application; and if the Commission direct under this subsection or under subsection (2) above that a croft shall cease to be a croft then, subject to subsection (4) below, this Act shall cease to apply to the croft, without prejudice, however, to the subsequent exercise of any powers conferred by this Act or any enactment for the enlargement of existing crofts.

[F142(3A)The Commission need not consider any application made by the landlord under subsection (3) if—

(a)they have given notice, under section 11(8)(a) or 23(5), requiring the landlord to submit proposals for re-letting the croft and the period mentioned in section 11(8)(a) or, as the case may be, 23(5) within which such proposals must be submitted has not expired; or

(b)no such proposals having been submitted before the expiry of that period or, such proposals having been submitted, no such proposal having been approved, they are proceeding in accordance with subsections (5B) and (5C) of section 23.]

[F143(3B)Where a direction is applied for under subsection (3) in relation to an unregistered croft, the Commission—

(a)may not make such a direction unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for the direction is made;

(b)need not, during that 6 month period, consider the application for the direction until an application for first registration of the croft is submitted.

(3C)In relation to a registered croft (other than a first registered croft)—

(a)a direction under subsection (2) or (3) (other than one under subsection (3) given by virtue of section 25(4) of this Act) expires at the end of the period of 3 months beginning with the date on which the direction was made unless an application for registration of the making of the direction is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the direction takes effect on the date of registration.]

(4)The coming into effect of a direction given by the Commission by virtue of section 25(4) of this Act shall not affect the powers contained in the proviso to section 29(3) of this Act.

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Amendments (Textual)

F143S. 24(3B)(3C) inserted (30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(15)(c) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 para. 1(t) 16(2))

[F14424AApplications to decroft by owner-occupier croftersS

(1)An owner-occupier crofter may apply to the Commission for a decrofting direction.

(2)In this section and in sections 24B to 24D, a “decrofting direction” is a direction that the owner-occupier's croft is to cease to be a croft.

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Amendments (Textual)

F144Ss. 24A-24D inserted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 1(2), 3, 6 (with s. 5)

24BCommission's powers in relation to applications under section 24AS

(1)The Commission may, on an application under section 24A(1), give a decrofting direction or refuse to grant the application.

(2)But the Commission need not consider the application if—

(a)they have given the owner-occupier crofter a direction under section 26J(1) requiring the owner-occupier crofter to submit proposals for letting the owner-occupier's croft and the period within which such proposals must be submitted has not expired, or

(b)no such proposals having been submitted before the expiry of that period or, such proposals having been submitted, no such proposal having been approved, they are proceeding in accordance with subsections (7) and (8) of section 26J.

(3)And, where the application relates to an unregistered croft, the Commission—

(a)may not give a decrofting direction unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for the direction is made,

(b)need not, during that 6 month period, consider the application for the direction until an application for first registration of the croft is submitted.

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Amendments (Textual)

F144Ss. 24A-24D inserted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 1(2), 3, 6 (with s. 5)

24CApplication of section 25 in relation to decrofting directionsS

(1)Section 25 applies in relation to an application under section 24A(1) by an owner-occupier crofter for a decrofting direction, and to such a direction, as it applies in relation to an application under section 24(3) by a landlord of a vacant croft, and to a direction under section 24(3), subject to the modifications mentioned in subsections (2) to (4).

(2)In subsection (1), for paragraph (b) substitute—

(b)in a case where—

(i)the application is made in respect of a part of a croft, which consists only of the site of the dwelling-house on or pertaining to the croft, and

(ii)they have not previously given a direction under section 24B(1) to the applicant in relation to such a site on or pertaining to that croft,

they are satisfied that the extent of garden ground included in that part is appropriate for the reasonable enjoyment of the dwelling-house as a residence;.

(3)In subsection (3), for the words from “land in respect” to the end substitute “ direction under section 24B(1) is revoked ”.

(4)The following provisions of, or words in, section 25 do not apply—

(a)subsection (1)(c),

(b)in subsection (2), the words “or (c)”,

(c)subsection (4),

(d)subsections (4ZA) to (4ZD),

(e)subsection (4A),

(f)in subsection (6)—

(i)the words “or subsection (4)”,

(ii)the words “or only of land the conveyance in feu of which was granted under section 17 or 18 of the 1955 Act”,

(g)in subsection (7), the words “or subsection (4)”,

(h)subsection (8)(a)(ii).

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Amendments (Textual)

F144Ss. 24A-24D inserted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 1(2), 3, 6 (with s. 5)

24DEffect of decrofting directionS

(1)Where a decrofting direction is given in relation to a croft, this Act ceases to apply to the croft.

(2)But subsection (1) does not affect the subsequent exercise of any powers conferred by this Act or any other enactment for the enlargement of existing crofts.

(3)Where the croft to which the decrofting direction relates is a registered croft (other than a first registered croft)—

(a)the direction expires at the end of the period of 3 months beginning with the date on which the direction was given unless an application for registration of the giving of the direction is submitted by virtue of section 5 of the 2010 Act before the expiry of that period,

(b)the direction takes effect on the date of registration.]

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Amendments (Textual)

F144Ss. 24A-24D inserted (retrospective to 1.10.2011) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), ss. 1(2), 3, 6 (with s. 5)

25 Provisions supplementary to s.24(3).S

(1)The Commission shall give a direction under section 24(3) of this Act that a croft shall cease to be a croft if—

(a)subject to subsection (2) below, they are satisfied that the applicant has applied for the direction in order that the croft may be used for or in connection with some reasonable purpose (within the meaning of section 20 of this Act) having relation to the good of the croft or of the estate or to the public interest [F145or to the interests of the crofting community in the locality of the croft] and that the extent of the land to which the application relates is not excessive in relation to that purpose; or

(b)the application is made in respect of a part of a croft, which consists only of the site of the dwelling-house on or pertaining to the croft and in respect of which a crofter is entitled at the time of the application, or has been entitled, to a conveyance by virtue of section 12(2) of this Act, and they are satisfied that the extent of garden ground included in that part is appropriate for the reasonable enjoyment of the dwelling-house as a residence [F146or

(c)the application is made in respect of a croft the conveyance in feu of which was granted under section 17 or 18 of the 1955 Act]

[F147(1A)In determining whether they are satisfied as mentioned in subsection (1)(a) above (and, in particular, whether the reasonable purpose mentioned there relates to the public interest), the Commission—

(a)may take into account the effect that purpose (whether alone or in conjunction with other considerations) would have on the matters mentioned in subsection (1B) below; and

(b)where the purpose is, or is connected with, the development of the croft in respect of which planning permission subsists, may take into account the effect such development would have on the croft, the estate and the crofting community in the locality of the croft,

and must give the direction, or refuse to grant the application for it, accordingly.

(1B)The matters mentioned in subsection (1A)(a) above are—

(a)the sustainability of—

(i)crofting in the locality of the croft or such other area in which crofting is carried on as appears to the Commission to be relevant;

(ii)the crofting community in that locality or the communities in such an area;

(iii)the landscape of that locality or such an area;

(iv)the environment of that locality or such an area;

(b)the social and cultural benefits associated with crofting.

(1C)In subsection (1A) above—

  • development” has the meaning given by section 26 of the Town and Country Planning (Scotland) Act 1997 (c.8);

  • planning permission” is to be construed in accordance with Part 3 of that Act;

  • effect” includes both a positive and negative effect.]

(2)Without prejudice to subsection [F148(1)(b) or (c)] above, the Commission, in determining whether or not to give such a direction, shall have regard to the general interest of the crofting community in the district in which the croft is situated and in particular to the demand, if any, for a tenancy of the croft from persons who might reasonably be expected to obtain that tenancy if the croft were offered for letting on the open market on the date when they are considering the application.

(3)Where the Commission give such a direction on being satisfied as mentioned in subsection (1)(a) above, they may in the direction impose such conditions [F149(which may include provision as to timescales)] as appear to them requisite for securing that the land to which the direction relates is used for the proposed use; and if at any time they are satisfied that there has been a breach of any such condition, they may make a further direction that the land in respect of which there has been such a breach shall be a vacant croft.

[F150(3A)Conditions imposed by virtue of subsection (3) above may include a condition that the use be initiated by a time specified in the condition.

(3B)The Commission may from time to time modify any conditions so imposed.

(3C)No such further direction as is mentioned in subsection (3) above shall be made if—

(a)more than 20 years have elapsed since the direction under section 24(3) of this Act;

(b)the land, or any part of it, has, since the direction under that section, been conveyed to a person other than the former crofter or a member of the former crofter's family; or

(c)a debt is for the time being secured by way of a standard security over, or over any real right in, the land or any part of it.]

(4)[F151Subject to subsections (4ZB) and (4ZD),] The Commission may, on the application of a crofter who is proposing to acquire croft land or the site of the dwelling-house on or pertaining to his croft, give a direction under the said section 24(3) as if the land were a vacant croft and the application were made by the landlord, that in the event of such acquisition of the land it shall cease to be a croft, or refuse the application; but such a direction shall not have effect until the land to which it relates has been acquired by the crofter or his nominee and unless the acquisition is made within 5 years of the date of the giving of the direction.

[F152(4ZA)Where a direction is applied for under subsection (4) in relation to an unregistered croft—

(a)the Commission may not make such a direction unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for the direction is made;

(b)the Commission need not, during that 6 month period, consider the application for the direction until an application for first registration of the croft is submitted.

(4ZB)Where a direction under section 24(3) is made by virtue of an application under subsection (4) in relation to a first registered croft—

(a)the crofter who applied for the direction must, within 3 months of acquiring land or a site as mentioned in that subsection, notify the Commission of the acquisition;

(b)the direction—

(i)does not have effect unless the conditions in subsection (4) are satisfied;

(ii)takes effect on the giving of notification of the direction under section 10(8)(c) of the 2010 Act.

(4ZC)Subsection (4ZD) applies to a direction under section 24(3) which is made—

(a)by virtue of an application under subsection (4); and

(b)in relation to a registered croft (other than a first registered croft).

(4ZD)The direction—

(a)does not have effect unless—

(i)the conditions mentioned in subsection (4) are satisfied; and

(ii)an application for registration of the making of the direction is made by virtue of section 5 of the 2010 Act before the expiry of the period of 5 years mentioned in that subsection;

(b)takes effect, if those conditions and the condition mentioned in paragraph (a)(ii) are satisfied on or before the date of registration, on the date of registration.]

[F153(4A)Written notice of an application under subsection (4) above made in respect of a part of a croft consisting only of the site of the dwelling-house on or pertaining to the croft shall be given to the landlord by the applicant; and the Commission—

(a)shall not give a direction by virtue of that subsection on an application so made unless they are satisfied (in addition to what is required by subsection (1)(b) above) that; and

(b)may include in any such direction conditions for the purpose of ensuring that,

implementation of the proposal would not prevent or impede access to another part of the croft or to other croft land.]

(5)A direction under the said section 24(3) may be given taking account of such modification of the application in relation to which the direction is given as the Commission consider appropriate.

(6)The Commission shall advertise all applications under the said section 24(3) or subsection (4) above (except an application made in respect of a part of a croft consisting only of the site of the dwelling-house on or pertaining to the croft [F154or only of land the conveyance in feu of which was granted under section 17 or 18 of the 1955 Act] ) in one or more newspapers circulating in the district in which the croft to which the application relates is situated, and before disposing of such an application shall, if requested by the applicant, afford a hearing to the applicant and to such other person as they think fit.

[F155(7)The Commission shall give both—

(a)notice in writing to the applicant; and

(b)public notification,

of their direction on an application made to them under the said section 24(3) or subsection (4) above, specifying the nature of and the reasons for the direction and, as the case may be, for any conditions imposed in the direction.

(8)As regards—

(a)a direction (including a condition in a direction) by the Commission on an application—

(i)under section 24(3) of this Act, the applicant or any member of the crofting community in the locality of the land;

(ii)under subsection (4) above, the applicant or the owner of the land,

may within 42 days after the giving of public notification of the making of the direction;

(b)a modification under subsection (3B) above, of a condition which relates to land, the owner, or any tenant of the land or any member of the crofting community in the locality of the land, may within 42 days after the giving of public notification of the modification; or

(c)a further direction under subsection (3) above, the owner, or any tenant, of the land, may within 42 days after the making of that direction,

appeal F156..., on one or more of the grounds mentioned in section 52A(3) of this Act, to the Land Court.

(8A)For the purposes of this section, the references in section 52A(3) to a “direction” are to be construed as including references to a modification.

(8B)In an appeal under subsection (8) above the Court may—

(a)confirm or revoke the direction or modification;

(b)direct the Commission to make a different direction or modification; or

(c)remit the case to the Commission without so directing them.]

(9)The Commission shall give effect to the determination of the Land Court on an appeal under subsection (8) above.

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Amendments (Textual)

F145Words in s. 25(1)(a) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 23(b)(i), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F148Words in s. 25(2) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 23(b)(iii), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F152S. 25(4ZA)-(4ZD) inserted (30.11.2012 for specified purposes, 30.11.2013 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(16)(b) (with s. 57(4)); S.S.I. 2012/288, art. 3(1)(b)(2), sch. 1 Pt. 2; S.S.I. 2012/288, art. 3(1)(c) (with sch. 2 para. 17)

F155S. 25(7)-(8B) substituted for s. 25(7) (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 23(b)(vii), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

Modifications etc. (not altering text)

C1S. 25(8) applied (with modifications) (31.7.2013) by Crofting (Amendment) (Scotland) Act 2013 (asp 10), s. 4(3)(4), 6

26 Provisions as to removal of crofter.S

(1)When—

(a)one year’s rent of a croft is unpaid, F157...

(b)a crofter has broken one or more of the statutory conditions (other than the condition as to payment of rent), [F158or

(c)a crofter has breached any duty mentioned in section 5AA, 5B or 5C,]

the Land Court may, on the application of the landlord and after considering any objections stated by the crofter, make an order [F159

(i)terminating the tenancy;

(ii)declaring the croft to be vacant; and

(iii)for the removal of the tenant from the croft]

[F160(1A)For the purposes of paragraph (c) of subsection (1)—

(a)where a crofter has sublet the croft by virtue of a lease to which section 27 applies, the crofter is deemed to comply with the duties mentioned in that paragraph (other than the duty not to misuse the croft) if the crofter's subtenant complies with the duties;

(b)where the Commission have granted consent under section 21B, the crofter is deemed to comply with the duty mentioned in section 5AA.]

(2)When a crofter whose rights to compensation for permanent improvements have been transferred in whole or in part to the Secretary of State under section 43 of this Act—

(a)has abandoned his croft; or

(b)has broken any of the statutory conditions (other than the condition as to payment of rent); or

(c)has broken any of the conditions of repayment of a loan contained in the agreement for the loan;

the Land Court may, on the application of the Secretary of State and after considering any objections stated by the crofter or the landlord, make an order for the removal of the crofter.

(3)If a crofter is removed from his croft [F161(whether by virtue of this section or by virtue of section 5A or [F16226H] of this Act)] , the landlord shall be entitled to set off all rent due or to become due against any sum found to be due by the landlord to the crofter or to the Secretary of State for permanent improvements made on the croft.

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Amendments (Textual)

[F163Investigation of suspected breach of dutyS

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Amendments (Textual)

F163Ss. 26A-26K and cross-heading inserted (1.10.2011 for specified purposes, 30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 37, 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 para. 5(1)(2)(3)(4))

26ACommission's duty to investigate suspected breach of dutyS

(1)This section applies where the Commission receive—

(a)a report from a grazings committee under section 49A(1) which includes information on a matter mentioned in subsection (2); or

(b)information in writing from a person mentioned in subsection (3) relating to such a matter.

(2)The matter referred to in subsection (1) is that—

(a)a crofter is not complying with a duty mentioned in section 5AA, 5B or 5C; or

(b)an owner-occupier crofter is not complying with a duty mentioned in section 19C(2).

(3)The person referred to in subsection (1)(b) is—

(a)a grazings committee;

(b)a grazings constable;

(c)an assessor appointed under paragraph 16 of schedule 1;

(d)a member of the crofting community within which the croft to which the matter mentioned in subsection (2) relates is situated.

(4)The Commission must investigate whether or not the duty to which the report or, as the case may be, information relates is being complied with.

(5)But the Commission need not do so where they consider the information included in the report or, as the case may be, received as mentioned in subsection (1)(b) is frivolous or vexatious.

Enforcement of dutiesS

26BEnforcement of duties of crofters and owner-occupier crofters: generalS

(1)This section and section 26C apply where the Commission consider (whether following an investigation under section 26A(4) or otherwise) that—

(a)a crofter is not complying with any of the duties mentioned in section 5AA, 5B or 5C;

(b)an owner-occupier crofter is not complying with any of the duties mentioned in section 19C(2).

(2)For the purposes of subsection (1)(a)—

(a)where a crofter has sublet the croft by virtue of a lease to which section 27 applies, the crofter is deemed to comply with the duties mentioned in that subsection (other than the duty not to misuse the croft) if the crofter's subtenant complies with the duties;

(b)where the Commission have granted consent under section 21B, the crofter is deemed to comply with the duty mentioned in section 5AA.

(3)For the purposes of subsection (1)(b)—

(a)where an owner-occupier crofter has let the croft by virtue of a short lease to which section 29A applies, the owner-occupier crofter is deemed to comply with the duties mentioned in that subsection (other than the duty not to misuse the croft) if the owner-occupier crofter's tenant complies with the duties;

(b)where the Commission have granted consent under section 21B, the owner-occupier crofter is deemed to comply with the duty mentioned in section 19C(2)(a).

(4)In sections 26C, 26D and 26K, the “relevant person” means the crofter (in the case of a croft) or the owner-occupier crofter (in the case of an owner-occupied croft).

26CNotice of suspected breach of dutyS

(1)The Commission must, unless they consider that there is a good reason not to, give the relevant person a written notice informing the person that the Commission consider that the duty is not being complied with.

(2)The notice must—

(a)explain the reasons why the Commission consider that the duty is not being complied with;

(b)indicate that the relevant person may make representations to the Commission before the expiry of the period of 28 days beginning with the day on which notice is given to the person (the “representation period”); and

(c)where given to a crofter, be copied to the landlord of the croft.

(3)The Commission must have regard to any representations received within the representation period.

(4)The Commission may also have regard to any representations received after the end of the representation period.

(5)The Commission must, before the expiry of the period of 14 days beginning with the day on which the representation period ends, decide whether the duty is being complied with.

26DUndertakings: generalS

(1)If the Commission decide that a duty is not being complied with, they must, before taking any action under section 26H or 26J, give the relevant person a written notice giving the person an opportunity to give an undertaking to comply with the duty before the expiry of such period as the Commission consider reasonable.

(2)The notice must—

(a)explain that the relevant person must give the undertaking before the expiry of the period of 28 days beginning with the day on which the notice is given;

(b)explain that the giving of the undertaking by the person constitutes acceptance by the person that the duty is not being complied with;

(c)set out what the person must do to comply with the undertaking;

(d)explain that if the person complies with the undertaking, no further action will be taken against the person in respect of the failure to comply with that duty; and

(e)where given to a crofter, be copied to the landlord of the croft.

(3)The Commission may accept an undertaking subject to such conditions as they consider appropriate.

(4)The Commission must decide whether to accept an undertaking before the expiry of the period of 28 days beginning with the day on which the relevant person offers to give the undertaking.

26ECircumstances where the Commission may not take action under section 26H or 26JS

The Commission may not take any action under section 26H or 26J if—

(a)the period for giving an undertaking under section 26D has not expired;

(b)an undertaking has been given under section 26D and the period for complying with the undertaking has not expired;

(c)an undertaking given under section 26D has been complied with;

(d)in the case of a crofter—

(i)the Commission have consented to the sublet of the croft under section 27;

(ii)an application for consent to sublet has been made under section 27 and has not been determined;

(e)in the case of an owner-occupier crofter—

(i)the Commission have consented to the let of the owner-occupier's croft on a short lease (within the meaning of section 29A(4));

(ii)an application for consent to a lease has been made under section 29A and has not been determined;

(f)in the case of failure to comply with a duty mentioned in section 5AA or 19C(2)(a)—

(i)the Commission have consented to the absence under section 21B;

(ii)an application for consent for absence, to extend a period of absence or to vary a condition imposed in respect of such absence has been made under section 21B, 21C or, as the case may be, 21D and has not been determined.

26FCommission duty to take action under section 26H or 26JS

(1)If—

(a)the Commission decide that a duty is not being complied with; and

(b)none of the circumstances mentioned in section 26E apply,

the Commission must take one of the actions mentioned in subsection (2) unless they consider that there is a good reason not to.

(2)Those actions are—

(a)in the case of a crofter, the tenancy termination procedure under section 26H;

(b)in the case of an owner-occupier crofter, the letting procedure under section 26J.

26GDivision of croft before taking actionS

(1)Before taking action under section 26H or 26J, the Commission may, if they are satisfied that it is fair to do so, divide a croft or, as the case may be, an owner-occupied croft.

(2)In satisfying themselves as mentioned in subsection (1), the Commission must have regard to—

(a)the use and occupation of the croft or owner-occupied croft;

(b)in the case of a croft, the interests of the estate in which the croft is located;

(c)the sustainable development of the crofting community in the locality of the croft or owner-occupied croft;

(d)such other matters as the Commission consider appropriate.

(3)Any division of a croft or an owner-occupied croft under subsection (1) takes effect––

(a)as respects an application for first registration of the croft, or owner-occupied croft, submitted by virtue of section 4 of the 2010 Act, on the date of registration;

(b)as respects an application for registration of the division of the croft, or owner-occupied croft, submitted by virtue of section 5 of that Act, on the date of registration.

(4)The Keeper must make up and maintain a registration schedule in accordance with section 11 of the 2010 Act in respect of a new croft created by a division under this section.

(5)Where a croft or owner-occupied croft has been divided under subsection (1), the Commission may take action under section 26H or 26J in respect of any or all of the new crofts created by the division.

(6)Where a croft, other than an owner-occupied croft, is divided under subsection (1), the Commission must give written notice of the division to the landlord of the croft, specifying the date on which the division took effect.

(7)In this section—

  • division” means the division of a croft or an owner-occupied croft into two or more new crofts; and “divide” is to be construed accordingly; and

  • “new crofts” mean each of the crofts created by a division under subsection (1).

26HCrofters: tenancy termination procedureS

(1)If the Commission are satisfied that it is in the general interest of the crofting community in the locality of the croft, the Commission must make an order terminating the tenancy of the crofter unless they consider that there is a good reason not to.

(2)An order under subsection (1) must be notified to—

(a)the crofter; and

(b)the landlord of the croft.

(3)An order under subsection (1) must specify the date on which it takes effect.

(4)An order under subsection (1) may not take effect before the expiry of the period of 28 days beginning with the later notification under subsection (2).

(5)If the crofter fails to give up occupation of the croft on or before the day on which the order takes effect, the Commission may apply to the sheriff for warrant for ejection of the crofter.

(6)The sheriff must grant the warrant for ejection, except on cause shown by the crofter.

(7)The Commission may recover from the crofter the expenses incurred by them—

(a)in making any application under subsection (5);

(b)in executing any warrant granted under subsection (6).

(8)A crofter whose tenancy is terminated by an order under subsection (1) has the same rights and liabilities relating to compensation as if the crofter had renounced the tenancy at the date on which the order under subsection (1) takes effect.

26JOwner-occupier crofters: letting procedureS

(1)The Commission must, unless they consider that there is a good reason not to, direct the owner-occupier crofter to submit to them, before the expiry of the period of 28 days beginning with the day on which the direction is given, a proposal for letting the owner-occupier's croft.

(2)No more than three proposals for letting the croft may be submitted in response to a direction given under subsection (1).

(3)Where a proposal for letting the croft is submitted to the Commission in response to a direction given under subsection (1), they must approve or reject the proposal within the period of 8 weeks beginning with the day on which the direction was given.

(4)The Commission must (as soon as is reasonably practicable) proceed in accordance with subsections (7) and (8) if—

(a)no proposals for letting the croft are submitted by the owner-occupier crofter before the expiry of the period mentioned in subsection (1);

(b)the owner-occupier crofter has submitted one or two proposals for letting the croft within the period mentioned in subsection (1) and—

(i)all such proposals are rejected by the Commission; and

(ii)the period mentioned in subsection (1) has expired; or

(c)the owner-occupier crofter has submitted three proposals for letting the croft (within the period mentioned in subsection (1)) and the Commission have rejected all three.

(5)Any letting of an unregistered owner-occupied croft in accordance with proposals submitted under subsection (1) is void unless an application for first registration of the owner-occupied croft is submitted before the expiry of the period of 3 months beginning with the date of the letting.

(6)In relation to a registered owner-occupied croft—

(a)any approval under subsection (3) of a proposal for letting the owner-occupied croft under subsection (1) expires at the end of the period of 3 months beginning with the date on which the approval was given unless an application for registration of the letting of the owner-occupied croft is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the letting of the owner-occupied croft takes effect on the date of registration.

(7)The Commission must, by public notification, invite applications for letting the owner-occupied croft before the expiry of the period specified in the notification.

(8)When the period of notification has ended, the Commission must decide—

(a)to which of the applicants (if any) to let the owner-occupied croft; and

(b)after consulting the owner-occupier crofter, on what conditions to let the croft.

(9)Any letting of an unregistered owner-occupied croft pursuant to a decision under subsection (8) is void unless an application for first registration of the owner-occupied croft is submitted before the expiry of the period of 3 months beginning with the date of the letting.

(10)In relation to a registered owner-occupied croft—

(a)any decision under subsection (8) to let the owner-occupied croft to an applicant is, at the end of the period of 3 months beginning with the date on which the decision was made, to be treated as if it had not been made unless an application for registration of the croft is submitted by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the letting of the owner-occupied croft takes effect on the date of registration.

(11)Where an owner-occupied croft has been let on conditions set by the Commission under subsection (8)(b), the owner-occupier crofter may, before the expiry of the period of 28 days beginning with the day of the letting, apply to the Land Court for a variation of the conditions so set.

(12)If the Land Court, on an application under subsection (11), varies the conditions of let, any variation takes effect as from the date of the letting.

26KAppealsS

(1)A relevant person may appeal to the Land Court against a decision of the Commission under section 26C(5) that a duty is not being complied with.

(2)A relevant person may appeal to the Land Court against a decision of the Commission under section 26D—

(a)not to accept an undertaking;

(b)to impose conditions on such an undertaking.

(3)A relevant person may appeal to the Land Court against—

(a)the making by the Commission of an order under section 26H; or

(b)the giving by the Commission of a direction under section 26J.

(4)An appeal under subsection (3) may include an appeal against a division under section 26G of (as the case may be)—

(a)the croft; or

(b)the owner-occupied croft.

(5)An appeal under subsection (2) or (3) must be made before the expiry of the period of 42 days beginning with the day on which the decision, order or direction is made.

(6)An appeal under subsection (2) or (3) may be made only on one or more of the following grounds—

(a)that the Commission erred in law;

(b)that the Commission made a finding as to a fact material to the decision, order or direction but did not have sufficient evidence on which to base that finding;

(c)that the Commission acted contrary to natural justice;

(d)that the Commission took into account certain irrelevant or immaterial considerations;

(e)that the Commission failed to take into account certain relevant or material considerations;

(f)that the Commission exercised their discretion in an unreasonable manner.

(7)In an appeal under this section, the Land Court may—

(a)confirm or revoke the decision, order or direction;

(b)direct the Commission to make a different decision, order or direction;

(c)remit the case to the Commission without so directing them.

(8)The Commission must give effect to the decision of the Land Court on an appeal under this section.

(9)The Land Court may, if it considers it appropriate in consequence of any decision on an appeal under subsection (3), order the Keeper to rectify the Crofting Register.]

Subletting of croftsS

27 Provisions as to right to sublet.S

(1)Notwithstanding any enactment or rule of law, a crofter shall be entitled to sublet his croft [F164, for a period not exceeding 10 years,] without the consent of the landlord of the croft.

(2)A crofter shall not sublet his croft otherwise than with the consent in writing of the Commission and in accordance with such conditions (which shall not include conditions relating to rent) as the Commission in giving their consent may impose; and any sublease of his croft granted by a crofter otherwise than as aforesaid shall be null and void:

Provided that nothing in this subsection shall be construed as debarring a crofter from subletting any dwelling-house or other building forming part of his croft to holiday visitors.

F165(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F166(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The Commission may, in giving their consent to a proposed sublease of a croft, impose such conditions (other than any relating to rent) as they may think fit.

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Amendments (Textual)

F164Words in s. 27(1) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 11(1)(a), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F166S. 27(3) substituted for s. 27(3)(4) (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 11(1)(b), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

Prospective

F16728 Special provisions regarding subletting of crofts not adequately used.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

29 Miscellaneous provisions regarding subleases of crofts.S

(1)Subject to subsection (2) below, the subtenant under a sublease of a croft shall not be held to be

[F168(a)a crofter; or

(b)the tenant under a lease constituting a 1991 Act tenancy within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11) or under a lease constituting a short limited duration tenancy[F169, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] (within the meaning of that Act).]

(2)Where under a sublease of any croft a right in any common grazing is let to the subtenant, and the sublease is one which-

(a)has been intimated to the Commission under section 11(1)(a) or (b) of the M8Crofters (Scotland) Act 1961; or

(b)has been granted by the crofter with the consent of the Commission and in accordance with any conditions imposed by them, as mentioned in section 27(2) of this Act, or

(c)has been granted by the crofter in accordance with proposals submitted to the Commission under section 28(4) of this Act and approved by them, or

(d)has been granted under section 28(7) of this Act by the Commission,

the subtenant shall come in place of the crofter in relation to any matter which concerns such right, and any grazings regulations applicable to such common grazing shall apply to the subtenant accordingly.

[F170(2A)The conditions of let must specify that the crofter shall give the subtenant not less than 6 months written notice of any intention to assign, exchange or divide the croft and that the sublease shall come to an end on such assignation, exchange or division.]

(3)Where the tenancy of a croft is terminated, any sublease of that croft subsisting immediately before the date of such termination shall come to an end on that date:

Provided that where a sublease comes to an end by virtue of the foregoing provisions of this subsection the Commission may, on an application in that behalf made to them by the subtenant within one month or such longer period not exceeding 3 months as the Commission may in all the circumstances think reasonable from the date on which the sublease came to an end as aforesaid, make an order permitting the subtenant to remain in occupation of the croft for such period, not exceeding one year from the said date, and subject to such conditions, as may be specified in the order; and no proceedings for the removal of the subtenant from the croft shall be taken by the owner of the croft before the expiry of the said period of one month or the said longer period or, if an application is made under this subsection to the Commission by the subtenant within that period, before the date of the determination of the Commission on such application.

[F171(3A)Where the tenancy of a croft is terminated by virtue of the death of the crofter, the Commission shall, as part of their consideration in determining whether to make an order under the proviso to subsection (3) above and if so what period of occupation to permit—

(a)consult the deceased crofter's executor; and

(b)have regard in particular to such hardship as might, according to what they decide, be occasioned—

(i)the former subtenant; or

(ii)an assignee or transferee of the interest of tenant,]

(4)In this section and in sections 27 and 28 of this Act any reference to a croft shall include a reference to a part of a croft.

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Amendments (Textual)

F169Words in s. 29(1)(b) substituted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 4(3) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 9)

Marginal Citations

[F172Letting of owner-occupied croftsS

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Amendments (Textual)

F172Ss. 29A, 29B and cross-heading inserted (22.12.2010 for specified purposes, 1.10.2011 for specified purposes, 30.11.2012 for specified purposes, 30.11.2013 in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 39, 57(2) (with s. 57(4)); S.S.I. 2010/437, art. 3, sch. (with arts. 4 5(3)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3)); S.S.I. 2012/288, art. 3(1)(b)(c)(2), sch. 1 Pt. 2 (with sch. 2 paras. 1(v) 6)

29ALetting of owner-occupied croftsS

(1)An owner-occupier crofter may not let the owner-occupier's croft (or any part of it) without the consent of the Commission.

(2)Subject to subsection (7), where consent is applied for under subsection (1) in relation to an unregistered owner-occupied croft (or any part of such an owner-occupied croft), the Commission—

(a)may not grant that consent unless an application for first registration of the croft is submitted before the expiry of the period of 6 months beginning with the date on which the application for consent was made;

(b)need not, during that 6 month period, consider the application for consent until an application for first registration of the croft is submitted.

(3)Subject to subsection (8), in relation to a registered owner-occupied croft (other than an owner-occupied croft which is a first registered croft), or any part of such a croft—

(a) any consent under subsection (1) expires at the end of the period of 3 months beginning with the date on which such consent was granted unless an application for registration of the letting of the croft (or part of the croft) is made by virtue of section 5 of the 2010 Act before the expiry of that period;

(b)the letting of the croft (or part of the croft) takes effect on the date of registration.

(4)The Commission may, in giving their consent to a proposed lease of an owner-occupied croft for a period not exceeding 10 years (a “short lease”), impose such conditions (other than any relating to rent) as they consider appropriate.

(5)A lease is void if it is granted—

(a)without the Commission's consent;

(b)in the case of a short lease, otherwise than in accordance with such conditions as the Commission may impose.

(6)The Commission may terminate a short lease granted under this section if—

(a)a condition imposed under subsection (4) is breached; or

(b)the tenant fails to comply with a condition of let (other than any relating to rent).

(7)Subsection (2) does not apply to an application for consent to a proposed lease which is a short lease.

(8)Subsection (3) does not apply to—

(a)consent under subsection (1) to a short lease; or

(b)the letting of the croft (or part of the croft) on a short lease.

(9)Where, by virtue of a lease granted under this section, a right in a common grazing is let to the tenant under the lease—

(a)that tenant comes into the place of the owner-occupier crofter in relation to any matter which concerns the right; and

(b)any grazings regulations applicable to the grazing apply to the tenant accordingly.

(10)Subsections (1) to (6) do not apply to the letting of any dwelling-house or other building forming part of the owner-occupied croft to holiday visitors.

29BStatus of tenant under a short leaseS

The tenant under a short lease of an owner-occupied croft is not to be treated as—

(a)a crofter; or

(b)the tenant under a lease constituting—

(i)a 1991 Act tenancy within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11);

(ii)a short limited duration tenancy within the meaning of that Act; F173...

(iii)a limited duration tenancy within the meaning of that Act.]

[F174(iv)a modern limited duration tenancy within the meaning of that Act, or

(v)a repairing tenancy within the meaning of that Act.]

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Amendments (Textual)

Compensation for improvements and for deterioration or damageS

30 Compensation to crofter for improvements.S

(1)Where—

(i)a crofter renounces his tenancy or is removed from his croft, or

(ii)the tenancy of a croft, being a tenancy the interest of the tenant under which is comprised in the estate of a deceased crofter, is terminated in pursuance of section 16(3) of the 1964 Act,

the crofter or, as the case may be, the executor of the deceased crofter shall, subject to the provisions of this Act, be entitled to compensation for any permanent improvement made on the croft if—

(a)the improvement is suitable to the croft; and

(b)the improvement was executed or paid for by the crofter or, as the case may be, the deceased crofter, or any of the predecessors of the crofter or of the deceased crofter in the tenancy; and

(c)either the improvement was executed otherwise than in pursuance of a specific agreement in writing under which the crofter or, as the case may be, the deceased crofter was bound to execute the improvement or, if the improvement was executed in pursuance of such an agreement, the crofter has not received or, as the case may be, the deceased crofter did not receive and his executor has not received, by way of reduction of rent or otherwise, fair consideration for the improvement.

(2)Where—

(a)a person on becoming the tenant of a croft has with the consent of the landlord paid to the outgoing tenant any compensation due to him in respect of any permanent improvement F175...; or

(b)on a person becoming the tenant of a croft the Secretary of State on his behalf has paid to the landlord a sum representing the value to such person of an existing improvement on the croft;

such person shall for the purposes of subsection (1) above be deemed to have executed or paid for the improvement.

For the purposes of paragraph (a) above, a landlord who has not paid the compensation due F176... to the outgoing tenant F176... to the Secretary of State by virtue of subsection (3) of that section shall be deemed to be a loan by the Secretary of State to him shall be deemed to have given his consent.

(3)Subsection (1) above shall not apply to any buildings erected by a crofter in contravention of any interdict or other judicial order.

(4)The amount of the compensation payable under subsection (1) above shall, failing agreement, be fixed by the Land Court.

(5)Nothing in this Act shall affect the provisions of the M9Agricultural Holdings (Scotland) Act 1991 [F177or of the Agricultural Holdings (Scotland) Act 2003 (asp 11)] with respect to the payment to outgoing tenants of compensation for improvements:

Provided that—

(a)where any improvements are valued under [F178either of those Acts] with a view to the payment of compensation to a crofter or to the executor of a deceased crofter, the valuation shall, unless the landlord and the crofter or executor otherwise agree in writing, be made by the Land Court; and

(b)compensation shall not be payable under [F178either of those Acts] for an improvement for which compensation is payable under this Act.

(6)Notwithstanding anything in this section—

(a)a crofter who immediately before 1st October 1955 was a statutory small tenant, or

(b)the statutory successor of such a crofter, or

(c)the executor of such a crofter or of such a statutory successor,

shall not be entitled, in respect of any permanent improvement made or begun before 1st October 1955, to any compensation to which he would not have been entitled if his tenancy had expired immediately before 1st October 1955.

[F179(6A)Subject to subsection (6B) below, in this Act “improvement” does not include anything erected or carried out wholly for—

(a)putting a croft to such other purposeful use as is mentioned in [F180section 5C(2)(a)(ii) of] this Act; or

(b)using part of a common grazing for a purpose other than is mentioned in paragraph (a) or (b) of section 50B(1) of this Act.

(6B)Subsection (6A) above does not apply if—

(a)in any written consent given under section [F1815C(4)(a)] of this Act as respects the use in question, the landlord agrees that the subsection should not apply; or

(b)before the Commission approve under section 50B(11) of this Act implementation of the proposal for the use in question, the owner gives written intimation to the proposer that, as respects that use, he so agrees.]

(7)In this Act “permanent improvement” means any of the improvements specified in Schedule 3 to this Act:

Provided that no building or other structure erected on a croft shall be held to be a permanent improvement on the croft unless it is a fixture on the land.

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Amendments (Textual)

F175Words in s. 30(2)(a) repealed (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 2 (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F176Words in s. 30(2) repealed (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 2 (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F179S. 30(6A)(6B) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 25, 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

Marginal Citations

31 Permanent improvements made on crofts for purposes of subsidiary or auxiliary occupations.S

(1)A crofter may erect any buildings or other structures, or execute any works, on his croft which—

(a)are reasonably required to enable him to make use of the croft for any subsidiary or auxiliary occupation in accordance with [F182section 5C(2)(a)(ii) of] this Act, and

(b)will not interfere substantially with the use of the croft as an agricultural subject.

(2)Any buildings or other structures erected, or any works executed, under subsection (1) above on any croft shall, if in the case of any such buildings or structures they are fixtures on the land, be permanent improvements on the croft and shall be deemed to be suitable to the croft for the purposes of section 30(1)(a) of this Act.

(3)The provisions of subsection (2) above shall apply in relation to buildings or other structures erected, or works executed, on any croft before 27th August 1961 if such buildings, structures or works could have been erected or executed under subsection (1) above if the said subsection (1) had then been in force:

Provided that nothing in this subsection shall authorise the payment of compensation under section 14 of the 1955 Act in respect of any such buildings, structures or works as are mentioned in this subsection where the crofter has renounced his tenancy or has been removed from his croft before 27th August 1961.

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Amendments (Textual)

32 Assessment of compensation for improvements.S

(1)The amount of any compensation payable under section 30(1) of this Act to a crofter who renounces his tenancy or is removed from his croft, or to the executor of a deceased crofter, in respect of a permanent improvement on the croft shall be a sum equal to—

(a)the value of that improvement as at the date when—

(i)the crofter renounced his tenancy, or

(ii)the crofter was removed from the croft, or

(iii)the tenancy of the croft was terminated in pursuance of section 16(3) of the 1964 Act,

as the case may be, calculated in accordance with subsection (2) below, less

(b)the value of any assistance or consideration which may be proved to have been given by the landlord of the croft or any of his predecessors in title in respect of the improvement.

(2)For the purposes of subsection (1) above, the value of an improvement on any croft shall be taken to be the amount, if any, which, having regard to the location of the croft and any other circumstances which might affect the demand for the tenancy thereof, the landlord might reasonably be expected to receive in respect of the improvement from a person who might reasonably be expected to obtain the tenancy of the croft if the croft were offered on the open market for letting with entry on the date referred to in subsection (1)(a) above.

(3)Where—

(a)compensation falls to be assessed under subsections (1) and (2) above in respect of any permanent improvement on a croft; and

(b)the amount of such compensation is fixed or assessed by the Land Court under section 30(4) or 39(3)(a) of this Act,

then, if the crofter, or (as the case may be) the executor of the deceased crofter, is qualified as mentioned in subsection (4) below, he may request the Land Court to determine the amount which would have been payable by way of compensation in respect of that improvement if the M10Crofters (Scotland) Act 1961 had not been passed; and if the amount last mentioned is greater than the amount fixed or assessed by the Land Court as aforesaid, the difference between the two said amounts shall be payable to the crofter or executor by the Secretary of State:

Provided that—

(a)the Secretary of State shall be entitled to set off any amount due to him by the crofter or, as the case may be, the executor of the deceased crofter in respect of a loan made under section 22(2) or (3) of the 1955 Act, section 42(4) or (5) of this Act or section 7(7) or section 9 of the M11Small Landholders (Scotland) Act 1911 against any sum payable to the crofter or executor by the Secretary of State under this subsection; and

(b)this subsection shall not apply where compensation in respect of the improvement in question has on a previous occasion fallen to be assessed under subsections (1) and (2) above.

(4)The reference in subsection (3) above to a crofter who is qualified is a reference to a crofter—

(a)whose tenancy of the croft in question began before 27th August 1961, or

(b)who holds the tenancy of such croft as statutory successor to his immediate predecessor in the tenancy and each of whose predecessors (being in each case a person whose tenancy of the croft began on or after 27th August 1961) held such tenancy as statutory successor to his immediate predecessor,

and for the purposes of the said subsection the executor of a deceased crofter shall be deemed to be qualified if the deceased crofter would have been qualified as mentioned in the foregoing provisions of this subsection.

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Marginal Citations

33 Record of improvements.S

(1)The Land Court shall, on the application of the landlord or the crofter, make a record of the condition of the cultivation of a croft and of the buildings and other permanent improvements thereon, and by whom the permanent improvements have been executed or paid for.

(2)Any application under this section shall be intimated by the Land Court to the other party concerned and each party shall be given an opportunity of being heard on any matter affecting the record of the croft.

34 Compensation to landlord for deterioration or damage.S

(1)Where—

(a)a crofter renounces his tenancy or is removed from his croft, or

(b)the tenancy of a croft, being a tenancy the interest of the tenant under which is comprised in the estate of a deceased crofter, is terminated in pursuance of section 16(3) of the 1964 Act,

the landlord shall be entitled to recover from the crofter or, as the case may be, from the executor of the deceased crofter compensation for any deterioration of, or damage to, any fixed equipment provided by the landlord committed or permitted by the crofter or, as the case may be, by the deceased crofter or his executor.

(2)The amount of the compensation payable under subsection (1) above shall be the cost, as at the date of the crofter’s quitting the croft or, as the case may be, of the termination of the tenancy, of making good the deterioration or damage; and the landlord shall be entitled to set off the amount so payable against any compensation payable by him in respect of permanent improvements.

(3)The amount of the compensation payable under subsection (1) above shall, failing agreement, be fixed by the Land Court.

35 Assessment of compensation for improvements or deterioration on joint application to Land Court.S

Where—

(a)a crofter has given notice of renunciation of his tenancy, or

(b)the landlord of the croft either gives to the executor of a deceased crofter, or receives from such an executor, notice terminating the tenancy of the croft in pursuance of section 16(3) of the 1964 Act,

the Land Court may, on the joint application of the crofter or, as the case may be, the executor of the deceased crofter and the landlord or, where the crofter’s rights to compensation for permanent improvements have been transferred in whole or in part under section 43 of this Act to the Secretary of State, on the joint application of the Secretary of State and the landlord, assess prior to the renunciation or, as the case may be, the termination the amounts which will on renunciation or termination become due under sections 30 and 34 of this Act by the landlord by way of compensation for permanent improvements and by the crofter or executor by way of compensation for deterioration or damage; and the amounts so assessed shall, on renunciation or, as the case may be, termination, become due accordingly.

36 Compensation to cottar for improvements.S

(1)Where a cottar if not paying rent is removed from his dwelling and any land or buildings occupied by him in connection therewith, or if paying rent renounces his tenancy or is removed, he shall be entitled to compensation for any permanent improvement if—

(a)the improvement is suitable to the subject; and

(b)the improvement was executed or paid for by the cottar or the cottar’s wife or husband or any predecessor of the cottar or of the cottar’s wife or husband; and

(c)either the improvement was executed otherwise than in pursuance of a specific agreement in writing under which the cottar was bound to execute the improvement, or, if the improvement was executed in pursuance of such an agreement, the cottar has not received, by way of reduction of rent or otherwise, fair consideration for the improvement.

(2)The amount of the compensation payable under subsection (1) above shall, failing agreement, be fixed by the Land Court, and sections 30(3) and 32(1) and (2) of this Act shall apply in relation to such cottar as they apply in relation to crofters.

(3)Where the amount of the compensation payable under subsection (1) above is fixed by the Land Court under subsection (2) above, then, if the cottar is qualified as mentioned in subsection (4) below, he may request the Land Court to determine the amount which would have been payable by way of compensation in respect of the permanent improvement concerned if the M12Crofters (Scotland) Act 1961 had not been passed; and if the amount last mentioned is greater than the amount fixed by the Land Court as aforesaid, the difference between the two said amounts shall be payable to the cottar by the Secretary of State:

Provided that—

(a)the Secretary of State shall be entitled to set off any amount due to him by the cottar in respect of a loan made under section 22(2) of the 1955 Act, section 42(4) of this Act or section 9 of the M13Small Landholders (Scotland) Act 1911 against any sum payable to the cottar by the Secretary of State under this subsection; and

(b)this subsection shall not apply where compensation in respect of the improvement in question has on a previous occasion fallen to be assessed under section 32(1) and (2) of this Act as applied by subsection (2) above.

(4)The reference in subsection (3) above to a cottar who is qualified is a reference to a cottar—

(a)whose occupation of the subject in question began before 27th August 1961; or

(b)who occupies such subject as heir-at-law, legatee or assignee of his immediate predecessor as occupier of the subject, and each of whose predecessors (being in each case a person whose occupation of the subject began on or after 27th August 1961) occupied the subject as heir-at-law, legatee or assignee of his immediate predecessor.

(5)In this section “predecessor”, in relation to a cottar or to the wife or husband of a cottar, means any person to whom the cottar or the wife or husband of the cottar might, failing nearer heirs, have succeeded in case of intestacy.

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Marginal Citations

Compulsory acquisition of croftS

37 Crofter’s right to share in value of land taken possession of compulsorily.S

(1)Where in pursuance of any enactment providing for the acquisition and taking of possession of land compulsorily by any person (in this section referred to as an “acquiring authority”), an acquiring authority acquire and take possession of a croft or a part thereof from a crofter, the crofter shall be entitled to receive from the acquiring authority, in addition to any compensation payable to him under section 114 of the M14Lands Clauses Consolidation (Scotland) Act 1845, a share in the value of the land of which possession has been taken, the amount whereof shall be one half of the difference between, subject to subsection (4) below, the market value of the land (on the date on which such possession is taken) as determined by the Land Court in accordance with subsection (2) below (less any compensation payable as aforesaid) and the crofting value thereof.

(2)The market value for the purposes of subsection (1) above shall be a sum equal to the amount which the land, if sold in the open market by a willing seller, might be expected to realise assuming that the land were not land to which this Act applies.

(3)Section 21(4) of this Act shall apply to land which has been taken possession of compulsorily by an acquiring authority as it applies to land of which the Land Court has authorised resumption.

(4)For the purposes of this section, where any development has been carried out by any person, other than the crofter or any of his predecessors in the tenancy, on the land referred to in subsection (1) above before the land has been acquired by and taken possession of by the acquiring authority, there shall be deducted from the market value such amount thereof as, in the opinion of the Land Court, is attributable to that development.

(5)In this section “crofting value”, in relation to land which has been taken possession of compulsorily, has the same meaning as it has in section 14 of this Act in relation to croft land.

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Marginal Citations

Reorganisation schemesS

38 Reorganisation schemes.S

(1)Where in relation to any township the Commission—

(a)either of their own accord or on representations made to them by a crofter who is the tenant of a croft situated in the said township or by the landlord of such a croft or by a grazings committee appointed under section 47 of this Act in respect of common grazings shared in by any such crofter, and

(b)after such consultation as is reasonably practicable with the tenants and the landlords of crofts situated in the township and with any grazings committee appointed as aforesaid, and

(c)after making such inquiries as they think fit,

are satisfied that the township ought to be reorganised in order to secure the preservation or the better development thereof, they may prepare a [F183provisional] draft of a scheme (in this Act referred to as a “reorganisation scheme”) for the reorganisation of the township.

[F184(1A)Before proceeding to prepare a provisional draft reorganisation scheme the Commission must give intimation in writing to each of the persons mentioned in subsection (10) below that the Commission are satisfied as is mentioned in subsection (1) above and that they intend so to proceed.]

(2)A reorganisation scheme shall provide for the re-allocation of the land in the township in such manner as is, in the opinion of the Commission, most conducive to the proper and efficient use of that land and to the general benefit of the township, so, however, that under the scheme every crofter who is the tenant of a croft situated in the township and who so wishes shall be granted the tenancy of a croft and that such croft shall—

(a)if the crofter so wishes, include any dwelling-house which formed part of the croft of which he was tenant immediately before the date on which the scheme was put into effect, and

(b)if he so wishes, be of a value not less than that of the croft of which he was tenant as aforesaid.

[F185(3)A reorganisation scheme may, if the Commission—

(a)obtain the prior written consent of the Scottish Ministers, make provision with respect to the inclusion of any land in the vicinity of the township, being land to which this Act does not apply, which in the opinion of the Commission ought to be used for the enlargement of crofts in the township or of a common grazing used exclusively, or shared in, by the township;

(b)think fit, make provision with respect to all or any of the following matters—

(i)the admission into the township of new crofters and the allocation to them of shares in the common grazing;

(ii)the apportionment for the exclusive use of the township of a part of any common grazing in which it shares;

(iii)the inclusion in any croft formed under the scheme of a part of the common grazing or of any land held in runrig;

(iv)any other matter incidental to or consequential on the provisions of the scheme.]

(4)For the purposes of a reorganisation scheme [F186, or provisional draft or draft of such a scheme,] the Commission shall prepare such maps and plans as may be necessary to indicate the general effect of the scheme [F187or, as the case may be, of the provisional draft or draft,] and its effects on each of the crofts in the township.

[F188(5)Where, in relation to any township, the Commission prepare a provisional draft reorganisation scheme under subsection (1) above, they shall serve on each of the persons mentioned in subsection (10) below a copy of the provisional draft together with a notice—

(a)naming a place within the locality in which the township is situated where a copy of the maps and plans prepared by the Commission under subsection (4) above in relation to the provisional draft scheme may be inspected at all reasonable hours;

(b)inviting the person on whom the provisional draft and notice are served, within two months of the date of such service, to make in writing to the Commission such comments as they may wish to make on the provisional draft, maps or plans.

Where any crofter on whom such a notice as aforesaid has been served fails to comply with the request contained in such notice, he shall for the purposes of this section be deemed to have intimated to the Commission in compliance with the said request that he is in favour of the scheme.

(6)Where, having taken into account comments (if any) made to them by virtue of subsection (5) above, the Commission are still satisfied as mentioned in subsection (1) above, they shall—

(a)prepare a draft reorganisation scheme in relation to the township taking into account such comments;

(b)serve on each of the persons mentioned in subsection (10) below a copy of the draft scheme together with a notice—

(i)naming a place within the locality in which the township is situated where a copy of any maps and plans prepared by the Commission under subsection (4) above in relation to the draft scheme may be inspected at all reasonable hours; and

(ii)requesting that the person on whom the draft and notice are served, within one month after the date of such service, intimates to the Commission in writing whether or not that person is in favour of the draft scheme.

(7)Where any person on whom a notice has been served under subsection (6) above fails to comply with the request contained in the notice, that person shall for the purposes of this section be deemed to have intimated to the Commission, in compliance with the request, that the person is in favour of the draft scheme.

(8)If, within the period of one month mentioned in subsection (6)(b)(ii) above, a majority of the crofters on whom a copy of a draft reorganisation scheme and a notice have been served under that subsection have intimated to the Commission, in compliance with the request contained in the notice, that they are in favour of the draft scheme, the Commission shall, where they remain satisfied as mentioned in subsection (1) above—

(a)prepare a reorganisation scheme in relation to the township; and

(b)serve on each of the persons mentioned in subsection (10) below a copy of the scheme together with a notice—

(i)naming a place within the locality in which the township is situated where a copy of any maps and plans prepared by the Commission under subsection (4) above in relation to the scheme may be inspected at all reasonable hours; and

(ii)advising of the right of appeal to the Land Court under section 38A of this Act against the Commission's decision to reorganise the township or the scheme and of the time limit within which an appeal may be made.

(9)For the purposes of section 38A of this Act, the Commission's proceeding, under subsection (8)(a) above, to prepare a reorganisation scheme shall be taken to comprise their decision to reorganise the township.

(10)The persons referred to in subsections (1A), (5), (6)(b) and (8)(b) above and section 38A(3)(b) of this Act are—

(a)each crofter who is the tenant of a croft situated in the township;

(b)the landlord of each such croft;

(c)each grazings committee appointed under section 47 of this Act in respect of any common grazing shared in by each such crofter;

[F189(ca)each owner-occupier crofter whose croft is situated in the township;]

(d)each person occupying land which is contiguous to a croft situated in the township;

(e)the owner of, and each person who holds shares in, a common grazing associated with the township;

(f)if the reorganisation scheme makes (or as the case may be is to make) provision with respect to the inclusion of such land as is mentioned in subsection (3)(a) above, the owner of, and each person occupying, that land.

(11)The requirements of subsections (1A) and (6)(b)(ii) above that intimation be in writing and in subsection (5)(b) above that comments be made in writing are to be taken to be satisfied by—

(a)the giving of intimation; or

(b)as the case may be, the making of comments,

in a form other than writing which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape).]

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Amendments (Textual)

F188S. 38(5)-(11) substituted for s. 38(5)-(7) (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 20(2)(e), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

[F19038AAppeal to Land Court: special provision as respects reorganisation schemesS

(1)Any crofter who is the tenant of a croft situated in the township in relation to which a reorganisation scheme is made or the landlord of any such croft or [F191any owner-occupier crofter whose croft is situated in the township or] the owner of any common grazing associated with the township or the owner of any land included in the scheme by virtue of subsection (3)(a) of section 38 of this Act may, within 42 days after the Commission serve a copy of the reorganisation scheme on him under subsection (8)(b) of that section, appeal F192..., on one or more of the grounds mentioned in section 52A(3) of this Act, to the Land Court against—

(a)the Commission's decision to reorganise the township; or

(b)the scheme.

(2)For the purposes of this section, the references in section 52A(3) to a “direction” and to “making” a direction are to be construed as including, respectively, references to a reorganisation scheme and to preparing such a scheme.

(3)In an appeal under this section, the Court may—

(a)confirm the decision and the scheme;

(b)confirm the decision and require the Commission to—

(i)make, by a date specified by the Court, such modifications to the scheme as the Court directs; and

(ii)serve a copy of the modified scheme on each of the persons mentioned in section 38(10) of this Act; or

(c)revoke the Commission's decision.]

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Amendments (Textual)

39 Putting into effect of reorganisation schemes.S

[F193(1)The Commission shall not take any steps in discharge of their duties or powers under this section in relation to a reorganisation scheme until (whichever first occurs)—

(a)the period of 42 days mentioned in section 38A(1) of this Act has elapsed without any appeal to the Land Court under that section being made; or

(b)every such appeal timeously made is—

(i)decided and, where by virtue of subsection (3)(b)(i) of section 38A of this Act the Land Court has required modifications to be made to the scheme, those modifications have been made and the Commission have complied with subsection (3)(b)(ii) of that section; or

(ii)abandoned.

(1A)[F194Subject to subsection (2A),] The Commission—

(a)shall put into effect a reorganisation scheme—

(i)prepared by them under section 38(8)(a); or

(ii)where by virtue of subsection (3)(b)(i) of section 38A of this Act the Land Court has required modifications to be made to the scheme, of which they have served a copy by virtue of subsection (3)(b)(ii) of that section; and

(b)may do all such things as are required for that purpose.]

(2)[F195Subject to subsection (2B),] A reorganisation scheme shall be put into effect on such date as may be appointed by the Commission, and the Commission may appoint different dates in respect of different provisions of the scheme, and any reference in this Act to the date on which a reorganisation scheme is put into effect shall, in relation to any land, be construed as a reference to the date on which the provisions of that scheme which apply to such land are put into effect.

[F196(2A)Before putting into effect a reorganisation scheme which contains provision—

(a)forming a croft;</