93.A tenanted croft often comes with a right to use (or share in) the common grazings. This right is typically characterised as a pertinent of the tenancy. Issues can arise however, where the croft is acquired by the tenant (becoming an owner-occupied croft). At that point, the grazing right may be acquired with the croft as a form of heritable right(6) or, if not so acquired, it is deemed, by virtue of section 3(5) of the 1993 Act to be a croft in its own right, with the tenant of that deemed croft being the person who acquired the croft (i.e. the owner-occupier crofter). This deeming provision operates to keep the grazing rights with the croft at the point of acquisition, but it can create issues in cases where the rights are subsequently dealt with separately from the owner-occupied croft (for example, by being assigned to someone else or not being assigned alongside a transfer of the owner-occupied croft). Issues can also arise where the grazing right is not being used.
94.Sections 21 and 22 amend the 1993 Act to make a number of changes to how grazing rights are to be treated when a croft is acquired or an owner-occupied croft is transferred, with a view to keeping the grazing right and the croft together in most circumstances. While explained in detail below, the sections principally do so by:
adjusting section 3 of the 1993 Act to confirm that a right which has been included in the acquisition as some form of heritable right (such as a pertinent) forms part of the owner-occupier croft (and will be registered accordingly)
amending the rules on registration of crofts to make it simpler to identify which grazing rights or deemed crofts of grazings shares pertain or relate to an owner-occupied croft and so effectively provide for linkage of croft and grazing rights going forward
providing that existing deemed crofts will automatically be assigned as part of any transfer of the owner-occupier croft unless the Commission agree to the separation of the grazing rights and the documentation making the transfer expressly provides otherwise
providing a power to the Commission to relet vacant grazing rights
95.Turning to the detail of the provisions.
96.The new section 3(4A) of the 1993 Act, inserted by section 21(2) of the Act, clarifies that where a person acquires (or has acquired) the entire croft (including any grazing rights that formed part of the croft by virtue of section 3(4)), then, for the purpose of crofting tenure and the application of the 1993 Act, those rights are to be deemed part of the croft and should be included in any subsequent transfer of the owner-occupied croft. If there is a desire to separate those rights from the owner-occupied croft, an application to divide the croft must be made to the Commission under section 19D of the 1993 Act and any attempt to separate and transfer the grazing rights without such consent is null and void.
97.The effect of the section 3(4A) of the 1993 Act is reinforced by the express addition of grazing rights (whether they are a heritable right such a servitude, pertinent, accessory or res merae facultatis or by virtue of being a deemed croft) to the definition of an owner-occupied croft for the purposes of section 19D (see section 22(3) of the Act) . This provision is intended to ensure that an owner-occupier is aware of the need for consent before taking any action to separate the grazing rights from the in-bye croft.
98.Where an owner-occupied croft is let, section 29A(8A) of the 1993 Act (inserted by section 21(3) of the Act) provides that any right in the common grazing (however held) is included by default as a pertinent of the new tenancy (and so restricts inadvertent separation by letting the grazing rights separately or retaining them while letting everything else). In order to let the grazing rights separately, the owner-occupier requires Commission consent and the lease being entered into must include express provision about what is to happen to the rights.
99.Section 19CA of the 1993 Act (inserted by section 22(2) of the Act) deals with transfers of a croft which was acquired without the grazing rights being included but the rights are a deemed croft in respect of which the owner-occupier is the tenant. This section provides that any transfer of the croft will include a deemed transfer of the tenancy of the deemed croft (i.e. the grazing share) by default. In order to prevent this deemed assignation (and so retain the tenancy or assign it to someone else), the owner-occupier requires the consent of the Commission to divide the croft under section 19D and also needs to make it clear in the transfer of the croft that the deemed croft is not being assigned. Section 19CA(3) clarifies that this deemed assignation does not apply to grazing rights which have no connection to the croft being transferred (and which may have been acquired separately). It will, however, allow for rights which may have been held by an intervening third party for some time to come back to the croft if they are acquired by the owner occupier-crofter.
100.Section 47(10) of the 1993 Act confirms that the provisions of the 1993 Act relating to common grazings (such as section 52) apply to persons who are not crofters in the same way as they apply to crofters. The amendment to section 48(8) of the 1993 Act (in section 21(4) of the Act), complements and reinforces that by confirming that such persons are also subject to regulations made by grazing committees.
101.The amendment to section 52 of the 1993 Act (see section 22(4)) provides the Commission with an additional option when a determination is made under that section that a person’s tenancy of grazing rights (i.e. the person’s share) in the common grazings is terminated. The Act enables the Commission to treat the deemed tenancy as vacant and follow the procedure in the new inserted section 52ZA(7) for the reallocation and reletting of the deemed croft of the grazing rights. The section refers to this as an unattached grazing share.
102.Subsection (1) is applicatory and defines what is an unattached grazing share for the purposes of the section. This is done by reference to section 3(5) of the 1993 Act and sets out that the provision is available when the share is vacant (i.e. not currently tenanted or attached to an owner-occupier croft as part of an acquisition under section 12 of the 1993 Act).
103.Subsections (2) to (9) set out a procedure for dealing with unattached grazing shares which are vacant. It is worth noting that this procedure is an alternative to the Commission looking to let the share as a vacant croft by way of section 23 (which is an option since the unattached share is a deemed croft by virtue of section 3(5)). Subsection (10) of section 52ZA makes it clear that the new procedure does not displace that existing power.
104.The process for reallocating and reletting is similar to that which exists for section 23. The Commission must first give notice to the owner (defined in subsection (11)) requiring the owner to submit up to 3 proposals for reallocation and reletting within a 2-month period. The Commission may then approve or reject those proposals. If the owner fails to make proposals within the time period, or the proposals made are all rejected, the Commission is to invite applications by means of public notification and determine to whom the share is allocated and let (if anyone).
105.Before making a decision on approving a proposal from the landlord or a determination on allocation and reletting, the Commission must consult the grazings committee that is responsible for the relevant common grazings, if there is one.
106.Once the share has been allocated and relet, the Commission are required to ensure that the Register of Crofts and Crofting Register are appropriately updated with the appropriate details. Exactly what this will look like will depend on whether it is, for example, a new tenant or someone with an existing share in the common grazings.
107.Subsection (11) defines who is the “
108.Subsection (12) confirms that the reallocation of an unattached grazing share may be to more than one person and might be to a crofter, to another person who already has a share in the common grazings, or to someone new. It might also be a combination. This gives flexibility to the Commission to consider what proposals are most suited to the particular circumstances (in consultation with the relevant grazings committee).
109.Section 22(5) and (6) of the Act amend section 11 of the 2010 Act. This provides that the registration schedule for each croft must include details of any grazings rights, including where those rights are held in the form of a deemed croft by virtue of section 3(5)(a) of the 1993 Act. Further, an entry for a deemed croft must include details of any croft to which it pertains or is held in connection with. This will effectively link grazing rights that might otherwise be considered separated with the main croft.
110.This registration requirement is intended to be forward-looking only and the information will be added as and when owner-occupier crofts or deemed crofts are transferred or assigned following the coming into force of the amendments. Regulations commencing the provision are expected to make that clear.
Unless the grazing rights have been permanently apportioned to the croft, it is not possible for the crofter to buy the rights as part of the croft land (see section 12(3)(b) of the 1993 Act). However, in many acquisitions of crofts, the grazing rights have been included in the conveyance in the form of a heritable right such as a pertinent of or accessory to the croft (this is sometimes described as the “Shetland model”).
Added by section 22(5) of the Act.