Crofters (Scotland) Act 1993

The conditions of tenure S

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”).

[F1 (1A) If the landlord considers that the crofter is failing to comply with the condition set out in paragraph 3A of that Schedule he may serve notice to that effect on the crofter.]

(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.

[F2 (2A) But where the crofter, for the purpose of conserving—

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

(b) the flora and fauna of that locality,

engages in, or refrains from, an activity, his so engaging or refraining is not to be treated as a breach of any of the statutory conditions as respects the croft.

(2B) 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 a breach of the statutory conditions as respects the croft.]

[F3 (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.

(7) Before the croft is put to any such use as is mentioned in paragraph 3(b) of the statutory conditions, the crofter must apply for the landlord's written consent and either—

(a) obtain it unconditionally or subject to conditions which the crofter accepts; or

(b) obtain the consent of the Commission.

(8) Any application for consent under paragraph (b) of subsection (7) above is to be made under this subsection but may be made only where consent under paragraph (a) of that subsection (whether unconditional or subject to such conditions as are mentioned in paragraph (a)) has not been obtained within 28 days after application under paragraph (a).

(9) The Commission shall, on receipt of an application under subsection (8) above—

(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.

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

Textual Amendments

F1 S. 5(1A) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 7(1)(a), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F2 S. 5(2A)(2B) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 7(1)(b), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F3 S. 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

[F4 5A Complaint as respects breach of the statutory conditions S

(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 section 5B 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.

Textual Amendments

F4 Ss. 5A, 5B inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 8, 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

5B Termination of tenancy for misuse or neglect S

(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, if the crofter—

(a) misuses; or

(b) neglects,

the croft, the landlord or, with the consent of the landlord, the Commission may apply to the Land Court for an order—

(i) terminating the tenancy;

(ii) declaring the croft to be vacant; and

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

(2) Before making an application by virtue of paragraph (a) of subsection (1) above the landlord, or as the case may be the Commission, shall give written notice to the crofter of the misuse complained of and give him the opportunity to end that misuse within a period of 42 days commencing with the day on which notice is given.

(3) Where, on an application made by virtue of paragraph (a) of subsection (1) above, the Court is minded to make the order applied for, it shall so notify the crofter but shall not make the order (the crofter being advised accordingly in the notification) if, by the end of a period of 42 days commencing with the day on which notification is given, he is able to satisfy the Court that the misuse has been brought to an end.

(4) If the circumstances are that an application made by virtue of paragraph (b) of subsection (1) above (in this section, the “current application”) is being made within 5 years after another application made by virtue of that paragraph as respects the croft, and that other application resulted in notification being given to the crofter under subsection (5) or (6) below, then before making the current application the landlord, or as the case may be the Commission, shall give written notice to the crofter of the neglect complained of and give him the opportunity to end that neglect within a period of 42 days commencing with the day on which notice is given.

(5) Where, on an application made by virtue of paragraph (b) of subsection (1) above in circumstances other than are mentioned in subsection (4) above, the Court is minded to make the order applied for, it shall so notify the crofter but shall not make the order (the crofter being advised accordingly in the notification) if—

(a) the crofter agrees forthwith that there has been neglect and undertakes to end that neglect; and

(b) by the end of a period of one year commencing with the day on which notification is given, he is able to satisfy the Court that the croft is being managed so as to meet the standards mentioned in subsection (7) below.

(6) Where, on an application made by virtue of paragraph (b) of subsection (1) above in the circumstances mentioned in subsection (4) above, the Court is minded to make the order applied for, it shall so notify the crofter but shall not make the order (the crofter being advised accordingly in the notification) if, by the end of a period of 42 days commencing with the day on which notification is given, he is able to satisfy the Court that the croft is being managed so as to meet the standards mentioned in subsection (7) below.

(7) For the purposes of subsection (1) above, a crofter—

• “misuses” a croft where he wilfully and knowingly uses it otherwise than for the purpose of its being cultivated or put to such other purposeful use as is duly consented to by virtue of section 5(7) of this Act;

• “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).

(8) But where the crofter, for the purpose of conserving—

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

(b) the flora and fauna of that locality,

engages in, or refrains from, an activity, his so engaging or refraining is not, for the purposes of subsection (1) above, to be treated as misuse or neglect as respects the croft.

(9) If, immediately before the coming into force of section 8 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, for the purposes of subsection (1) above, to be treated as misuse or neglect as respects the croft.

(10) The Scottish Ministers may by order made by statutory instrument amend the definition of “neglects” in subsection (7) so as to substitute different standards for those for the time being mentioned in that subsection.

(11) A statutory instrument containing an order under subsection (10) shall not be made unless a draft of the instrument has been—

(a) laid before; and

(b) approved by resolution of,

the Scottish Parliament.]

Textual Amendments

F4 Ss. 5A, 5B inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 8, 43(3) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

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 [F5 or 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 [F6 or 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 [F7 for 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.

[F8 (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 [F9 or 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.

Textual Amendments

F5 Words in s. 6(3) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 1 para. 2(4)(a)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F6 Words in s. 6(3) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 1 para. 2(4)(a)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F7 Words in s. 6(3) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 1 para. 2(4)(a)(iii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F8 S. 6(3A) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 1 para. 2(4)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

F9 Words in s. 6(4) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), s. 43(3), sch. 1 para. 2(4)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, sch.

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— [F10 unless he obtains the consent of the Commission]

[F11 (2) In the case of an application made by virtue of subsection (1) above in respect of an assignation to a person other than a member of the crofter's family, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act—

(a) that the proposed assignee lives, or intends to live, more than 16 kilometres distant from the croft;

(b) that he already owns or is tenant of a croft;

(c) that he lacks the knowledge, abilities and experience to cultivate the croft or as the case may be to put it to such other purposeful use as he intends;

(d) that he is the grazings clerk or a member of the grazings committee;

(e) where the landlord is not a natural person, that the proposed assignee is a member or employee, or is a member of the family of a member or employee, of the body which constitutes the landlord;

(f) that there are reasonable grounds for concern over the use to which the proposed assignee intends to put the croft.]

F11 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Where a crofter assigns his croft otherwise than with the consent [F12 of 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) An assignation to which the Commission have given their consent under this section shall take effect [F13 on 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.

(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.

Textual Amendments

F10 Words 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

F11 S. 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

F12 Words 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

F13 Words 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

[F14 9 Division of croft S

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

(2) In the case of an application to divide a croft, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act—

(a) that the application is for the creation of more than two new crofts; or

(b) that the original croft is one created as a consequence of an earlier division (or sub-division).

(3) Any division of a croft to which the Commission have given their consent under this section shall take effect when such details of that division as the Commission may require by virtue of section 41 of this Act are entered in the Register of Crofts.

(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.]

Textual Amendments

F14 S. 9 substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 10, 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2