ukpga/1993/44 — Crofters (Scotland) Act 1993

Crofters (Scotland) Act 1993 1993 c. 44 An Act to consolidate certain enactments relating to crofting, with amendments to give effect to recommendations of the Scottish Law Commission. [5th November 1993] Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— The Crofters Commission Constitution and general functions of Crofters Commission. 1 1 The Crofters Commission (“the Commission”) established by section 1 of the 1955 Act shall continue in being. 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. 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. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The provisions contained in Schedule 1 to this Act shall have effect in relation to the Commission. Particular powers and duties of the Commission. 2 1 In the exercise of their general functions of reorganising, ... 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 settlement ...; 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. 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. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ministers' power to modify functions of Commission 2A 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). Annual report 2B 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. Duty to produce plan 2C 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). Status of plan 2D 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. Meaning of croft and crofter Meaning of croft and crofter. 3 1 Subject to subsection (2) below and 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 Small 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; 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 in 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. 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 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) or 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 Subject 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. Registered crofts 3ZA 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. New crofts 3A 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 .... 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 .... 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. 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 , 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— 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. Registration of new crofts 3AA 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. Compensation for constituting holding outwith crofting counties as croft on application of tenant 3B 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 section 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. Appeal against assessment under section 3B 3C 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. Enlargement of crofts Enlargement of crofts 4 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. Exchange of crofts Exchange of crofts or parts of crofts 4A 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. 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. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A new croft is not created by virtue only of such exchange. The conditions of tenure The statutory conditions. 5 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 ”). 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. 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint as respects breach of the statutory conditions 5A 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 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. Crofters' duties relating to residency, use, misuse and neglect of crofts Crofters: residency duty 5AA A crofter must be ordinarily resident on, or within 32 kilometres of, that crofter's croft. Termination of tenancy for misuse or neglect 5B 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. Crofters: duty to cultivate and maintain 5C 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— the croft; the public interest; the interests of the landlord or (if different) the owner; or the use of adjacent land. Rent. 6 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 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 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 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. 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 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. Renunciation of tenancy. 7 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. Assignation of croft. 8 1 A crofter shall not assign his croft— unless he obtains the consent of the Commission 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. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Where a crofter assigns his croft otherwise than with the consent 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 In 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 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. 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. Division of croft 9 1 A crofter shall not divide his croft unless he obtains the consent of the Commission. 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. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. Succession to croft Bequest of croft. 10 1 A crofter may, by will or other testamentary writing, 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. 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. 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. 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. 4D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4E Subject to subsection (4EA), A legatee who comes into the place of a deceased crofter in accordance with subsection (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. 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. 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— 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; 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. Intestacy. 11 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 give notice of the transfer containing particulars of the transferee to the landlord, who shall accept the transferee as tenant; and at the same time as giving the notice the executor must send a copy of the notice to the Commission . 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 24 months commencing with the relevant date the executor has not given 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— a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b where the deceased crofter has ... failed to bequeath the tenancy, the 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 10 of this Act, the date on which the bequest became null and void as aforesaid; d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 If at the expiry of the period of 24 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 given 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 , 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. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In 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 this 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 Crofters (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 Small 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. Rights of crofters and cottars to acquire their subjects General provision. 12 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. Authorisation by Land Court of acquisition of croft land. 13 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. 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. 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. Consideration payable in respect of acquisition of croft land. 14 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 t