jean couturier Crofting Commission
What is misuse and neglect?
“Misuse” is where a crofter (or owner occupier crofter) wilfully and knowingly uses the croft for the purpose other than for cultivation or another purposeful use,or where the croft is put to no such use. “Neglect” is where a crofter (or owner occupier crofter) does not manage the croft in a way which meets the standards of good agricultural and environmental condition referred to in Regulation 4 of the Common Agricultural Policy Schemes (Cross Compliance) (Scotland) Regulations 2004
Crofters and owner occupier crofters must cultivate their crofts or else put them to some other purposeful use. “Cultivate” is essentially agricultural use. This includes “the use of a croft for horticulture or for any purpose of husbandry, including 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 or managed use which does not adversely affect the croft, the public interest, the interests of the landlord or the use of adjacent land.
Should a tenant apply for approval for purposeful use established prior to 1st October?
Yes, the provision for a tenant to use their croft for a purposeful use, other than cultivation, was introduced by the Crofting Reform (Scotland) Act 2007. A tenant must apply to the landlord for written consent before putting the croft to such purposeful use. If the landlord does not consent or applies conditions which the tenant feels are unreasonable, the tenant can apply to the Crofting Commission for consent to the proposed use. The croft should not be put to the proposed purposeful use until consent is either obtained from the landlord or (failing that) from the Crofting Commission.
How strictly will the residency limit be applied?
It is a crofters duty to reside within 32km of their croft (as the crow flies) and the Crofting Commission has a duty to enforce this. In doing so, the Commission will provide the person with notice of the need to comply with this duty and give an opportunity to the crofter to provide an undertaking to do so. In this respect, the Commission has no choice but to adhere strictly to the defined distance set out in the legislation. However, before terminating a tenancy or requiring an absent owner to re let the croft, the Commission will investigate the circumstances of the individual case, to be satisfied that such action would be in the interests of the crofting community.
In cases of misuse and neglect what happens if the owner is asked to let? Does the new tenant have full rights?
Where a beach of duties (for example misuse and neglect) by an owner occupier crofter has been established, the Crofting Commission must, unless there is a good reason not to direct the owner occupier crofter to submit to them, a proposal for letting the croft. In response to that Direction, it is open to the owner occupier crofter to apply to let the croft to a tenant with the full rights retained or they can enter into a contract or agreement with the tenant which excludes certain rights. However, certain rights can only be excluded with the agreement of the Scottish Land Court. Where an owner occupier crofter either fails to provide letting proposals in response to a Commission request to do so or the proposals they provide are unacceptable to the Commission, we will invite applications for letting the owner occupied croft and will decide which of the applicants to let the owner occupied croft to. We will also consult with the owner occupier crofter on what conditions should be applied to the let. Where an owner occupied croft has been let on conditions set by the Commission, the owner occupier crofter may apply to the Scottish Land Court for a variation of the conditions set.
Breach of Duty Who can ask the Commission to carry out an investigation of a suspected breach of duty?
The Commission must investigate whether or not a duty is being complied with where we have received: A report from a Grazings Committee that a tenant crofter or owner occupier crofter sharing in the grazings is not complying with a duty relating to residence, not to misuse or neglect, or to cultivate and maintain; or information in writing from a Grazings Committee, a Grazings Constable, an Area Assessor or a member of the crofting community within which the croft which is the subject of the suspected breach is situated.
Could you provide clarification of the respective positions of tenant crofters and owner occupier crofters in terms of duties and enforcement provisions?
Both tenants and owner occupiers have a duty to reside within 20 miles (32 kilometres) of their croft/s; both have a duty not to misuse or neglect their croft/s; both have a duty to cultivate their croft/s or put it to another purposeful use. Only a tenant would have to apply for consent from their landlord, or if they are unable to obtain the landlords consent, the consent of the Commission prior to putting the land to a purposeful use. If following investigation the Commission establish that a breach of duty in relation to residence, misuse or neglect or land use has occurred, the ultimate sanction for a tenant would be the termination of their tenancy. The ultimate sanction for an owner occupier crofter would be the letting of their croft to a tenant crofter. The owner occupier crofter status would then change to landlord of the croft.
When the Land Court issue an Order under Section 5A(2) that a breach of statutory conditions be remedied, do they make provision for monitoring compliance with the order?
We wouldn expect the Court to take any follow up action once an Order has been issued. If the Commission wish to ensure that a breach has been remedied, the onus is on the Commission to take the necessary follow up action
I am considering purchasing/tenanting a croft and propose to make it my main residence. The croft cannot solely support me and I need to work outwith the community. How does this dovetail with crofting regulation?
Tenants and owner occupier crofters are required to comply with a range of duties specified in sections 5AA to C and 19C of the Crofters (Scotland) Act 1993 as amended. There is a duty to be ordinarily resident within 32km of the croft. If the croft is the sole dwelling and the crofters family are resident while the croft is away this would probably be accepted as ordinarily resident. Other circumstances involving other places of residence would require to be assessed individually. In addition to the duty of residence tenants and owner occupier crofters are required to ensure the croft is cultivated, maintained and not neglected or misused.
What are the duties a crofter may be in breach of?
A crofter can be in breach of:Residency duty; Duty not to misuse or neglect the croft; Duty to cultivate and maintain the croft. More information is available under Regulation Crofters Duties.
How does the Commission become involved in a Breach of Duty investigation?
The Commission may initiate investigations itself arising from policy decisions or ministerial directives. The Commission will also carry out investigations in response to reports submitted by specified people or groups.
The Commission can receive notification of a suspected breach of duty from: a grazings committee; a grazings constable; an assessor; a member of the crofting community. If you are not on this list you can submit notification of a suspected breach but we are not obliged to investigate.