For years, many have felt that crofting legislation is, in many respects, not fit for modern-day purposes. This was brought to the fore by the Crofting Law Sump, a project established by the Crofting Law Group in 2013. The final report of the Sump was released in November 2014 and made various recommendations for how the legislation could be improved. Since then, Crofting Law reform has been in the pipeline.
The Crofting and Scottish Land Court Bill (“the Bill”) was introduced in the Scottish Parliament on 2 June 2025 and is currently at Stage 1, where the Parliament decides if it agrees with its general principles. Whilst the Bill has not adopted all of the propositions set out in the Crofting Law Sump report, if enacted, it will make some important changes to crofting law.
In this article we highlight some of the principal legal changes proposed, in the context of how they affect different parties. Some changes may affect/benefit more than one category of person (landlord, owner-occupier or tenant).
Landlords and Owners of Croft Land
- Breach of duties – the Crofting Commission (“the Commission”) will have to investigate breach of a crofter’s duties (i.e. duties to be resident within 32km of the croft, to cultivate and maintain the croft, or put it to another purposeful use, and not to misuse or neglect the croft) where the breach is reported by the landlord or other owners of any part of a croft. Currently there is no such duty to investigate.
- New means of becoming an “owner-occupier crofter” – the landlord/owner of a croft which is vacant (i.e. there is no croft tenant) will be able to apply to the Commission for designation as an owner-occupier crofter. This will be at the discretion of the Commission and it remains to be seen what criteria will apply. Strict rules currently determine qualification as an owner-occupier crofter and failure to qualify can lead to designation as “landlord of a vacant croft”; this is problematic as landlords of vacant crofts do not qualify for some grant schemes. Also the Commission can force a let of the croft to a third party tenant (who then may have the right to buy).
- Decrofting applications – landlords will have a new right to object to a decrofting application before a decision is made by the Commission. The Commission must have regard to objections when deciding whether to grant a Decrofting Direction. Currently, the landlord’s only right is to appeal after the grant of a Decrofting Direction.
- First registration of crofts – where a tenant applies for first registration of their croft in the map-based Crofting Register, they will have to send a copy of the application to the landlord, at least 14 days before submitting. Many issues of incorrect registration of croft boundaries have arisen since the Crofting Register came into effect, often leading to complications for the landlord (and others) down the line so this would be a helpful development, enabling landlord input in advance.
- Rectification of Crofting Register – opportunities to challenge registered croft boundaries will be extended:
- where the Commission “becomes aware” of a material inaccuracy in the Crofting Register, it can direct Registers of Scotland to rectify the Crofting Register. Prior to doing so, the Commission must give notice to any person affected, at least 28 days in advance of the intended direction being given, and have regard to any representations received within that 28 day period. The Commission’s decision can be appealed to the Land Court;
- where Registers of Scotland “becomes aware” of a material inaccuracy, it can rectify the Crofting Register if what is needed to do so is “manifest”. This attempts to align rectification of the Crofting Register with rectification of the Land Register.
Owner-Occupier Crofters
- Environmental use of crofts – complementing Scottish Government aims to improve natural environment and biodiversity, owner-occupier crofters (and tenants, see below) will be entitled to put their croft specifically to “environmental use”. Examples given include peatland restoration, habitat creation, water management and “preserving, protecting, restoring, enhancing or otherwise improving the natural heritage or environment”. There is no need for the Commission to consent to environmental use but the activity must be carried out in a planned and managed manner as well as must not adversely affect any adjacent land.
- Transfer to non-individuals – transfer of owner-occupied crofts to non-individuals (e.g. transfers to companies or partnerships) will be prohibited. This will bring owner-occupied crofts into line with tenanted crofts, which may only be let to individuals.
- Commission lets and transfer restrictions – where the Commission lets a croft to a third party after enforcement action in respect of a vacant croft, for the following ten years, the Commission will be prevented from consenting to the assignation of the tenancy and the Land Court will be unable to authorise purchase of the croft land; the aim is to promote the letting of crofts to those who intend to work them, as tenants.
- Croft boundaries – where adjoining crofts are registered in the Crofting Register, two or more owner-occupier crofters can apply jointly to the Commission for a direction that the boundaries of their respective crofts in the Crofting Register should be adjusted.
- Unattached common grazings shares – common grazing shares will be included in the acquisition of a croft by its tenant (unless the conveyance provides otherwise), reversing the current position that the share is severed from the croft unless specifically included; the current rule results in the grazing share becoming a separate “deemed” croft.
Tenant Crofters
- Environmental use of crofts – as for owner occupier crofters, tenant crofters will be able to put their land to “environmental” use. Landlord consent will not be required and adverse effect on the landlord’s interests is not a consideration (though activity still must not adversely affect adjacent land).
- simplified assignation to family – a simplified process for a tenant crofter to obtain Commission consent to assign their tenancy will be introduced, where:
- The assignation is to a member of the crofter’s family, who is ordinarily resident within 32km of the croft; and
- The proposed assignee is not already the tenant or owner-occupier crofter of more than 3 crofts (either alone or with others).
The current tenant must notify their landlord and give them at least 28 days to consent or object to the application (failure to respond will be deemed as consent).
- Croft boundaries– tenant crofters can also apply to the Commission for a direction that the boundaries of two or more crofts should be adjusted as the crofters have agreed. Tenant crofters must have the consent of their landlord.
- First registration trigger – acquiring the croft from the landlord will become a new trigger event for first registration of the croft in the map-based Crofting Register. It is for the tenant to register the croft and failure to do so within 1 year of acquisition could result in a fine.
Common Grazings
The Bill proposes various changes to Common Grazings and Common Grazings Committees including the creation of a new two-stage process for obtaining consent, from the landlord and the Commission, to use Common Grazings as woodlands or for an environmental purpose (including peatland restoration, habitat creation and restoration, water management and preserving, protecting, restoring, enhancing or otherwise improving natural heritage or environment).
The landlord may consent unconditionally; consent subject to reasonable conditions; or refuse consent. Grounds for refusal are limited but include adverse effect on the exercise of the landlord’s reserved rights under crofting legislation; prevention of an intended resumption; substantial detriment to sound estate management; undue hardship; and significant lessening of amenity of the land and/or the surrounding area.
Whatever the landlord’s decision, the Grazings Committee then applies to the Commission for a determination of reasonableness of the decision (and of any conditions attached). If the landlord grants consent without any conditions, the Commission must still determine that the decision is reasonable. A landlord’s failure to make a decision within 6 weeks of the application is deemed as unconditional consent. The Commission can overturn a landlord’s refusal of consent.
A Commission determination approving environmental use will be entered in the Register of Crofts held by the Commission and is binding on successive owners , provided that the use starts within seven years.
The Bill also allows for joint environmental ventures on the Common Grazing between the owner/landlord of the Common Grazing and the crofters.
Conclusions
The Bill represents a significant step forward in modernising crofting law to better reflect the realities and needs of modern-day crofting communities. Whether landlord, owner-occupier crofter, tenant crofter, or involved in managing common grazings, these changes may have important implications for how croft land is used, transferred and for the registration process.
