Croft tenancy succession

Transferring tenanted crofts can be a complicated matter. This article explores the process of transferring a croft and the legal steps that must be taken, to provide clarity for those seeking to navigate this complex field.

9 February 2024

A lone traditional Scottish Highlands white croft house cottage in a rural mountain landscape countryside with Glamaig Peak and the Red Cuillins on the Isle of Skye Scotland

Crofting is a complex area of law and questions often arise about succession planning and the transfer of tenanted crofts on the death of the crofter. Prompt attention must be given to how to deal with tenanted crofts and legal advice should be sought at the earliest opportunity. 

In this article, we will look at what is involved in transferring a croft and the legal process that must be followed, which differs depending on whether the crofter dies with or without a valid will in place. 

Testate v intestate succession

There are two forms of succession in Scotland – testate succession and intestate succession. Testate succession is the term used when a crofter has a valid will which names the person(s) they want to inherit the croft and/or any common grazing shares and is dealt with by Section 10 of the Crofters (Scotland) Act 1993 (the “1993 Act”). 

Intestate succession is the term used to describe the situation where the crofter dies without leaving a valid will and is dealt with by Section 11 of the 1993 Act. 

For simplicity, we shall refer to crofts and common grazing shares collectively as the “croft”.  However, executors must make enquiries to ascertain the extent of the deceased’s crofting interests. What is referred to in a will or even found in the deceased’s personal effects may not be the full story and no interest must be missed. 

Checking with the Crofting Commission, the landlord and any grazings committee is recommended, but other checks may be necessary depending on individual circumstances. Consideration may also need to be given to whether any croft house remains subject to crofting tenure, or whether it has been de-crofted, and whether there is any apportionment of the common grazings. 

Testate succession

Where a crofter dies with a valid will in place which names the person they want to leave the tenancy of the croft to, that person must firstly decide whether they wish to accept the bequest. If they do, they (or the executors) must give notice to the landlord(s) of the croft that they accept the bequest. Crucially, this notice must be given within 12 months of the death of the crofter. A copy of that notice must also be sent to the Crofting Commission. This triggers first registration of the croft in the Crofting Register if it is not already registered. If it is registered, an application to update the details showing on the Crofting Register must be made. 

Where effective notice is given, the tenancy automatically transfers, and the landlord is unable to challenge this. 

Failure to comply with this 12-month requirement results in the bequest becoming null and void with the effect being that the croft falls into intestacy, and the succession to the croft is then governed by the laws of intestate succession. The effect of this can be that the party whom the deceased wished to inherit the croft does not actually do so in practice and so unintended outcomes may arise. This has the potential to result in the croft being lost, for example, if the person who stands to inherit is not able to comply with the duties incumbent on a crofter in the Crofters (Scotland) Act 1993, such as the duty to cultivate the croft or put it to some other purposeful use, or the duty to live on or within 32km of the croft. 

What happens if a will is left to more than one person?

Complications can arise when a croft is left to more than one person. It is not open to the executor to divide the croft between multiple beneficiaries but the executor can ask the Crofting Commission to divide the croft so that each part can be transferred to the intended beneficiaries. There is no guarantee that the Crofting Commission will consent to this, in which case the croft will fall into intestacy. 

Intestate succession

Where there is no valid will, or if the 12-month requirement noted above is missed where there is a valid will, the croft will be dealt with in accordance with the laws of intestate succession per the Succession (Scotland) Act 1964 (the “1964 Act”). This is a very complex area of law and seeking legal advice is recommended before any steps are taken to deal with the deceased’s crofting interests. A number of steps need to be taken within 24 months of either (a) the date of death or (b) the date the Crofting Commission are notified of the death (provided such notification is given within two months of the date of death), unless a bequest in a will became null and void in which case the 24 month period starts on the date of expiry of the original 12 month period noted above. 

Confirmation must first be obtained to the deceased’s estate. This involves an application to the Sheriff Court. The tenancy of the croft must then be transferred to the appropriate beneficiary as set out in the 1964 Act. The beneficiary may not be the person expected to inherit the tenancy. Notification must be given to the landlord and the Crofting Commission but the landlord’s consent is not required. This triggers the first registration of the croft in the Crofting Register if it is not already registered. If it is registered, an application to update the details showing on the Crofting Register must be made.

If the tenancy is not transferred within the 24-month period, there is a risk that the landlord or the Crofting Commission will terminate the tenancy. 

Mark Pattinson v John Matheson [2022] CSIH 43

The recent decision of the Inner House of the Court of Session in Pattinson v Matheson considered the 24-month requirement. It found that the 24-month period is a protective one. Landlords seeking to terminate croft tenancies cannot rely solely on the fact that the transfer was not effected within the 24-month period. Actions taken by an executor may validate the delayed transfer of a croft tenancy after the 24-month period. The decision takes a pragmatic and purposive approach to the provisions in the 1993 Act to ensure, as the court stated, that the crofting legislation is intended to ensure that a crofter can inherit the family croft “without any expense or process of law”. 

Despite the judgment, best practice is to ensure that all steps are taken within the 24-month period to ensure the tenancy of the croft is transferred and help avoid unnecessary and costly disputes arising.

We look more closely at the Pattinson v Matheson case here

Concluding remarks 

Proactively addressing succession planning, especially when croft land is involved, is crucial and the provisions in the 1993 Act noted above not only emphasise the importance of having a valid will in place but of taking legal advice, both at the point of succession planning and by executors (and family members/beneficiaries) on the death of a crofter. 

Please get in touch with Stephanie Hepburn if you have any questions.