Guide to Purchasing your Croft

Purchasing your croft or perhaps just your croft house and garden ground can be a complicated process. It is important to obtain the best legal advice you can. This client fact sheet outlines some of the important steps involved in a typical croft purchase.

Are you buying your whole croft or just your croft house and garden ground?

The Crofting Acts make an important distinction between purchasing your whole croft and purchasing your croft house and garden ground. Although both can usually be purchased in a single transaction, the law treats each purchase differently. The first important decision you have to make is whether you wish to purchase your whole croft (including the croft house), or just the croft house. Alternatively you may wish to purchase a plot on your croft for which you have obtained planning permission.

Obtaining suitable site and location plans

It is very important that you have suitable plans showing both the site and location (in the case of a croft house or plot) or the full extent of the croft and its location. These plans should be based on an up-to-date version of the OS map. If the boundaries of the croft or the site are well established, then Macleod & MacCallum can instruct a mapping company on your behalf if you wish. If the boundaries are not easily defined or the garden ground or plot requires to be pegged out, then you are likely to require the services of a surveyor.

Contacting the landlord

If you are going to purchase your croft, you will have to contact your landlord (or his or her Estate Factor) and request his or her terms and conditions. Again, Macleod & MacCallum can approach the landlord or his factor on your behalf and seek to negotiate terms and conditions – including a price - that are favourable to your interests. Although croft tenants are entitled to seek the purchase of their croft (but not including the croft house and garden ground) for fifteen times the croft rent, the landlord is entitled to request that the rent is reviewed when the croft tenant seeks to purchase. Failing agreement, this can be determined by application to the Scottish Land Court. It is often necessary for the tenant to negotiate a price for both the croft and the statutory croft house and garden ground.

Making a Decrofting Application

If you are purchasing the site of your croft house (for instance to obtain a mortgage or to sell or transfer title to the croft house) or an undeveloped house site, you will usually want to have the site decrofted. Macleod & MacCallum can make an application to the Crofters Commission on your behalf if you wish. It is usually a condition of any Decrofting Direction that you purchase the decrofted land from the landlord and, if undeveloped, that the site is used for a particular purpose, such as the erection of a dwellinghouse. It is essential that good quality plans, based on the current OS Map, are submitted with the Decrofting Application. The current requirements with regard to plans can be found on the Crofters Commission website.

Obtaining title to your croft

Some croft purchases are relatively straightforward; others are much less so. The ease with which you can purchase your croft depends on a large number of variables, such as the policy of the estate which is your landlord and the terms and conditions which your landlord seeks to impose. For that reason, specialist advice on your particular circumstances is very important. There are any number of issues which can arise in a typical croft purchase, such as disputed croft boundaries, rights of access and the extent to which the landlord can reserve rights (such as servitude, mineral and shooting rights) over the land he or she is selling to you.

Standard conditions of title

Usually your landlord will agree in principle to sell unless the estate has a particular reason for not selling an individual croft (which can be challenged in the Scottish Land Court) or has, for instance, a general policy not to sell to absentee tenants. In most cases the landlord will insist on the so-called Clawback, which means that if you sell the croft (or any part of it) within five years of purchase, up to 50% of the sale profits will normally have to be paid to the former landlord/ estate. The landlord is also usually entitled to insist on a Shooting Lease over the croft land for a period of time that is agreed between the crofter landlord and the tenant, by negotiation if necessary. The landlord will usually reserve mineral rights over the land her or she is selling.

Obtaining title to your croft house and garden

Usually this is more straight-forward than purchasing your croft, provided that you have agreed with the landlord that the croft house is the statutory house site, which you have an absolute entitlement to purchase in terms of the Crofting Acts. There can also be negotiations with the landlord regarding the extent of the garden ground that can be included in the title, rights of access to the site over croft/ estate land and whether associated barns, sheds and garages can be included. The landlord is not entitled to insist on a Clawback in respect of the statutory house site.

If all else fails …

In some cases it is impossible to agree terms with your landlord. In such circumstances the only way to purchase your croft and/ or croft house is by making an Application to the Scottish Land Court. Macleod & MacCallum have considerable experience in making such applications to the Scottish Land Court on behalf of clients if the need arises, including making representations before the Court.

This fact sheet is intended as a general guide only and does not take account of individual circumstances, on which you should seek legal advice.