What happens to my croft?

What happens to my croft?

Crofting is a complex area of law, and one area of particular importance is succession planning. This article will take a specific look at the transfer of tenanted crofts, including deemed crofts consisting of only a grazing share.

A key point to highlight is, that under current legislation, there can only be one tenant of a croft. If you have more than one child who shows an interest in crofting, this can lead to the difficult decision as to which child is to inherit. In such circumstances, it would be worth considering whether you should purchase your croft from your landlord. By changing your status from that of a tenant to an owner-occupier, you put yourself into the position whereby you can leave the croft to multiple beneficiaries rather than choosing just one.

If you have a Will in place which leaves your tenanted croft to multiple beneficiaries, your Executors would need to apply to the Crofting Commission to divide the croft into two separate crofts. This will be at the Crofting Commission’s discretion, and should they refuse the application, the bequest in your Will is treated as though it doesn’t exist, and the croft falls into intestacy. You should not rely on the possibility of a division application being successful as a lot of normal crofts will not be substantial enough to be divided into two separate viable crofts, and therefore we would generally advise against such an approach.

Provided you have a valid Will in place at the time of your death, and your tenanted croft is left to one beneficiary, then your Executors have one year from the date of your death to transfer the croft tenancy to your beneficiary. This procedure involves a notification being sent to both the crofting landlord and the Crofting Commission to provide them with the new tenant’s details. In addition to the notification, a croft registration application may be required to register the croft on the online Crofting Register. If your croft is already registered on the Crofting Register, an application to update the crofter’s details will be required instead.

In the event that your Executors do not transfer the croft tenancy within the one-year time period, the bequest in your Will is treated as though it doesn’t exist, and the croft tenancy falls into intestacy.

If you do not have a valid Will in place at the time of your death, or the one-year time period mentioned above has passed, the Succession (Scotland) Act 1964 will determine how your croft will be inherited. This means that you have no say in who will inherit your croft, and often it may not be the person you intended to inherit the croft. If the 1964 Act provides for multiple beneficiaries, and agreement can’t be reached between them as to who will become the tenant, the end result could be that the croft will have to be sold or the tenancy could be lost.

If you die intestate (without a valid Will), your Executors have a two-year period from either the date of your death or the date the Crofting Commission are notified of your death, provided such notification is given within two months of the date of your death, to transfer the croft. Where a crofter had a Will, but the one-year period mentioned above was missed, the Executors have a two-year period from the date of the expiry of the original one-year period to transfer the croft. Where the two-year period is missed, the croft tenancy is at risk from your crofting landlord and the Crofting Commission terminating the tenancy.

The process of transferring a tenanted croft when a crofter has died intestate is more complicated than the transfer of a tenanted croft where there is a Will. The reason for this is that Confirmation must be obtained from the Sheriff Court. This involves an application to the Court to obtain the necessary paperwork from them to provide your Executors with the power to transfer the croft. Once Confirmation is obtained, a docket will be added onto the Confirmation document which will explain who the croft tenancy is being transferred to. Once the docket has been signed by your Executors, notification of the transfer must be given to both the crofting landlord and the Crofting Commission. An application for either first registration on the Crofting Register, or, where a croft is already registered, an application to update the details on the Crofting Register will be required.

A decision by the Court of Session in 2022 in the case of Pattinson v Matheson offered the possibility of transferring a tenanted croft out with the two-year period provided your landlord has not taken action to terminate the tenancy.

While Pattinson v Matheson could offer a solution to some long running croft succession matters, our recommendation would always be to transfer the croft within the two-year time period to avoid putting the tenancy at risk.

A final important point to consider is whether your croft house is decrofted and purchased from your landlord, or whether it remains part of the tenanted croft. If your house forms part of the tenanted croft, it will transfer with the croft to the new tenant, whoever that may be. This could result in your house transferring to someone who is not your intended beneficiary and therefore careful planning with your solicitor is required to prevent this happening.

Taking a proactive approach to succession planning is important when your estate includes croft land and we would strongly recommend that you have a Will in place. To speak to one of our Rural Land Team today, call us on 01478 611336 or 01463 239393 or contact us here.

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