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It is well known that farmers are an aging population and crofters are no exception. The Crofting Commission’s Annual Report and Accounts 2019/20 highlighted that there were 1,318 active crofters in the 21 to 40 bracket and a staggering 1,325 in the over 80.
With land in late 2020 and early 2021 at a premium the younger generation of farmers and crofters are being priced out of purchasing their own unit. This issue is particularly acute for those looking to purchase croft land – most banks and commercial lenders do not accept croft land as security for lending in the same way they would for farmland, meaning that unless they have other funds available purchasing a croft is out of reach for many. As a result, tenant farming and including tenant crofting has soared in popularity meaning that securing a tenancy can come with stiff competition.
With multiple crofting tenancies changing hands each year, it seems unfathomable that acquiring a crofting tenancy can seem impossible. It is the case however that most tenancies pass between family members or to people the retiring crofter know personally. That said, tenancies do occasionally come up on the open market.
So, can anyone become a tenant crofter?
Before a landlord can let a croft, permission must be sought from the Crofting Commission. The prospective tenant must explain how they plan to use the croft and importantly contribute to the local community as well as having the relevant skills and experience they will be bringing. The commission will also require to know when they intend to move onto the land and who will be living at the croft.
The landlord must also place an advert in a local paper to let people living in the area know about the proposed let, and to give them a chance to object. The Commission can reject the application on the basis of any valid objections received. It is notable that the application may be questioned if the prospective tenant intends to live more then 32km from the croft, already owns or rents a croft, lacks knowledge or experience to practice good land management, is a grazings clerk or on a grazing committee or are directly connected to the landlord (for example an employee of the landlord).
So, what are the options if you want to become the tenant of a croft?
1. Vacant Tenancy
Perhaps the most sought after but scarce route into a crofting tenancy. Crofting tenancies do not often come onto the open market and when they do so the competition is fierce and in the majority of cases a croft will have multiple applications all vying for a single tenure. To find a vacant tenancy a first step would be to check for advertisements in local newspapers and perhaps place your own ‘wanted’ advert. A lot of the time as with the nature of highland and island communities’ word of mouth may be the only way of finding out about up tenancies opening up, so becoming known in a community may prove very helpful.
2. Assigned Tenancies
If you are related to or know a crofter who wishes to give up their tenancy, you may be in the position that they could assign their tenancy to you. The assignee will lease the croft on the same terms and conditions as the assignor (the outgoing tenant). However, the terms and conditions of the transfer itself, including how much compensation is due for any permanent improvements (for example, the croft house, farm buildings, fences, roads and ditches) to the outgoing tenant must be worked out between the assignee and assignor. This transfer will require approval of the Landlord and if the croft is being sublet the subtenant must be given at least 6 months’ notice. For the assignee, it’s important to make sure the Commission has also approved the transfer as otherwise it won’t be legally binding. If not, the Commission will be able to declare the croft vacant and evict the assignee from the land.
A tenancy can also be assigned in implementation of a Will. A tenancy however can only be left to one individual – It is not possible, for example, divide the croft between children – and it cannot be left to a company, organisation or institution. If a tenancy is left to someone who isn’t a family member, the landlord has the right to object.
3. Becoming a Subtenant
It’s also possible to rent all or part of a croft from an existing tenant, and become a subtenant. For example, you may rent the croft house and garden, or part of the agricultural land. The crofter must get permission from the Crofting Commission to sublet the land, and again they will also need to notify their landlord and advertise the proposed assignation in the local paper, to give people living in the area a chance to object. It’s up to the sub-tenant and the mid-tenant subletting the croft to agree on the length of the tenancy. However, it can’t last longer than 10 years. The tenancy will automatically end when the time agreed is up. If the mid-tenant’s tenancy ends before the sublease expires, the sub-tenancy will end as well. Therefore, if the mid-tenant is going to end their tenancy by giving up, assigning, exchanging or dividing the croft, they must give the sub-tenant at least six months’ written notice first.
If the crofter’s tenancy ends for some other reason (for example, if they go bankrupt, or are evicted for breaking any of the statutory conditions), the sub-tenant can apply to the Crofting Commission for permission to remain on the land for up to a year. The application must be submitted within one month of the tenancy coming to an end, although, in certain circumstances, the Commission may letthe sub-tenant apply within three months of the tenancy ending. During this time, the sub-tenant can’t be evicted from the land.
Who you know
Ultimately it can seem that acquiring a Croft Tenancy can be game of who you know or who your family are. However, this should not deter individuals with the knowledge or experience to farm from seeking out these tenancies.
If you are interested in becoming a Tenant Crofter or would like more information on this, please do not hesitate to contact a member of the Blackadders’ Rural Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Fiona (Buffy) James, Solicitor
Rural Land & Business
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