Julia Kidd
- Senior Associate
Insights | Residential Property
Found your Highland dream home? Know what you’re buying
6 December 2021
With remote working becoming a realistic option for many of us, we’re seeing an increase in those looking to move to more rural locations. But when your rural idyll lies within one of the crofting counties, such as the Highlands, are you always aware of what you are buying?
It could be that the property you are interested in is croft land, and so subject to crofting legislation. This restricts what can and can’t be done with the land. The restrictions apply equally to those looking to live on the property, as well as those looking to develop the land in any way, including for renewables.
So what is a croft?
It’s a small landholding in one of the six traditional crofting counties – Argyll, Caithness, Inverness, Orkney & Shetland, Ross & Cromarty and Sutherland. Since 2007 it has also been possible to create new crofts or common grazings in Arran, Bute, Great and Little Cumbrae and the Highlands and Islands Enterprise area (principally the Moray Council area). It can comprise a house site with adjoining agricultural land and often a right to share in common grazings (which is land available for use by different crofters in the local township for grazing stock).
If the property is a croft the details will, in some cases, be registered in the Crofting Register held by Registers of Scotland and they may be recorded in the Register of Crofts held by the Crofting Commission (“the Commission”). However, neither Register is conclusive, and there may be little external evidence.
A crofting tenant pays rent to the landowner and has various statutory duties and obligations he must comply with in respect of the land. In exchange for this, he is protected from unlawful eviction by the landowner, and has a statutory right to buy his croft.
The landowner has certain reserved rights over the land but is severely restricted in what he can do with it.
What are the duties and restrictions of use?
The tenant, or the owner-occupier of the land, has a duty to be resident on or within 32km of the croft and to put it to purposeful use by cultivating and maintaining it, and not neglecting it. It can’t simply be used as a holiday house for part of the year for example. It also can’t be assigned or sub-let without the consent of the Commission.
If you wanted to develop the land (whether as landowner or owner-occupier) you would be constrained by the legislation and may need to apply to have the land taken out of crofting control altogether. This can be done in various ways depending on the circumstances. It’s possible to apply to have the land de-crofted or resumed from crofting control, and it is also possible to enter into a Section 19A Agreement which enables the use of the land for other purposes for a particular project for a set period of time. Approval will be needed from, and applications made to, the Land Court and/or the Commission – a process that is likely to be complex, time-consuming and costly – and the outcome is not guaranteed. We have experience in dealing with the different methods and can help you determine the best route, and navigate you through it.
Any other key issues?
It’s also important to be aware of what you are buying – the ownership or the tenancy. With ownership there may be an existing tenant in place using the property with a statutory right to buy from you. If not, and the croft is vacant, issues of residency and cultivation kick in. You would have to comply with those obligations yourself or may be forced to let the croft out to a third party.
If you buy the croft tenancy, you’ll pay an annual rent to the landowner and you will not have full ownership of the property unless and until you exercise your statutory right to buy the croft from the landowner.
Whatever the issue, we can help guide you through the process so do get in touch for our advice.
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