This guidance covers areas where crofting tenure may be relevant to land registration.
Section 28(1) of the Land Registration (Scotland) 1979 Act provides that, amongst other things, the right of a crofter or cottar within the meaning of section 3 or 28(4) respectively of the Crofters (Scotland) Act 1955, or a landholder or statutory small tenant within the meaning of section 2(2) or 32(1) respectively of the Small Landholders (Scotland) Act 1911 is an overriding interest. Such rights may (or in certain cases must) be noted by the Keeper on the landlord's title sheet.
The Land Registration etc. (Scotland) Act 2012 ("the 2012 Act") largely sweeps away the concept of overriding interests (although something similar is retained for servitudes created other than by dual registration, core paths delineated in an order under section 22 of the Land Reform (Scotland) Act 2003 and public rights of way.) Consequently, in most cases the Keeper will not require to know, when processing a registration application, whether the plot of land to which the deed relates is held in crofting tenure. The areas where crofting tenure may be relevant to land registration are covered below.
Division of owner-occupied crofts
Section 34 of the Crofting Reform (Scotland) Act 2010 ('the 2010 Act') inserted a new section 19D into the Crofters (Scotland) Act 1993 ("the 1993 Act"). Under section 19D, an owner occupier crofter requires the consent of the Crofters Commission before dividing his or her croft. If the croft has not been divided with the Commission's consent prior to a transfer, any deed purporting to transfer ownership of any part of the croft is void and as such will not be a valid deed for the purposes of the 2012 Act. In completing an application form to accompany a deed for registration the applicant (or applicant's solicitor) must certify that the deed is valid. Accordingly, in cases where section 19D may apply, the applicant or solicitor must be satisfied that the appropriate consent is in place or is not required (because, for example, the subjects have been decrofted). The evidence of consent (or, e.g. of decrofting) should not be submitted with the application.
Under section 19(4) of the 1993 Act, subjects conveyed in pursuance of section 12 -18 of the 1993 Act (Rights of crofters and cottars to acquire their subjects) are automatically disburdened of any prior standard security granted by the former landlord, without the need for a formal discharge or deed of disburdenment. Applicants should have regard to this provision when completing an application for registration of a deed affecting an unregistered plot and should not disclose any securities disburdened by virtue of this provision in the heritable securities section of the application form. Where an application is made for registration of a deed over a registered plot and the applicant considers that a heritable security disclosed on the title sheet is disburdened by virtue of section 19(4) the applicant may inform the Keeper in the further information section of the application form.
Financial assistance to crofters
There are currently 2 main schemes of financial assistance to crofters; the Crofting Counties Agricultural Grants Scheme (CCAGS) and the Croft House Grant Scheme (CHGS). The detail of each scheme can be found on the Scottish Government website. From a land registration point of view only CHGS is relevant. The Croft House Grant (Scotland) Regulations 2006 provide that, upon payment of a grant under the regulations, the Scottish Ministers must register in the relevant property register a notice setting out the conditions which attach to the grant. There is also provision for a further notice to be registered where the conditions cease to have effect. In general terms, unless otherwise extinguished, the conditions of such a notice subsist for 15 years (where the grant was made for erection of a dwellinghouse) and 10 years (where the grant was for a purpose set out in schedule 1 to the regulations, other than erection of a dwellinghouse.). Accordingly an applicant for a deed affecting an unregistered plot should disclose, in the heritable securities section of the application form, any extant notices under the 2006 regulations. Attention is also drawn to the transitional provisions in the regulations in respect of grants made under the Crofters etc. Building Grants (Scotland) Regulations 1990. In some cases there may be extant notices/conditions from schemes prior to 1990 (where the period was 40 years). Applicants should satisfy themselves as to whether any such conditions remain extant and, if they do, the notice should be disclosed on the application form.
Section 19(3) of the 1993 Act alters the normal prior tempore potior jure rule on ranking of securities. Applications for registration of a deed affecting an unregistered plot should disclose all outstanding standard securities in the General Register of Sasines. Where such a security was granted in favour of Scottish Ministers or HIE in terms of the 1993 Act that fact should also be disclosed on the application form (in addition to the usual information about parties, recording date etc.) That information will be available in the Sasine minute for the standard security and will allow the Keeper to appropriately reflect the ranking of the security.
Security in favour of landlord
Where the Land Court makes an order authorising acquisition of croft land it may include in the order a condition that the crofter grant a standard security in favour of the landlord to secure any sum which may become due by virtue of section 14(3) of the 1993 Act (disposal within 10 year period). There are no special rules on ranking of such securities. Applicants for registration of a deed affecting an unregistered plot should satisfy themselves the security is no longer extant or, failing that, disclose it on the application form in the usual way.