As part of the ongoing process of crofting reform in Scotland, a new Crofting Register is to be launched on 30 November 2012. Almost all transactions involving croft land (including assignations) will constitute triggers for the registration of croft land in the new Register. This is not only relevant to crofting-specific transactions, but it will also be relevant to, and, in the long term, extremely useful for, anyone considering purchasing, leasing or developing land in the traditional crofting counties (Shetland, Orkney, Caithness, Sutherland, Ross-shire, Inverness-shire and Argyll), or the new crofting counties (Arran, Bute, Great & Little Cumbrae, Moray and parts of Highland not already within the traditional crofting counties), as the Crofting Register should eventually be a definitive record of croft land in Scotland, which should bring about more certainty regarding the status of land and rights to which it is subject. The Register will require to be searched when considering any dealings in rural land in these areas.
Requirement for a new Register
The new Register (which will be fundamentally different to the old Register of Crofts maintained by the Crofting Commission) arises as a consequence of changes under the Crofting Reform (Scotland) Act 2010. That Act created a legislative requirement for the Keeper of the Registers of Scotland to establish and maintain a public register of crofts, common grazings and land held runrig (a system of holding land that has all but disappeared). Unlike the old Register of Crofts, the Crofting Register will be map-based so that the extent of crofts, common grazings and land held runrig can be plotted onto, and shown on, the Ordnance Survey map, making them easily viewable to anyone searching the Register.
It is envisaged that this approach will provide more certainty, removing doubts as to the extent, including boundaries, of croft land and so giving more clarity to crofters, landowners and others with an interest in the land.
Application of the Register
The period between 30 November 2012 and 30 November 2013 will be a transitional one, during which the registration process will be voluntary, however "trigger events" from 30 November 2013 onwards will require mandatory registration of croft land.
During the initial launch period, the Scottish Government wants to encourage voluntary community-led mapping and registration, and is offering a 20% discount on registration fees for voluntary group registration. It is hoped that this will incentivise groups of crofters from the same township to work together to submit applications to register more than one croft at a time. Additionally, this should help to promote agreement on boundaries.
The 2010 Act provides a list of trigger events that involve a first registration of croft land, or an amendment to croft land that is already registered in the Crofting Register. These trigger events, which include assignation, division and decrofting, are predominantly the type of events that necessitate an application to the Crofting Commission for regulatory approval, because of a change affecting the croft land. From 30 November 2013, this type of application to the Crofting Commission must also include an application for registration or updating in the Crofting Register.
Subsequent events which affect a registered croft’s size, status, use or occupancy must be registered, or notified to the Keeper, so that the entry for the croft is kept up to date and accurate.
All applications should be submitted via the Crofting Commission, who, after checking, will send them on to the Registers of Scotland for registration. The Crofting Commission may request additional information from the applicant and can refuse to accept applications in certain cases.
The new registration Forms are in respect of:
- first registration of a croft;
- registration of a subsequent event to a registered croft;
- first registration of common grazings or land held runrig;
- first registration of new common grazings;
- registration of a subsequent event to registered common grazings or lands held runrig;
- rectification of the Register; and
- notification to the Keeper by the Crofting Commission following approval of a regulatory decision.
The plan which requires to be submitted with a Crofting Register application must be drawn on a single sheet to an appropriate scale and show:
- sufficient surrounding detail to enable the position of the croft to be fixed;
- the scale and orientation; and
- the boundaries clearly, preferably with measurements.
The registration fee is currently set at £90, however if a party applies for registration of land that has a number of crofts contained within it, it will cost £90 per croft.
Once an application has been submitted to Registers of Scotland, the Keeper will either make up a new registration schedule for the croft, amend the existing registration schedule or make such other amendments as may be necessary to the Register.
In the case of first registration, the Keeper will submit the new registration schedule to the applicant and the Crofting Commission. The Commission must then notify certain prescribed interested parties (such as the landlord and any adjacent crofters) of the registration, and the applicant must give public notice of it, by advertising in the local press and affixing a notice in prescribed form to a part of the croft. It is estimated that there could be around 1,200 applications every year.
Any party aggrieved by the registration will have nine months from the date on which the notification is issued to challenge it. This is an attempt to bring to a head, matters such as boundary disputes, so that, after the initial nine month period, a line can be drawn under those disputes and there will be a clear and certain registered title. Any challenges must be made to the Scottish Land Court who may order that the entry in the Register be removed; be modified (which can include a declaration of the boundaries of the croft) or it may make no order. The Keeper is obliged to rectify the Register on order from the Land Court and may otherwise do so in order to rectify any inaccuracy in the Register. Compensation may be payable to any party suffering loss as a result of the rectification or otherwise of the Register in certain cases. If no challenge is made, the registration will stand.
Failure to register a change of landlord of a croft, failure to register an owner-occupied croft following the transfer of ownership in it, and failure to register the transfer of land on which common grazings are situated, in each case within one year of the transaction having taken place, will be an offence.
The Register will be updated every 24 hours overnight, is free to view online and can be found here.
The link to the Crofting Register application forms (currently in draft form) can be found here.
Further guidance on preparation of plans for submission to the Crofting Register can be obtained from Registers of Scotland.