PART 3 continued CHAPTER 2 continued
(1) Ministers may, by order, modify the provisions of paragraphs (a) to (e) of subsection (3) of section 77 above.
(2) Modifications under subsection (1) above may include the addition of new paragraphs.
(1) Where the owner of eligible croft land or eligible additional land has, within the time limit for submitting views in pursuance of section 73 above, requested that eligible additional land or, as the case may be, further eligible additional land be included with the land to be bought under this Part of this Act, Ministers may, if they consider that it is in the public interest to do so, make it a condition of their proceeding to consider the application by the crofting community body that the body modifies its application so as to include in the land to be bought that eligible additional land as further such land.
(2) Ministers—
(a) may; and
(b) on being so required by the owner of land who has made such a request or the crofting community body in relation to whose application the condition referred to in subsection (1) above has been imposed, shall,
refer to the Land Court for its findings in fact in respect of any matter relating to the question of whether the additional land or further additional land should be included with the land to be bought.
(3) In considering any question referred to it under subsection (2) above, the Land Court may have regard to any representations made to it by—
(a) the applicant crofting community body;
(b) the owner of the land which is the subject of the application; or
(c) any other person who, in the opinion of the Land Court, appears to have an interest.
(4) On a reference under subsection (2) above, the Land Court shall report its findings in fact to Ministers.
(5) Where a referral is made to the Land Court under subsection (2) above, Ministers shall not consent to the application to which the referral relates before they have—
(a) received the Land Court’s report of its findings in fact; and
(b) taken those findings into account when considering or further considering the application.
Ministers may make their consent to an application under section 73 above subject to conditions.
(1) At any time before Ministers reach a decision on an application which has been made under section 73 above—
(a) Ministers;
(b) any person who is a member of the crofting community defined in relation to the applicant crofting community body in pursuance of section 71 above;
(c) any person who has any interest in the land or sporting interests which are the subject of the application giving rise to a right which is legally enforceable by that person; or
(d) any person who is invited, under section 73(8)(a) above, to send views to Ministers on the application,
may refer to the Land Court any question (other than a question which Ministers may, or may be required to, refer under section 77(1) or 79(2) above) relating to the application.
(2) In considering any question referred to it under subsection (1) above, the Land Court may have regard to any representations made to it by—
(a) the applicant crofting community body;
(b) the owner of the land which is, or person entitled to the sporting interests which are, the subject of the application; or
(c) any other person who, in the opinion of the Land Court, appears to have an interest.
(3) The Land Court—
(a) shall advise Ministers of its finding on any question so referred; and
(b) may, by order, provide that Ministers may consent to the application only if they impose, under section 80 above, such conditions as the Court may specify.
(4) If the Land Court considers any question referred to it under this section to be irrelevant to Ministers' decision on the application to which it relates, it may decide to give no further consideration to the question and find accordingly.
(1) Ministers shall give written notice, in prescribed form, of their decision upon an application, and their reasons for it, to—
(a) the applicant crofting community body;
(b) the owner of the land or person entitled to the sporting interests to which the application relates;
(c) every other person who was invited, under section 73(8)(a) above, to send them views on the application; and
(d) where their decision is to consent to the application, to the Keeper of the Registers of Scotland.
(2) The form of notice shall be prescribed so as to secure that the notice includes a full description of—
(a) the land or sporting interests to which the consent relates (provided, where appropriate, by or by reference to maps and drawings); and
(b) where their decision is to consent to the application, any conditions imposed under section 80 above by virtue of subsections (4) or (5) of section 77 above.
(3) The notice given under subsection (1) above shall—
(a) contain information about the consequences of the decision notified and of the rights of appeal against it given by this Part of this Act; and
(b) state the date as at which the decision is effective.
(1) This section applies where—
(a) at the date of an application under section 73 above, only the owner of the land to be bought is entitled to the sporting interests on the land;
(b) the crofting community body has indicated that it proposes a leaseback of those interests under section 73(5)(d) above;
(c) the owner, within the period of 60 days referred to in subsection (8) of that section, notifies Ministers in writing that the owner wishes a lease of those interests;
(d) Ministers have consented to the application; and
(e) the crofting community body and the owner of the land have not, prior to consent being given, provided Ministers with a copy of an agreement between them on the terms and conditions of the lease of those interests.
(2) Where this section applies Ministers shall, within 7 days of consenting to the application, refer to the Land Court the question of what terms and conditions are appropriate for a lease of those sporting interests from the crofting community body to the owner.
(3) The Land Court shall, subject to subsection (4) below, determine those terms and conditions.
(4) Those terms and conditions shall include provision that—
(a) the annual rent shall be nominal;
(b) the duration of the lease shall be not less than 20 years; and
(c) the owner shall be entitled to assign the tenant’s interest under the lease,
and the terms and conditions shall not prevent the lease from being recorded or registered under the Registration of Leases (Scotland) Act 1857 (c. 26).
(5) The crofting community body shall, forthwith on completion of the transfer of the land, grant a lease accordingly to the owner of the land.
(6) If a crofting community body refuses or fails to grant a lease in accordance with such terms and conditions as have been determined, the Land Court may authorise its principal clerk to adjust, execute and deliver the lease to the like force and effect as if done by the crofting community body.
(1) Any rights of pre-emption, redemption or reversion or deriving from any option to purchase otherwise exercisable over land or sporting interests which are the subject of an application by a crofting community body under this Part of this Act are—
(a) suspended as from the date when Ministers approve the body’s application under section 73 above to buy the land or sporting interests; and
(b) revived—
(i) when the transfer under this Part of this Act of the land or sporting interests to the body is completed; or
(ii) if such a transfer is not completed because the body does not (by virtue of withdrawing, under section 85 below, its application under section 73 above or its confirmation of its intention to proceed to buy or for any other reason) proceed to buy the land or sporting interests.
(2) Any rights which a person has in land which a crofting community body is seeking to buy under this Part of this Act, being rights conferred on the person under—
(a) Part 2 of this Act;
(b) section 12 of the 1993 Act;
(c) the provisions of Part III of the Housing (Scotland) Act 1987 (c. 26) relating to a person’s right to purchase the house of which the person is a tenant,
are suspended as provided in paragraph (a) of subsection (1) above but revived in the circumstances set out in paragraph (b) of that subsection.
(3) Nothing in this Part of this Act—
(a) affects the operation of an inhibition on the sale of the land;
(b) prevents an action of adjudication from proceeding; or
(c) affects the commencement, execution or operation of any other diligence.
(1) A crofting community body’s right to buy land or sporting interests under this Act is exercisable only if, within 21 days of the date of notification under section 88(12) below, it sends notice confirming its intention to proceed to buy the land or interests to Ministers and to the owner of the land or person entitled to the interests.
(2) A crofting community body may, at any time after—
(a) making an application under section 73 above, withdraw the application; or
(b) confirming its intention to proceed under subsection (1) above, withdraw that confirmation,
by notice in writing to that effect sent to Ministers.
(3) Ministers shall, within 7 days of receipt of notice under subsection (1) or (2) above, acknowledge receipt and send a copy of that acknowledgement to the owner of the land or person entitled to the interests.
(1) It is for the crofting community body to secure the expeditious exercise of its right to buy and, in particular—
(a) to prepare the documents necessary to—
(i) effect the transfer; and
(ii) impose any conditions (including any real burdens or servitudes) which Ministers, under section 80 above, require to be imposed upon the title to land; and
(b) in so doing, to ensure—
(i) that the subjects of the application to which Ministers have consented are the same as those to be transferred; and
(ii) that the transfer is to be effected in accordance with any other conditions imposed by Ministers under section 80 above.
(2) Where the crofting community body is unable to fulfil the duty imposed by subsection (1)(b) above because part of the land or sporting interests in respect of which Ministers' consent was given is not owned by the person named as its owner or exercisable by the person named as the person entitled to them in the application under section 73 above, it shall refer that matter to Ministers.
(3) On a reference under subsection (2) above, Ministers may direct—
(a) that the right to buy be exercised as if the part of the land or interests not owned or not exercisable by the owner or person entitled so named had never been included in the description of the land or interests in the application to which they had consented; or
(b) that the crofting community body’s right to buy the land or interests which are the subject of the body’s application is, so far as proceeding on that application, extinguished.
(4) The owner of the land or person entitled to the interests being bought is obliged—
(a) to make available to the crofting community body such deeds and other documents as are sufficient to enable the body to proceed to complete its title to the land or interests; and
(b) to transfer title accordingly.
(5) If, within 6 weeks of the date on which Ministers consent to an application to buy land or sporting interests, the owner of the land or person entitled to the interests refuses or fails to make those deeds and other documents available, or they cannot be found, the Land Court may, on the application of the crofting community body, order the owner or person entitled or any other person appearing to the Court to have those deeds and documents to produce them.
(6) If the owner of the land or person entitled to the interests refuses or fails to effect such sufficient transfer as is mentioned in subsection (4) above, the Land Court may, on the application of the crofting community body, authorise its principal clerk to adjust, execute and deliver such deeds or other documents as will complete such transfer to the like force and effect as if done by the owner or person entitled.
(1) The consideration for the transfer of the land or sporting interests shall be its or their value as assessed under section 88 below.
(2) That consideration shall, subject to subsections (3) and (4) below, be paid not later than the “final settlement date”, being the date on which expires a 6 month period beginning with the date (the “consent date”) when Ministers consented to the application under section 73 above to buy the land or interests.
(3) Where—
(a) the owner or person entitled to the interests and the crofting community body so agree, the consideration may be paid on a date later than the final settlement date;
(b) the assessment of the valuation of the land or interests under section 88 below has not been completed by a date 4 months after the consent date, the consideration shall be paid not later than 2 months after the date when that assessment is completed;
(c) that valuation is the subject of an appeal which has not been determined within 4 months of the consent date, the consideration shall be paid not later than 2 months after the date of that determination.
(4) Where, on the date the consideration is to be paid, the owner or person entitled to the interests is not able to effect the grant of a good and marketable title to the crofting community body—
(a) the consideration; or
(b) if, for any reason, the consideration has not been ascertained, such sum as may be fixed by the valuer appointed under section 88(1) below as a fair estimate of what the consideration might be,
shall be consigned into the Land Court until that title is granted or the crofting community body gives notice to the Court of its decision not to proceed to complete the transaction.
(5) Where the consideration remains unpaid after the date not later than which it is to be paid, the crofting community body’s application under section 73 above in relation to the land or interests shall be treated as withdrawn.
(6) Any heritable security which burdened the land immediately before title is granted to the crofting community body in pursuance of this section shall, on the recording of that title in the Register of Sasines or registration in the Land Register of Scotland of the body’s interest in the land, cease to do so.
(7) Where such a security also burdens land other than the land in respect of which title is granted to the crofting community body, the security shall not, by virtue of subsection (6) above, cease to burden that other land.
(8) Unless the creditors in right of any such security otherwise agree, the crofting community body shall pay to them according to their respective rights and preferences any sum which would, but for this subsection, be paid to the owner by the crofting community body as consideration for the land or interests.
(9) Any sum paid by a crofting community body under subsection (8) above shall be deducted from the sum which the body is to pay to the owner as consideration for the land.
(1) Where Ministers consent to an application under section 73 above, they shall, subject to subsection (2) below, within 7 days of doing so appoint a valuer, being a person who appears to Ministers to be suitably qualified, independent and to have knowledge and experience of valuing land or sporting interests of a kind which is similar to the land or sporting interests being bought, to assess the value of the land or sporting interests to which the application relates.
(2) Where Ministers refer a question to the Land Court under section 83(2) above they shall delay appointing the valuer until a day which is within 7 days of the day on which the Land Court makes its determination in respect of that reference.
(3) The validity of anything done under this section is not affected by any failure by Ministers to comply with the time limit specified in subsection (1) above.
(4) In assessing the value of land or interests in pursuance of an appointment under subsection (1) above, a valuer—
(a) does not act on behalf of the owner of the land or person entitled to the interests or of the crofting community body which is exercising its right to buy the land or interests under this Part of this Act; and
(b) shall act as an expert and not as an arbiter.
(5) The value to be assessed is the market value of the land or interests as at the date when Ministers consented to the application under section 73 relating to the land or interests.
(6) The “market value” of land or interests is the aggregate of—
(a) the value it or they would have on the open market as between a seller and a buyer both of whom are, as respects the transaction, willing;
(b) any depreciation in the value of other land or interests belonging to the seller which may result from the transfer of land or interests, including depreciation caused by division of the land or interests by the transfer of land or interests to the crofting community body; and
(c) the amount attributable to any disturbance to the seller which may arise in connection with the transfer of the land or interests to the crofting community body.
(7) In arriving, for the purposes of this section, at the value which land or interests would have on the open market in the circumstances mentioned in subsection (6)(a) above—
(a) account may be taken, in so far as a seller and buyer such as are mentioned in subsection (6) above would do so, of any factor attributable to the known existence of a person who (not being the crofting community body which is exercising its right to buy the land or interests) would be willing to buy the land or interests at a price higher than others would because of a characteristic of the land or interests which relates peculiarly to that person’s interest in buying it;
(b) no account shall be taken of—
(i) any depreciation of the type mentioned in subsection (6)(b) above;
(ii) any disturbance of the type mentioned in subsection (6)(c) above;
(iii) the absence of the period of time during which the land or interests would, on the open market, be likely to be advertised and exposed for sale.
(8) The expense of a valuation under this section shall be met by Ministers.
(9) In carrying out a valuation under this section, the valuer shall invite the owner of the land or person entitled to the interests and the crofting community body which is exercising its right to buy the land or interests to make representations in writing about the value of the land or interests and shall consider any representations made accordingly.
(10) Where the crofting community body and the owner of the land or person entitled to the interests have agreed the valuation of the land or interests they shall notify the valuer in writing of that valuation.
(11) Where sporting interests in land which the body are seeking to buy are to be leased back to the owner of the land, the valuer shall, in assessing the value of those interests, take account of the terms and conditions of the lease which has been agreed between the owner and the body or, as the case may be, determined by the Land Court under section 83 above.
(12) The valuer shall, within the period set out in subsection (13) below, notify Ministers, the owner of the land or person entitled to the interests and the crofting community body which is exercising its right to buy the land or interests of the assessed value of the land or interests.
(13) The period referred to in subsection (12) above is the period of 6 weeks beginning with the date of appointment of the valuer or such longer period as Ministers may, on an application by the valuer, fix.
(14) The validity of anything done under this Part of this Act is not affected by any failure by a valuer to comply with the time limit specified in subsection (13) above.
(1) Any person, including an owner or former owner of land or person entitled to sporting interests, who has incurred loss or expense—
(a) in complying with the requirements of this Part of this Act following upon the making of an application under section 73 above by a crofting community body;
(b) as a result of the withdrawal by the crofting community body of its confirmation under section 85 above or its failure otherwise to complete the purchase after having so confirmed its intention under that section; or
(c) as a result of the failure of the crofting community body which made that application to complete the purchase,
is entitled to recover the amount of that loss or expense from the crofting community body.
(2) There is no such entitlement, however, where the application under section 73 above is refused.
(3) Where such an application has been refused, the owner of the land or person entitled to the interests who has incurred loss or expense as mentioned in subsection (1)(a) above is entitled to recover the amount of that loss or expense from Ministers.
(4) Ministers shall, by order, provide as to the procedure under which claims for compensation under this section are to be made.
(5) Where, at the expiry of such period of time as may be fixed for the purposes of this subsection by an order under subsection (4) above, any question as to whether compensation is payable or as to the amount of any compensation payable has not been settled as between the parties, either of them may refer the question to the Land Court.
(1) Ministers may, in the circumstances set out in subsection (2) below, pay a grant to a crofting community body.
(2) Those circumstances are—
(a) that after settlement of its other liabilities connected with the exercise of its right to buy land or sporting interests under this Part of this Act, the crofting community body has insufficient money to pay, or to pay in full, the amount of compensation it has to pay under section 89 above;
(b) that the crofting community body has taken all reasonable steps to obtain money in order to pay, or to pay in full, that amount (other than applying for a grant under this section) but has been unable to obtain the money; and
(c) that it is in the public interest that Ministers pay the grant.
(3) The fact that all the circumstances set out in subsection (2) above obtain in a particular case does not prevent Ministers from refusing to pay a grant in that case.
(4) A grant under this section may be made subject to conditions which may stipulate repayment in the event of breach.
(5) Ministers may pay a grant under this section only on the application of a crofting community body.
(6) An application for such a grant shall be made in such form and in accordance with such procedure as are prescribed.
(7) Ministers shall issue their decision on an application under this section in writing accompanied by, in the case of a refusal, a statement of the reasons for it.
(8) Ministers' decision on an application under this section is final.
(1) The owner of the land or person entitled to the sporting interests to which an application under section 73 above relates and any other person within subsection (2) below may, by summary application, appeal to the sheriff against Ministers' decision to consent to the application.
(2) The persons within this subsection are—
(a) any person who is a member of the crofting community defined in relation to the applicant crofting community body in pursuance of section 71 above;
(b) any person who has any interest in the land or sporting interests giving rise to a right which is legally enforceable by that person; and
(c) any person who was invited, under section 73(8)(a) above, to send views to Ministers on the application.
(3) The applicant crofting community body may, by summary application, appeal to the sheriff against Ministers' decision to refuse its application under section 73 above.
(4) Subsection (3) above does not extend to Ministers' decision under section 76 above upon which of two or more applications to buy the same land they should consent to.
(5) An appeal under subsection (1) or (3) above may be made only on a question of law and shall be lodged within 28 days of the date on which Ministers decided to consent to, or refuse, the application.
(6) The sheriff in whose sheriffdom the land or any part of it is situated or the sporting interests or any part of them are exercisable has jurisdiction to hear an appeal under this section.
(7) The sheriff shall dispose of an appeal under this section by ordering that Ministers' decision be adhered to or reversed and such an order shall have the same effect as if it were a decision taken by Ministers on the application.
(8) Such an order is final.
(9) Where the effect of such an order is the same as granting the application, the order may be made subject to any condition to which Ministers could have made their decision subject under section 80 above.
(10) An order having the effect mentioned in subsection (9) above shall be consistent with any decision or findings of the Land Court under sections 77 or 81 above.
(1) The owner of land or person entitled to the sporting interests the value of which has been assessed under section 88 above and the crofting community body which is exercising its right to buy the land or interests may appeal to the Land Court against the valuation.
(2) An appeal under this section shall state the grounds on which it is being made and shall be lodged within 21 days of the date of notification under section 88(12) above.
(3) In an appeal under this section, the Land Court may reassess the value of the land or interests.
(4) The valuer whose valuation is appealed against may be a witness in the appeal proceedings.
(5) The Land Court shall give reasons for its decision on an appeal under this section and shall issue a written statement of these reasons within 4 weeks of the hearing of the appeal.
(6) The validity of anything done under this Part of this Act is not affected by any failure of the Land Court to comply with the time limit specified in subsection (5) above.
(7) Ministers are not competent parties to any appeal under this section by reason only that they appointed the valuer whose valuation is the subject of the appeal.
An appeal under sections 91 or 92 above does not prevent the parties from settling or otherwise agreeing the matter in respect of which the appeal was made between or among them.
(1) The Crofters Commission shall set up and keep (or secure that there is set up and kept) a register to be known as the Register of Crofting Community Rights to Buy (the “crofting register”).
(2) The crofting register shall be set up and kept so as to contain, in a manner and form convenient for public inspection, the following information and documents relating to each application to exercise the right to buy registered in it—
(a) the name and address of the registered office of the company which constitutes the crofting community body which has submitted the application;
(b) a copy of the application;
(c) a copy of Ministers' decision consenting or refusing to consent to the exercise of the right to buy;
(d) a copy of—
(i) any notice of withdrawal by the crofting community body of an application to exercise the right to buy;
(ii) any notice of confirmation by the body of its intention to proceed to exercise that right;
(iii) any notice withdrawing that confirmation; and
(iv) any acknowledgement by Ministers of receipt of notice such as is mentioned in sub-paragraphs (i) to (iii) above; and
(e) such other information as Ministers consider appropriate.
(3) Ministers may, by order, modify paragraphs (a) to (e) of subsection (2) above.
(4) Any person who, under this Part of this Act, provides a document or other information, or makes a decision, which or a copy of which is to be registered in the crofting register shall, forthwith on providing the document or other information or, as the case may be, making the decision, give it or a copy of it to the Crofters Commission for the purpose of allowing it to be so registered.
(5) The Crofters Commission shall ensure—
(a) that the crofting register is, at all reasonable times, available for public inspection free of charge;
(b) that members of the public are given facilities for getting copies of entries in the crofting register on payment of reasonable charges;
(c) that any person requesting it is, on payment of such a charge, supplied with an extract entry certified to be a true copy of the original.
(6) An extract so certified shall be sufficient evidence of the original.
(1) It is not competent for the owner of the land or person entitled to the interests to which an application under section 73 above relates to dispose of the land or interests after the consent date to any person other than the crofting community body which made the application.
(2) Subsection (1) above has no effect where the crofting community body has withdrawn the application or has otherwise decided not to proceed to exercise its right to buy the land or interests.
(3) In subsection (1) above, “consent date” has the same meaning as in section 87 above.
Nothing in this Part of this Act—
(a) affects any rights given by or under the 1993 Act or prevents a crofting community body from being a landlord for the purposes of that Act; or
(b) prevents a crofting community body from having and exercising power to acquire land or other property otherwise than under it.