PART 2 continued
In section 8 of the 1993 Act (assignation of croft)—
(a) in subsection (1), for paragraphs (a) and (b) there is substituted “unless he obtains the consent of the Commission”;
(b) for subsections (2) to (4) there is substituted—
“(2) In the case of an application made by virtue of subsection (1) above in respect of an assignation to a person other than a member of the crofter’s family, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act—
(a) that the proposed assignee lives, or intends to live, more than 16 kilometres distant from the croft;
(b) that he already owns or is tenant of a croft;
(c) that he lacks the knowledge, abilities and experience to cultivate the croft or as the case may be to put it to such other purposeful use as he intends;
(d) that he is the grazings clerk or a member of the grazings committee;
(e) where the landlord is not a natural person, that the proposed assignee is a member or employee, or is a member of the family of a member or employee, of the body which constitutes the landlord;
(f) that there are reasonable grounds for concern over the use to which the proposed assignee intends to put the croft.”;
(c) in subsection (5), for the words from “in writing” to “above” there is substituted “of the Commission”; and
(d) in subsection (6), for the words from “at the term” to “may be,” there is substituted “on such date as the Commission shall specify in the consent (being a date not less than two months after that on which the consent was intimated to the crofter) unless before that date”.
(1) Section 10 of the 1993 Act (bequest of croft) is amended as follows.
(2) For subsection (1), there is substituted—
“(1) A crofter may, by will or other testamentary writing, bequeath the tenancy of his croft to any one natural person.”.
(3) In subsection (2)—
(a) after the word “landlord”, where it first occurs, there is inserted “and send a copy of the notice to the Commission, both”;
(b) for the word “2” there is substituted “4”;
(c) for the words “unavoidable cause” there is substituted “cause, being a cause which the Commission accept is unavoidable,”;
(d) after the words “give such notice” there is inserted “(and send such a copy)”;
(e) for the word “4” there is substituted “6”;
(f) after the word “given” there is inserted “(and copy sent)”;
(g) after the words “the provisions of this subsection”, there is inserted “or subsection (2A) below”; and
(h) the words from “The giving of such notice” to the end are repealed.
(4) After subsection (2) there is inserted—
“(2A) Notice under subsection (2) above of the bequest may be given by an executor of the deceased crofter authorised for that purpose by the legatee.
(2B) The giving of notice to the landlord in accordance with the provisions of subsection (2) or (2A) above shall import acceptance of the bequest; and the legatee if—
(a) he is a member of the deceased crofter’s family; or
(b) he is a person other than a member of the deceased crofter’s family and the landlord does not intimate objection to the legatee in accordance with subsection (3) below,
shall come into the place of the deceased crofter (as from the date of death of the deceased crofter) on the relevant date mentioned in subsection (2D) below.
(2C) Where notice is given in accordance with the provisions of subsection (2) or (2A) above and—
(a) the legatee is a member of the deceased crofter’s family, the Commission shall notify the legatee of the information they require for the purpose of updating the Register of Crofts in relation to the tenancy; or
(b) the legatee is a person other than a member of the deceased crofter’s family and the Commission receive no intimation of objection to the legatee in accordance with subsection (3) below, they shall notify the legatee—
(i) to that effect; and
(ii) of the information referred to in paragraph (a) above.
(2D) The Commission shall notify the legatee when they are satisfied that he has provided the information required by them in their notification to him under subsection (2C) above; and the “relevant date” referred to in subsection (2B) above is the date on which the Commission notify the legatee under this subsection.”.
(5) For subsection (3), there is substituted—
“(3) Where the legatee is a person other than a member of the deceased crofter’s family, the landlord may, within one month (or such longer period as may be determined by the Commission on an application made to them by the landlord) after the date of the notice given to him in accordance with subsection (2) or (2A) above, intimate to—
(a) the legatee; and
(b) the Commission,
that he objects to the legatee becoming tenant of the croft; and any such intimation shall state the grounds of objection.”.
(6) In subsection (4), for paragraph (b) there is substituted—
“(b) not so satisfied, they shall—
(i) notify the landlord and the legatee to that effect; and
(ii) notify the legatee of the information they require for the purpose of updating the Register of Crofts in relation to the tenancy.”.
(7) After that subsection, there is inserted—
“(4A) In a case where subsection (4)(b) above applies, the Commission shall notify the legatee when they are satisfied that he has provided the information required by them in their notification to him under sub-paragraph (ii) of that subsection; and, if no appeal is made under subsection (4B) below against the Commission’s decision under subsection (4)(b) above, the legatee shall come into the place of the deceased crofter (as from the date of the deceased crofter’s death) on the date on which the Commission notify the legatee under this subsection.
(4B) The legatee or, as the case may be, the landlord may, within 42 days after the giving of notification of the Commission’s decision under paragraph (a) or (b) of subsection (4) above in relation to the objection, appeal by way of stated case, on one or more of the grounds mentioned in section 52A(3) of this Act, to the Land Court against that decision.
(4C) In an appeal under subsection (4B) above the Court may—
(a) confirm the decision;
(b) direct the Commission to come to a different decision; or
(c) remit the case to the Commission without so directing them.
(4D) Where, on an appeal under subsection (4B) above, the Land Court directs the Commission to decide that a bequest under subsection (1) above be upheld, the legatee shall come into the place of the deceased crofter (as from the date of the deceased crofter’s death) on the date the Court directs under this subsection.
(4E) A legatee who comes into the place of a deceased crofter in accordance with subsection (2B), (4A) or, as the case may be, (4D) above, in doing so—
(a) becomes liable for such debts of the deceased crofter’s estate as are attributable to the tenancy; and
(b) shall, if requested to do so by the executor, pay the reasonable expenses necessarily and wholly incurred by the executor in relation to the administration and management of the tenancy during the period beginning with the date of the deceased crofter’s death and ending immediately before the date when the legatee so comes into the place of the deceased crofter; and such expenses—
(i) shall, in the event of a dispute as to amount, be determined by the Land Court on the application of the executor or the legatee; and
(ii) shall not fall to be met from the deceased crofter’s estate.
(4F) Notwithstanding that a legatee comes into the place of the deceased crofter as mentioned in subsection (4E) above, the tenancy is an asset of the deceased crofter’s estate, available along with the other assets of the estate to meet the other expenses of administration, and debts, of the estate; and any such legatee is liable to contribute to such expenses and debts accordingly.”.
(1) Section 8 of the Succession (Scotland) Act 1964 (c. 41) (prior rights, on intestacy, in dwelling house and furniture) is amended as follows.
(2) In subsection (1)—
(a) for the words “dwelling house to which this section applies,”, there is substituted “dwelling house mentioned in subsection (4)(a) of this section,”;
(b) after the words “shall be entitled” there is inserted “, subject to subsection (2B) of this section,”; and
(c) the proviso is repealed.
(3) After subsection (2), there is inserted—
“(2A) Where the tenant of a croft dies intestate leaving a spouse or civil partner or, where he dies leaving no spouse or civil partner, leaving a cohabitant, and the intestate estate includes a relevant interest in a dwelling house mentioned in subsection (4)(b) of this section, the surviving spouse, civil partner or, as the case may be, cohabitant shall be entitled, subject to subsection (2B) of this section, to receive out of the intestate estate—
(a) where the value of the relevant interest does not exceed the amount for the time being fixed by order under subsection (1)(a) of this section, the tenancy of the croft;
(b) in any other case, the sum for the time being fixed by order under subsection (1)(b) of this section.
(2B) If the intestate estate comprises—
(a) a relevant interest in two or more dwelling houses mentioned in subsection (4)(a) of this section, subsection (1) of this section shall have effect only in relation to such one of them as the surviving spouse or civil partner may elect for the purposes of subsection (1) within 6 months after the date of death of the intestate;
(b) a relevant interest in two or more dwelling houses mentioned in subsection (4)(b) of this section, subsection (2A) of this section shall have effect only in relation to such one of them as the surviving spouse, civil partner or cohabitant may elect for the purposes of subsection (2A) within 6 months after that date;
(c) a relevant interest in both—
(i) one or more dwelling houses mentioned in subsection (4)(a) of this section; and
(ii) one or more dwelling houses mentioned in subsection (4)(b) of this section,
the surviving spouse or civil partner shall not be entitled to receive both the entitlement under subsection (1) of this section and that under subsection (2A) of this section and must elect within 6 months after that date whether to take the entitlement under the said subsection (1) or under the said subsection (2A).”.
(4) For subsection (4), there is substituted—
“(4) The dwelling house is—
(a) in a case mentioned in subsection (1) of this section, any dwelling house in which the surviving spouse or civil partner of the intestate was ordinarily resident at the date of death of the intestate and which did not, at that date, form part of a croft of which the intestate was tenant;
(b) in a case mentioned in subsection (2A) of this section, any dwelling house in which the surviving spouse, civil partner or cohabitant was ordinarily resident at the date of death of the intestate and which, at that date, formed part of a croft of which the intestate was tenant.”.
(5) In subsection (6), before paragraph (a) there is inserted—
“(za) “cohabitant” means a person—
(i) who was living with the intestate as if married to him; or
(ii) who was living with the intestate as if in civil partnership with him,
and had been so living for at least 2 years.”.
(1) Section 16 of the Succession (Scotland) Act 1964 (powers of executor to assign lease which prohibits assignation) is amended as follows.
(2) In subsection (2), for the words from “notwithstanding” to the end, there is substituted “subject to subsection (2A) of this section, to transfer the interest.”.
(3) After that subsection, there is inserted—
“(2A) Transfer by an executor pursuant to subsection (2) of this section—
(a) of an interest under an agricultural lease which is a lease of a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1993 (c. 44) shall require the consent of the Crofters Commission; and
(b) of an interest under any other lease (including any agricultural lease which does not fall within paragraph (a) of this subsection) and which is not a transfer to one of the persons entitled to succeed to the deceased’s intestate estate or to claim legal rights or the prior rights of a surviving spouse or civil partner out of the estate, in satisfaction of that person’s entitlement or claim, shall require the consent of the landlord.”.
(4) In subsection (9), in the definition of “agricultural lease”, for the words “Act of 1955” there is substituted “Crofters (Scotland) Act 1993 (or of any part of a croft if it is a part consisting of a right mentioned in section 3(4)(a) of that Act)”.
After section 16 of the Succession (Scotland) Act 1964, there is inserted—
(1) The requirement in section 16(2A)(a) of this Act to obtain the consent of the Crofters Commission shall be treated as if it were a requirement under the Crofters (Scotland) Act 1993 (c. 44) and accordingly section 58A of that Act shall apply for the purposes of the requirement as it applies for the purposes of a requirement under that Act.
(2) In the case of an application for the consent of the Crofter’s Commission made by virtue of section 16(2A)(a) of this Act in respect of a transfer to a person other than a member of the crofter’s family, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of the Crofters (Scotland) Act 1993—
(a) that the proposed transferee lives, or intends to live, more than 16 kilometres distant from the croft;
(b) that he already owns or is tenant of a croft;
(c) that he lacks the knowledge, abilities and experience to cultivate the croft or as the case may be to put it to such other purposeful use as he intends;
(d) that he is the grazings clerk or a member of the grazings committee;
(e) where the landlord is not a natural person, that the proposed transferee is a member or employee, or is a member of the family of a member or employee, of the body which constitutes the landlord;
(f) that there are reasonable grounds for concern over the use to which the proposed transferee intends to put the croft.
(3) Where the consent of the Crofter’s Commission to a transfer is required by section 16(2A)(a) of this Act, and the executor transfers the interest without the consent of the Commission—
(a) the transfer and any deed purporting so to transfer the interest shall be null and void; and
(b) the Commission may declare the croft to be vacant.
(4) A transfer to which the Crofter’s Commission have given their consent under section 16(2A)(a) of this Act shall take effect on such date as the Commission shall specify in the consent (being a date not less than two months after that on which the consent was intimated to the executor) unless before that date the executor and the transferee jointly give to the Commission notice in writing that they do not intend to proceed with the transfer.
(5) An appeal shall lie on any question of fact or law to the Land Court against a decision of the Crofters Commission on an application made to them under section 16(2A)(a) of this Act.
(6) The appellant may be the applicant or any person with an interest in the application.
(7) An appeal under subsection (5) of this section must be brought within 42 days after the Commission dispose of the application.
(8) In an appeal under subsection (5) of this section, the Land Court may confirm the decision or direct the Commission to come to a different decision.”.
(1) Section 11 of the 1993 Act (intestacy) is amended as follows.
(2) In subsection (2), for the word “3” there is substituted “12”.
(3) In subsection (3)—
(a) paragraph (a) is repealed;
(b) in paragraph (b)—
(i) the word “otherwise” is repealed; and
(ii) after the word “tenancy,” there is inserted “the date (no later than 2 months after the date of death of the deceased crofter) on which the Commission receive notification of the death or, where no such notification is received,”; and
(c) in paragraph (d), for the words “on which the Commission notified the landlord and the legatee” there is substituted “of notification by the Commission”.
(4) For subsections (4) to (9), there is substituted—
“(4) If at the expiry of the period of 12 months referred to in subsection (2) above, it appears to the Commission (whether from notification under that subsection or otherwise) that the executor has not furnished to the landlord particulars of any transferee in accordance with subsection (1) above, they shall give notice in such manner as they think proper, whether by advertisement or otherwise—
(a) to the landlord;
(b) if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and
(c) if no executor is so confirmed, to each person of whom the Commission are aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,
that they propose to terminate the tenancy and declare the croft vacant and inviting the recipients of the notice to make representations as respects the proposal to the Commission before the expiry of the period of one month after the date of the notice.
(5) If, having considered representations (if any) made to them in accordance with subsection (4) above, the Commission are satisfied that—
(a) the landlord or the executor has terminated the tenancy in accordance with section 16(3)(b) of the Succession (Scotland) Act 1964;
(b) the executor is proposing to transfer the tenancy; or
(c) a person is entitled to a transfer of the tenancy in or towards the satisfaction of his claim to prior rights or his entitlement to succeed to the deceased’s intestate estate,
they are not to implement their proposal; but if not so satisfied they may implement their proposal if they consider it appropriate to do so.
(6) If, by virtue of subsection (5) above, the Commission are not entitled to implement their proposal, but it appears to them subsequently (by means of representations made to them or otherwise) that the tenancy is not being transferred or is unable to be transferred, the Commission may give notice again as mentioned in subsection (4) above.
(7) If, having considered representations (if any) made to them in accordance with subsection (4) above as respects a proposal contained in a notice given by virtue of subsection (6) above, the Commission are satisfied that it is appropriate to implement their proposal they may do so.
(8) Where the Commission, in pursuance of this section, declare the croft vacant—
(a) they shall give notice to that effect—
(i) to the landlord;
(ii) if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and
(iii) if no executor is so confirmed, to each person of whom the Commission is aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,
and any such notice to the landlord shall require him to submit to them such proposals as are mentioned in section 23(5) of this Act;
(b) any right of any person in, or in relation to, the tenancy shall be extinguished; and
(c) the landlord shall be liable to pay to the executor of the deceased crofter the value of the permanent improvements on the croft in so far as—
(i) the improvement is suitable to the croft;
(ii) the improvement was executed or paid for by the deceased crofter or by any of the predecessors of the deceased crofter in the tenancy; and
(iii) either the improvement was executed otherwise than in pursuance of a specific agreement in writing under which the deceased crofter was bound to execute the improvement or, if the improvement was executed in pursuance of such an agreement, the deceased crofter did not receive and his executor has not received, by way of reduction of rent or otherwise, fair consideration for the improvement.”.
(5) In subsection (10), for the words from the beginning to “In this subsection the expression “the value of the”, there is substituted “In subsection (8)(c) above, the expression “the value of the permanent”.
(6) In subsection (11)(a), for the words “subsection (8) above” there is substituted “this section”.
After section 53 of the 1993 Act, there is inserted—
Where an application is made to the Land Court to determine a question under section 53(1)(c) of this Act and the evidence available to the Court is insufficient to enable any boundary to be clearly determined, the Court shall declare the boundary to be that which in all the circumstances it considers appropriate.”.
After section 53A of the 1993 Act (inserted into that Act by section 18 of this Act), there is inserted—
(1) Where a crofter considers that—
(a) he requires access from a public road to his croft; and
(b) it would be reasonable for such access to be taken by a route lying wholly over land owned by his landlord,
the crofter may make application to the Land Court for an order under subsection (2) below.
(2) On an application under subsection (1) above, the Land Court shall make such order as it considers appropriate in all the circumstances, and the order may in particular make provision—
(a) specifying an access route from the public road to the croft lying wholly over land owned by the landlord;
(b) as to the arrangements under which the crofter may carry out works to construct or improve a road over the access route;
(c) as to the conditions subject to which access may be exercised, including conditions as to what types of vehicle may be taken along the access route;
(d) requiring the crofter to indemnify the landlord in respect of any claim for compensation made against the landlord under paragraph 11 of Schedule 2 to this Act in consequence of works such as are described in paragraph (b) above;
(e) requiring the crofter to make a payment to the landlord in respect of expenses incurred by the landlord in connection with matters which are the subject of the application.
(3) Any order under subsection (2) above shall have effect as if the matters for which the order makes provision had been the subject of an agreement between the crofter and the landlord.
(4) The right of a crofter to make application to the Land Court under subsection (1) above shall be without prejudice to any other right which that crofter may have in connection with access to his croft.”.
(1) The 1993 Act is amended as follows.
(2) In section 38 (reorganisation schemes)—
(a) in subsection (1), after the words “prepare a” there is inserted “provisional”;
(b) after subsection (1) there is inserted—
“(1A) Before proceeding to prepare a provisional draft reorganisation scheme the Commission must give intimation in writing to each of the persons mentioned in subsection (10) below that the Commission are satisfied as is mentioned in subsection (1) above and that they intend so to proceed.”;
(c) for subsection (3) there is substituted—
“(3) A reorganisation scheme may, if the Commission—
(a) obtain the prior written consent of the Scottish Ministers, make provision with respect to the inclusion of any land in the vicinity of the township, being land to which this Act does not apply, which in the opinion of the Commission ought to be used for the enlargement of crofts in the township or of a common grazing used exclusively, or shared in, by the township;
(b) think fit, make provision with respect to all or any of the following matters—
(i) the admission into the township of new crofters and the allocation to them of shares in the common grazing;
(ii) the apportionment for the exclusive use of the township of a part of any common grazing in which it shares;
(iii) the inclusion in any croft formed under the scheme of a part of the common grazing or of any land held in runrig;
(iv) any other matter incidental to or consequential on the provisions of the scheme.”;
(d) in subsection (4)—
(i) after the words “reorganisation scheme”, there is inserted “, or provisional draft or draft of such a scheme,”; and
(ii) after the words “the scheme” there is inserted “ or, as the case may be, of the provisional draft or draft,”; and
(e) for subsections (5) to (7), there is substituted—
“(5) Where, in relation to any township, the Commission prepare a provisional draft reorganisation scheme under subsection (1) above, they shall serve on each of the persons mentioned in subsection (10) below a copy of the provisional draft together with a notice—
(a) naming a place within the locality in which the township is situated where a copy of the maps and plans prepared by the Commission under subsection (4) above in relation to the provisional draft scheme may be inspected at all reasonable hours;
(b) inviting the person on whom the provisional draft and notice are served, within two months of the date of such service, to make in writing to the Commission such comments as they may wish to make on the provisional draft, maps or plans.
(6) Where, having taken into account comments (if any) made to them by virtue of subsection (5) above, the Commission are still satisfied as mentioned in subsection (1) above, they shall—
(a) prepare a draft reorganisation scheme in relation to the township taking into account such comments;
(b) serve on each of the persons mentioned in subsection (10) below a copy of the draft scheme together with a notice—
(i) naming a place within the locality in which the township is situated where a copy of any maps and plans prepared by the Commission under subsection (4) above in relation to the draft scheme may be inspected at all reasonable hours; and
(ii) requesting that the person on whom the draft and notice are served, within one month after the date of such service, intimates to the Commission in writing whether or not that person is in favour of the draft scheme.
(7) Where any person on whom a notice has been served under subsection (6) above fails to comply with the request contained in the notice, that person shall for the purposes of this section be deemed to have intimated to the Commission, in compliance with the request, that the person is in favour of the draft scheme.
(8) If, within the period of one month mentioned in subsection (6)(b)(ii) above, a majority of the crofters on whom a copy of a draft reorganisation scheme and a notice have been served under that subsection have intimated to the Commission, in compliance with the request contained in the notice, that they are in favour of the draft scheme, the Commission shall, where they remain satisfied as mentioned in subsection (1) above—
(a) prepare a reorganisation scheme in relation to the township; and
(b) serve on each of the persons mentioned in subsection (10) below a copy of the scheme together with a notice—
(i) naming a place within the locality in which the township is situated where a copy of any maps and plans prepared by the Commission under subsection (4) above in relation to the scheme may be inspected at all reasonable hours; and
(ii) advising of the right of appeal to the Land Court under section 38A of this Act against the Commission’s decision to reorganise the township or the scheme and of the time limit within which an appeal may be made.
(9) For the purposes of section 38A of this Act, the Commission’s proceeding, under subsection (8)(a) above, to prepare a reorganisation scheme shall be taken to comprise their decision to reorganise the township.
(10) The persons referred to in subsections (1A), (5), (6)(b) and (8)(b) above and section 38A(3)(b) of this Act are—
(a) each crofter who is the tenant of a croft situated in the township;
(b) the landlord of each such croft;
(c) each grazings committee appointed under section 47 of this Act in respect of any common grazing shared in by each such crofter;
(d) each person occupying land which is contiguous to a croft situated in the township;
(e) the owner of, and each person who holds shares in, a common grazing associated with the township;
(f) if the reorganisation scheme makes (or as the case may be is to make) provision with respect to the inclusion of such land as is mentioned in subsection (3)(a) above, the owner of, and each person occupying, that land.
(11) The requirements of subsections (1A) and (6)(b)(ii) above that intimation be in writing and in subsection (5)(b) above that comments be made in writing are to be taken to be satisfied by—
(a) the giving of intimation; or
(b) as the case may be, the making of comments,
in a form other than writing which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape).”.