When (if ever) is an owner-occupied croft vacant?
4 March 2013
Following on from my alternative opinion on owner-occupier crofters' right to apply for a decrofting direction I have been called upon to address “When (if ever) is an owner-occupied croft vacant?”
I thought that I had already addressed that point in my opinion. However, if elucidation is required I am happy to provide it.
Section 23(12A) of the Crofters (Scotland) Act 1993 (“the Act”) reads:-
“Where the owner-occupier is an owner-occupier crofter, this section and section 24 have effect as if—
(a) the owner-occupier crofter were required under subsection (1) of this section, within one month of becoming such an owner-occupier crofter, to give notice to the Commission of that fact; and
(b) the reference to a landlord in subsection (2), and any reference to a landlord in section 24, included a reference to an owner-occupier crofter.”
It has been suggested to me that “this allows an owner-occupier crofter to be treated in the same way as a landlord, for instance, he would be the right person to make an application. But it does not resolve the necessity in Section 24(3) for the croft to be vacant before an application to decroft can be made.”
I agree (as I did in my original opinion) that this allows an owner-occupier crofter to be treated in the same way as a landlord, for instance, they would be the right person to make an application. However, I disagree that this section does not resolve the necessity in Section 24(3) for the croft to be vacant before an application to decroft can be made.
As I stated in my original opinion “I would suggest that the reference back to subsection (1), which subsection relates to situations where a croft has become vacant, means that in effect an owner-occupier crofter is deemed to be occupying a vacant croft for the purposes of section 24 (which relates to decrofting in the case of vacancy)”. This part of my opinion and the import of it is perhaps being overlooked or misunderstood. I will therefore now try to make the position as clear as I can.
The relevant part of Section 23(12A) of the Act reads:-
“Where the owner-occupier is an owner-occupier crofter, this section and section 24 have effect as if—
(a) the owner-occupier crofter were required under subsection (1) of this section, within one month of becoming such an owner-occupier crofter, to give notice to the Commission of that fact;”
This is saying that Section 23 (Vacant crofts) and Section 24 (Decrofting in case of resumption or vacancy of croft) shall have effect as if the owner-occupier crofter were required under subsection (1) of Section 23 to give notice to the Commission.
The emphasis I have given to the words “as if” and “were” in the previous paragraph highlights that this is not something the owner-occupier crofter actually has to do – i.e. they do not have to physically give notice to the Commission but they are treated for the purposes of the legislation as if they were required to give this notice.
Section 23(1) of the Act reads:-
“Where—
(a) the landlord of a croft receives from the crofter a notice of renunciation of his tenancy or obtains from the Land Court an order for the removal of the crofter; or
(b) the landlord of the croft either gives to the executor of a deceased crofter, or receives from such an executor, notice terminating the tenancy of the croft in pursuance of section 16(3) of the 1964 Act; or
(c) for any other reason the croft has become vacant otherwise than by virtue of a declaration by the Commission in the exercise of any power conferred on them by this Act;
the landlord shall within one month from—
(i) the receipt of the notice of renunciation of the tenancy, or
(ii) the date on which the Land Court made the order, or
(iii) the date on which the landlord gave or received notice terminating the tenancy, or
(iv) the date on which the vacancy came to the landlord’s knowledge,
as the case may be, give notice thereof to the Commission.”
By, in effect, being deemed to have given notice under this subsection (1) the owner-occupier crofter is deemed to have given notice to the Commission that the croft is vacant. This then allows Section 24(3) of the Act to apply as the croft is for the purposes of that section vacant.
Indeed the effect of Section 23(12A) of the Act is that an owner-occupied croft is quite simply always ‘vacant’ for the purposes of decrofting under Section 24(3) of the Act.
Thus an application for decrofting by an owner-occupier crofter is competent and should be processed as such by the Crofting Commission.
Brian H. Inkster
Glasgow, 4 March 2013
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