PART 2 GUIDANCE FOR LANDOWNERS, OWNERS OF INTERESTS, AND HERITABLE CREDITORS
2.1 USE OF THE CROFTING COMMUNITY RIGHT TO BUY
1. The crofting community right to buy in Part 3 of the Land Reform (Scotland) Act 2003 ("the Act") gives crofting communities the right to buy eligible croft land (including salmon fishings, mineral rights (except mineral rights to oil, coal, gas, gold or silver), associated with that crofting community, sporting rights, the interest of the tenant in tenanted land (so called "interposed leases"), and eligible additional land. This means that a crofting community body (" CCB") may acquire your interest in that land and interests, interposed leases, and sporting rights . The crofting community right to buy can be used by crofting communities, through the vehicle of a CCB, at any time. The land or interests in question do not need to be offered for sale. This means that a crofting community may wish to acquire land that you, as a landowner or owner of interests, or heritable creditor, do not want to or have no intention of selling. The main stages in the crofting community right to buy process are outlined in Annex A.
2. The crofting community right to buy is designed to be a last resort option for CCBs. It is expected that CCBs will proceed with an application under Part 3 of the Act only after discussions with you concerning the purchase of the land, etc, outwith the Act, have failed. At any time after a CCB has submitted its application to the Scottish Ministers (Ministers), it can suspend its progress, if in the intervening period it has managed to progress meaningful discussions with the affected landowner, and it is expected that they will lead to the successful acquisition of the land it is seeking to acquire. In such a case, the CCB would acquire the land and any interests by a negotiated settlement, outwith the Act.
3. If a CCB discusses its plans with you and you agree to sell your land, its interests, any interposed leases or sporting interests, the CCB will not need to have recourse to the community right to buy provisions in Part 3 of the Act. This may be an easier option for both parties. In certain cases, ownership of the land or interests in question may not be the best solution to meet the aspirations of a CCB. Some communities may find, through negotiation, that it may be more appropriate to lease land rather than purchase it. Communication is the key to a satisfactory outcome for both yourself as landowner, or owner of interests in land, and the CCB.
2.2 CROFTING COMMUNITY BODIES ( CCBs)
4. A crofting community body ( CCB) is a company limited by guarantee which must, at all times, have no fewer than 20 members, with the majority of those members being from the crofting community (please see definition in section 1.3 of this guidance). Its Memorandum and Articles of Association (M&A) must contain provision to meet the requirements of section 71(1) of the Act. Ministers must be satisfied that the main purpose of the CCB is consistent with furthering the achievement of sustainable development (section 71(4) of the Act). CCBs may also wish to attain charitable status.
5. Should Ministers be satisfied that a CCB which has bought land under the Act no longer meets the requirements of section 71(1) of the Act, they may acquire the land from the CCB by means of compulsory purchase (section 72(2) of the Act).
2.3 THE CROFTING COMMUNITY
6. As it is the "crofting community" which will be acquiring the "landlord's interest", it is important that a definition of that community is provided. A crofting community is defined in terms of section 71(5) of the Act, as read with the definition of "crofting township" in section 71(6) of the Act. A crofting township therefore comprises:-
- persons who are resident in the crofting township which is situated in or is associated with the eligible croft land which the CCB has a right to buy under Part 3 of the Act (section 71(5)(i) of the Act); or
- the tenants of crofts in that crofting township who are resident in another place within 16km of that township and who are entitled to vote in local government elections in the polling district or districts in which that township or other place is situated (section 71(5)(ii) of the Act).
7. A "crofting township" comprises any two or more crofts which share the right to use a common grazing together with that common grazing and any houses pertaining to or contiguous to those crofts or that common grazing, or any combination of two or more crofting townships within that meaning (section 71(6) of the Act).
8. Therefore, if you are resident in the township, and are registered to vote in local elections in the polling district in which the township is located, you and members of your family (provided they are also registered to vote in local elections) are members of the crofting community. In such a case, the CCB must give you the opportunity to vote in its ballot (see section 1.4).
2.4 WHAT CAN CCBs PURCHASE?
9. Part 3 of the Act sets out the land and interests which a CCB can purchase. These are eligible croft land and its interests - salmon fishings and mineral rights (except mineral rights to oil, coal, gas, gold or silver) - eligible additional land, eligible sporting interests and the interest of the tenant in tenanted land. These are described in turn.
Eligible croft land
10. Eligible croft land is:
- all land which is subject to crofting tenure and regulation, including arable machair and scattalds (section 68(2)(a) of the Act);
- any land in which a tenant of a croft (either alone or in common with others) has a right of pasture or grazing (section 68(2)(b) of the Act);
- any land which comprises any part of a common grazing held by a tenant of a croft, or held runrig by a tenant of a croft, which has not been apportioned for the exclusive use of a tenant of a croft (as provided by section 52 of the Crofters (Scotland) Act 1993);
- salmon fishings in inland waters within or contiguous to the eligible croft land: the salmon fishings can include fishings or rights which are owned separately from that land) (sections 68(2)(d) of the Act as read with section 69);
- mineral rights within or contiguous to the eligible croft land (sections 68(2)(d) of the Act as read with section 69).
Salmon fishings and mineral rights
11. Salmon fishings and mineral rights (excluding oil, coal, gas, gold or silver, as defined in section 68(2)(d) of the Act) form part of or are contiguous to the eligible croft land to which they relate.
12. A CCB cannot acquire mineral rights or salmon fishings through the crofting community right to buy unless it is acquiring or has acquired eligible croft land in accordance with the provisions of Part 3 of the Act. A CCB cannot therefore use the crofting community right to buy to acquire mineral rights and salmon fishings in isolation or in respect of land already owned by the CCB and which was acquired by other means than by exercising the crofting community right to buy.
Eligible additional land
13. "Eligible additional land" is land which is contiguous to the eligible croft land (which the CCB has included in its application) and is also owned by the same person (section 70(4) of the Act). The eligible additional land does not include salmon fishings and mineral rights associated with it (section 70(4) of the Act). If you are the owner of the land, you will be required to agree to its inclusion in the CCB's application for consent to exercise its right to buy. A CCB may choose to approach you before it submits its application. Ministers will write to you following the receipt of the CCB's application seeking agreement to the sale of the eligible additional land (section 73(9) of the Act). You may however, not agree to its inclusion. The CCB may also propose that eligible additional land should be included in its application without your agreement. Where you have not requested, or consented to the sale of that land, Ministers will refer the issue to the Scottish Land Court (section 77 of the Act). See also section 1.10 of this guidance.
Eligible sporting interests
14. Sporting rights are normally attached to land. This means that when a CCB seeks to buy eligible croft land it will normally also acquire the sporting rights. It is therefore not possible to exclude sporting rights from the land which the CCB is seeking to acquire. The Act therefore includes "eligible sporting interests", the rights of a person other than the owner of the eligible croft land, which are under any lease or other contract to shoot or fish on the land.
15. The Act provides a mechanism whereby the CCB and the owner can agree that, where the CCB's application succeeds, the eligible sporting interests in the land can be leased back to the former owner at a nominal rental, for a period of at least 20 years (section 83 of the Act).
16. The existence of a leaseback agreement will be taken into account in assessing the value of your land and any interests (section 88(11) of the Act). This will reduce the price the CCB will pay for your land by the value attributable to that leaseback arrangement. The CCB must agree this arrangement with you before the CCB exercises its right to buy. If the CCB fails to make an agreement, the price payable for the land will include an element in respect of the value of the sporting rights.
17. If sporting rights have been leased back to the former landowner (in terms of section 83 of the Act), the CCB cannot apply under the Act to purchase these rights (section 70(3) of the Act).
18. There may be instances where an arrangement already exists which gives a third party a heritable interest in the sporting use of the land which the CCB wishes to acquire. If this is the case, and the CCB acquires the land through the crofting community right to buy, that interest could persist and give that third party effective control of the sporting use of the land. In such a situation, the CCB can apply to Ministers to acquire that sporting interest provided that it makes its application within the relevant time limit (section 70(3) of the Act). This time limit starts on the date on which Ministers approve the CCB's application for its community right to buy and ends 5 years after the date on which the CCB completed its purchase of the eligible croft land.
Interest of the tenant in tenanted land
19. Some eligible croft land may have a lease or leases over it (so called "interposed leases"). A CCB can apply to purchase the interest of the tenant in such a lease over the land. This interest does not, however, include a croft tenancy or the tenancy of a dwelling house (section 69A(1) of the Act). The area of land covered by the interposed lease must be contained within the extent of the eligible croft land the CCB proposes to acquire. If it extends beyond the eligible croft land, the CCB will not be able to purchase that portion of the lease which relates to land which is not eligible croft land.
Timescales for purchasing eligible croft land, interests, and sporting rights
20. A CCB may choose to buy eligible croft land without any salmon fishings, mineral rights or the interest of the tenant in tenanted land. It can also apply to purchase the salmon fishings and mineral rights, together with the interest of the tenant in tenanted land, at a date later than it acquires the eligible croft land. These interests may be purchased:
- at the same time as the CCB is applying to purchase the eligible croft land associated with them (section 69(1)(a)(i), as read with section 69A(2)(i) of the Act);
- where the CCB has made an application to Ministers, but Ministers have still to make a decision on its application (section 69(1)(a)(ii), as read with section 69A(2)(ii) of the Act);
- during "the relevant period" (defined in section 69(3) of the Act) (section 69A(5) of the Act). The "relevant period" is the period from the date on which Ministers approve or consent to the CCB's application (under section 73 of the Act) one year after the CCB has bought and retained the related croft land for salmon fishings or until five years thereafter for mineral rights after that date.
In order to proceed, the CCB must have provided information to Ministers (in accordance with section 85(1) of the Act or section 69A(4) if the application is in respect of the interest of the tenant in tenanted land), that: (1) it intends to proceed to buy the croft land to which the salmon fishings or mineral rights relate or (2) it has bought and retained the related croft land in accordance with Part 3 of the Act and the CCB's application is being made within the specified time limits ("the relevant period") (section 69(1) and (2) of the Act).
Extent of land sought by the CCB
21. The CCB may seek to purchase only part of the eligible croft land. It does not need to acquire all the land owned by you. If you consider that the CCB is selecting the best parts of your land for acquisition, then you can seek permission from Ministers to include land which the CCB is not seeking to acquire (section 79 of the Act).
2.5 ESTABLISHING AND DEMONSTRATING COMMUNITY SUPPORT
22. No application by a CCB to acquire land and its interests can succeed without the support of its crofting community and the crofters in that community.
23. The CCB will act on behalf of the crofting community and carry out a ballot (section 75(1) of the Act) to demonstrate that a majority of the members of the CCB's defined "crofting community" who voted in the ballot and a majority of the croft tenant members of that community who voted, support the CCB's application (section 75(1)(b) of the Act).
24. All eligible members of the CCB's "crofting community" must be given the opportunity to vote in its ballot. If you as landowner or the owner of interests, are resident in the community and eligible to vote in local authority elections, you will be entitled to vote in the CCB's ballot. The CCB should inform you of that fact. All eligible voters must be given not less than 10 days notification of the date on which the ballot is to be held, as required by the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004 (see Annex B). If you are in doubt as to whether you are entitled to vote, you should discuss this matter with the CCB or, if this is not possible, with Community Assets Branch.
25. The ballot must be held in accordance with section 75(2) of the Act and the 2004 Regulations (see Annex B). If you have any objections to the ballot process, you should discuss these with the CCB as early as possible. This should preferably take place before the CCB submits its ballot results to Ministers for their consideration. You may also wish to discuss any unresolved objections with Community Assets Branch.
26. The ballot may be postal, or by voting in person (at a polling station set up for the purpose). In certain circumstances it may be held by proxy. The ballot papers should identify the votes to be counted for the crofting community as a whole and to allow an additional count of croft tenant votes. The ballot question should provide clear and sufficient information on all aspects of the CCB's proposal in order that members of the CCB's "crofting community" can readily come to a decision on whether to support it.
27. The ballot should be conducted fairly and reasonably, with all those being balloted having the opportunity for a secret ballot. It is for the CCB to demonstrate to the Scottish Ministers that it conducted the ballot in such a manner. Ministers will pay particular attention to determining whether the CCB's ballot has been conducted fairly and reasonably and whether the arrangements have been inclusive. Failure to conduct the ballot fairly and reasonably and in accordance with the Act and Regulations will result in the CCB's application being refused.
28. The CCB is required to publish, within 14 days of holdings its ballot, the ballot result, and details of the ballot in a newspaper circulating in the vicinity of the crofting community. It is also required to notify Ministers of its result within 21 days of the date of the ballot.
2.6 SINGLE AND MULTIPLE APPLICATIONS FOR CONSENT FOR THE CROFTING COMMUNITY RIGHT TO BUY
29. An application for consent to a CCB's crofting community right to buy must relate to land owned by one party, whether an individual owner or a consortium of owners. If a CCB wishes to acquire eligible croft land (including holdings consisting solely of salmon fishings or mineral rights), eligible sporting interests or the interest of the tenant in tenanted land, owned by a number of owners, it must complete separate applications in respect of the land, etc, owned by each person (section 73(3) of the Act).
30. The Act does not prevent more than one CCB (or CCB and a Community Body ( CB)) from applying to buy the same eligible croft land, the interest of the tenant, or eligible sporting interests. However, only one CCB may exercise its right to buy that land (section 76(1) of the Act). Ministers must decide which one will proceed (section 76(2) of the Act). They can only make that decision after they have considered all views relating to each application, and the responses to their invitations received under section 73 of the Act (section 76(3) of the Act). There is, however, no guarantee that any application will proceed, if it appears to Ministers that it is not in the public interest to let one CCB proceed over another if this would result in, for example, a division in the crofting community which would affect its stability.
31. Once Ministers have decided which CCB should proceed to buy the land and interests, the interests of a tenant or eligible sporting interests, the unsuccessful CCB's right to buy is extinguished and its application is deleted from the Register of Crofting Community Rights to Buy. This also applies where both a CCB and a Community Body ( CB) under Part 2 of the Act seek to buy the same land. Separate guidance is available for the community right to buy in Part 2 of the Act. Copies are available from http://www.scotland.gov.uk/Topics/Rural/rural-land/right-to-buy/Community/Guidance/Q/editmode/on/forceupdate/on or Community Assets Branch (contact details at Annex B).
2.7 THE REGISTER OF CROFTING COMMUNITY RIGHT TO BUY
32. The Act provides for the setting up and maintenance of the Register of Crofting Community Rights to buy, which contains information and documents relating to each CCB's application to exercise their crofting community right to buy (section 94 of the Act).
33. The Keeper of this Register is the Crofters Commission. The main function of the Keeper is to maintain the Register and to ensure that it is made available for public inspection at all reasonable times and is free of charge to view (a charge may, however, be made for any extracts requested from the Register).
34. Ministers will instruct the Keeper to enter information on the Register at various stages of the CCB's right to buy. Additional information may be entered onto the Register if Ministers so instruct (section 94(2)(e) of the Act). The Act specifies the information which must be held on the Register (section 94(2) of the Act). All the information on the application form will be placed on the Register for public inspection.
2.8 THE CCB'S APPLICATION FOR CONSENT TO EXERCISE ITS CROFTING COMMUNITY RIGHT TO BUY
35. The CCB must make its application to exercise its right to buy within the 6 month period following the date of its ballot (as required by section 75(1) of the Act). At the same time that the CCB applies to Ministers, it must send a copy of its application form and supporting documents to you as owner of the land or eligible sporting interests which are the subject of its application (section 73(6)(a) of the Act), and where the application relates to the interest of the tenant, to the tenant. If there is a standard security over an interest in any of the subjects to which the application relates, the CCB should also send a copy of its application and supporting documents to the creditor who holds that standard security and invite that person to give notice, within 60 days, to the CCB and Ministers on whether they have taken any steps to enforce its security in terms of the Conveyancing and Feudal Reform (Scotland (Act 1970) (section 73(6)(b) of the Act). These steps are stated in section 73(7) of the Act. If the CCB fails to send the application to these parties, the success of the CCB's application could be prejudiced.
36. On receipt of the CCB's application and supporting documentation, Ministers have 60 days to invite the following individuals and bodies to send their views on your application:
- the owner of the land or the person entitled to the subjects in the CCB's application, (and the owner of land other than eligible croft land) and the tenant of the tenanted land;
- the owners of all contiguous land noted in the CCB's application;
- the Crofters Commission;
- and any other persons whom Ministers consider to have an interest in the CCB's application (section 73(8) of the Act).
37. Ministers must also send a copy of their invitation letter to the CCB (section 73(8) of the Act). If the application includes land other than eligible croft land, Ministers will also write to its owner seeking consent for its sale (section 73(9) of the Act).
38. As soon as Ministers have received the CCB's application, they are also required to give public notice of it (section 73(10) of the Act). This public notice shall be advertised in a newspaper (which Ministers think is appropriate) that circulates in the area where the land and subjects of the CCB's application are located and also in the Edinburgh Gazette (section 73(11) of the Act). This notice provides an opportunity for anyone with an interest in the application to provide views on it. Any views, in writing, must be sent to Ministers within 60 days of the publication of the public notice.
39. After Ministers have received views, in writing, they are required to send copies of them to the CCB. The CCB will be invited to comment on them and respond to Ministers within 60 days of receiving their invitation (section 73(12) of the Act). Ministers must consider the views received and the responses from the CCB before they reach a decision on its application.
Criteria for consent by Ministers
40. When Ministers have sought views and resolved any issues arising, they are required to satisfy themselves that the CCB's application has met the criteria for consent (section 74(1) of the Act). When considering the application, Ministers may have to refer issues to the Scottish Land Court to be resolved (section 81 of the Act). These can be referred by Ministers, any member of the crofting community, any person such as you with an interest in the land, or the eligible sporting interests and anyone whom Ministers invited to send views on the application. Where an issue is referred to the Scottish Land Court, the Land Court can invite you as landowner, the CCB or any other person who appears to have an interest to make representations to it. If it is successfully demonstrated that the information which the CCB provided in its application is incorrect or flawed, and that the application would not therefore meet the criteria for consent, Scottish Ministers would be bound to reject it.
Ministerial consideration of the purchase of eligible additional land without the owners' consent
41. The CCB may have included eligible additional land in its application but you, as owner of that land, have not requested, or consented, to the sale of that land. The Act makes provision that the Ministers' decision on the CCB's application will be deferred until this issue has been referred to the Scottish Land Court and it has made a decision on the matter (section 77 of the Act).
42. The Scottish Land Court will consider (in terms of section 77(4) of the Act) the CCB's application to include eligible additional land against the criteria set out in section 77(3) of the Act. It can make an order which specifies either: (1) that some or all of the eligible additional land should be included in the CCB's right to buy or (2) that there should be title conditions applied to some or all of the land. The effect of such an order would allow Ministers to grant the CCB's application. Ministers would therefore grant the CCB's application in relation to the eligible additional land in accordance with the arrangements specified in that order.
43. If the Scottish Land Court concludes that it should not make an order, as it has found that there was no justification for either including any part of the eligible additional land in the CCB's right to buy or for imposing title conditions on any part of that eligible additional land in the right to buy, then the CCB's application as a whole would fail.
44. The landowner can also propose that eligible additional land should be included in the CCB's right to buy application (section 79 of the Act). If you, as landowner, make this request within the time limit for submitting views on the CCB's application (under section 73 of the Act), Ministers may, if they consider that it is in the public interest, require that the CCB's application be modified to include such eligible additional land.
45. Ministers may refer any matter which relates to the question of whether eligible additional land should be included in the CCB's application to the Scottish Land Court. Ministers are not bound to refer a matter to the Scottish Land Court in every circumstance. However, they must do so if you, as owner of land, or the CCB require them to do so (section 79(2) of the Act). If any questions on the eligible additional land are referred to the Scottish Land Court, Ministers will be bound to take account of its findings when they consider the CCB's application (section 79(5) of the Act).
Notification of the Ministers' decision
46. There is no specific time set out in the Act in which Ministers must notify their decision on the CCB's application. Ministers will give a Notice, in writing, of their decision to consent or to refuse the CCB's application to exercise its crofting community right to buy (section 82 of the Act). This notice will also give the reasons for their decision. This will be sent to the CCB, the owner of the land, the tenant, or person entitled to the eligible sporting interests to which the application relates, and every person who was invited to send their views to Ministers on the application (section 82(1) of the Act). If the Ministers' decision is to consent to the application, they will also send it to the Keeper of the Registers of Scotland (section 82(1)(d) of the Act).
47. The Ministers' Notice will contain a full description of the eligible croft land, eligible additional land, interest of the tenant in tenanted land or eligible sporting interests to which their consent relates and any conditions imposed under section 80 (consent conditions) by virtue of section 77(4) or (5) of the Act (reference to the Land Court of the purchase of eligible additional land without the owner's consent). It will also contain information about the consequences of their decision (section 82(3)(a) of the Act), and the right of appeal in Part 3 of the Act. It will state the date on which the Ministers' decision is effective (section 82(3)(b) of the Act).
Appeals against the Ministers' decision
48. The Act makes provision that parties may appeal against the Ministers' decision to consent to or to refuse the CCB's application for consent to exercise its right to buy (section 91(1) and (2) of the Act). These parties include you, as owner of the land, or a person entitled to the eligible sporting interests in the application, or any other person with a legally enforceable interest in the land or sporting rights.
49. You should make your appeal to the Sheriff Court in the area where the land or any part of it or the eligible sporting interests or any part of them is located, and which has the jurisdiction to hear an appeal. Applications must be made within 28 days of the date on which Ministers decided to consent to, or refuse, the application. Appeals may only be made on a question of law (section 91(5) of the Act). The Sheriff may make an order to uphold, reverse or add conditions to the decision by Ministers. The conditions must be consistent with any decisions or finding by the Scottish Land Court on matters under sections 77 or 81 of the Act. The order of the Sheriff is final.
2.9 AFTER MINISTERS DECIDE
50. From the date on which Ministers give their consent to the CCB's application, you as landowner, the tenant, or person entitled to the eligible sporting interests in the CCB's application, are prohibited from disposing of them to any person other than the CCB (section 95 of the Act). Should the CCB decide not to exercise its right to buy or withdraw from its right to buy application, this prohibition will be lifted (section 95(2) of the Act).
51. Following the Ministers' consent to the CCB's application, Ministers have 7 days in which to appoint an independent valuer (section 88(1) of the Act), unless they have referred a question to the Scottish Land Court, e.g. on the terms of a leaseback, in which case they will appoint the valuer within 7 days of the day on which the Scottish Land Court makes its determination on this question (section 88(2) of the Act). Should, however, Ministers fail to appoint within these specified times, any delay will not affect the validity of the valuation (section 88(3) of the Act).
52. The Act specifies that the valuer must be suitably qualified, independent and have knowledge and experience of valuing land, tenants' interests, or eligible sporting interests of a kind which is similar to the land, tenants' interests or eligible sporting interests which the CCB is seeking to purchase (section 88(1) of the Act). The cost of this valuation will be met by Ministers (section 88(8) of the Act).
53. The aim of the independent valuation is to ensure that the landowner receives a fair price, the "market value" for the land. It is not the purpose of the Act to allow the CCB to purchase land cheaply and at a financial loss to you the owner. The definition of "market value" is set out at section 88(6) of the Act. The valuation will consist of the sum of the value of:
- the open market value if the sale were between a willing seller and a willing buyer;
- compensation for any depreciation in value or other land, tenants' interests and other interests belonging to the seller as a result of the forced sale; and
- compensation for any disturbance to the seller resulting from the forced sale.
54. In arriving at the open market value, the valuation will take into account the possibility of a potential purchaser with a special interest in the property (other than the CCB) (section 88(7) of the Act). No account shall be taken in that assessment of the fact that you, as landowner, were not allowed any time to market the property or of depreciation of other land or disturbance. This is because compensation for these latter two items will be added to the open market value (in accordance with section 88(6)(b) of the Act).
55. The appointed valuer acts on behalf of the Ministers, not for the parties involved in the purchase. They will act as an expert and not as an arbiter. The valuer will ask you as landowner, tenant (if applicable) and also the CCB, for your written views on the value of the land and or interests (section 88(9) of the Act). They will take these views into account when considering the value of the land. If you and the CCB have come to an agreement on the valuation of the land, you must notify the valuer in writing of that agreed valuation. If the CCB is interested in leasing back the eligible sporting interests to you, as owner, the valuer will assess their value and take into account the terms and conditions of the lease which has been agreed between you as owner and the CCB, or, as the case may be, by the Scottish Land Court under section 83 of the Act.
56. The valuer has 6 weeks from the date of their appointment (or longer if agreed by Ministers in terms of section 88(13) of the Act), to provide Ministers, you, as landowner, and the CCB with their assessment of the value of the land. The validity of the transfer of the land is not affected by the failure of the valuer to comply with this time limit (section 88(14) of the Act). The price to be paid for the land, interests and the interest of the tenant, is the valuation price provided by the valuer or a price agreed by mutual agreement between the CCB and yourself as landowner, tenant or person owning interests or the price determined by the Scottish Land Court (section 92 of the Act) if the valuation figure is appealed.
Appeals against the valuation
57. Should you as landowner, the tenant, the person entitled to the eligible sporting interests, or the CCB be unhappy with the valuation, an appeals procedure is available (section 92 of the Act). Appeals against the valuation are made to the Scottish Land Court (section 88 of the Act). An appeal may be made within 21 days of the intimation of the valuation (section 92(2) of the Act).
58. The Scottish Land Court may reassess the valuation and substitute its own for that of the appointed valuer (section 92(2) of the Act). The valuer may be called as a witness in the appeal proceedings (section 92(4)). The Scottish Land Court must give its decision on the appeal in writing, within 4 weeks of the hearing of the appeal. It will give reasons for its decision (section 92(5) of the Act). The validity of the Land Court's decision is not affected by its failure to comply with this time limit.
59. The valuation determined by the Scottish Land Court is the price the CCB will have to pay to purchase the land or the interest of the tenant unless a different price is agreed by both parties. The CCB and yourself, as landowner, can reach an out of court settlement on any issues relating to your community right to buy which are the subject of an appeal (section 93 of the Act). You should be aware that the Ministers are not a competent party to any appeal as they only appoint the valuer (section 92(7) of the Act.
2.10 TRANSFER OF THE CROFT LAND ETC TO THE CCB
60. After the valuer has informed the CCB of the valuation figure, it has 21 days in which to send to you, as landowner, tenant, Ministers, and other parties entitled to the interests included in its application, notice that it intends to proceed with its right to buy (section 85(1) of the Act). Ministers will acknowledge the CCB's confirmation and will send a copy to you or any person entitled to the interests (section 85(3) of the Act). Should, at any time, the CCB decide that it wishes to withdraw from its right to buy, you will be notified in an acknowledgement letter from Ministers (section 88(9) of the Act).
Completion of the purchase
61. The CCB is fully responsible for securing the expeditious exercise of its right to buy (section 86 of the Act). You as landowner, tenant, or the person entitled to the interests to be acquired, are obliged to make the title deeds available to, and to transfer them to, the CCB (section 86(4) of the Act). Should you refuse or fail to make these documents available, or if they cannot be found within 6 weeks of the date on which Ministers consent to the CCB's application, the CCB can apply to the Scottish Land Court for an order requiring the production of these documents (section 86(5) of the Act). Where you refuse or fail to transfer the title of the land, the CCB can also apply to the Scottish Land Court to undertake that action. An action by the principal clerk to the Court has the same effect as if it were done by the owner (section 86(6) of the Act).
Completion of the transfer
62. The details of how the transfer of the land or eligible sporting interests is to be completed are set out in section 87 of the Act. The CCB must pay for the land, interposed leases or eligible sporting interests within 6 months from the date on which Ministers consented to its application (section 87(2) of the Act). However, this date may be extended where:
- you, as the owner of the land, the tenant or person entitled to the eligible sporting interests agrees to an extension of that period (section 87(3)(a) of the Act);
- the valuation (under section 88) has not been completed by a date which is 4 months after the date when Ministers consented to the CCB's application: in such a case payment must be made within 2 months of the completion of that valuation (section 87(3)(b) of the Act);
- the valuation is the subject of an appeal which has not been determined within 4 months of the date when Ministers consented to the CCB's application: in such a case, payment must be made within 2 months of the date of the outcome of the appeal (section 87(3)(c) of the Act).
63. If there is any unreasonable delay in transferring the title of the land, corrective action can be undertaken (sections 87(4) and (5) of the Act). In particular, if you, as owner, do not grant a good and marketable title to the CCB by the date of payment, then the payment shall be made to and held by the Scottish Land Court pending either the completion of the conveyance or notification to the court that the CCB has decided not to complete the transaction (section 87(4) of the Act). If the CCB does not make payment by the due date, the CCB's application will be considered to have been withdrawn. The CCB's failure to pay for the land and any interests creates a liability to pay compensation under section 89 of the Act (section 87(5)).
64. The land, the interest of the tenant and/or eligible sporting interests which the CCB is acquiring will be disburdened of any heritable security (section 87(6) of the Act) and any securities which burden the land other than in respect of which title is granted shall cease to burden the land (section 87(7) of the Act). However, the CCB will be required to pay the creditors of a heritable security any sums which are due to them (section 87(8) of the Act). The CCB may deduct any sums paid to the heritable creditor from the amount it is to pay you as the landowner (section 87(9) of the Act).
65. Section 89 of the Act sets out the circumstances in which any person, including the landowner, tenant, or a person entitled to the eligible sporting interests, who has incurred loss or expense through the exercise of the CCB's crofting community right to buy is entitled to reclaim that loss or expense from the CCB (section 89 of the Act). If a CCB makes an application and it is refused by Ministers, you as landowner, tenant, or the person entitled to the interests, are entitled to recover the amount of any losses from Ministers. A CCB will not be liable to pay compensation where it has made an application to Ministers, but Ministers have not approved it (section 89(2) of the Act).
66. The process for making a claim against the CCB is set out in the Crofting Community Right to Buy Compensation (Scotland) Order 2004 (see Annex B). A claim must be submitted to the CCB within 90 days of:
- the final settlement date (section 87(2) of the Act), or a later date (section 87 (3) or (4) of the Act);
- the date when your CCB withdrew confirmation of your intention to proceed with the purchase of the land (section 85 of the Act ); or
- the date on which your CCB's application was treated as being withdrawn (section 87(5) of the Act),
whichever date is earlier.
The claimant should specify the reasons why they are applying for compensation. Where the applicant and the CCB cannot agree whether compensation is payable, or the amount of such compensation, within the timescale specified in the 2004 Order, then either party may refer the question to the Scottish Land Court for a decision (section 89(5) of the Act).
67. This guidance demonstrates that a community purchase under part 3 of the Act is not an easy route for communities to embrace and it may not suit you as a owner of land, interests, or sporting interests or as a tenant of so called interposed leases. You may wish to consider selling your land and interests to the community by agreement and without recourse to the provisions in Part 3 of the Land Reform (Scotland) Act 2003. The key to such a transfer is good communication between yourself and the CCB. Reliance on the Act has the advantage of a structure with which to operate. However, you should be aware that adherence to Part 3 is both complex and legalistic. Parties may choose to use the services of a solicitor from an early stage.
68. The Scottish Government's Community Assets Branch is happy to assist with any questions about the crofting community right to buy process (contact details in Annex B). The branch cannot, however, provide legal advice, nor, due to impartiality required in advising Ministers on a case-by-case basis, advice which would be seen as supporting a particular group such as owners, heritable creditors, the tenant of a so called interposed lease, or the CCB in any specific case.