Guidance Note:
Changes to Succession: Notification of transfer of the tenancy
2nd Commencement Order 2010
Section 10:
Commencing October 2011
Bequest of Croft
1a: Allows the bequest of the whole tenancy to one natural person.
1b: Allows the bequest of the tenancy of the croft to 2 or more
individuals, providing that no part of the croft subject to a bequest is
left untenanted if all legatees accept the bequests in their favour.
2: The period of time in which the legatee (or the Executor of the
deceased crofter, if authorised by the legatee) is permitted to give
notice of acceptance of bequest to the landlord of the croft, and to
send a copy to the Commission, has been extended to 12 months
beginning with the death of the crofter.
3: The right of a landlord to object to a bequest where the legatee is
not a member of the deceased crofter’s family is repealed. Subsection
3 now provides for the circumstances in which a bequest becomes
null and void, i.e. if notice is not given in terms of sub-section 2 or 2A.
4A: Requires the deceased crofter’s executor to apply to the
Commission for consent to divide the croft where two or more
legatees accept the bequests for their parts of the croft (where the
croft is bequeathed to more than one person).
4B: Following Commission consent to a division application under
S.4A each of the legatees come into the place of the deceased crofter
in relation to that legatee’s new croft.
4C: States that a bequest to more than one person is null and void if
no application for consent to divide is submitted, or if the Commission
do not give their consent.
Section 11:
Commencing October 2011
Intestacy
Section 16(2) (a) of the Succession (Scotland) Act whereby the
consent of the Commission is required to a transfer by executor
application is repealed.
1: Provides that if a crofter does not bequeath the tenancy of his croft
(i.e. dies without having left a will), or the bequest becomes null and
void, the tenancy must be treated as intestate estate and must be
transferred in accordance with section 16 (2) of the Succession
(Scotland) Act 1964. The Executor of the deceased crofter must give
notice as soon as may be to the landlord of the croft (including details
of the transferee), and the landlord shall accept that person as the
tenant of the croft. The Executor must at the same time send a copy of
the notice to the Commission.
2: Provides that if the landlord has not received notice that the tenancy
has been transferred within 24 months from the ‘relevant date’, the
landlord shall notify the Commission accordingly. This time period has
been extended from the previous 12 months.
4. Extends the period in which the Commission can give notice that
they propose to terminate the tenancy due to failure of the executor to
give notice to the landlord from 12 months to 24 months commencing
with the relevant date.
8. Introduces a timescale for the landlord to submit proposals to let the
croft within 4 months of the date of notice to do so, following the
termination of a tenancy and the croft being declared vacant due to a
failure to the executor to transfer the croft within the statutory
timescales.
A recent decision by the Court of Session has established that in addition to the
requirement to obtain Confirmation of the Estate, the transfer must be made by way
of some form of document transferring the interest. It was suggested in that case that
a docket attached to the Confirmation would be an acceptable form (although not the
only acceptable form) of acceptable transfer.
The Executor of the deceased crofter should therefore take the following steps within
TWO YEARS of the crofter’s death: (1) obtain Confirmation from the Sheriff Court to
the Estate of the deceased crofter. The croft tenancy and any grazing rights or
shares must be detailed on the inventory to the Confirmation; (2) transfer the tenancy
of the croft (including any grazing rights or shares) by way of, preferably, a docket
endorsed on the Confirmation in favour of a person of choice; and (3) give notice of
that transfer, including details of the transferee) to the landlord of the croft, who shall
accept that person as the tenant. At the same time the executor must send a copy of
the notice to the Commission.
From 1 October 2011 all unresolved intestate successions will fall to be dealt with
under the provisions introduced by the Crofting Reform (Scotland) Act 2010,
therefore there will no further need for an executor to apply for Commission’s consent
to the croft tenancy transfer. It will be sufficient for the executor to give notice to the
landlord and copy that notice to the Commission.
As there is now no application to process we have created a Transfer by Executor –
Notification to Landlord form requiring the Executor to provide both the date that
Confirmation of the Estate of the deceased crofter was granted, and the date on
which the Executor signed the docket transferring the tenancy.