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MSP’s ignorance of croft law could lead to landlord windfall 3/5/10
Sir,
Considering he’s the MSP for the Western Isles, Alasdair Allan demonstrates an astonishing ignorance of crofting law and practice when he says (Isles’ MSP bid to close crofting loophole, Hebrides News, 28 April):
"[The Macdonald Whitbread] ruling ... allowed a small number of crofters to appoint
a "nominee", often associated with the building trade, who receive croft land at
right-
This is even when there is clearly no intention for the land to be used either for crofting, for a croft house, or for houses for the relatives of a crofter. The consequence is a fear that some areas of good crofting land have been speculated on for house plots in parts of the Highlands.
My amendment to the Crofting reform Bill does NOT affect a crofter's right to bequeath
or assign a croft to whomever he or she likes. However, it does remove the much more
rarely-
Leaving aside that a crofting tenant does not have a right to bequeath or assign his/her croft to “whomever he or she likes”, the reality of Macdonald Whitbread and nominees is this (as Jennifer Aniston used to say in the shampoo ads “Here comes the science bit – concentrate.”)
When the crofting right to buy was introduced in 1976, it provided that, if a crofter
buying his land at “right-
But the landlords’ clawback was effectively neutered when the courts decided in the Macdonald v Whitbread case in 1992 that no clawback was due when, instead of taking to title to the land and later selling it on to a third party, the crofter has the landlord convey it directly to the third party, the crofter’s nominee (i.e. instead of there being two conveyances, landlord (L) to crofter (C) then C to third party, there is only one – L to 3P (nominee)).
Though it cuts them out of their clawback, landlords cannot refuse to convey directly
to a nominee in this way so, in practice, tenants seldom invoke the right to buy
to take title to croft land (apart from the croft house site) themselves and what
instead happens is this: planning permission for a development on the croft is obtained
and the Crofters Commission dutifully de-
The crofter then sells it for a five or six figure sum to a builder, his nominee.
The transaction is completed by the crofter invoking the right to buy and paying
the landlord the two or three figure “right to buy price” and requiring him to convey
the site directly to the builder-
Unless, due to being populated by very badly advised (or very generous) crofters,
practice is radically different in the Western Isles compared to the mainland areas
I used to deal with, this is the entirely standard method by which croft land is
sold for non-
If there is concern about croft land being lost to non-
Imposing what amounts to a 50% tax on land sales won’t stop “speculation” any more
than Capital Gains Tax does: if anything, this risks increasing it by encouraging
crofters to buy their land and retain it (dare one say – horrors! -
Nor do I imagine that Mr Allan’s proposal to fork 50% of the proceeds of “speculation” into the pockets of landlords – whether community trusts or heirs to brewing fortunes – will endear his party to many voters at upcoming elections outside the membership of the Scottish Landowners’ Federation.
Neil King
Rua da Assumada
9960-
Ilha das Flores
Açores
Portugal