(Mr D J Houston)
(Application RN SLC 100/10 – Order of 24 November 2010)
CROFTING – CROFT LAND PURCHASED – GRAZING RIGHTS REMAINING IN TENANCY – SEVERANCE OF RIGHTS FROM LAND – DEEMED CROFT – BREACH OF STATUTORY CONDITIONS – TERMINATION OF TENANCY – CROFTERS (SCOTLAND) ACT 1993, SECTIONS 3(4), 3(5) AND 26(1)(b)
The owner of land which inter alia included a common grazings, sought removal of the tenant of a share in that grazings. The tenant of the share was owner occupier of a croft which had originally been purchased from the applicant in 1998 and then acquired by the respondent and his spouse in 2000. The share originally effeired to said croft. For various reasons, no use was ever made of the grazing right by the respondent. An application for removal was made to the Court on the basis of a breach of one of the statutory conditions in terms of section 26(1)(b) and Schedule 2, para 3 of the Crofters (Scotland) Act 1993 (the 1993 Act).
The Court noted that the transfer of rights in grazing upon sale of a croft was not necessarily a straightforward matter. It was clear that when croft land was purchased by a crofter, the tenancy of that land was extinguished. Parties were agreed that the grazing rights remained in tenancy. The Court opined that such outcome was consistent with the earlier purchase arrangements and also with the terms of sections 3(4) and 3(5) of the 1993 Act. The applicant could be said to be landlord of a deemed croft – being the share in the grazings which was at one time a pertinent of the tenancy of the croft. The legal entity of croft and grazings share had been split and there were now effectively two crofts.
The failure to use the grazings was a matter of admission and accordingly the Court had no difficulty in finding the respondent to be in breach of Statutory Condition 3 of Schedule 2 of the Act. In terms of Section 26, the Court has a discretion as to whether a tenancy should be terminated. The main platform of the respondent’s plea for non-removal was that it was his intention to market the croft land and the assignation of the grazings share as one unit and that his removal from the share would sever the link between the croft and the grazings right.
Whilst the Court recognised the potential benefit of that link remaining, it concluded that legal severance had already occurred and that ultimate control of the occupancy of the croft and of the grazing right (the deemed croft) lay with the Crofters Commission. Accordingly, allowing the respondent to remain as tenant of the deemed croft offered no guarantee of the outcome which he sought. Not being persuaded by the objections which he lodged, the Court made an Order for removal.
The Note appended to the Court’s order is as follows:-
The applicant, Mr J R H C Brown seeks the removal of the respondent, Mr John Jackson, as “tenant of the Common Grazings share eiffering to the croft at Scatlands, Westandwick, Yell” on the basis that Mr Jackson is in breach of the statutory conditions of his tenancy.
Crofters (Scotland) Act 1993 (“the 1993 Act”)
Crofting Reform (Scotland) Act 1976 (“the 1976 Act”)
Lamont v Kennedy and Others RN SLC/160/09 (Unreported - Order of 8 September 2010)
 There does not appear to be any dispute as to the relevant factual background, which we narrate briefly.
 By Order of this Court dated 25 June 1998 in Shetland RN 905, the then tenant of the croft at Scatlands – a Mr Manson – was authorised to acquire the site of the dwelling house on the croft and the relevant croft land. A purchase price for the site and land was fixed by the Court, with the latter being determined on the basis of a rent fixed by it. The Court also fixed the rent to be paid by Mr Manson to Mr Brown for the share in the common grazings at £19.
 The said share is in the Westandwick and Herra Common Grazings and we understand the relevant land over which the grazing rights can be exercised is owned by Mr Brown. The souming for the share is 48 sheep. It is agreed by parties that the share is held in tenancy by Mr Jackson from Mr Brown as landlord and that the rent is £19 per annum.
 Although we do not know the precise history, it is clear that the present owners of the croft house and croft land are the respondent and his wife, Mrs Lynn Jackson. They acquired the subjects in or around 2000. Although they were then – and still are, at least to an extent – based in central Scotland, their apparent original intention was to move on a permanent basis to Shetland.
 They carried out extensive renovations to the dwelling-house, but their plans to move to Shetland have been thwarted by, initially, the ill-health of Mrs Jackson’s father and subsequently the ill-health of Mr Jackson himself.
 It is a matter of admission by the respondent that no use of the grazings share has ever been made by him. In or around 2007, Mr Brown had raised with the Jacksons the possibility of the share being relinquished. We do not know the detail or precise nature of exchanges on that matter between parties, but it is relatively clear that the Jacksons were undecided as to their future plans at that time and sought to retain the tenancy. That was on the basis that, if they decided to sell the croft, then marketing it with a share in the common grazings would make it more attractive to a potential purchaser.
 In November 2008, Mr Brown issued a notice to the Jacksons to the effect that he required them to remove from the grazing right as at 28 November 2009. By accompanying letter, Mr Brown referred to an alleged earlier verbal agreement that the parties would “wait for three years after you had bought Scatlands to see whether or not you wanted to use the hill right”. The basis of the notice appeared to be that “Eight or so years later you have never used it and it seems unlikely that you will” and that “it is the sort of thing that could be better used by someone living locally”. The letter also indicated that no rent had ever been paid.
 In response, the Jacksons sought to discuss the matter with Mr Brown on a proposed visit to Shetland over the Christmas / New Year period 2008/09. There is no suggestion that such discussions took place and it appears that the next communication in respect of the matter was the raising of the present action of removal.
 It is not disputed that we have jurisdiction to effect removal of a crofter from his croft in the event of a breach of the statutory conditions of tenure: Section 26 of the 1993 Act. The relevant parts of the Section are in the following terms:-
“(1) When –
(a) one year’s rent of a croft is unpaid, or
(b) a crofter has broken one or more of the statutory conditions …
the Land Court may, on the application of the landlord and after considering any objections stated by the crofter, make an order –
(i) terminating the tenancy;
(ii) declaring the croft to be vacant; and
(iii) for removal of the tenant from the croft.”
 Although Section 26(1) is plain in its terms, as we indicated in our Note of 28 July 2010, the law relating to the transfer of rights in grazing upon the sale of a croft is not necessarily straightforward. Parties are agreed that the grazing right held by Mr Jackson is held in tenancy. As Mr Brown has pointed out, a person cannot be both landlord and tenant of the same subjects at the same time. Before the purchase of this croft by Mr Manson (or his nominee as the case may have been) the rights to graze can be seen to have been a pertinent of the tenancy of the croft: they “ran with” the croft.
 Traditionally, when croft and common grazings was owned by the same person, the whole rent was payable to that person. In more recent times, it is quite common for the heritable proprietor of the land upon which the croft sits to be a different person from that of the common grazings land. As a matter of practice, it is usual for the rent to be split between the two proprietors. Whilst some doubts have been raised as to the legal basis of such a split, the matter has not – as far as we are aware – been the direct focus of any case law. Some discussion of this aspect of crofting law can be found in Lamont.
 However, when croft land is purchased by the crofter, it is clear that the tenancy is extinguished in respect of that croft land. The crofter becomes an owner occupier or what has sometimes been called the “landlord of a vacant croft”. What may be less clear is what happens to the grazing rights at the time of purchase. In this case, parties are agreed that those rights remained and continue to be in tenancy. That is consistent with the determination of this Court in the earlier purchase application to which we have referred, whereby a separate rent was determined for the grazing shares. It is also consistent with the terms of Section 3(4) and (5) the 1993 Act, which are as follows:-
“(4) For the purposes of this Act –
(a) any right in pasture or grazing land held or to be held by the tenant of a croft, where alone or in common with others …
shall be deemed to form part of the croft.”
(5) For the purposes of this Act, where –
(a) a crofter has acquired his entire croft other than any such right or land as is referred to in subsection (4) above …
then the [crofter] shall be deemed to hold the right or land referred to therein in tenancy until held otherwise and that right … shall be deemed to be a croft”.
 Thus, although the shares in the grazing which Mr Jackson holds in tenancy are said to be a part of his croft, we think it plain that Parliament has made provision for the situation which parties now find themselves to be in. That is, firstly, that Mr and Mrs Jackson are owners of the croft and, in terms of Section 61 of the 1993 Act, would be landlords if the croft was let; and, secondly, Mr Jackson is the tenant of a deemed croft, it being the share in the grazings which was at one time a pertinent of the tenancy of the croft which he and his wife now own. Equally, in terms of Section 61, it can be said that Mr Brown is the landlord of that deemed croft. As we have noted, related issues were discussed in Lamont – albeit that the focus there was on an apportionment.
 The legislative position is therefore in accord with the practice referred to by Mr Brown whereby the shares in a grazing become separated from the croft to which they once attached and accordingly the Crofters Commission facilitates the letting of “free-standing” grazings shares. The important point is that, whatever the actual occupancy position on the ground, the legal entity of the croft and grazings share has already been split. In effect there are now two separate crofts.
 At the outset, it can be pointed out that there can be little doubt that Mr Jackson has been ‘on notice’ for some time that his tenancy was not secure. Although he objects to the way in which formal removal has been sought, we think it only fair to say that if a landlord can show a breach of statutory conditions, then, although negotiation is always preferable, he is entitled to bring an action of removal such as this. That is so, even if it is only to protect his own position.
 Initially, Mr Brown sought removal of the respondent on the basis that no rent had been paid and that the grazings share had not been used. Mr Jackson did not dispute that state of affairs, although he sought to explain the reasons for it. It was accordingly admitted that he was in breach of two of the statutory conditions and therefore liable to removal in terms of Section 26 of the 1993 Act.
 During the currency of the application, we understand that Mr Jackson paid rent, including arrears, and that he is no longer in breach of the statutory conditions in that regard. However, it is clear that the grazings share has not and is not being used by him. It is beyond doubt, therefore, that he remains in breach of one of the statutory conditions. The relevant one is to be found at Schedule 2 to the 1993 Act and is in the following terms:-
“3 The crofter shall, by himself or his family, with or without hired labour, either or both –
(a) cultivate his croft;
(b) put it to some other use, being a purposeful use;
so that every part of the croft is either cultivated or is put to such use.”
 As it is a matter of admission that no use is being made of the grazings share, Mr Brown is entitled to seek removal of Mr Jackson from the “deemed croft”.
 Of course, the terms of Section 26 are such that we have a discretion as to whether the tenancy should be terminated. We are to consider any objections raised by the crofter. In this case, Mr Jackson has raised objections and parties are agreed that we should consider the matter on the basis of their written submissions.
 At the outset we would point out that, whilst we sympathise with the Jacksons in regard to the personal matters which may have interfered with their plans, we must start from the current position whereby there is a clear admitted breach of the statutory conditions of tenure with no proposals to purge that breach. Accordingly, removal is inevitable unless we are persuaded that we should not authorise it on the basis of the objections raised by Mr Jackson. We have considered carefully the submissions made by both parties.
 The main platform of the respondent’s argument that we should not authorise his removal is that to do so would sever the link between the croft and the grazing right. He and his wife maintain that it is now their intention to market the croft in the Spring of 2011 and that the croft, with its shares, would be a more viable unit for a new occupier than the two separately. He suggests that this will provide the opportunity for the shares to be worked as part of a viable croft in the future. He is hopeful that the croft and the shares would be acquired by a younger person who would work the two together.
 We have little doubt that the future use of the croft and the shares is a relevant consideration in this case. However, as we have outlined above, any statutory link between what is now an owner occupied croft and a tenanted deemed croft – the grazing rights – has in fact been severed. Parliament has provided for the situation whereby the occupancy of the croft can be separated from that of the grazings. At the present time, although Mr Jackson has occupancy of the croft house and land by virtue of his being one of the owners and of the grazing share as tenant, there is no guarantee that, in the event of his disposal of the land and the shares, they will be occupied by the same person. As will be seen, that is so because the ultimate control of occupancy of the croft and the deemed croft is a matter for the Crofters Commission. Indeed, that is already the case.
 We accept that it may normally be that the best interests of crofting are to be fostered through a link remaining and the shares being “run with” the croft, but that is not necessarily so. In this case, it is clear that no use has been made of the grazings for a number of years in respect of the share tenanted by Mr Jackson. We have no knowledge of the use of the grazings generally, but the actual prospect of usage is envisaged by both parties.
 We have no evidence as to the nature of the croft, its present use and its viability with or without the share. But, even if we did have such evidence, it provides no guidance as to the ultimate destination and use of the croft land or of the grazing share. As far as the croft land is concerned, the ownership will depend on the outcome of the sale by Mr and Mrs Jackson if and when that takes place. The use made of the croft land will depend either on the Jacksons or on their successors. If no use or inappropriate use is made of it, then of course the Crofters Commission can require the croft to be let to a tenant who will make use of it.
 As far as the grazings shares are concerned, whilst it may be that the purchaser of the croft (if one is found) will seek to “purchase” the assignation of the deemed croft, that will not necessarily be the case. In any event, who becomes tenant of the deemed croft or share is again a matter which lies within the control of the Crofters Commission, whose consent to that assignation is required in terms of section 8(1) of the 1993 Act. That consent, in turn, is dependent on the Commission having regard to a number of matters – including the general conditions laid out in Section 58A and the special conditions set out in Section 8(2).
 Accordingly, we accept Mr Brown’s argument that the grazing share is no longer an integral part of the croft. We note his submission that the intention of Parliament at the time of the passing of the 1976 Act was that the in-bye land of a croft should become what he terms “freehold property”, but that the rights in the common grazing should remain tenanted. Whatever Parliament’s intention, it has made provision for that outcome.
 Whilst we accept Mr Brown’s submission that the Crofters Commission advertises proposed assignations of in-bye land separately from assignations of shares in the grazing, it does not necessarily follow that the Commission considers that the shares are not, in some circumstances, important to the integrity of the croft. We think it more likely that the Crofters Commission has simply had to recognise the practical outcome of the 1976 Act and subsequent legislation which provides for the link between croft and grazing share to be broken.
 Mr Brown suggests that Mr Jackson’s arguments about viability are tantamount to an admission that the croft has not been viable for ten years and that all the respondent is interested in is getting a better price when he comes to sell. As we have said, we have no evidence as to the current viability of the croft on its own or indeed of the shares on their own. Nor have we any evidence as regards demand for crofts and shares in the area. It may be that the respondent would obtain a better price for “the package”. But we do not think these are matters which are ultimately relevant to our deliberations.
 We do not know the nature of the subjects and hence the desirability or otherwise that the croft and shares remain “integrated”, but we accept that, generally speaking, it is probably desirable that they are not severed and that the shares are worked in association with the in-bye. But, equally, we are aware of a number of situations where in-bye crofts and shares are worked independently – apparently successfully – whether the link between them has been severed or not. On balance, however, we would support Mr Jackson’s view that the two should remain linked to each other if possible.
 That said, we are satisfied that there is simply no guarantee that allowing Mr Jackson to remain as tenant of the deemed croft will achieve that outcome. Even if he does in fact market the croft along with the assignation of the grazings shares, there is no guarantee that he will get a buyer or that the best price will result from the combination – even if that was his objective. Even if he did get a purchaser for both, that is no guarantee that the integration he refers to will continue. That is so precisely because the ultimate occupancy arrangements are outwith his control.
 By virtue of his admission to a breach of the statutory conditions, we are satisfied that Mr Jackson has rendered himself liable to removal and that Mr Brown, as landlord, is entitled to have him removed.
 We accept that it is normally desirable for croft and grazing shares to be worked together. There is a current link between the croft and grazings shares in this case by virtue of Mr Jackson’s right to occupy both. However, Mr Jackson’s proposals for the disposal of the two elements of his occupancy offer no guarantee that the occupancy link can be retained in the future. In terms of crofting law, the link has been broken and the ultimate control of occupancy – irrespective of the outcome of any future disposal of the ownership of the croft and the tenancy of the shares – lies with the Crofters Commission.
 Creating a vacancy of the deemed croft now will allow the applicant to re-let it with the approval of the Crofters Commission; or, if he fails to do so, then the Commission itself can undertake the re-letting.
 We are not persuaded by the objections lodged by the respondent and accordingly, we find in favour of the applicant in this case. As it is not evident that there will be any difficulty for the respondent in effecting his removal, we have made an Order under and in terms of Section 26(1)(b) of the 1993 Act and that with immediate effect.
For the Applicant: Party
For the Respondent: Party