Land Tenure and Crofting in Scotland

Formal land tenure systems protect the property rights of landholders and provide new paths for economic development. Crofting is a traditional form of land use in Scotland’s Highlands and Islands with characteristics that prevent crofters from taking advantage of an individualized tenure system. As a result this condition has contributed to slow economic growth or even the appearance of poverty. This paper examines Scotland’s land tenure arrangement with a particular emphasis on the practice of crofting. Beginning with a look at some general observations on the benefits of land tenure, a social, political, and historical backdrop is prepared to place crofting in the proper context for discussing its current status and future tenure arrangements. Introduction Crofters face a hard existence, struggling to earn an agricultural living in some of the United Kingdom’s most unforgiving environments. A tight communal bond keeps many crofters from abandoning the lifestyle, electing instead to live and work in the communities of their forebears. Legislated in 1886 but practiced long before, crofting has become an indelible part of Scotland’s historical, social, and economic fabric. In short, crofting is a form of land use in Scotland’s Highlands and Islands based on small scale, extensive agriculture. Crofting has seen the passing of many Acts, yet some of these laws have not been in keeping with its tenure system. Often the results are the creation of more problems than are solved. Accordingly, there is a clear need for policy makers to understand the peculiarities of crofting, and for crofting communities to enjoy a tenure system permitting them to fully benefit from strategic policies. Formal Land Tenure Much has been written about the economic advantages of a formal land tenure system. Some of the benefits cited are increased land transactions, stimulation of investment into property, and enhanced access to credit. When the transaction process is simplified, a country’s citizenry is more able to purchase or sell land, and therefore move or remain rooted as it chooses. This encourages people to live where they can maximize the utility of their land. Research indicates that formal land titling facilitates this process. A study of a title deed project in four northern Thailand provinces found that land market activity was 35 to 205 percent higher in the deeded provinces than in non-deeded areas (Feder, 1996, p.11). Although local influences (family, land productivity, etc.) play significant roles in determining how a landholder invests in the land (Hendrix, 1996, p.196), the opening of marketable lands with clear titles of ownership stimulates improvements and investment. Where there is security of land tenure, the risks associated with investment are minimized. Landholders who know they can remain on the land for as long as they want and are financially able to do so are willing to make long term improvements (Barr, 1985, p.9). As landholders move to invest in their property, there will be an inevitable turn to lenders to finance these improvements. To obtain loans, landholders can use secured property as collateral. Lenders assume a risk when credit is extended, and this risk is offset when secured property is used for this purpose. However, to accept land as collateral, banks need assurance that borrowers hold title to their lands. Loans secured on fixed holdings are often less expensive, of a greater amount, and for a greater duration than informal loans which are often the only recourse for those without secured property (Feder, 1996, p.5). It is important to note that formal land tenure systems alone will not be a magic panacea for a struggling economy. Formal tenure systems must also be supported by an effective communication and transportation infrastructure, a sound economy, and policies from a stable political body responsive to the needs of the people they serve. Scotland United with England since 1707, Scotland is part of the United Kingdom of Great Britain and Northern Ireland. Forming the northern part of the island of Great Britain, Scotland is bounded by the Atlantic Ocean on the north and west sides, the North Sea on the east, and England to the south. The total area of 30,412 square miles includes inland waters and 186 inhabited coastal islands (Horn, 1999, p.402). Demographics Scotland’s population according to Britain’s 1991 census, is about 5 million. Glasgow with a population of over 600,000 is the largest city in Scotland and the fourth largest in the United Kingdom. Other major Scottish cities are Aberdeen, Dundee, and Edinburgh, the capital. Scotland has 33 counties, the most populous of which are Lanark (with Glasgow), Midlothian (containing Edinburgh), Ayr, Renfrew, Fife, and Aberdeen (Horn, 1999, p.402). Formalized crofting parishes lie within the seven crofting counties of Caithness, Inverness, Ross & Cromarty, Sutherland, Argyll, Orkney, and Shetland. While Scotland is an integral part of Britain and demonstrates a broad pattern of similar economic activities, Scotland’s economic and unemployment cycles have been more severe than English cycles. The economy has tended to rely upon industries subject to periodic decline or those at a competitive disadvantage. The lack of appropriate investment since 1945 and the emigration of skilled labor have also contributed to the economy’s severe recessions (Stewart, 1999, p.410). Agriculture, forestry, and fishing are relatively more important to Scotland’s economy than the other countries in Great Britain. Pasture alone accounts for 67% of the land in agricultural use with vast amounts of rough grazing remaining for sheep and cattle raising. These hilly and rugged grazing areas are what give Scotland’s farms their distinct character. Tourism and manufacturing help give the economy a balance and diversity through the production of electronic goods, food, drink, and tobacco products, chemicals, synthetic fibers, paper products, and fine woolens. The Scottish economy benefits from Britain’s membership in the European Union (EU) which has opened new markets for its products. Agriculturists in particular benefit from the British and EU governments, receiving in 1996 approximately $800 million in subsidies (Stewart, 1999, p.410). Government Scotland’s government is also the government of Great Britain and Northern Ireland. Scotland sends representatives to Parliament to govern with representatives from Wales, Northern Ireland, and England. Scottish citizens voted for the creation of a Scottish Parliament in 1997 and this body is expected to meet in mid-1999. Some may interpret this as a step towards Scottish independence, but most people desire the strong links to the rest of Great Britain. The focus of this new body will probably be on taxation and other domestic concerns (Horn, 1999, p.412). Law In medieval times the law was derived from several independent sources. Clerics and other religious leaders mediated civil law and the Scottish Parliament legislated other laws. These laws were leavened by the practice of feudalism and other local customs. The publication of the Institutions of Laws of Scotland in 1681 provided the foundation of modern Scots law, and since that time there have been strong influences from the European continent and from England (Smith, 1999, p.414). Feudalism Of particular interest in this paper is land law, which is still in theory feudal. Feudalism, introduced in the 11th century, is a hierarchical system of land tenure where property rights are derived from an ultimate authority. In Scotland the theoretical ultimate authority is God, but in practice the Ultimate Superior is the Crown. All landowners are vassals of the Crown, but may themselves be superiors to other landowners through the retention of certain rights or the imposition of certain obligations on those to whom they sell their lands. These purchasers or vassals can in turn become superiors to others through the same process. There is no limit to how many times this process called feuing or subinfeudation can occur (Wightman, 1996, p.6). Many of the traditional roles of superiors and vassals have passed into history, but the old practice of feudal service has been transformed into a perpetual payment known as feu-duty. While feudal tenure is the most prominent form of tenure in Scotland, land may also be held alloidally -independently with no feudal superiors. A specific type of alloidal tenure is Udal tenure which still exists in the Orkney and Shetland Islands. A product of its Viking heritage, Udal tenure provides for the inheritance of property by all the owner’s children rather than simply the oldest child or son (Wightman, 1996, p.7). As this millennium draws to a close, feudalism may finally be abolished a thousand years after its introduction. Governments since 1969 have publicly pledged the removal of this antiquated system, and the passage in 1974 of the Land Tenure Reform (Scotland) Act prohibited the creation of new feu-duties and the redemption of existing ones. Even so feudal tenure remained largely unchanged. In 1991 the Scottish Law Commission published the paper Property Law: Abolition of the Feudal System which in spite of its title essentially echoed earlier proposals (Wightman, 1996, p.11). The ancient heart of feudalism continues to beat since the right to place burdens or conditions on land still persists whenever land is conveyed. The need for reform is acknowledged, but has yet to be fully realized. So why has feudalism endured? Feudalism has provided a seamless property system for nearly a thousand years and effected with it a sense of status, real control, and political power (Wightman, 1996, p.13). Feudalism was abolished on the Continent largely by revolution and Napoleon, but not in Scotland, where the influence of generations of feudal barons have made its Civil Law traditions seem out of step with the traditions of mainland Europe (Burdon, 1998, p.44). The Register of Sasines Scotland was the first country of modern times to establish a public land registry for the protection of land rights (Pitticas, 1992, p.31). Since their inception, these registers have been open to public inspection. This notion is in sharp contrast to the Land Register in England and Wales which until 1990 was only open to owners and agents (Burdon, 1998, p.41). Dating since 1617, the registers were designed to end violent disputes over properties. The name Sasine comes from the medieval French seisin which means to seize or hold. This is exactly what the register is -a public display of private land holdings. Since the 17th century, the registry has remained essentially unchanged. Every piece of privately owned heritable property in Scotland’s 33 counties is centrally recorded in Edinburgh. Updated every time a property is created or sold, the system holds the ownership, history, sales, and mortgage records of over a million properties and is amended an estimated 400,000 times each year (Lloyd, 1996, p.40). As an information source its value is somewhat limited by a cumbersome indexing system. The register is not map based so any search must begin with knowledge of either the person or place concerned. This leads to a search sheet which contains the pertinent information about the subject parcel. These search sheets are only descriptive but are in some instances cross-referenced to plans. Difficulties arise when there are multiple ownerships or the parcel is unusually large making the acquisition of all available information on such properties a tiresome and tedious process (Wightman, 1996, pp.23-24). The system, however, is more than a public register of deeds. The majority of the Court of Session in Young v Leith 1844 6 D 370 held that title was not complete until the fulfillment of recordation. Recordation has become an integral and necessary component of the transaction process without which the grantee can not assume full title (Burdon, 1998, p. 40). Land Registration (Scotland) Act 1979 The Register of Sasines is an expensive system to maintain due to deed lengths and the amount of time needed to access and examine the register. The Land Registration (Scotland) Act 1979 introduced the Registration of Title which was first applied to the county of Renfrew in 1981. Differing from the Register of Sasines which records evidence of title, the Registration of Title guarantees that a good title will be delivered to the purchaser (Pitticas, 1992, pp.31-32). To meet this goal, there must be a thorough legal examination of each property’s history at the time of registration. The initial plan was to introduce the new registry into the whole of Scotland by 1990, but resource and budget limitations limited this coverage to only about 30%. The Registers of Scotland (RoS) recognized this problem and saw ways to enhance the registry by bringing in new technology and improved procedures. Methods that duplicated efforts were streamlined and computing and information systems were integrated for improved flexibility and efficiency. The advantages of GIS functionality were realized placing an emphasis on the incorporation of the land registry into the agency’s digital mapping system (Lloyd, 1996, p.41). In 1998 some 14 of the 33 counties had become operational with the remaining to become functional by 2003. These 14 counties represent the majority of the population distribution with the balance under the Register of Sasines representing the majority of the physical geography (Burdon, 1998, p.49). The Keeper of the Registers of Scotland delivers to the grantee a title sheet known as a land certificate. The certificate consists of the following four sections: Property, Proprietorship, Charges, and Burdens. The Property section holds a brief description of the property and identifies it by postal address and a reference to the relevant Ordnance Survey map. The Proprietorship section contains the name of the owner, the proprietor’s heirs, the price paid, the date of registration, and the date of moving into the property. The Charges section provides any mortgage details on the property, and the Burdens section lists any restrictions on the property (Pitticas, 1992, p.31). While the new Land Register improves conveyance efficiency and reduces the likelihood of title defects, there still persists the common complaint that it is very difficult to simply and inexpensively determine who owns what parcel of land (Wightman, 1996, p.24). Crofting History In many parts of the Highlands and Islands of Scotland, land use and settlement patterns are distinctly different from the remainder of Scotland. Small individual lots are seen in predominance along the sea shore of Caithness, Inverness, Ross & Cromarty, Sutherland, Argyll, Orkney, and Shetland counties. This is almost entirely due to the practice of crofting, which was developed in the early portions of the 19th century. Prior to 1800, farms of the central highlands were worked by tenant farmers who lived in small hamlets clustered about arable fields with uncultivated lands grazed by sheep or cattle. Following the failed rebellion in 1745, landowners began to develop a more commercial attitude about the lands they governed. Seeing a more profitable use for their land and their labor force, they began a forced migration of their tenants from the country’s interior to small communities along its coasts and shores (Caird, 1987, p.67). This forced abandonment of familiar lands and lifestyles is commonly referred to as the “Clearances”. With their labor situated along the sea shores, landowners were able to utilize their previously farmed lands as grazings for commercial sheep farmers from southern Scotland and northern England. The displaced laborers, called crofters, were forced to turn to the emerging industries of fishing and kelp since the lands they now occupied were unforgiving and not suitable for farming (Caird, 1987, p.67). Crofters Holdings (Scotland) Act 1886 The crofters rented small plots of land called crofts which became small family based holdings. These communities did not prosper, but instead suffered from the harsh environment and high rents imposed by the landowners. In an effort to relieve the crofter’s plight, a Royal Commission investigated crofting’s conditions and from its recommendations came the Crofters Holdings (Scotland) Act 1886. Although the 1886 Act failed to address key concerns like land restoration for the displaced, this proved to be a watershed statute since it provided three rights to the crofter: security of tenure subject to prescribed conditions, fair rent, and compensation for permanent improvements (MacLeod, 1996). The 1886 Act specified which parishes in the seven counties were eligible for croft status and set forth the formal nature of crofting and enumerated other vital rights. Covering about one fifth of the total land area in the Highlands and Islands, crofting is a small community where individualized crofts are held on an annual tenancy from a landowner. A crofting estate supports several crofting townships, which in turn are associated with several individual crofts, each tenanted by a crofter who uses the land for agricultural purposes. A township has a common grazing shared by most crofters who are allowed a limited number of livestock on the grazing. A croft typically has a small dwelling unit (around 0.1 Ha) and one or more nearby parcels for crops, grazing, or both. Two important rights are the ability of the landowner to retain sporting and mineral rights in the common grazing, and the right of inheritance by a crofter’s heirs. A Crofters Commission was also established as an overseeing public body responsible for the maintenance and welfare of crofting (Drummond, 1998, p.36). Crofting Legislation A croft has been described as a plot of land surrounded by legislation. This observation is not an exaggeration since in the last century there have been several Acts passed to specifically address crofting issues. In addition to the 1886 Act, another important Act was the 1911 Small Landholders (Scotland) Act which established the Scottish Land Court. This court has the final decisions on law relating to land unless overturned by a Court of Session. The 1911 Act also provided, for the first time, an allusion to the tenant’s rights to use the land for non-agricultural purposes. It was not, however, until the passage of the Crofters (Scotland) Act in 1961 that crofters obtained a provision for improvements for non-agricultural pursuits (MacCuish, 1987, p.91). The 1931 Agricultural Holdings (Scotland) Act protects crofters from harmful contractual agreements unless directed otherwise by the Scottish Land Court. The 1955 Crofters (Scotland) Act established a new Crofters Commission and conferred upon it some of the administrative duties that had been borne by the Land Court. Finally, the 1976 Crofting Reform (Scotland) Act permits crofters to gain full title to their crofts at a regulated purchase price (Drummond, 1998, p.484). Although these Acts have directly targeted crofting and have generally had a positive impact on its communities, there have been other Acts or directives passed to the detriment of crofters. An example of this the Civic Government (Scotland) Act 1982 which prohibits the driving of animals on public thoroughfares. Unfortunately, this Act applies to cart tracks across common grazings where the maintenance has been adopted by local governments in spite of the tracks falling under the auspices of the croft’s tenure. By the letter of the law, crofters who herd animals on these tracks commit a criminal offense. This example and others like it clearly demonstrate the need for strategic policy decisions to be in keeping with the practices and needs of local users (MacLeod, 1996). Crofting Strengths In spite of its painful roots and litigious rearing, crofting offers many attractions. Crofts are found on some of the most remote and beautiful lands in the United Kingdom. This pristine charm is also a magnet for tourists who bring with them a positive economic influence. The small-scale agricultural pursuits of crofters have a minimal impact on the land, unlike large commercial farms which threaten the environment with fertilizers, pesticides, and erosion. Crofting has also retained populations in these remote areas -regions that would otherwise be abandoned (Drummond, 1998, p.488). Crofting agriculture has seldom met the income needs of a full family so crofters have often had to look for employment in economic sectors outside of agriculture. While some may view this as a negative trait, there are several industries (particularly information technology) that desire part-time help. Since this is the way many work, crofters are well positioned to take advantage of these industries (Drummond, 1998, p.488). Crofting Weaknesses As just mentioned, crofting often necessitates part time employment. This sometimes means that those seeking this type of work are forced to leave their communities and families for extended periods of time. If remaining home means using the land as the sole source of income, then poverty and undue hardship are often in evidence. There is a clear need for economic diversification. To be successful, this type of effort needs a facilitating legal framework, creativity, and access to capital. Crofters attempting to obtain a loan secured by real property often meet with discouragement. Although crofters own their individual dwellings, they do not own the lots on which they are situated. Established loan agencies have been reluctant to accept dwellings as collateral, but beginning to emerge are Crofter’s Credit Unions which do accept residencies as securities (Drummond, 1998, 488). As shown, crofting is a highly regulated system. In the past there was a clear need for legislative protection but it is less necessary now since current national and European policies seem favorable to crofting (Drummond, 1998, 491). At a minimum there needs to be a reduction in the Crofters Commission involvement in local matters. This organization is a remote group with sometimes limited knowledge about the intimate workings of a township. This adjustment will have the broad benefits of less bureaucracy, administrative cost savings, and greater response to community needs. A change in the Commission’s role will need primary legislation to amend the Crofters (Scotland) Act 1993. Perhaps with the advent of the new Scottish Parliament there will be a new focus on these domestic issues (Land Reform Policy Group, 1998). Crofting’s Future Extensive legislation has defined crofting and its agricultural nature, but little has been said of the landowners except the curtailment of their rights. Accordingly this tension between landholder and crofter, in conjunction with expanding crofting confidence, contributed to a highly publicized event that helped thrust land usage and landownership issues to the fore. In 1992 the Assynt Crofters Trust made history by buying back lands from which crofters were swept during the Clearances of the late 19th century. This was not the first time crofters had become landowners, but this case was remarkable because ordinary people had organized to take over land and won without the aid of government or a philanthropic landlord (Wightman, 1996, p.179). Now these crofters are able to do what, as tenants, they were unable to do before: take control of the land, its resources, and utilize it for individual profit and community benefit (Lawson, 1996, p.30). In 1995 the Scottish Crofters Union (SCU) moved to set up of a Crofting Trust. The SCU Trust, similar to the Assynt Crofters Trust, is available to take over the ownership of estates on behalf of their crofting tenants. Does ownership by its own kind signal the way for the future of crofting? There is little doubt that Assynt crofters have benefited from this arrangement, but land tenure, regardless of ownership, is still subject to reform. Future changes detrimental to crofting will affect SCU held property as readily as any other proprietor’s land. Conversely, reforms such as the removal of antiquated feudal burdens may prove a boon for an estate or township. On the whole, the effort of collective self-ownership or the assumption of SCU held title seems to hold promise. As tenants of a landlord body in which they themselves have a stake, crofters can have greater control over their futures (Wightman, 1996, p.180). There are also internal problems facing crofting stemming from the 1976 Crofting Reform (Scotland) Act which permits crofters to purchase their individual crofts from their landlord. This Act also allows the crofter to petition the removal of the land from crofting tenure and sell it on the open market after a statutory period. Crofters who purchase their lands with a regulated ceiling price and then subsequently sell them for large profits are taking advantage of legal loopholes. Furthermore, the large scale removal of these lands destabilize the crofting community and disrupt the tight communal nature of the township (Wightman, 1996, p.180). The nature of crofting itself is in need of reform. For example, there is a desire to expand crofting into non-croft land, but primary legislation is first required. Also, the existing structure of crofting is seen as cumbersome, bureaucratic, and open to abuse. A revised legal structure will help remedy these defects and effect a simpler, more flexible system. The crofting community can tackle these difficult internal issues through leadership, imagination, and initiative -the same qualities demonstrated by the Assynt Crofters (Wightman, 1996, p.181). Crofters by the nature of the crofting system may never fully benefit from an individualized formal land tenure system. But mechanisms exist to assure crofting’s continuity and improvement.