Chamber and committees

There are no statistics available for the amount of land in Scotland held in commonty, however, it is likely to be a very small amount.

One of the difficulties with identifying such land is that the title deeds will not necessarily expressly convey a proprietary right of commonty. In past cases of doubt, the nature of the possession has been an important factor.

The Land Register is a modern, map-based register of title, managed and maintained by the Keeper of the Registers of Scotland. On first registration of an area of land in that register, the Keeper will examine the prior title deeds as well as other evidence submitted by, or on behalf of, the applicant for registration. If an applicant considered that their primary property carried with it a proprietary right of commonty in other land, they could include evidence to that effect in their application. The Keeper is not aware of any land held as commonty being registered in the Land Register.

Accordingly, the titles to any land that remains held as commonty are likely to be recorded in the General Register of Sasines. This register, which has been in operation since 1617, is a register of deeds and holds only the information set out in those deeds. Therefore, it is unlikely that land held as commonty could be identified from the Register of Sasines alone.

Parliament recently passed the Land Registration etc. (Scotland) Act 2012 that will ultimately allow for the completion of the Land Register, replacing the Register of Sasines. It will provide better, clearer information on ownership of all land in Scotland.

There are no plans at present to repeal the Division of Commonties Act 1695. The act allows an area of commonty to be divided amongst the owners either where holding the land as commonty no longer suits the parties or to allow enclosure and cultivation of the land. In modern common ownership, a similar end may be achieved by an action of division or sale.

The Scottish Government is aware that the act has not been used recently, however, it continues to provide a right to any remaining owners of commonty to continue to hold their land in the way that suits them. It is therefore not desirable to remove this right from the owners of commonty.

<>There are opportunities under the SRDP for crofters to access support for providing and/or maintaining a water supply to their croft for agricultural purposes. The Crofting Counties Agricultural Grants Scheme (CCAGS) offers match-funded grants towards the cost of a range of on-croft agricultural operations. Eligible operations under CCAGS include the provision and improvement of water supplies for agricultural business use. More information is available on the CCAGS web page at http://www.scotland.gov.uk/Topics/farmingrural/SRDP/CCAGS.

The SRDP does not provide support to access mains water supplies for domestic purposes. Outwith the SRDP, the Croft House Grant Scheme (CHGS) offers grants of up to £22,000 towards the construction or improvement of croft housing. Eligible operations under CHGS include the provision of a sink with hot and cold water supplies and drainage. More information is available on the CHGS web page at:

http://www.scotland.gov.uk/Topics/farmingrural/Agriculture/grants/BDandM/CHGS.

There are currently no plans to introduce a widespread feeding programme for sea eagles, however there is provision within the current Sea Eagle Management Scheme potentially to provide carrion in certain situations.

(a) Apart from the Sea Eagle Management Scheme within the Rural Options of the Scottish Rural Development Programme (SRDP) there are measures available which may help eagle management indirectly, e.g. habitat management options. However, there are no direct eagle management prescriptions, except for wardening. Due to complications with animal health elements in the Sea Eagle Management Scheme it is uncertain whether the EU would agree to a straight transfer of the current scheme to SRDP.

(b) Farmers and crofters can undertake practical measures such as provide shelters for stock in such areas which makes them less accessible to bird predators. A number of deterrents like kites, scarecrows, flickering tapes etc can be used but all of these need backed up by a regular presence of people and physical scaring. In areas where these methods are not working, or where they are impractical, there is recourse to legal methods to minimise serious damage for those species of predator which can be legally controlled.

A number of bird predators can be controlled under the General Licence by authorised people. The General Licence covers some bird species, including great black-backed gull and carrion and hooded crows which are known to attack stock.

Ravens are protected but licenses to protect livestock are issued by Scottish Government Rural Payments and Inspections Directorate offices in cases where there is serious damage to livestock and other scaring methods have been exhausted or are impractical to implement.

Both golden and sea eagles are specially protected birds under the Wildlife and Countryside Act 1981 as amended, and the EC Birds Directive, therefore we seek to minimise conflict through bespoke management options.

Foxes are not legally protected (except by the welfare legislation that covers all British wild mammals – The Wild Mammals Protection Act 1996) and can be controlled legally by authorised people at any time.

(a) The Scottish Natural Heritage (SNH) Sea Eagle Management Scheme is primarily aimed at those farmers and crofters who are within 5km of nesting sea eagles, however it also includes provision for considering areas outwith the current breeding distribution where sea eagles are present.

The Scheme prescriptions cover three areas - sheep management (includes support for animal health measures, land improvement and capital works such as fencing, sheep shelters etc); positive management for sea eagles (such as management of nest or roost sites); and community projects (sea eagle related tourism ventures etc.).

(b) Applications for the scheme are assessed by a panel of representatives from SNH, National Farmers Union Scotland, Scottish Crofting Federation, and the RSPB. The panel assess applications and discuss any issues raised by them.

Scottish Natural Heritage currently has no plans to carry out a further study on the predation of livestock by wild animals or birds.

The 1695 act allows an area of land, still held as commonty, to be divided amongst the common owners of that land. This may arise where change of circumstance means that it is no longer beneficial to one or more of the owners to hold the land as commonty. It may also be because there is dispute between the commonty owners which cannot be resolved by other means.

The result of division is that each of the owners obtains exclusive ownership of a portion of the area of land, as opposed to obtaining a share of common ownership of the whole land. If such owners wished the property to be held between them in modern common ownership, they would be free to do so by completing the necessary conveyancing.

The Scottish Government is aware that the act has not been used recently, however the act continues to provide a right to any remaining owners of commonty to continue to hold their land in the way that suits them.

There are no figures for the number of people in Scotland who hold land as commonty, however the number is likely to be very low.

One of the difficulties with identifying such land is that the title deeds will not necessarily expressly convey a proprietary right of commonty. In past cases of doubt, the nature of the possession has been an important factor.

The Land Register is a modern, map-based register of title managed and maintained by the Keeper of the Registers of Scotland. On first registration of an area of land in that register, the keeper will examine the prior title deeds as well as other evidence submitted by, or on behalf of, the applicant for registration. If an applicant considered that their primary property carried with it a proprietary right of commonty in other land, they could include evidence to that effect in their application. The keeper is not aware of any land held as commonty being registered in the Land Register.

Accordingly, the titles to any land which remains held as commonty are likely to be recorded in the General Register of Sasines. This register, which has been in operation since 1617, is a register of deeds and holds only the information set out in those deeds. Therefore, it is unlikely that land held as commonty could be identified from the Register of Sasines alone.

The Parliament recently passed the Land Registration etc. (Scotland) Bill that will ultimately allow for the completion of the Land Register, replacing the Register of Sasines. It will provide better, clearer information on ownership of all land in Scotland.

Land held as commonty can in general be distinguished from land held in modern common ownership in three main ways:

The mode of constitution - Typically, specific shares in commonty are not set out in the title deeds, whereas in modern common property it is common for the fractional share to be set out in the title deeds.

The nature of the title – A right held in commonty cannot be transferred on its own; unlike modern common property, the right can only be held as a pertinent of other land.

Rules for division – With modern common property, rules relating to division exist at common law. By contrast a commonty (leaving aside common grazings under crofting tenure) can only be divided under the rules in the Division of Commonties Act 1695.