What is a 'cottar'? MacLachlan v Lamont & MacDonald sheds light on little-discussed property law

The recently published judgment of the Land Court in the case of MacLachlan v Lamont & MacDonald sheds light on a little-discussed but potentially consequential area of the Scots law of property, writes Ross Simpson.

The Crofters (Scotland) Act 1993 grants certain rights to ‘cottars’ – broadly, people who occupy a dwelling-house in the crofting counties and pay little or no rent. One of those rights is an entitlement in some circumstances to a conveyance (in effect, to take ownership) of the site of the dwelling-house. The Act also allows a cottar to apply to the Land Court if they are unable to achieve this by way of agreement with their landlord. But what, exactly, makes someone a cottar? That was the key question in this case.

The judgment pertained to two separate but related applications which were heard together. Both applications related to the dwelling-house known as Ormerhaven, which is located near Gott Bay on the Isle of Tiree.

One was brought by Alastair MacLachlan. He asked the court to declare that he was the cottar of Ormerhaven and to order his landlord, Hugh MacDonald, to transfer ownership of the property to him.

The other was brought by Jennifer Lamont (or MacLachlan). She sought declarator that it was in fact she who was the cottar of Ormerhaven.

The court fixed a hearing which was restricted to the question of whether either party was a cottar.

The core legal issues

Section 12(5) of the 1993 Act defines a cottar as:

“the occupier of a dwelling-house situated in the crofting counties with or without land who pays no rent, or the tenant from year to year of a dwelling-house situated as aforesaid who resides therein and who pays therefor an annual rent not exceeding £6, whether with or without garden ground but without arable or pasture land”.

Clearly, then, there are two classes of cottar: a non-tenant cottar who pays no rent; and a tenant cottar who pays an annual rent not exceeding £6.

In this case, both parties claimed to be a non-tenant cottar of Ormerhaven.

The court noted that, in order to achieve cottar status, the purported cottar must occupy with the knowledge and consent of the proprietor. A squatter does not acquire cottar status.

However, the court is not concerned with how possession was first acquired. Rather, it focuses on the present attributes of the purported cottar. Thus, a person may start out occupying property as a squatter and subsequently become a cottar if the landlord consents to their occupation.

The court also noted that occupation founded on by a purported cottar must be broadly residential in character. As we will see, this was an important factor in its final decision.

The parties’ positions

Mr MacLachlan’s and Ms Lamont’s dealings with Ormerhaven dated back to 2000. Ormerhaven is located within the grounds of the croft known as 3 Gott. The owner-occupier of 3 Gott at that time was Donald MacIntyre, the uncle of the current landlord, Mr MacDonald.

In their evidence, Mr MacLachlan and Ms Lamont put forward competing narratives.

Mr MacLachlan’s position

Mr MacLachlan stated that, in 2000, he, Ms Lamont and their children met with Mr MacIntyre while on a family holiday to Tiree. Mr MacIntyre offered them the opportunity to redevelop Ormerhaven, which was at that time a ruin. Mr MacLachlan and Ms Lamont redeveloped Ormerhaven into a holiday home, with Mr MacLachlan carrying out the majority of the work himself. They both lived on the mainland during this time. The works were completed in 2007; from then until 2017, the family used Ormerhaven as a holiday home.

In 2017, Mr MacLachlan and Ms Lamont separated. Shortly thereafter, Mr MacLachlan took up full-time occupation at Ormerhaven. Relations between the two deteriorated further, leading to the present dispute.

Mr MacLachlan’s position was that, between 2000 and 2017, neither he nor Ms Lamont were cottars, but that since 2017 he had been the full-time resident of Ormerhaven. He claimed to occupy Ormerhaven with the knowledge and consent of Mr MacIntyre, and then of successive other landlords after Mr MacIntyre passed away. Mr MacLachlan’s position was that Ms Lamont had never been a cottar.

Ms Lamont’s position

Ms Lamont’s account of events differed significantly. She asserted that, in the early 2000s when they had first met with Mr MacIntyre, what he had in fact offered was to ‘return’ the cottar’s interest in Ormerhaven to her alone. This was because Ms Lamont had a historic familial connection to the site – her grandfather had previously been the cottar of Ormerhaven.

Ms Lamont asserted that the agreement was between her and Mr MacIntyre only. Mr MacLachlan was not party to this agreement, and thus she became the cottar at that point in the early 2000s, and remained the cottar to the present date.

Decision of the court

On the evidence before it, the court found that the offer made by Mr MacIntyre in the early 2000s was made to both Mr MacLachlan and Ms Lamont. The court, perhaps recognising that the law of cottars is rather esoteric, was not persuaded that Mr MacIntyre expressly used the words ‘as cottar’ or ‘cottar’s rights’ when agreeing the basis of their occupation.

However, this finding was irrelevant for the purposes of the decision, because the court also found that this agreement in the early 2000s did not confer cottar’s rights on either Mr MacLachlan or Ms Lamont. It found that their occupation of Ormerhaven until 2017 was occasional and sporadic, and insufficient in both extent and nature to be characterised as residential. After 2017, however, the situation was different.

The court found, on the evidence before it, that since 2017 Mr MacLachlan had resided at Ormerhaven on a full-time basis with the knowledge and consent of the landlords. Accordingly, since that date, he had met the statutory definition of a cottar.

Analysis

This judgment provides helpful guidance for practitioners and the public alike. The court’s summary of the applicable principles, and the way in which the judgment sets out the court’s approach to deciding whether a particular occupant can be classed as a cottar, is very useful for those who find themselves faced with this question.

The court found that the occupation prior to 2017 was insufficiently residential to grant the parties cottar status, and noted that during this time Ormerhaven was only ever occupied as a holiday home. Helpfully, the judgment makes clear how it should be interpreted in future: the court stated that it did not intend to set up an absolute rule that it is impossible for cottar’s rights to exist in respect of a second home. Rather, the court found on the facts before it that the pre-2017 occupation did not meet the necessary threshold of ‘residential-ness’, but that Mr MacLachlan’s post-2017 occupation did.

Perhaps anticipating the potential ripple-effects had it found that the pre-2017 occupation was indeed sufficient to confer cottar’s rights, the court acknowledged that there was “force in the submission that the 1993 Act and its statutory predecessors did not intend to confer a valuable benefit on holidaymakers from the central belt of Scotland”.

The case should be considered particularly carefully by landowners in the crofting counties. They should be aware of the risk that, in allowing an individual to occupy a property with no rent, or a sufficiently low rent, they might inadvertently be granting that individual cottar’s rights, and so entitling the occupant to seek a conveyance of the property.

Written by Ross Simpson, a senior solicitor in Shepherd and Wedderburn’s litigation and dispute resolution team. He specialises in disputes relating to commercial and residential property, particularly in the rural sector.

A version of this article first appealed on Shepherd and Wedderburn's blog.