The Scottish view on Property is rather restricted: Property in Scots law is the largest right that a person can have in a thing. This is in contrast with the view held in other jurisdictions, especially with regard to ownership. In Scots law, land can never be owned in the sense of an owner. What are afforded are rights that may or may not be exclusive as against others. Ownership, as the concept is known and comprehended in other jurisdictions, is exercised against personal property and not against realty.
As such, when speaking of the rights contemplated by such ownership in Scots law, the same is referred to as absolute interests in land. This can be traced partly to the feudal form of land ownership that existed in Scotland until 2003 such that Scots land law had oft been described as one of the most feudal systems of landholding still in existence, and as such the concept of land ownership is closer to the concept of state ownership and territory as against private ownership, through which an aristocracy may have been said to be established.
In 2003 the Land Reform (Scotland) Act entered into effect and though converting the underlying legal principles to post-feudalistic times, it has since come into criticism by virtue of the requirement of sale to make its provisions effective and, in the words of one critic, “half of Scotland has been off the market for over 100 years. ” On the other hand, Philippines and Louisiana laws on Property are concerned with that body of law that governs all matter susceptible of appropriation, including the rights and obligations that flow therefrom.
This is a legal concept inherited from the traditions of the Spanish Civil Code and the American concept of property. Because of this difference in the scope of the notion of property, the parallel structures with regard to the law on property are found in different areas of the Philippine Civil Code and may or may not necessarily relate to the discussion on Property per se.
Some writers have noted that this difference in attitude reflects on the advice given by legal counsel to property owners in these jurisdictions. In Scots law, as the only rights one may exercise over property are rights that must be granted by law, barristers and solicitors tend to be more conservative when dealing with an ambiguity or vacuum in the law and argue that the right does not exist.
In contrast, in Louisiana and in the Philippines, which is influenced by the American concept of property, an ambiguity or vacuum in the law will be interpreted by legal scholars there more favourably toward the property-owner and points toward the existence of the legal right. However, and as noted by some legal scholars, this difference in approach does not diminish from the scope of the rights granted.
Subject to some exceptions, all jurisdictions grant the right to possession of the property from the sky to the center of the earth as well as a right to everything above the surface. The extent of the Scots law is explained by writers in this manner: Scots law, like American law, states that initially a landowner has the right to exclusive possession from the sky to the center of the earth; he has a common-law right to everything above the surface, and to all minerals and other substances in a strict vertical line between his surface and the center of the earth.
Large writes that another area of significant deviation results from the difference in constitutional restrictions on the legislative power in Scotland as compared to that of Louisiana and the Philippines, and as such there lie differences in the principles of: (1) regalia; (2) land tenure; (3) recording title to land; and (4) control of land use and development.