Franco-Scottish Perspectives on Property, Sustainability, and Land Reform
Background:
On 9 May 2025, Prof. Maria Fletcher, Dr Flora Vern, and David Guild hosted a conference at the University of Glasgow titled Franco-Scottish Perspectives on Property, Sustainability, and Land Reform, co-organised and funded by the Private Law Research Group and the Franco-British Lawyers Society. This event convened scholars, practitioners, and commentators from across Scotland and France to explore current topics in property law through the overarching themes of sustainability and land reform. Throughout the afternoon, speakers delivered a series of presentations on the human rights aspects of land reform, community rights to buy for sustainable projects, forest ownership concentration or fragmentation, and the law on residential tenements in the context of the energy transition. These are areas in which there are substantive differences between the approaches in Scots and French law, providing grounds for rich comparative discussion. We hope this event not only strengthened a mutual understanding of these jurisdictions but also informs interesting legal and policy ideas on the future of land ownership and sustainable governance. This post aims to capture some of the discussions that took place throughout the afternoon in the hope it will prompt further reflection and thought.
1. The Scottish human rights approach to land reform
Dr Kirsteen Shields, Senior Lecturer in International Law and Food Security at the University of Edinburgh, delivered the first presentation examining the human rights influences on land reform legislation in Scotland – an approach with no meaningful equivalent in France.
Historically, international law enabled and legitimised the assertion of property rights by colonial actors over their territories and the expropriation of land from native populations. Despite the calls for a more equitable distribution of economic and sociocultural rights that followed the Second World War, the major human rights treaties adopted by the United Nations did little to dismantle this paradigm of private ownership, affording scant reference to land in the context of equal access rights for rural women. It was not until 2018 that human rights law engaged directly with land through the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, which recognised the ‘special relationship’ between rural populations and the land they inhabit. Thus, although human rights standards have become more attuned to land-related concerns, this field remains in its nascence. Nonetheless, there is some basis for integrating land with human rights discussions prior to 2018. Article 2(1) of the 1966 International Covenant on Economic, Social and Cultural Rights instructs states to take steps to progressively realise the social, economic, and cultural rights to the maximum of their available resources. Land, as such a natural resource, is thereby conceived as instrumental for delivering rights to adequate living standards, food, clothing, and housing under Article 11, building a human rights case for land reform. European human rights law departs from the more communitarian ambitions of the Covenant to protect private ownership under the right to peaceful enjoyment of property set out in Article 1 Protocol 1 (A1P1) to the European Convention on Human Rights. Yet, this right is not absolute; it is subject to state interference on public interest or fiscal grounds, provided such intrusion is prescribed by law, in pursuit of legitimate aims, and necessary in a democratic society. Accordingly, states have some latitude to enact restrictions on land ownership, regulate land usage, or exercise compulsory purchase powers for developmental, social, or environmental purposes. Where such measures have been challenged by landowners under A1P1, the European Court of Human Rights tends to construe the state’s margin of appreciation broadly and defer to the public interest justification cited.
The mixed treatment of land rights in international and European human rights law informed the legislative scrutiny of the Land Reform (Scotland) Act 2016 during its passage through the Scottish Parliament. The Rural Affairs, Climate Change and Environment Committee heard extensive evidence from stakeholders on the interaction between several proposed measures in the Bill with the rights of landowners derived from A1P1. Yet, the Committee recognised that while the Convention right to peaceful enjoyment of property forms an important lens of assessment, it must be appreciated alongside the other obligations under international human rights law on which the Scottish Parliament is competent to legislate. This broader approach incorporates not only the conservative human rights protections of private property, but also the more collective economic, social, and cultural rights articulated in the International Covenant, for which land resources are a key means of realisation. Far from thwarting the community ownership agenda pursued by the 2016 Act, human rights considerations provided a valuable structure to balancing the underlying tensions between private and public interests and legitimised progressive land reform.
Participants expressed some scepticism about bringing human rights concerns into land reform discourse, given their capacity to strengthen systems of neoliberalism and private ownership, which sit uncomfortably with redistributive objectives. In response, Dr Shields drew attention to the distinction between civil and political rights, and economic, social, and cultural rights, which represent two different global traditions in human rights thinking. Whereas the former group has historically protected private property rights, the latter group offers a very different insight on landownership and usage; it was arguably a radical step for the 2016 Act to align the Scottish land reform agenda with economic, social, and cultural rights. Additionally, the framing of the human rights perspective on land was also discussed, with one participant questioning whether a right to land, as opposed to a right to property, could offer a more grounded legal foundation. Dr Shields suggested the perspective of ‘land’ allows for recognition of the broader spectrum of human and non-human relationships with land that tend to be obscured by a focus on ‘property’, a socio-legal construct.
2. Community rights to buy for sustainable and ecological projects
The second session focussed on the regime for giving community rights to land for the purpose of sustainable use. Malcolm Combe, Senior Lecturer at the University of Strathclyde, and Calum Stewart, PhD Researcher at the University of Glasgow, led the discussion on community rights to buy in Scotland. This was followed by a presentation from Adrien Roussel-Jourde, Notary in Paris, who offered the perspective on potential analogues to community rights to buy in France
Community rights to buy are mechanisms for transferring landownership from a private owner to a community body with a view to delivering some communal benefit. These were first given effect by Part 2 of the Land Reform (Scotland) Act 2003, which granted preferential treatment for community bodies to acquire available land with consent from Scottish Ministers and sufficient funds to complete the transaction. However, such rights have only been successfully exercised in 24 out of 274 cases. The Scottish Parliament since legislated to create two further community rights to buy; first, in respect of land that is abandoned, neglected, or managed to the detriment of environmental or community wellbeing under the amended Part 3A of the 2003 Act, and second, where the landowner is obstructing sustainable development and community ownership is likely to further sustainability interests, as per Part 5 of the Land Reform (Scotland) Act 2016. In both circumstances, Scottish Ministers are competent to force the transfer of private land to community bodies where the statutory conditions are satisfied, with landowners enjoying only limited rights of appeal. Given the vulnerability of such compulsory purchase regimes to human rights challenges, community applications are subject to stringent thresholds for ministerial approval. For instance, the Helensburgh Community Woodlands Group was refused permission to acquire an area of mismanaged forestland under Part 3A of the 2003 Act for the purpose of transforming it into a sustainable community woodland on the basis the project lacked economic viability absent any income generation plans. More recently, the Poets’ Neuk community body applied under Part 5 of the 2016 Act to acquire a plot of overgrown land in St Andrews for use as a public garden. However, Scottish Ministers accepted the application on account of the project’s social and environmental merits, and this decision was upheld on appeal by the Sheriff Court. This outcome reflects a more holistic understanding of sustainable development that extends beyond a narrow appraisal of a project’s economic output, while arguably suggesting an alternative vision of landownership, in which sustainability is embedded through the community rights to buy regime.
By contrast to the Scottish framework, French law lacks a specific mechanism empowering community appropriation of land. Pre-emption rights exist chiefly for individuals who already have an interest in the land, such as tenants, or for owners of an adjacent plot, thus encouraging concentration of small plots into viable units. Although there are no legal provisions enabling community acquisition, the concept of land held in trust in the public interest offers some resemblance in this regard, exemplified in the case of Celles – a municipality in southern France. After Celles was expropriated in the 1960s in anticipation of plans to submerge the village, a project supported by residents and local authorities to repopulate the derelict land in the community’s interest was initiated in 2017. Ownership of Celles was transferred to an endowment fund which leased properties long-term to residents through the ‘commodat’, an interest-free loan mechanism. Rather than conferring real rights as such, the commodat grants the borrower a personal right of use alongside obligations to maintain and carry out major refurbishments on the derelict properties. Such restoration is financed entirely by the borrowers, which the commodat accounts for by assigning a depreciation rate to be deducted from the value of use upon expiry of the minimum 35-year duration period. At this point, the endowment fund either recovers the property or the commodat can be renewed for the next generation of residents. This legal arrangement enables citizens of Celles to enjoy value of use for this period in exchange for revitalising the land in the interests of the local community and environment.
One participant questioned why the right to buy for sustainable development offered a more viable route for community acquisition in the Poet’s Neuk case than the scheme for abandoned, neglected, or detrimentally managed property, which was arguably better suited to the specific factual circumstances. In response, Malcolm Combe and Calum Stewart observed the greater ease with which landowners can take positive and visible steps to refute claims their land is being mismanaged than to prove they are not impeding sustainable development. There was also some discussion on the length of the commodat, with participants querying whether the minimum 35-year duration period was unduly short, considering the scale of refurbishment undertaken therein. Adrien Roussel-Jourde explained that the obligations imposed on residents by the commodat to maintain and restore the buildings are designed to roughly correspond to the financial cost of the free accommodation from which residents benefit for the duration period. Further, the 35-year period is intended to reflect a generation of use; once the commodat reaches maturity, it is possible for the lease to be renewed for the next generation to assume residence of Celles.
3. Ownership concentration/fragmentation and forest governance
Andy Wightman, a former Member of the Scottish Parliament and renowned writer on topics of land ownership and reform, began the third session with a discussion on the concentrated nature of forest ownership in Scotland. This was followed by a presentation from Dr Éric Meiller, Notary in Saint-Chamond, examining the fragmentation of forest ownership in France and the challenges this poses to effective governance.
Despite occupying approximately 90% of the land in Scotland, agricultural tenants historically held no legal rights to trees, with ownership retained by the landowner. While this changed under the Agricultural Holdings (Scotland) Act 2003, which granted tenants rights to timber from any trees they planted, forest ownership largely remained with state and private actors. As such, there is evidence to suggest almost 50% of Scottish forests are in holdings of over 100 hectares, with trends indicating a greater concentration in forest ownership since 2012. This situation contrasts starkly with that of many European states, wherein 60% of forested land is owned by holdings of less than 1 hectare; early reforms to land law following the French Revolution in the late-1700s, including the abolition of feudal tenure and expansion of succession rights under the Civil Code, offer a plausible explanation for the more diverse nature of forest ownership observed in modern continental Europe. At present, traditional estates and personal investors hold the majority of privately owned forests in Scotland, although corporate and financial ownership has expanded by virtue of the state’s choice of policy instruments. Indeed, most private forest owners are absentee, which can likely be attributed to an increase in investment ownership based outside of Scotland. In sum, private ownership of forest areas in Scotland is increasingly concentrated in fewer owners, a growing number of which are corporate or financial entities domiciled in the rest of the UK or other jurisdictions.
From the French perspective, France possesses one of the largest and most biodiverse forest areas in Europe, covering approximately one third of its territory. State or public ownership accounts for 25% of the forest land, with the remaining 75% apportioned between private actors; of the 3.5 million private owners, some 2 million hold forest areas below 1 acre. To mitigate this fragmentation, French law maintains a range of pre-emptive rights that grant preferential access in land acquisition processes to various state, municipal, and conservationist bodies, as well as neighbouring plot owners. However, there is little evidence to suggest such measures have succeeded in consolidating ownership into viable units. To promote some coordination in forest governance, private owners can accede to different management structures, for instance, merging ownership under a single entity, such as a forestry group, or sharing management functions between several owners. Such co-ownership and indivision solutions may be workable in many cases, although 57% of private forestland in France remains without a clear management plan. Indeed, there are particularly acute challenges for managing parcels of undemarcated property, where the owners of a plot are known by the land registry, but specific holdings therein are not clearly delineated. This legal indeterminacy hinders effective forest governance where management decisions, such as the grouping of forest land, are contingent on the unanimous consent of the landowners. Consequently, plots of undemarcated property are effectively abandoned. Given the material threat climate change poses to forestland in France, this situation is highly undesirable.
Discussion followed on the potential environmental outcomes of absentee ownership in Scotland and plots of undemarcated property in France, with some participants raising the possibility that passive ownership may be naturally fortuitous for forests. However, Dr Meiller contended the climate change and biodiversity crises facing French forestland are such that a policy of inaction is not a viable substitute for swift and positive management interventions. As for the Scottish experience, Andy Wightman noted there is no empirical evidence to support a causal link between absenteeism and environmental mismanagement, but acknowledged absentee owners cannot receive input from interested parties as those in traditional estates; such lack of direct access can render land inert to local initiatives. Participants also questioned the feasibility of community woodlands in redressing Scotland’s forest ownership challenges, particularly in light of the increasing burden assumed by communities to manage land in lieu of the state. Andy Wightman suggested a model of widespread cooperative ownership could yield greater economic and management benefits for Scotland’s forestland overall than narrow instances of community ownership. Additionally, parallels were drawn between the use of pre-emptive rights in Scots and French law and their respective failures to tackle issues with forest concentration and fragmentation. This prompted some reflection on whether reforming ownership is the appropriate point of focus for policy on improving forest governance, or whether efforts might be better directed towards tighter management plans or enhanced civil society engagement, for example.
4. Residential tenements, climate-proofing and the energy transition
Prof. Andrew Steven, Professor of Property Law at the University of Edinburgh, and Dr Flora Vern, Senior Lecturer in Property Law at the University of Glasgow, discussed the legal treatment of residential tenements and the challenges raised by the transition to clean energy.
Despite the legal and policy significance residential tenements attract by virtue of comprising 40% of Scotland’s housing stock, the common law in this area was relatively underdeveloped. Most of the tenement was individually owned except for limited areas of common ownership such as the close. Due both to the typical absence of a building management plan and the requirement of unanimity inherent to co-ownership, conducting repairs and maintenance on the building could be stymied by uncooperative owners. To address this problem, the Tenements (Scotland) Act 2004 implemented the recommendations of the Scottish Law Commission to impose default rules of ownership and a tenement management scheme (in Schedule 1 to the Act), which provides for the basic maintenance of tenements requiring only majority consent. Rule 1.5 of this scheme defines ‘maintenance’ narrowly, to include inter alia, repairs, replacements, installation of insulation, and other routine works, but expressly excludes building improvements. The installation of green energy or efficiency technology – heat pumps or solar panels, for example - is likely to constitute an ‘improvement’, such that the rule on unanimous consent for structural alterations is not abrogated by the tenement management scheme. Arguably, there is a case for widening the definition of ‘maintenance’ as such, although there would remain further legal obstacles such as any real burdens in the title conditions, deeds of servitude, and planning permission processes that complicate efforts to climate-proof tenements.
In France, residential tenements were historically governed under a strata system akin to that in Scotland: under Article 664 of the Civil Code, the various floors of the building were individually owned, whereas the structural elements were subject to a series of reciprocal servitudes created by law that collectively provided some management plan, albeit limited. Thus, the major ‘copropriété’ reforms in 1938 and 1965 established a dualist structure, prescribing indivisible rights of private ownership and co-ownership over the different parts of the building. Private parts are those reserved for exclusive use of the co-owner whereas common parts are designated for the use or benefit of the co-owners, typically consisting of any residual parts aside from individual apartment units. This ownership model is imperative in all tenements and will be implied by courts absent proper delimitation by the title deeds or floor plans. This has led to the phenomenon of over-complication whereby practitioners, courts, and then statute, have recognised the possibility of having ‘common parts with private use’, essentially to redress faulty divisions and changes in the building. Recent laws aimed at ‘greening copropriété’ have lowered decision thresholds. For instance, adding new floors to tenements to increase density and reduce urban sprawl is contingent on residents’ consent by a qualified majority of 66%, and will require the reallocation of shares in common parts of the building to account for the extension of co-ownership. Additionally, installing solar panels can be authorised by a simple majority, but will involve subjecting common parts to a leasehold agreement with the service company and creating a mechanism to distribute proceeds between residents or the copropriété. These measures add further complexity to the network of real rights over the property. However, the copropriété can be circumvented where buildings fall outside the scope of its statutory regime, as is the case with undivided residential buildings with a single corporate owner granting exclusive personal rights of use to occupants, or so-called ‘complex real estate’, where the ground and units of the building are separated into privately owned ‘volumes’ linked by an extensive network of servitudes. These structures do not incorporate elements of common ownership.
One participant questioned whether further legislation on common ownership would be the most effective solution to improve tenement management in Scotland and France. In response, Dr Vern expressed some resistance to legislative interventions in this area, noting there is no need to redefine ownership where effective management schemes already exist to ensure the necessary maintenance of structural elements for the benefit of all residents, without requiring unanimous agreement. However, it was acknowledged this would not be practicable for making broader improvements to the tenement’s energy infrastructure. This fed into a wider discussion on the feasibility of some positive duty for owners to maintain or make improvements to residential tenements, such as obligations to retrofit energy efficiency or climate-proofing technology. However, participants recognised it would be difficult to reconcile the imposition of such a duty, which would naturally entail some interference with title deeds and raise compliance questions with the human right to peaceful enjoyment of property under the Convention. Prof. Steven conceded this tension is difficult to navigate, although it was noted the scheme for emergency repairs could provide some grounding to expand owners’ maintenance obligations in the future.
Photo: (from left to right): Éric Meiller, Andrew Steven, Calum Stewart, Maria Fletcher, Malcolm Combe, Kirsteen Shields, Andy Wightman, Flora Vern, and David Guild (Adrien Roussel-Jourde joined us online).
