Contract Law and the Right to Housing – An Introduction

Klaas Hendrik Eller

doi:10.1515/ercl-2025-2018

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Contract Law and the Right to Housing – An Introduction

Klaas Hendrik Eller

Veröffentlicht/Copyright: 12. November 2025

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Aus der Zeitschrift European Review of Contract Law Band 21 Heft 3

Abstract

This article introduces the Special Issue ‘Contract Law and the Right to Housing’, which explores how contract law is increasingly implicated in addressing the housing crisis in Europe and beyond. For a long time, housing policy was framed mainly through the lens of public law, relegating private law – and especially contract law – to a subordinate position. Yet the right to housing, articulated in national, European, and international frameworks and mobilized by courts and social movements, reveals contract law’s structural role in shaping access, affordability, and security of tenure in housing markets. The article situates this emerging right within the broader trajectory of the ‘constitutionalization’ of private law, arguing that it represents a distinctive and novel mode of giving fundamental rights effects in private law and legal thought. Shaped against the backdrop of housing’s commodification and financialization, the right to housing engages firmly with the legal infrastructure of housing provision. In doing so, it brings into focus the ways in which contract law and theory are implicated in the structural drivers of the housing crisis and encourages a more contextual understanding of housing markets, attentive to the plurality of actors, institutions, and distributive mechanisms. The contributions gathered in this Special Issue collectively demonstrate how housing is becoming a laboratory for rethinking the foundations and social orientation of contract law.

Résumé

Cet article introduit le dossier spécial ʻDroit des contrats et droit au logementʼ, qui explore la manière dont le droit des contrats est impliqué dans la réponse à la crise du logement en Europe et au-delà. La politique du logement a longtemps été pensée principalement en catégories de droit public, de sorte que le droit privé – et en particulier le droit des contrats – n’a été doté que d’une importance secondaire. Or, le droit au logement, tel qu’il est consacré par les cadres juridiques nationaux, européens et internationaux et mobilisé par les tribunaux comme par le202s mouvements sociaux, met en lumière le rôle structurel du droit des contrats dans la définition de l’accès, de l’accessibilité économique et de la sécurité d’occupation des logements. L’article situe ce droit émergent dans la trajectoire plus large de la « constitutionnalisation » du droit privé, en soutenant qu’il représente une forme nouvelle et originale d’effet des droits fondamentaux dans le droit privé et dans la pensée juridique. S’étant développé en réaction à la marchandisation et à la financiarisation du logement, le droit au logement se trouve directement tourné vers l’infrastructure juridique plus large de la fourniture de logements. Ce faisant, il éclaire le rôle du droit des contrats et de la théorie contractuelle dans les dynamiques structurelles de la crise du logement et incite à une compréhension plus contextuelle des marchés du logement, attentive à la pluralité des acteurs, des institutions et des mécanismes de répartition. Les contributions réunies dans ce dossier spécial démontrent que le logement est en train de devenir un véritable laboratoire pour repenser les fondements et l’orientation sociale du droit des contrats.

Zusammenfassung

Der Beitrag führt in das Themenheft ‘Vertragsrecht und das Recht auf Wohnen’ ein, das die Rolle des Vertragsrechts bei der Bewältigung der Wohnraumkrise in Europa und darüber hinaus nachzeichnet. Wohnungspolitik wurde lange primär in öffentlich-rechtlichen Kategorien gedacht, sodass dem Privatrecht – und insbesondere dem Vertragsrecht – lediglich eine nachgeordnete Bedeutung beigemessen wurde. Demgegenüber macht das Recht auf Wohnen, wie es in nationalen, europäischen und internationalen Regelungen angelegt ist und durch Gerichte sowie soziale Bewegungen geltend gemacht wird, die strukturelle Bedeutung des Vertragsrechts für Zugang, Bezahlbarkeit und Schutz von Wohnraum deutlich. Der Beitrag verortet dieses an Kontur gewinnende Recht im weiteren Prozess der Konstitutionalisierung des Privatrechts und zeigt auf, dass es eine eigenständige, neuartige Form grundrechtlicher Wirkung im Privatrecht und im privatrechtlichen Denken darstellt. Durch seine Entwicklung in Reaktion auf die Kommodifizierung und Finanzialisierung von Wohnraum ist das Recht auf Wohnen unmittelbar auf die breitere rechtliche Infrastruktur der Wohnraumversorgung ausgerichtet. Auf diese Weise macht das Recht auf Wohnen die strukturellen Ursachen der Wohnraumkrise für das Vertragsrecht und die Vertragstheorie sichtbar und legt eine kontextualisierende rechtliche Analyse nahe, die der Vielgestaltigkeit von Akteuren, Institutionen und Verteilungsmechanismen Rechnung trägt. Die in diesem Heft versammelten Beiträge verdeutlichen, dass Wohnen zu einem Experimentierfeld für die Neubestimmung der Grundlagen und der sozialen Ausrichtung des Vertragsrechts geworden ist.

Keywords: right to housing; financialization; constitutionalization of contract law; tenancy contract law; law & political economy

1 Introduction: The Right to Housing as a Legal and Political Catalyst

203As European cities confront a deepening housing crisis^[] of a lack of affordable and appropriate housing especially in metropolitan areas, law is increasingly regarded as part of a possible solution. This turn to law is most explicitly embodied in the right to housing, which operates simultaneously as a legal principle – elements of which are anchored in a range of national, European, and transnational sources – and as a collective imaginary that animates political and legal mobilization.^[] To be sure, an explicit ‘right to housing’ is rather the exception in domestic constitutional texts in Europe.^[] Yet, over time, the right to housing has matured to become the ‘most prominent legal tool’^[] in the domain of housing: a multi-dimensional socio-economic right that is mobilized both vertically towards the state and horizontally towards landlords, investors and other private actors.

Indirectly, it has also initiated a broader, more holistic legal discourse on housing^[] – destabilizing conventional fault lines of legal thought. There is growing recognition today of housing as a field of law and policy in its own right, composed of different forms of tenure, regulated at multiple levels of governance, and closely connected to wider questions of political economy. For instance, the announced European Affordable Housing Plan^[] marks the first dedicated EU-level initiative in the field and points to the need and potential of multi-level cooperation within the boundaries of the subsidiarity principle. The EU sees its role not only in legisl204ating within its areas of competence (e.g., state aid rules and short-term rentals), but also in providing facilitative measures and technical assistance to foster investment and the exchange of best practices. Advocacy groups in the field of housing rights have long organized at the EU level.^[] Relatedly, as Member States retain primary competence over housing policy in the EU, and municipalities take a frontline role domestically, the field has developed and continues to sustain a rich comparative law tradition at both national and municipal levels.^[]

Substantively, housing law and policy are concerned not only with who has access to a home, and how, but also with the entire lifecycle of ownership and tenancy relations, including what has been conceptualized as occupancy and exit rights.^[] Rather than revolving around a single issue, this legal domain encompasses a plurality of questions shaped by diverse real-life scenarios. Similarly, the contemporary housing crisis is inherently multidimensional and affects different groups in different ways, with especially severe impacts on vulnerable persons and minorities.^[] One reason is that inequalities embedded in and manifested through housing are intertwined with disparities in other sectors of society, including education, health, income, and security. The housing crisis spans across issues such as affordability, quality and renovation of existing dwellings, construction of new units, access to credit, discrimination in access to housing, platform urbanism, and homelessness, to name just a few. This variety is reflective of the fact that housing markets operate at the intersection of multiple legal fields and involve a multiplicity of actors. Next to home owners and tenants, these may involve actors in th205e wider social environment, such as sub-tenants, municipal actors, neighbors, or financial investors.^[] Overall, this has expanded the awareness for the broad spectrum of possible legal levers that may affect housing, ranging from land use and planning regulations to tenant protection, rent caps, fiscal policies, and anti-discrimination law, among others.

Put differently, the right to housing plays a key agenda-setting role, both discursively and materially, serving as a strategic anchor for a dynamic housing movement that connects between cities and across jurisdictions. In recent years, housing protests across European capitals – from Berlin to Paris and Barcelona – have revealed how a younger generation views housing as a central site in Europe’s ongoing quest for renewed prosperity, particularly in response to the intensifying commodification, privatization, and financialization of the housing sector.^[] In order gain traction, the right to housing is however dependent on being grounded within and translated into the wider legal infrastructure of housing.^[] A legal domain that has arguably been underrepresented in this is contract law, as well as private and economic law more widely.^[] Several reasons appear to contribute to the relative underexposure of these fields. First, in many EU Member States and beyond, housing policy is attributed to the realm of regulation, which, in turn, is imagined as distinct from contract law. Second, this fairly schematic division of labor has long absolved contract law (and private law at large) from engaging in a more comprehensive and structural way with housing policy. In particular, contract law has hardly inquired into its possible own contributions to the current housing crisis which appears, among other factors, also facilitated by law. Third, pressing questions of housing policy reside in structural blind spots of contract law. Examples may include the place of contract law in a multi-level regulatory system from the municipal to the transnational, contract law’s entanglement with political economy and structural inequality, or questions of contract law as both a driver and impediment of the Green Transition which presents key challenges for decarbonizing the built environment. In short, housing can be regarded as a productive laboratory of jurisprudential innovation in contract law and economic law at lar206ge.

This article and the Special Issue it introduces seek to map how contract law is implicated in current debates on housing and the right to housing. What role does the right to housing in its multiple manifestations – doctrinal and conceptual, hard and soft, in the courtroom and in the streets^[] – play in informing, sensitizing, and critiquing the private law infrastructure of housing? A natural starting point is the established debate on the role of fundamental rights in private law, a discussion to which this journal has been central.^[] The ‘constitutionalization’ of private and contract law stands out as one of the most significant episodes in the trajectory of private law of the past decades. It has challenged and arguably broadened the value set underlying private law, has generated leading cases that revisit private law’s social imaginaries, and more principally serves as a catalyst of rethinking private law’s basic notions.^[] Parts of the entanglements between the right to housing and contract law can be placed in this tradition. But, as this Special Issue documents, the right to housing prompts us to look beyond existing doctrinal ramifications of fundamental rights in private law. This is due to the nascent nature of the right to housing that operates both doctrinally and discursively, due to the multiplicity of drivers of the housing crisis that makes socio-legal and political economy dimensions inescapable, both within and beyond doctrinal analysis, and due to the growing attention of ecological imperatives that require a bigger constructive effort to root in a human rights framework.^[] In short, while the debate on fundamental rights in private law so far has been dominated by inner-legal considerations pertaining to the architecture of the legal order, an interdisciplinary perspective seems warranted.^[] 207

This Article is structured as follows. Section II revisits how the right to housing, as codified at the international level, can be mobilized within the private law infrastructure of housing, arguing that this represents a new iteration of long-standing debates on the effects of fundamental rights in private law. Section III offers three illustrations of how a human rights framework can help address what are typically blind spots in private law perspectives on housing. Finally, Section IV presents the contributions to this Special Issue and situates them within the broader research agenda. Section V concludes.

2 Mobilizing Human Rights in the Private Law of Housing

The place of housing in the canon of human rights has had an early but quiet beginning, before gaining rapid momentum in recognition and relevance in recent years. A seed was planted already with the Universal Declaration of Human Rights (1948) and, a little less than two decades later, with the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). Article 11.1 ICESCR refers to housing as part of a wider right to an adequate standard of living that ought to be fulfilled progressively. The interpretive work by the UN Committee on Economic, Social and Cultural Rights has later spelled out seven aspects that concretize the ‘adequacy’ of housing.^[] These include legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location, and cultural adequacy. Yet, despite this early shaping, it was only after the financial crisis of 2008/2009 that the ‘right to housing’ emerged as a frequently invoked framework for rights-based approaches to housing. The legal and political trajectory of the right to housing is thus closely tied to – and in part coincides with – a twofold rupture in housing markets and policies after the financial crisis. The first was the growing entry of financial investors seeking to diversify their portfolios away from bonds;^[] the second was significant cutbacks to the welfaris208t foundations of housing systems, including reductions in social housing and the erosion of tenant protections.^[] Both developments generated price spikes and a slowing down of construction of affordable housing. These shifts affected not only lower-income households but also, crucially for legal-political mobilization, the middle class.^[]

In other words, the neoliberal rationale^[] underpinning the housing crisis of the past two decades created both a new need for and a new understanding of a human-rights-based reframing. Whereas the state and public or social housing once played an important backup role – one that could be effectively appealed to at the level of legislation, notably welfare law – the housing crisis has highlighted the advantages of a constitutional or human-rights approach.

2.1 The Right to Housing in International and European Codifications and Legal Practice

Next to the aforementioned codifications at the international level, the right to housing has been enshrined in different ways at the European level. Here, the Council of Europe has embedded a general right to housing in the 1996 Revised Social Charter (Article 31) – which is not however justiciable other than through complaints reviewed by the European Committee of Social Rights (ECSR).^[] The European Court of Human Rights, in turn, has developed a body of housing-related case-law^[] 209 under the 1950 European Convention of Human Rights, grounded in the right to family and private life and protection of home (Article 8),^[] the right to due process in the case of eviction (Article 6), the right to be protected against inhuman and degrading treatment (Article 3), the right to life (Article 2), the right to protection against discrimination (Article 14) and the right to property (Article 1 of Protocol No 1). Finally, the EU Charter of Fundamental Rights mentions the integrity and inviolability of one’s home (Article 7) as an extension of the respect for private and family life.^[] Moreover, it protects access to housing as a component of social inclusion under its Title IV (‘Solidarity’). As per its Article 34 (‘Social security and social assistance’), the EU ‘recognises and respects the right to social and housing assistance so as to ensure a decent existence’.^[] Access to social housing as provided for at the national level is moreover included in the protection of services of general economic interest (SGEI) in Article 36.

In what follows, I situate the right to housing within established debates on how fundamental rights affect private law. The argument advanced here is that the right to housing reaches beyond some of the priorities of this debate. It not only underscores the material nature of housing but compels private law to adopt a contextual, transdisciplinary mode of analysis – one that highlights its constitutive role in shaping how housing is provided.

2.2 Private Law Effects by Design? The Right to Housing and the Legal Infrastructure of Provision

The growing role of fundamental rights in private law reasoning has been one of the discipline’s most impactful developments over recent decades.^[] D210espite divergence in the doctrinal implementation between jurisdictions,^[] the ‘constitutionalization’ of private law has surfaced debates around the autonomy of private law and the plurality of the values it embodies. Today, the influence of fundamental rights on private law is well-documented in rich case-law across Europe, the United States, and beyond. This influence is most commonly justified through the normative superiority of constitutional texts and the fundamental rights enshrined in them. In other words, the primary entry point for advocating a private law framework sensitive to fundamental rights has been grounded in the formal structure of legal orders. Substantively, however, the debate was originally sparked by concerns over the rise of private power – specifically, the role of private actors as bottlenecks to the enjoyment of fundamental rights.^[] This reflects a sociological understanding of shifting social structures that go beyond the traditional liberal dichotomy of state versus society. Nevertheless, the legal discourse has largely retreated into formal arguments, sidelining these broader structural concerns.

Drawing from the superiority of the Constitution, private law appears as part of a constitutional legal order. It has lost, so the argument goes, the normative self-referentiality that marked the classical private law of the 19th century, a private law that conceived of itself as a constitutional order.^[] Fundamental rights, in turn, inform the entire legal order and have expanded beyond their predominantly vertical sphere of application between the State and its citizens to horizontal relationships. The appeal to constitutional hierarchy has played a central role in enabling the constitutionalization of private law across multiple jurisdictions. Formal arguments based on the supremacy of constitutional norms have proven 211easily translatable across national contexts and at the supranational level, particularly within the EU. As a result, similar reasoning has circulated among apex courts in Europe and beyond.

Yet, this trajectory has important limitations. First, treating fundamental rights as norms external to private law allowed private law to adopt – or ‘borrow’ – a pluralistic set of constitutional values without revisiting its own normative foundations. This effectively relieved private law discourse of the need to interrogate or reformulate its liberal assumptions from within.^[] Second, the reliance on state-guaranteed rights – typically grounded in constitutional texts – presumes a triangular structure in which the state mediates between private parties. Such a model becomes conceptually inadequate in transnational settings, where state authority is fragmented, contested, or absent. Third, the integration of fundamental rights has rarely been used to illuminate private law’s internal blind spots, particularly the distributive and structural effects of contract and property doctrines as they operate in contemporary markets. In other words, the opportunity to reconstruct private law from within – by critically examining its entanglement with market-making processes through a sociological or political economy lens – was not fully seized.

The right to housing with its specific legal form, political context, as well as the civil society mobilization that underpins it potentially addresses some of these limitations. While still tentative in its legal contours, it takes the complex public and private actors and dynamics that form the ‘infrastructure of provision’^[] for housing as a starting point. If properly developed, the right to housing may offer a framework to trace and make visible the mechanisms of exclusion and vulnerability that are in-built in the day-to-day operations of housing markets. Some of these may be so closely connected to our imaginary of markets^[] that they have become essentialized as a given, as somewhat inevitable within a market society.^[] Think of the exclusionary dynamics that stem from the wide discretion of landlo212rds (and realtors) in tenant selection under contract,^[] the entry of financial investors that use the malleability of the property form, and the spike in housing and rental prices that is taken as a natural product of ‘supply’ and ‘demand’. In short, the privatization of housing governance over the past roughly two decades has brought housing governance closer to markets for other goods, and has obscured the fact that the features of housing markets are also products of legal rules and entitlements,^[] next to other factors. Indirectly, this privatization of housing governance posits markets as the unavoidable mechanism to govern the allocation and use of housing, and brings with it a particularly sketchy imaginary of market functioning.^[] It is by engaging with the private law groundrules and their different possible designs that we can see clearer what Rahman has called the ‘exclusionary playbook’,^[] a set of subtle and often invisible ‘background rules that govern the terms of access to public goods’ and that enact systemic exclusion and inequality, particularly along racial, gender, and class lines. While human rights aproaches often tend to adopt a ‘top-down, thick philosophical account of rights’^[] towards questions of distribution and equality, Rahman advocates for a ‘bottom-up exploration of existing forms of – often unequal – provision’.^[] He observes that basic goods and necessities like housing are rarely ‘the product of a single governmental or monopolistic provider; often, they involve a range of actors, public and private, large and small, who collectively are responsible for guiding the provision of and access to basic goods.’^[] While fundamental rights in private law – as we have seen above – mostly operated as external normative claim, Rahman’s analysis suggests that the right to housing may function most effectively when translated into a mechanism intrinsic to the governance of housing as a public good.

Although the contributions to this Special Issue vary in methodology and conceptual framing, they collectively illuminate key elements of this ‘213infrastructure of provision’. In doing so, they help refine a legal (and legal-theoretical) response to the growing interdisciplinary interest in infrastructure, including in urban studies.^[] In this context, infrastructure refers to the enabling resources – both material and immaterial – that underlie and precondition human activity.^[] Infrastructures shape the material and social organization of cities and are driven by a blend of legal, technical, and bureaucratic practices.^[] Crucially, recent scholarship has emphasized that infrastructures should not be seen as passive, inert, or normatively neutral, but as active mediators that shape the conditions of possibility for social and economic life. As such, they take a governing or ‘coding’ role themselves and carry implicit normative orientations, pushing them into the ambit of legal analysis.^[]

To think ‘infrastructurally’ is to adopt a contextual and relational mode of analysis – one that draws attention to background systems and frameworks often considered peripheral or taken for granted. In housing, this includes not only the built environment itself but also the legal, technical, and financial arrangements that govern its production, maintenance, and transformation. For instance, an infrastructural lens brings into focus the temporal asymmetries between the long cycles of building and maintaining housing stock, and the accelerated, real-time dynamics of financial markets^[] in which housing units are increasi214ngly traded. Attending to these frictions reveals how legal regimes both mediate and legitimize these infrastructural disjunctions.

3 Confronting Structural Drivers of the Housing Crisis

A notable feature of the right to housing within the canon of fundamental rights, as we have seen, is its targeted engagement with the broader infrastructure of housing provision. This section will further illustrate how the right to housing orients legal processes – not only court cases, but also legislative and policy debates, as well as forms of social mobilization – to address housing in a more contextual and holistic way. Doing so requires confronting conceptual blind spots that have long limited legal analysis in this area. These include the fragmentation of housing policy across siloed legal fields, which tends to depoliticize and obscure the housing question, and the failure to trace in detail how law shapes and is shaped by the political economy of housing.^[] A pertinent example comes from the work of the UN Special Rapporteur on the Right to Adequate Housing, an office established in 2000 and since occupied by four different mandate holders. Through thematic reports to the Human Rights Council, country reports and other initiatives, successive mandate holders have consolidated and advanced the normative content of the right to housing, especially through the notion of ‘adequacy’, to confront structural dimensions of housing injustice – linking forced evictions, homelessness, and financialization of housing markets to systemic violations of human rights – thus shifting debates from individualized claims to broader critiques of state and corporate policies. On the topic of financialization in particular, the international mandate has made it possible to ‘follow the money’^[] across borders, mapping investment flows and financial instruments that often remain invisible from domestic vantage points, and to situate national housing crises within a comparative and transnational framework.215 ^[] Moreover, the Rapporteur has expanded the jurisprudential reach of the right by developing guidelines, model legislation, and interpretive frameworks that can be invoked by national courts and policymakers,^[] while simultaneously mobilizing and connecting civil society and grassroots movements.

The right to housing requires being translated and amplified in the various legal frameworks around housing.^[] While for many fundamental rights, the transformation from a vertical to a horizontal orientation has been at the heart of ensuring their ‘compatibility’ within private law,^[] the right to housing rather has transformative ambitions vis-à-vis legal discourse and methodology. The significance of the right to housing does not consist merely in underscoring the material character of housing, for instance by providing a counterweight to its treatment as a tradeable asset. Rather, it promotes a contextual mode of legal analysis that is attuned to the limitations inherent in the dichotomies of modern (liberal) legal thought, and that remains receptive to transdisciplinary perspectives^[] – drawing in particular on political economy as well as the social, cultural, and spati216al meanings of housing.

It is hence no coincidence that the right to housing has in recent years served as an inroad for perspectives of Law & Political Economy (LPE)^[] – an umbrella for scholarship which traces social, economic, and ecological change within legal thought and makes legal methodology, doctrine, and practice sensitive towards matters of social justice and inclusion. The evolution of the right to housing over the past two decades can be read as, in part, a response to the recognized limitations of classical human rights frameworks in addressing structural injustices and entrenched inequality. As Samuel Moyn and others have argued,^[] the global rise of human rights discourse has been deeply entangled with prevailing political-economic paradigms and coincided with the ascendancy of neoliberal globalization, which shifted attention away from distributive equality toward the narrower objective of sufficiency. Moyn suggests that while human rights frameworks have been empowering in advancing claims to status equality, they have often remained abstract and depoliticized, making them readily adaptable to corporate and state interests without disturbing underlying structures of accumulation. In this process, broader redistributive agendas were marginalized, leaving human rights ill-equipped to confront the systemic drivers of inequality. Against this backdrop, the right to housing, when deployed as a proxy for the contextual mode of legal analysis outlined above, offers a productive avenue for engaging with these critiques. The following section illustrates this through three examples – each expanded upon in further contributions to this Special Issue – of how the right to housing innovates, and in important ways unsettles, conventional modes of legal analysis.

3.1 Contract as a Prism to Map Actors and Power Relations

217Contract is a central building block within the legal infrastructure of housing. While tenancy contract law in many jurisdictions has a long history as a specialized contractual regime with a particular ‘social’ orientation,^[] the types of housing-related relations governed by contract are much wider – and have grown significantly under the influence of privatization.^[] For instance, they encompass mortgage and financing contracts,^[] user agreements of short-term rental platforms,^[] complex construction contracts for new buildings, public-private partnerships (PPP),^[] and contractual arrangements between public entities pertaining to regulatory competences in the field of housing.^[] As the contributions to this Special Issue show, contract may hence serve as a prism to plot public and private actors and power relations that organise the housing sector. To be sure, such mapping can only be done effectively with contractual theories attuned to the peculiarities of these relations – whether their long-term and relational character,^[] the distinct imbalance between the parties, the informality and ‘social life’218 of the contract as it operates beyond the black letter of law,^[] colliding rationales of housing as an economic asset and as a social right to a home,^[] or their embedding within wider institutional and regulatory frameworks.^[] In each of these instances, contract offers the grammar^[] that allocates risks and benefits, distributes entitlements and obligations, and shapes the lived reality of housing. While the very form of contract risks crystallizing existing social hierarchies into enforceable private law obligations, the contributions to this Special Issue show how the right to housing can reframe and recalibrate contract law and theory. This also concerns contract law’s interfaces with property law, e.g. by asking how the institution of contract can develop the necessary plasticity to accommodate new forms of tenure, including Community Land Trusts (CLTs)^[] and other collective ownership or stewardship models that challenge traditional notions of individual property rights.

3.2 Demystifying Pricing and Valuation

A second domain in which the right to housing challenges established legal orthodoxy concerns pricing and valuation of housing. Law has long remained a relatively silent bystander to the dramatic rise in rents and property values. A key reason is that dominant approaches in contract law, influenced by neo-classical economic thought,^[] have tended to bracket prices – treating them as the ‘natural’ and spontaneous outcome of decentralized market activity.^[] Within this framework, the price system is credited at the macro level w219ith ensuring a fair distribution of production shares, and at the micro level with guaranteeing the inherent fairness of individual contractual transactions.^[] Prices thus acquired an aura of neutrality: they ‘just happen’ and ‘do no wrong.’ Yet this perspective has come under increasing challenge in recent years, as scholars foreground the extent to which prices are socially constructed and shaped by complex institutional arrangements.^[] Tying in with increasing interdisciplinary interest in theories of value and valuation,^[] the right to housing can spur efforts to interrogate the social practices and institutional techniques through which land and real estate are assigned value.^[] The extraction and capitalization of land value, in turn, function as key engines of urban transformation, shaping both the distribution of development rights and the forms that built environments ultimately take.^[] For example, contributions to this Special Issue show how technical standards of real estate valuation impact access to mortgage^[] and how pricing in short-term rental markets is shaped by and reproduces spatial Inequalities priviledging capital-intensive actors (offering entire flats or hotel-type units) while penalizing lower-income hosts.^[] Moreover, pricing and land valuation have also been central to the legal-political debates surrounding the implementation of the 2021 Berlin referendum ‘Deutsche Wohnen & Co enteignen’.^[] In its final report, the expert commission appointed by the Berlin Sen220ate to assess the referendum’s constitutionality highlighted how property valuation methods, grounded in financial accounting rules, tie expected rental income directly to real estate values.^[] This linkage generates feedback loops in which rising rents inflate valuations, thereby attracting investor demand and exerting further upward pressure on rents.

3.3 Modes of Legal Change and the Jurisgenerative Role of Social Movements

A third illustration of how the right to housing can expand the conceptual ambit of contract law and theory concerns the role of social movements, particularly grass-roots tenant initiatives. In recent years, many large European cities have witnessed powerful mobilizations around different dimensions of housing, from rent caps to homelessness.^[] As Robert Cover ^[] has argued with unmatched eloquence, legal meaning is generated through myriad interpretive (‘jurisgenerative’) communities, not courts alone. From this perspective, grass-roots initiatives do not merely invoke the right to housing but actively form its meaning. For instance, the landmark CJEU judgment in Aziz v Caixa d’Estalvis de Catalunya,^[] which declared Spain’s mortgage enforcement regime incompatible with EU consumer protection law, was amplified by the Plataforma de Afectados por la Hipoteca (PAH), which leveraged the ruling in its wider campaign for mortgage and eviction reform. Likewise, the 2021 Berlin referendum Deutsche Wohnen & C. enteignen demonstrates how tenant mobilization can reshape constitutional categories. The campaign not only re-politicized the socialization clause of the German Basic Law b221ut also articulated a broader vision of communal property that reaches beyond housing into the governance of utilities and essential services.^[]

4 In This Special Issue

This Special Issue brings together scholars from across Europe and beyond for a comparative and transnational exploration of how the right to housing is materializing – or may yet be developed – within the contractual arrangements that structure the housing sector. The contributions examine contracts as a central institution of private law while also tracing their intersections with public regulatory frameworks. Taken together, they depict an emerging right to housing that is gradually being inscribed into the legal infrastructure of housing provision, opening space for fresh perspectives on its scope and potential.

The Special Issue opens with Alessio Sardo’s broad comparative analysis^[] of how short-term rental (STR) rules in Berlin, London, Milan, and Paris reconfigure classic private law categories. He shows that municipal and national regulations limit proprietary and contractual autonomy in order to promote urban policy goals and housing’s social function. Using a hedonic pricing model on platform data, Sardo highlights systematic price premia for entire flats and penalties for shared rooms, revealing the distributive stakes embedded in platform markets. STR regulation thus emerges as a site where private law is explicitly mobilized for redistributive recalibration in the urban housing economy.

Undine Christian ^[] turns to the more traditional terrain of tenancy law. She examines the distinctive protection afforded to tenants under German residential tenancy law, where landlords cannot terminate leases at will but must demonstrate a legitimate interest. Situating this within the broader framework of indefinite obligations in German private law, Christian explores possible doctrinal explanations, from historical public-law interventions to constitutional balancing. She argues that the prohibition of arbitrary termination is best understood as a mandatory norm intrinsic to tenancy itself, ensuring continuity as a precondition for making a home and reinforcing the coherence of private law.

With Irina Domurath and Guido Comparato’s contribution,^[] the focus then shifts to the financial dimension of housing. Domurath a222nd Comparato explore how the right to housing interacts with transnational mortgage law, a field deeply shaped by contract, property, and financial regulation. They show that mortgage frameworks, while pivotal for access to homeownership, have been driven primarily by systemic objectives such as risk management, market integration, and sustainability, rather than by housing rights. The evolution from a pre-crisis emphasis on access to credit, to a post-crisis focus on financial stability, and most recently to ‘green’ mortgage markets demonstrates how the right to housing ought yet to be fully amplified and spelled out in transnational mortgage law.

Matteo Gargantini ^[] extends this perspective by situating housing within EU financial law more broadly. His contribution examines how regulation designed around retail investor protection and systemic stability as well as the related financial advisory services have unintended distributive consequences for households’ access to mortgage finance. In mapping the tension between promoting financial inclusion and preventing over-indebtedness, Gargantini underscores the need for a more explicit normative orientation that treats housing as more than just another financial asset and protects vulnerable households.

Shifting focus from questions of housing finance to legal innovations designed to curb speculative pressures, Oriane Roty and Marc Goetzmann ^[] examine tenure arrangements under the novel French organismes de foncier solidaire and the bail réel solidaire – a French adaptation of the Community Land Trust model, in which non-profits retain land ownership while households acquire long-term, resale-restricted in rem rights to the dwelling. This model, they argue, partially decouples property-as-use from property-as-investment, stabilizing tenure while promoting affordability, and thus offers a pragmatic, autonomy-centred instantiation of housing rights in dense urban contexts.

From France, the Special Issue moves to Brazil, where Angelo Prata de Carvalho ^[] analyzes the 2017 recognition of the direito de laje (rooftop property). This legislative step formalizes housing constructed atop existing dwellings in informal settlements, a practice long reliant on so-called ‘drawer contracts’ devoid of formal legal enforceability. While integration into the Civil Code provided legal recognition, registries and courts still face obstacles, often requiring formal titles that favela residents lack. Prata de Carvalho shows how judicial practice is bridging informal practices with formal law and highlighting challenges in property law’s treatme223nt of marginalized urban populations.

The comparative angle then turns to the United States, where Nestor Davidson ^[] traces the shift from treating residential leases as conveyances of a property interest to framing them primarily as contracts – a move that brought vital tenant-protection remedies in the 1960s–70s but also recast tenants’ stakes as ‘consumer’ interests. With the Supreme Court’s current formalist revival privileging landlords’ property claims, Davidson warns that tenants’ contract-based protections risk being constitutionally outflanked. His contribution calls for reasserting the proprietary dimensions of tenancy as a counterbalance, offering a pointed lesson for European housing debates.

Then, Alexandra Flynn ^[] brings the discussion to Canada, where the absence of clear constitutional responsibility for housing fragments federal, provincial, and municipal action. Examining the implementation gaps of the 2019 National Housing Strategy Act, Flynn argues that ‘contractual federalism’ offers a way forward. Drawing inspiration from the Canada Health Act, she proposes that conditional funding agreements could bind provinces and municipalities to human rights–based housing obligations. Contracts, she concludes, can serve as a justice-oriented tool to bridge the gap between aspirational rights and enforceable obligations in Canada’s multilevel governance system.

As a closure, Christian Iaione and Mario Manna ^[] turn to the wider governance architecture underlying the housing sector. In light of limitations of both state-led interventions and market-driven models of housing provision, a promising third way translates the right to housing into a shared duty spanning private actors, public authorities, and communities. Examining outcome-based finance instruments and Public-Private-Community Partnerships, they show how contracts can be designed to internalize social obligations – such as affordability, tenant protections, and reinvestment – within housing provision. Over time, they suggest, these practices may crystallize into a transnational ‘customary’ housing law, one that reorients contracts from a transactional device to a governance instrument.

5 Conclusions

The contributions to this Special Issue collectively show how housing is becoming a laboratory for rethinking both the foundations and the social orientation of contract law, and how the right to housing can provide crucial conceptual stimuli in this regard. Although fragmented across lega224l sources and still evolving in its normative contours, the right to housing can help bring contract law – and private law more broadly – into the center of debates on housing, overcoming long-standing blind spots. Yet it is no simple task for contract law to mediate between housing as a legally constituted and tradable asset on the one hand, and as a basic need and human right on the other. This challenge requires contract law and legal theory to take seriously the multiplicity and peculiarities of contractual relations in the housing sector – in other words, to confront directly the law and political economy of housing in its most contemporary form. Ultimately, the right to housing extends the trajectory of the constitutionalisation of private law, but does so in a distinctive register. Rather than merely importing constitutional values into private relations, it reframes private law itself as a site where the structural conditions of social and economic ordering are negotiated, and operates as an internal driver towards a more contextual (or ‘responsive’^[]) mode of legal development.

Corresponding author: Klaas Hendrik Eller, Associate Professor, Private Law Department, University of Amsterdam, Amsterdam, Netherlands, E-mail: klaas.eller@uva.nl

Published Online: 2025-11-12

Published in Print: 2025-09-25

This work is licensed under the Creative Commons Attribution 4.0 International License.

Artikel in diesem Heft

https://doi.org/10.1515/ercl-2025-2018

Schlagwörter für diesen Artikel

right to housing; financialization; constitutionalization of contract law; tenancy contract law; law & political economy

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BY 4.0