Editorial – Obligations for Owners to Climate-Proof Buildings

1 As the world deals with the climate crisis, the question of protection against climate change and the role of property in this quest is growing ever bigger. Climate protection is a typical public good problem, both at an individual and an international level. While individual entities incur the costs of climate protection, the benefits are widely diffused. Under neoclassical economic theory, the rational behaviour would be for everybody to become free-riders, benefitting from the efforts of others without contributing to the common effort. Needless to say, the theoretical result is that there will be no or at least too little climate protection. While many of us are not homines oeconomici and the European Union’s climate agenda seems to defy this reasoning, most countries lag behind their own international commitments and national plans. Both the 1.5- and the two-degree targets under the Paris Agreement are unlikely to be reached.

We are all responsible to contribute towards a sustainable society, but it is especially the State’s responsibility to bring us on a climate-proof economic and societal path. The power of the State to influence our behaviour or even to enforce certain conduct is both useful and suspicious. Through incentives and obligations, the State can coordinate our behaviour, to overcome the free-rider problem and create the public good of climate protection. At the same time, as most of human activities exacerbate the climate crisis through greenhouse gas emissions, the State must interfere like never before in the lives of the entire population. Constitutional and human rights express suspicion towards any accumulation of State power and protect the population from overreach. As the climate crisis increasingly threatens human life, we need to find a new balance between the urgency of State action and the protection of the rights of citizens.

This special issue sheds light on this balance in the building sector. Buildings are a major source of greenhouse gas emissions. Their energy consumption needs to 2 be reduced, and the energy consumed needs to come from other sources than fossil fuels. So far, States have mainly tried to encourage owners to climate-proof their buildings through subsidies and tax deductions. As the climate-proofing of buildings progresses very slowly, the question arises of whether the State can compel owners to climate-proof their buildings and whether compensation would be due for valid obligations to climate-proof buildings.

These are very important questions for property law as the current paradigm in many property law systems is to focus on the exclusivity and autonomy of holders of private property rights. State interference with private property has always been accepted. However, traditionally, it is framed as a limitation on the exclusivity or autonomy of the right holder. Climate-proofing of buildings, however, goes one step further and imposes, on top of obligations to refrain from certain actions, affirmative or positive obligations. Holders of private property rights can, potentially, be compelled to take action to climate-proof their buildings in order to enjoy their private property right.

In 2019 and 2020, Björn Hoops gathered a group of national reporters who would do research on the extent to which the State could compel owners to insulate their buildings, install new windows, replace unsustainable heating systems, and to put solar panels on their roofs. From there, the project went through various phases and revisions of the project design. At first, following the methodology of the Common Core of European Private Law, the reporters solved cases in which regulations for categories of buildings or administrative decisions with respect to specific buildings imposed obligations to take one or more of the measures to enhance the energy efficiency of the buildings and/or to consume energy from renewable sources. Assessing their validity and compensability, the reporters were supposed to explore statutory bases for such obligations to climate-proof buildings and its relationship to property protection under national Constitutions as well as supranational and international rules.

However, as it turned out, most jurisdictions did not have statutory bases for such obligations. As a consequence, most reports concluded that all the obligations were invalid because the authorities involved acted ultra vires. For this reason, the project group changed the questionnaire and replaced the cases with more general questions on the general approach to climate-proofing buildings in each country and the validity of obligations for owners to climate-proof buildings. The questions were structured along the following themes: general policy on the energy consumption of buildings and related instruments such as incentives and obligations, statutory bases for obligations to climate-proof buildings, validity of such obligations under provisions of a higher rank protecting property, compensation for such obligations, and enforcement of these obligations.

3 The new reports were more fruitful, and the project group decided to turn the reports into articles for a special issue with the European Property Law Journal. Björn Hoops has joined forces with Bram Akkermans and Wladimir von Samsonow to edit the draft articles and to write, on the basis of the reports, a theoretical and comparative analysis of obligations for owners to climate-proof buildings. All contributions were subjected to a double-blind peer review process and the result of all this is this special issue.

We are grateful to the Board of Editors of the European Property Law Journal for the opportunity to curate a special issue. The editors gratefully acknowledge the hard work of the authors of the articles for this special issue. With gratitude, we also acknowledge the contributions of Claudia Benanti, Jakub Bryla, Magdalena Habdas, Tomasz Janocha, Irene Kull, Sabrina Praduroux, Johan Van de Voorde, Rachael Walsh, and Samuel de Winter to this project through hitherto unpublished reports on Belgian, Estonian, Irish, Italian, and Polish law. Last but not least, we are indebted to Sebastiaan Tolsma, student-assistant with the Department of Private Law and Notarial Law of the University of Groningen, who has edited the footnotes.

This special issue is structured as follows. This editorial is followed by the theoretical and comparative discussion of obligations for owners to climate-proof buildings by the editors. The remainder of the special issue consists of articles on obligations for owners to climate-proof buildings in the following jurisdictions by the following authors: