Volume 13, Issue 3

288This paper address how the collective decision-making process in multi-owned property associations can affect and limit disabled residents right to live an independent life and discusses alternative legal solutions to this problem. It examines whether, and if so how, placing more emphasis on property law and its fundamental function in society can provide an equally strong protection of disabled residents accessibility rights as does the application of discrimination law. This research builds on and contributes to legal doctrinal and theoretical research on negative external societal effects of the democratic governance model of multi-owned properties in general, and, in particular, of decisions and restrictions regarding permission to install ramps or keep assistance dogs. The main argument is that if property law is used as a tool to steer and adjust societal normative expectations from a right to control to a duty to respect, this normative change would reduce the need for using external legislative solutions, such as applying discrimination laws, to achieve important societal objectives. Moreover, this approach could also reduce the need for future legislation addressing other societal challenges, such as the right to install electric vehicle chargers in common parking areas. These right-to-charge issues, which are currently being tackled through new EU-directives, reflect similar tensions between individual needs and collective governance. A property law-based solution that fosters fairness and flexibility in decision-making could pre-emptively address these types of issues, making it easier for associations to accommodate both current and future societal demands without the need for additional layers of regulation.

310When incentives fail to encourage enough owners to make their buildings climate-proof, the State has to impose obligations to retrofit buildings if climate targets are to be reached. This contribution examines whether the State can employ obligations based upon agreement with third-party effect, to enforce higher energy-efficiency standards for buildings and an improved energy mix. It presents and compares the responses to two cases from eleven European jurisdictions. It shows that the majority of examined jurisdictions will allow for the State to impose positive obligations with third-party effect through a burden registered in favour of the State or a property right for the buyer. Only Dutch law would be likely to invalidate the obligation because the obligation circumvents public-law safeguards. A minority of the examined jurisdictions would not allow for a burden with positive obligations as its main content.311