Band 21, Heft 3 - Special Issue: Contract Law and the Right to Housing; Guest Editors: Klaas Hendrik Eller and Alessio Sardo

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.

This article investigates the contractual and proprietary implications of short-term rental (STR) regulation in European cities. Focusing on Berlin, London, Milan, and Paris, it compares regulatory strategies ranging from targeted administrative restrictions to structural redefinitions of housing access. Drawing on private law theory and law-and-economics approaches, the article shows how STR regulation reconfigures the classical balance between contractual autonomy and property rights in light of urban policy goals. Empirical analysis complements the normative argument through a Hedonic Pricing Model estimated across the four cities. Using log-linear regressions with neighbourhood fixed effects and clustered standard errors on Inside Airbnb data, the model reveals robust and significant spatial price differentials. Entire flats and hotel-type listings command substantial premiums, while private and shared rooms are structurally penalized. These effects persist across specifications and point to a regressive structure in platform-mediated rental markets. By combining doctrinal and quantitative methods, the article frames STR regulation as a site of distributive recalibration within private law. Legal categories are not neutral: they structure access to the city. As STRs reshape property use, contract enforcement, and urban residence, the paper argues for a renewed legal framework attentive to spatial inequality, enforcement asymmetries, and platform governance.226

Continuing contractual obligations are characterised by the fact that they do not expire upon fulfilment of the mutual obligations. Without an agreed end to the contractual relationship, an everlasting continuing obligation is at least conceivable. The institution of ordinary termination enables the contracting parties to terminate the continuing obligation unilaterally. In German residential tenancy law, the principle of arbitrary ordinary termination applies only to a limited extent. According to § 573 BGB, landlords can only terminate the tenancy if they can demonstrate a legitimate interest. This article examines various approaches to explaining this peculiarity of residential tenancy law. The exclusion of arbitrary ordinary termination is closely linked to the dogmatic reconstruction of residential tenancy law. While residential tenancy law has historically developed as public law, it is now understood as a matter of private law. Two different reconstructions of ordinary termination are compared and examined with regard to their implications for the understanding of residential tenancy law: § 573 BGB can be understood as the result of conflicting constitutional rights or as a mandatory consequence of a tenancy agreement for residential space understood as the centre of one’s private life.

This contribution brings into focus the interaction between the right to housing and mortgage law. While the law of residential mortgages is pivotal in guaranteeing access to housing in a political economy of private homeownership, its relationship with the right to housing in the transnational legal framework remains less clear. By analysing international, transnational and EU developments, this paper questions the extent to which broader housing concerns inspire the law of residential mortgages. Even though the objectives of mortgage law are manifold – ranging from addressing creditor risk and enabling homeownership to supporting financial stability and the ‘green’ transition of the economy – it seems that economic considerations rather than broader housing concerns drive legal developments. This raises doubts as to whether the fundamental right to housing has more than a limited, indirect impact within transnational mortgage law.

This paper examines the relationship between financial exclusion, mortgage lending, and access to housing. It highlights the ambivalent effects of mortgage loans on financial resilience of vulnerable consumers and emphasizes the need for a regulatory approach that considers the borrower’s entire personal balance sheet. Special attention is given to advisory services, which the paper considers a crucial but underutilized tool for enhancing financial resilience of low-net-worth households. Current EU financial regulation, however, lacks an integrated approach to evaluating consumers’ overall financial situations and links the assessment of personal balance sheets to specific needs (such as buying a house). Through a comparative analysis of advisory regimes in different financial markets, the paper identifies regulatory gaps and inconsistencies that undermine effective consumer protection. It then proposes a reformed, more holistic advisory framework tailored to the needs of financially fragile households and shows this could contribute to reduce the risk of financial mistakes.

This article examines the place of the Organisme de Foncier Solidaire – Bail Réel Solidaire (OFS–BRS) mechanism within the French legal framework for the right to housing. This scheme enables income-eligible households to access an innovative form of ‘homeownership’ at a lower cost. In French law, it is founded on a lease constituting real rights, the BRS, which establishes a contractual relationship between the household, holder of real rights over the dwelling, and the OFS, a non-profit organisation retaining full ownership of the land. The study traces the legislative evolution and gradual expansion of the mechanism. It then analyses the current legal structure of the BRS and its effects on the configuration of property rights, before exploring, from a normative perspective, the conception of the ‘right to housing’ embodied in this model.

Brazil’s long-standing property inequalities have excluded marginalized populations from formal ownership, particularly in informal settlements like favelas. Also after the enactment of the 2002 Civil Code, legal frameworks have largely overlooked informal housing dynamics, i.e. the formation of slums on the peripheries of the cities through illegal occupation of public or private land. In 2017, Statute No 13.465/2017 introduced the right of laje (rooftop property)  – a form of housing built atop existing structures – into the Civil Code, granting legal recognition to longstanding social practices. Commonly transferred through informal ‘drawer contracts,’ lajes now qualify for formal registration, and those informal arrangements are being gradually recognized as legal agreements in order to legitimize occupation and provide formal titles, as an alternative to granting property rights. However, challenges persist: many lajes are built on irregularly occupied land, and public registries and courts have struggled to adapt. This research examines judicial responses to laje rights since 2017, focusing on case law from São Paulo and Rio de Janeiro. By analyzing doctrinal and jurisprudential developments, the study seeks to assess the effectiveness of laje recognition in promoting equitable access to property rights in Brazil’s urban peripheries.

As European scholars contemplate the right to housing through a contractual lens, a comparative perspective on housing rights and the property/contract interface in the leasing context may be instructive. Lessons may be gleaned from the United States Supreme Court’s current efforts to reexamine the constitutional dimensions of property, as part of a project of revisiting long-standing elements of the regulation of the landlord-tenant relationship, including rent regulation and other tenant protections. One conceptual underpinning to calls for the Supreme Court to curtail the state’s ability to protect tenants is a conception of the leasehold as grounded as much in contract as it is in property, a legacy of the “revolution” in American landlord-tenant law in the 1960s and 1970s. While it would be possible to justify tenant protections in contractual-regulatory terms – from a consumer-protection perspective – the Supreme Court’s focus on rental housing as a property right for owners and a contractual right for tenants threatens to unbalance the authority of the state. Re-centering the common-law property foundations of the tenant interest in a leasehold would not necessarily move a skeptical Court, and the contractual-remedial infrastructure of the leasehold is a legal innovation still worth celebrating a half-century after its rise. But doing so could provide an alternative grounding for understanding the limitations of a seemingly absolutist turn in constitutional property in the United States that has the potential to spark a second revolution in rental housing.

Canada’s housing crisis continues to deepen, exacerbated by constitutional fragmentation and intergovernmental reluctance to implement human rights-based housing policy. While the federal National Housing Strategy Act recognizes housing as a human right, its application is limited and its legal force is limited to the federal level, leaving provinces and municipalities unbound. This article argues that contract law – particularly conditional funding agreements between the federal government and subnational actors – can serve as a pragmatic and legally coherent mechanism to bind municipalities to housing obligations, including the recognition of housing as a human right. Drawing on the Canada Health Act as a functional precedent and supported by constitutional jurisprudence, this paper demonstrates how the federal government can use contracts as justice-oriented tools to implement the right to housing. Contracts, though not a constitutional panacea, offer a legal and institutional bridge between aspirational rights and material obligations in a complex federal system.

This article explores emerging trends in housing law and policy, with a particular focus on the European Union. In response to the persistent housing crisis and the limitations of both state-led interventions and market-driven models, the authors argue for a fundamental reconceptualization of housing not only as the object of a fundamental right, but also as a shared private duty to be enforced through outcome-based contractual and financial instruments. Through case studies from the European Investment Bank strategies on housing and practices developed at a local level in EU cities, the analysis highlights converging developments that suggest introducing binding social obligations for private actors in financing and contractual schemes and as part of the social impact to be produced enlarge the number and typologies of parties in contracts and partnerships involving social and community parties in co-developing housing projects. The article concludes by investigating the possibility that Public-Private-Community Partnerships (PPCPs) might be used as a scalable contractual form capable of institutionalizing such social duties and multi-party or multilateral contracts. Finally, drawing on Lon Fuller’s theory of customary law and Sarah Swan’s conception of municipal public duties, the article suggests that financing practices and housing policies based on outcome and co-governance spreading across different EU Member States may give rise to a transnational customary law of housing and PPCPs may provide the foundations for a new legal grammar of housing justice.414