Sustainable Property and Construction

Sustainable Property and Construction is an area that deserves particular attention in the field of civil law. Our current contract law and property law was developed and codified in a time in which no one even could think of the need to keep building materials ‘in the loop’. ‘In the loop’ means ‘circular’, where raw material still is being extracted from of the earth but does not end in an incinerator or on a landfill. Instead, raw material once extracted is transformed into building materials in with in such a way that it can be re-used in numerous buildings, if possible, endlessly. 

Technically important steps have already been taken in this direction. The law, however, and civil law, is still lagging behind and not ready to facilitate this development. When, for instance, an elevator is incorporated into a building, under current Dutch law the owner of that building also becomes the owner of the elevator. Current Dutch law hardly provides tools to arrange that the owner of the building only has a right to use the elevator and just pays for the transport up and down, and ownership of the elevator remains with its constructor, upon whom also rests the obligation to install the elevator in another building after removal from the first one. 

What we also see, is that in contracting builders, architects and other contractors are still very much focused on to designing and constructing building materials and buildings for the lifetime of that building only. That ‘lifetime’ may be thirty or perhaps fifty years but is nowhere near the endless ‘lifetime’ envisioned by circular construction advocates. Only in certain smaller areas a change of perspective is already taking place. In general, to design and carry out contracts that will cover five hundred years or longer, a totally different way of thinking is needed as well as – and that is where Civil Law comes in – a fundamentally different way of legal thinking and designing. Only if this different view on law is taken and becomes dominant, fundamentally different contract law rules and remedies will be able to be designed and entered into our legal system.

It must be noted that a lot of promising initiatives are being taken by private companies, architects and (mainly local) administrations. However, more is needed. What is definitely needed, is an adjustment of the Dutch civil law before 2030, by which year CO2 emissions will have to be significantly reduced and Climate Goals will have to be achieved.

Sustainable Property and Construction focusses on the pivotal role that Property Law and Contract Law could and should play in facilitating circular construction and in making existing buildings more sustainable in a structural and lasting way. In particular Sustainable Property and Construction aims to answer the question whether it is necessary to change in the existing rules on accession, condominium law and certain property rights such as building rights (‘opstalrecht’) and emphytheusis (‘erfpachtrecht’). Obviously, it also takes into account the ‘adjacent’ legal issues of financing, liability, risks of operations, value chains in view of property rights, public law and European and fundamental rights.