Contractual Regulation of Property Rights: Opportunities for Sustainability and Environmental Protection

Summary

INTRODUCTION

• 1. UNAVAILABILITY of specific environmental devices – Environmental protection has been the incentive for the creation of a variety of specific legal devices. The recently introduced French obligation réelle environnementale and the Scottish conservation burden, which is actually a successor to pre- existing feudal burdens, are just a few examples. However, those devices are not everywhere and always available. For instance, in Belgian and Dutch law, no specific private law (or hybrid) devices have been introduced. Even in legal systems where such devices exist, they are only useful in particular situations. That is why it remains important to see what can be realised with general property law, and more specifically with the limited property rights available in the national legal system. While property law is often conceived as a rigid area of law, most property rights provide much contractual ‘wiggle room’. They only have a certain predetermined core, or essence, which must be respected and allow for contractual regulation by which many other rights and obligations can be added to the property right.

• 2. ‘ENVIRONMENTAL SERVITUDE’ AND OTHER PROPERTY RIGHTS – Especially servitudes are considered to be the property rights that can serve environmental goals. Servitudes are non-exclusive rights, allowing concurrent use of the land, and may be perpetual, which is essential to reach long term environmental goals. In recent years, servitudes have been turned inside out in order to consider their environmental opportunities and the hurdles that remain. Here we take a different stance and focus on property rights more generally. A property right may be created specifically in view of environmental protection or sustainability. Especially with the rising of the circular economy, there is a shift from ownership to use rights, which may be personal rights, such as lease, or property use rights. In other situation, however, parties already envisage the creation of a certain property right and in a later stage intend to add sustainable and environmental elements to it.

• 3. PROBLEM – An analysis of the contractual regulation of property rights balances on the border of contract and property law. The title creating the property right is a contract, but the goal of the parties will be to grant the rights and obligations they agree upon, proprietary effect.