Positive Obligations to Retrofit Buildings with Third-Party Effect under Private Law as an Instrument of Public Climate Policy

When 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