Private Law Theory

ABSTRACT
‘Climate change’ decisions have opened up important questions for property lawyers in relation to the role of property law – and more specifically land law – in exacerbating or mitigating climate and ecological harms. Environmental and ecological sustainability, anthropogenic change and actions to advance the UN’s Sustainable Development Goals (SDGs) depend on material land use practices. Yet, the systematic ‘de-materialisation’ of property rights in land, from the Law of Property Act 1925 to the Land Registration Act 2002, and through processes of financialization and digitalization, has produced a schism, between material realities and dematerialised rights. The recent decision of Verein KlimaSeniorinnen Schweiz v Switzerland brought to light how private property, housing, environmental sustainability are interconnected to the health and wellbeing of populations. In finding that critical gaps in the Swiss Federation’s framework for mitigating climate change constituted a violation of the European Convention on Human Rights (ECHR), the Grand Chamber of the European Court of Human Rights (ECtHR) recognised that article 8 ECHR includes a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being, and quality of life. In this article, we examine the implications of climate change litigation for property law and practice, applying the insights and methods of Resilient Property Theory (RPT) – a new approach to property scholarship that seeks to respond to the complex, intersecting issues affecting multiple stakeholders at stake in the real property problems that legislators and litigators are now confronted with. Reflecting on the implications of the Grand Chamber’s decision with respect to the object of land law, the subject of land law, and the resilience needs of a stable land law system, we highlight important new questions for land, property and environmental lawyers.

€ (Westlaw)

Bram Akkermans and Lorna Fox O’Mahony, ‘Resilient property, climate change and the decision in Verein KlimaSeniorinnen Schweiz v Switzerland’ [2024] (4) Conveyancer and Property Lawyer 369-391.