3. WHAT IS LAND TENURE
3.1 Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. (For convenience, land is used here to include other natural resources such as water and trees.) Land tenure is an institution, i.e. rules invented by societies to regulate behaviour. Rules of tenure define how property rights to land are to be allocated within societies. They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions.
3.2 Land tenure is an important part of social, political and economic structures. It is multi-dimensional, bringing into play social, technical, economic, institutional, legal and political aspects that are often ignored but must be taken into account. Land tenure relationships may be well-defined and enforceable in a formal court of law or through customary structures in a community. Alternatively, they may be relatively poorly defined with ambiguities open to exploitation.
3.3 Land tenure thus constitutes a web of intersecting interests. These include:
Overriding interests: when a sovereign power (e.g. a nation or community has the powers to allocate or reallocate land through expropriation, etc.)
Overlapping interests: when several parties are allocated different rights to the same parcel of land (e.g. one party may have lease rights, another may have a right of way, etc.)
Complementary interests: when different parties share the same interest in the same parcel of land (e.g. when members of a community share common rights to grazing land, etc.)
Competing interests: when different parties contest the same interests in the same parcel (e.g. when two parties independently claim rights to exclusive use of a parcel of agricultural land. Land disputes arise from competing claims.)
3.4 Land tenure is often categorised as:
Private: the assignment of rights to a private party who may be an individual, a married couple, a group of people, or a corporate body such as a commercial entity or non-profit organization. For example, within a community, individual families may have exclusive rights to residential parcels, agricultural parcels and certain trees. Other members of the community can be excluded from using these resources without the consent of those who hold the rights.
Communal: a right of commons may exist within a community where each member has a right to use independently the holdings of the community. For example, members of a community may have the right to graze cattle on a common pasture.
Open access: specific rights are not assigned to anyone and no-one can be excluded. This typically includes marine tenure where access to the high seas is generally open to anyone; it may include rangelands, forests, etc, where there may be free access to the resources for all. (An important difference between open access and communal systems is that under a communal system non-members of the community are excluded from using the common areas.)
State: property rights are assigned to some authority in the public sector. For example, in some countries, forest lands may fall under the mandate of the state, whether at a central or decentralised level of government.
3.5 In practice, most forms of holdings may be found within a given society, for example, common grazing rights, private residential and agricultural holdings, and state ownership of forests. Customary tenure typically includes communal rights to pastures and exclusive private rights to agricultural and residential parcels. In some countries, formally recognised rights to such customary lands are vested in the nation state or the President in trust for the citizens.
3.6 The right that a person has in an object such as land may be considered as property. The range of property is extensive and includes, for example, intellectual property. In the case of land tenure, it is sometimes described more precisely as property rights to land. A distinction is often made between real property or immovable property on the one hand, and personal property or movable property on the other hand. In the first case, property would include land and fixtures (buildings, trees, etc) that would be regarded as immovable. In the second case, property would include objects not considered fixed to the land, such as cattle, etc.
3.7 In practice, multiple rights can be held by several different persons or groups. This has given rise to the concept of a bundle of rights. Different rights to the same parcel of land, such as the right to sell the land, the right to use the land through a lease, or the right to travel across the land, may be pictured as sticks in the bundle. Each right may be held by a different party. The bundle of rights, for example, may be shared between the owner and a tenant to create a leasing or sharecropping arrangement allowing the tenant or sharecropper the right to use the land on specified terms and conditions. Tenancies may range from formal leaseholds of 999 years to informal seasonal agreements. If the farm is mortgaged, the creditor may hold a right from the bundle to recover the unpaid loan through a sale of the mortgaged property in the case of default. A neighbouring farmer may have the right from the bundle to drive cattle across the land to obtain water at the river. Box 1 gives some examples of rights.
EXAMPLES OF RIGHTS
A right to control how land will be used.
A right to derive income from the land.
A right to protection from illegal expropriation of the land.
A right to transmit the rights to the land to ones successors, (i.e. a right held by descendents to inherit the land).
A right to alienate all rights to the entire holding (e.g. through sale), or to a portion of the holding (e.g. by subdividing it).
A right to alienate only a portion of the rights, e.g. through a lease.
A residuary right to the land, i.e. when partially alienated rights lapse (such as when a lease expires), those rights revert to the person who alienated them.
A right to enjoy the property rights for an indeterminate length of time, i.e. rights might not terminate at a specific date but can last in perpetuity.
A duty not to use the land in a way that is harmful to other members of society, (i.e. the right is held by those who do not hold the right to use the land).
A duty to surrender the rights to the land when they are taken away through a lawful action, (e.g. in a case of insolvency where the right is held by the creditors, or in the case of default on tax payments where the right is held by the state).
3.8 At times it may be useful to simplify the representation of property rights by identifying:
use rights: rights to use the land for grazing, growing subsistence crops, gathering minor forestry products, etc.
control rights: rights to make decisions how the land should be used including deciding what crops should be planted, and to benefit financially from the sale of crops, etc.
transfer rights: right to sell or mortgage the land, to convey the land to others through intra-community reallocations, to transmit the land to heirs through inheritance, and to reallocate use and control rights.
Very often, the poor in a community have only use rights. A woman, for example, may have the right to use some land to grow crops to feed the family, while her husband may collect the profits from selling any crops at the market. While such simplifications can be useful, it should be noted that the exact manner in which rights to land are actually distributed and enjoyed can be very complex.
3.9 In broad terms, land tenure rights are often classified according to whether they are formal or informal. There can be perceptual problems with this approach because, for example, some so-called informal rights may, in practice, be quite formal and secure in their own context. Despite these perceptual problems, the classification of formal and informal tenure can sometimes provide the basis for useful analysis.
3.10 Formal property rights may be regarded as those that are explicitly acknowledged by the state and which may be protected using legal means.
3.11 Informal property rights are those that lack official recognition and protection. In some cases, informal property rights are illegal, i.e. held in direct violation of the law. An extreme case is when squatters occupy a site in contravention of an eviction notice. In many countries, illegal property holdings arise because of inappropriate laws. For example, the minimum size of a farm may be defined by law whereas in practice farms may be much smaller as a result of informal subdivisions among heirs. Property rights may also be illegal because of their use, e.g. the illegal conversion of agricultural land for urban purposes.
3.12 In other cases, property may be extra-legal, i.e. not against the law, but not recognised by the law. In some countries, customary property held in rural indigenous communities falls into this category. A distinction often made is between statutory rights or formally recognized rights on the one hand and customary rights or traditional rights on the other hand. This distinction is now becoming blurred in a number of countries, particularly in Africa, which provide formal legal recognition to customary rights.
3.13 Formal and informal rights may exist in the same holding. For example, in a country that forbids leasing or sharecropping, a person who holds legally recognized ownership rights to a parcel may illegally lease out the land to someone who is landless.
3.14 These various forms of tenure can create a complex pattern of rights and other interests. A particularly complex situation arises when statutory rights are granted in a way that does not take into account existing customary rights (e.g. for agriculture and grazing). This clash of de jure rights (existing because of the formal law) and de facto rights (existing in reality) often occurs in already stressed marginal rainfed agriculture and pasture lands. Likewise in conflict and post-conflict areas, encounters between settled and displaced populations lead to great uncertainties as to who has, or should have, the control over which rights.
3.15 The layers of complexity and potential conflict are likely to be compounded, particularly where, for example, state ownership is statutorily declared and state grants or leases have been made without consultation with customary owners (who are not considered illegal), and where squatters move illegally onto the land, as in figure 2.
FIGURE 2: Complexities and conflicts resulting from different types of tenure
3.16 Land administration is the way in which the rules of land tenure are applied and made operational. Land administration, whether formal or informal, comprises an extensive range of systems and processes to administer:
land rights: the allocation of rights in land; the delimitation of boundaries of parcels for which the rights are allocated; the transfer from one party to another through sale, lease, loan, gift or inheritance; and the adjudication of doubts and disputes regarding rights and parcel boundaries.
land-use regulation : land-use planning and enforcement and the adjudication of land use conflicts.
land valuation and taxation: the gathering of revenues through forms of land valuation and taxation, and the adjudication of land valuation and taxation disputes.
3.17 Information on land, people, and their rights is fundamental to effective land administration since rights to land do not exist in a physical form and they have to be represented in some way. In a formal legal setting, information on rights, whether held by individuals, families, communities, the state, or commercial and other organizations, is often recorded in some form of land registration and cadastre system. In a customary tenure environment, information may be held, unwritten, within a community through collective memory and the use of witnesses. In a number of communities, those holding informal rights may have informal proofs of rights, i.e. documents accepted by the community but not by the formal state administration.
3.18 An enforcement or protection component is essential to effective land administration since rights to land are valuable when claims to them can be enforced. Such a component allows a persons recognized rights to be protected against the acts of others. This protection may come from the state or the community through social consensus as described below in the section on Tenure Security. A stable land tenure regime is one in which the results of protective actions are relatively easy to forecast. In a formal legal setting, rights may be enforced through the system of courts, tribunals, etc. In a customary tenure environment, rights may be enforced through customary leaders. In both cases, people may be induced to recognise the rights of others through informal mechanisms such as community pressures. People who know their rights, and know what to do if those rights are infringed, are more able to protect their rights than those who are less knowledgeable.
3.19 Land administration is implemented through sets of procedures to manage information on rights and their protection, such as:
Procedures for land rights include defining how rights can be transferred from one party to another through sale, lease, loan, gift and inheritance.
Procedures for land use regulation include defining the way in which land use controls are to be planned and enforced.
Procedures for land valuation and taxation include defining methodologies for valuing and taxing land.
Efficient procedures allow transactions to be completed quickly, inexpensively, and transparently. However, in many parts of the world, formal land administration procedures are time-consuming, bureaucratically cumbersome and expensive, and are frequently
non-transparent, inaccessible to much of the rural population, and are handled in languages and forms that people do not understand. In such cases, high transaction costs may result in transfers and other dealings taking place off-the-record or informally.
3.20 Finally, land administration requires actors to implement the procedures. In customary tenure regimes, the customary leaders may play the principal role in land administration, for example in allocating rights and resolving disputes. In a more formal setting, land administration agencies may include land registries, land surveying, urban and rural planning, and land valuation and taxation, as well as the court systems. Where customary tenure has been recognised by the State, functional linkages are being developed between government and customary land administration bodies.
3.21 Formalisation of the administration of land rights has been promoted as a pre-requisite for economic development. Perceived benefits include increased tenure security and improved access to credit, thereby providing the incentive and ability for farmers to invest in making improvements to the land. Formal administration is also proposed as a means to facilitate a land market, allowing land to move towards its highest and best use.
3.22 These claims are disputed by others who argue that too often, the flawed design and implementation of projects to formalise property rights have resulted in a reduction of security by concentrating rights to a parcel in the hands of an individual, and neglecting the claims of others, particularly women and other vulnerable groups, who hold partial or common rights. Similarly, it is argued by some that access to credit may not improve with formalisation since many banks are unlikely to accept agricultural land as collateral against loans.
3.23 As a result, it has been suggested that formal registration of individual property rights should be considered only in areas of high population density, where customary tenure systems and dispute resolution systems are weak or absent, or where there have been other major disruptions to customary land holdings. However, even where these conditions do not exist, there is growing interest in several countries to formalise the rights of communities to protect them against encroachment from outsiders (e.g. commercial farming operations and even the State). In such cases, the community boundaries are defined, and title to the land is registered in the name of the community. It is then left to the community to undertake its own land administration, including the allocation of rights to land within its boundaries.
3.24 In many countries, formal and informal land administration co-exist when legal records do not replace customary rights, or when newly created informal rights come into existence. Tensions can exist between de jure and de facto rights to land. Discrepancies between formal and informal or customary versions of tenure holdings create ambiguities to be exploited. In some countries where formal land administration systems do not function well, different titles may be issued by the State for the same parcel of land. This complicates the legal status of the land since it gives rise to competing claims. The mere act of establishing and documenting land boundaries and titles is not enough; it has to be done in a way that does not make the situation worse. The role of local communities in investigating claims is crucial as they have the knowledge of the local tenure arrangements.
Access to land
3.25 Access to land for the rural poor is often based on custom. Customary rights to land in indigenous societies, for example, are usually created following their traditions and through the ways in which community leaders assign land use rights to the community members. These rights of access may have their origin in the use of the land over a long period. They are often rights developed by ancestral occupation and by the use of land by ancestral societies. In such cases, it is through the act of original clearance of the land and settlement by ancestors that rights are claimed.
3.26 People also use a wide range of strategies to gain access to land. These include:
Purchase, often using capital accumulated while working as migrants in urban areas.
Adverse possession or prescription (the acquisition of rights through possession for a prescribed period of time). In some countries, this may be the only method for small farmers to gain formal access to vacant or abandoned land and to bring it into productive use.
Leasing, or gaining access to land by paying rent to the owner.
Sharecropping, or gaining access to land in return for paying the owner a percentage of the production.
Inheritance, or gaining access to land as an heir.
Squatting illegally on land.
3.27 In addition to such individual strategies, access to land can be provided systematically through land reform interventions by national governments, often as a result of policies to correct historic injustices and to distribute land more equitably. Such land reforms usually occur in situations where much of the land is owned by a relatively small number of land owners and the land is idle or under-utilised (although it should be noted that determining whether land is under-utilised depends on the criteria selected for the assessment). In some countries, land restitution has been an important type of land reform. Other land reform interventions include land redistribution programmes which aim at providing the rural poor with access to land and promoting efficiency and investment in agriculture. These programmes are often, but not always, accompanied by provision of subsidised agricultural services such as extension and credit. In some cases, the state has provided access to idle or under-utilised public land but most often private land holdings have been the source of land for resettlement purposes.
3.28 In imposed redistributive land reforms, land is taken from large land holders by the State and transferred to landless and land-poor farmers. Compensation has been paid to the original owners in some reforms but not in others. In some cases, the reforms have benefitted the tenants who worked the land. Such reforms change the structure of land ownership by transforming tenants into owners but do not change the operational holdings. In other cases, the reforms have involved the resettlement of beneficiaries on the expropriated lands and the creation of new farming operations.
3.29 Some recent land reform initiatives have been designed so that beneficiaries negotiate with land owners to purchase land using funds provided by the State in the form of grants and/or loans. Beneficiaries are usually required to form a group which identifies suitable land, negotiates the purchase from the seller, formulates a project eligible for state grants and/or credit, and determines how the land will be allocated among the members of the group and what their corresponding payment obligations will be.
3.30 While there is broad consensus that land reform plays an important role in rural development where land concentration is high, great controversy surrounds the choice of mechanisms to transfer land from large land owners to the landless and land poor. However, this debate is well beyond the scope of this guide to address.
3.31 Security of tenure is the certainty that a persons rights to land will be recognized by others and protected in cases of specific challenges. People with insecure tenure face the risk that their rights to land will be threatened by competing claims, and even lost as a result of eviction. Without security of tenure, households are significantly impaired in their ability to secure sufficient food and to enjoy sustainable rural livelihoods.
3.32 Security of tenure cannot be measured directly and, to a large extent, it is what people perceive it to be. The attributes of security of tenure may change from context to context. For example, a person may have a right to use a parcel of land for a 6 month growing season, and if that person is safe from eviction during the season, the tenure is secure. By extension, tenure security can relate to the length of tenure, in the context of the time needed to recover the cost of investment. Thus the person with use rights for 6 months will not plant trees, or invest in irrigation works or take measures to prevent soil erosion as the time is too short for that person to benefit from the investment. The tenure is insecure for long-term investments even if it is secure for short-term ones.
3.33 The importance of long-term security has led some to argue that full security can arise only when there is full private ownership (e.g. freehold) as, under such tenure, the time for which the rights can be held is not limited to a fixed period. It is argued that only an owner enjoys secure rights, and holders of lesser rights, such as tenants, have insecure tenure because they are dependent on the will of the owner. It is then implied that security of tenure comes only with holding transfer rights such as the rights to sell and mortgage. Equating security with transfer rights to sell and mortgage is true for some parts of the world but it is not true in many others. People in parts of the world where there are strong community-based tenure regimes may enjoy tenure security without wishing to sell their land, or without having the right to do so, or having strictly limited rights to transfer (e.g. transfers may be limited to heirs through inheritance, or sales may be restricted to members of the community).
3.34 The sources of security may also vary from context to context:
An important source is the community and its specific groups such as local farmers organizations and water users associations. When neighbours recognise and enforce a persons rights, that persons security increases. In many customary tenure arrangements, people gain property rights through membership of social communities. Maintaining property rights validates membership in the group just as much as membership facilitates the acquisition and safeguarding of property rights.
Governments represent another source of security as they may provide political recognition of some rights. For example, a government may accept the illegal encroachment and settlement of a community on state forest lands and undertake not to evict it. However, in doing so, a government usually recognises the right of the community to occupy the land, but does not go as far as recognising the rights of individual people within the community.
Another source may be the administrative state and the formal legal system. The state may provide security in general by affirming the rights that people hold as well as through specific measures such as providing protection against trespass. Security is often seen to come from protections provided through land registration and cadastral systems, with adjudication of disputes taking place in the formal court system.
In some countries, security can also be provided by coercive structures such as warlords that emerge in the absence of an effective state during periods of civil unrest. Of course, this is not a desirable source of security as these structures may in turn prevent the development of strong communities and legal systems necessary for good governance.
3.35 The total security enjoyed by a person is the cumulative security provided by all sources. In many cases, increasing security from one or more sources will result in an increase in total security. In many development projects, providing or improving legal security is considered the most important way of increasing security of tenure. Examples of land tenure reforms include the upgrading of informal rights to legally enforceable rights; the upgrading of state-issued permits to leases that provide greater protection to the land users; the introduction of provisions for communities to become the legal owners of their traditional land holdings instead of the rights being vested in the State; and better definition of property rights through improvements to formal land administration systems.
3.36 A persons security of tenure may be threatened in many ways. Ironically, attempts to increase the legal security of some may result in others losing their rights. For example, titling and registration projects, if poorly designed, can reduce security of many rural residents by failing to recognise certain rights, often held by women and the poor, and allowing them to be merged into simplistically conceived ownership rights. The rights to important uses of the land, for example, to gather minor forest products or to obtain water, may not be recognised by the legal system and may be effectively destroyed as a result. Of course, other types of development projects can also result in the loss of rights to land.
3.37 Rights may also be reduced or eliminated if the state starts to enforce existing rules that prevent access to resources. For example, more rigid enforcement of state policy on forest conservation may result in villagers being evicted from land which they have been using for agricultural and grazing purposes.
3.38 Tenure insecurity may be caused by social changes. HIV/AIDS, for example, is impacting the security of women in parts of Africa. Widows may lose access to land in a legal sense if they are unable to inherit rights from their husbands, and in a practical sense if they are forced off the farms by male relatives.
3.39 People may lose rights when others ignore land tenure rules. Exploitation of unequal power relationships within communities, for example, may result in some members fencing off portions of communal lands for their own exclusive use, thereby denying access by other members of the community to shared grazing lands.
3.40 Landlessness may occur, of course, for reasons other than insecure tenure. Some may sell their land through distress sales (forced sales) in order to survive in times of crises such as famine, sickness or other calamities. Other reasons for selling land may include the need to meet social pressures such as providing a dowry for daughters upon their marriage.Source: www.fao.org