Theme 1: Access to Land and Tenure Security

What is Land Tenure?

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.

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.

Tool 1: Enumerations for tenure security

Enumerations represent a fundamental part of the slum upgrading process. Enumeration is intended to establish information on the population size, the ownership patterns and the state of infrastructure. Enumerations provide the means by which not only the data is gathered to allow for local planning, but also the process by which consensus is built and the inclusion of all residents negotiated. Enumerations are means to federate and organise communities and involve them in large scale slum upgrading projects.

The experience with enumerations worldwide has revealed the importance of having people from the community to be the main enumerators rather than developing a specialist team of external enumerators. How an enumeration is done and who does it, is as important as the information it collects.

In informal settlements there might be groups and sub-groups and complex micro-politics that may act to exclude or hide some of the poorest households. All community processes as they stand may not be positive. Therefore, mediation and negotiations while surveys are ongoing is important to ensure sustainability and justice.

An accurate enumeration of conditions for tenure security is a prerequisite

1. to evaluate various levels of insecurity and corresponding risks of eviction;
2. to provide the normative foundation for promoting secure tenure, and guidelines for statutory recognition of secure tenure, and
3. to identify and develop global norms for secure tenure.

This could be based on:

1. a global comprehensive typology of tenure categories and associated rights;
2. an inventory of legal, regulatory and planning measures aiming to provide temporary or permanent protection against forced evictions, and
3. an inventory of public policies and practices on informal settlements and customary tenures.

A key challenge is how to make sure that the information produced by an enumeration exercise is also used to strengthen security of tenure through state recognition, and for use in physical planning.

Questions for tool developers

• What role does enumerations have in terms of providing tenure security for the poor?
• What is the relationship between social mapping and enumerations?
• How can the enumeration data be managed and updated over time?
• What is the role of the municipal council in terms of community enumerations? How can enumeration data be used by local government and central government for physical planning?
• Can the data be placed on a GIS?
• Can the data be used as first evidence of rights during adjudication by the state?
• What will the challenges be for the Surveyor General's office for example in accepting this data?

1. Count me in: Surveying for tenure security and urban land management (Eng - 2010)
2. Tackling tenure security in slums through participatory enumerations: Brief 1 (Eng - 2010)
3. Improving data collection for urban planning through participatory enumerations - Brief 2 (Eng - 2010)
4. Handbook on Best Practices, Security of Tenure and Access to Land: Implementation of the Habitat Agenda (Eng - 2003)
5. Regional Learning Workshop on "Land and Natural Resources Tenure Security": Background Note (Eng - 2012)
6. Regional Learning Workshop on "Land and Natural Resources Tenure Security": Final Proceedings (Eng - 2012)
7. Innovative Urban Tenure in the Philippines: Challenges, Approaches and Institutionalization (Eng - 2011)
8. Innovative Urban Tenure in the Philippines: summary report (Eng - 2012)
9. Monitoring Security of Tenure in Cities: People, Land and Policies (Eng - 2011)
10. Enumeration as a grassroot tool towards securing tenure in slums: An initial assessment of the Kisumu experience (Eng - 2008)

Tool 2: Continuum of land rights

A key aspect of GLTN's work is the continuum of land rights. We can view rights to land as lying on a continuum. At one end are formal land rights, where the owner is an individual, who holds a set of registered rights to a parcel of land that are enshrined in law: the parcel is delineated on a map; held in a record office; the owner has the right to occupy the land, build on it (subject to approvals), sell it, rent it out, transfer it to his or her heirs, and prevent other people from coming on to it.

At the informal end of the continuum are informal rights: a group of individuals (such as a clan) may have traditional rights to use a piece of land. The boundaries of the land may not be clearly marked on the ground or on a map, and there may be no official paperwork certifying who owns or has what rights to the land.

In between these two extremes are a wide range of rights. Figure 3 illustrates this in a highly simplified way: in reality, the rights do not lie on a single line, and they may overlap with one another. Tenure can take a variety of forms, and " registered freehold" (at the formal end of the continuum) should not be seen as the preferred or ultimate form of land rights, but as one of a number of appropriate and legitimate forms. Registered freehold, for example, requires a sophisticated (and costly) administration system, a reliable survey of the land parcels and good land governance.

The most appropriate form depends on the particular situation: customary rights, for example may be superior to registered freehold in certain situations. Land tools have to take this continuum into account. This idea is gaining increasing acceptance internationally.

Questions for tool developers

• What are the prerequisites for ensuring a good articulation between land rights systems?
• Which land management and administration tools should be used for ensuring their gradual integration within a unified land administration system?
• Which innovative arrangements other than allocation of individual property titles can be promoted in order to improve security of tenure for the urban poor?
• How can the existing continuum and recognition of customary rights be applied to implement incremental tenure upgrading and regularisation policies aimed at improving security of tenure for the poor?
• How can the legal and regulatory framework take into account the continuum of land rights, in order to improve security of tenure, transparency of land markets, taxation and planning?
• What should be the components of a global typology of formal and informal land rights, taking into account their characteristics, their continuum, and their interactions?
• Can de facto (as opposed to de jure) security of tenure be considered as providing sufficient protection for the poor, and in which contexts or circumstances?
• Does security of tenure require the allocation of registered rights, more precisely of individual property rights?
• What possible alternative to registered real rights would guarantee security of tenure (for example personal rights, such as administrative permits)?

1. EGM on "The Continuum of Land Rights: Reviewing the concept and investigating the evidence in selected sites in Southern Africa" (Eng - 2013)
2. How to Develop a Pro-poor Land Policy: Process, Guide and Lessons (Eng - 2007)
3. Tackling tenure security in slums through participatory enumerations: Brief 1 (Eng - 2010)
4. Institutional Harmonisation Processes in the Kenyan Land Sector: A Case Study of the Time Period 2003-2007 (Eng - 2008)
5. Secure Land Rights for All (Eng - 2008)
6. Urban World: Cities and Land Rights (Eng - 2011)
7. Social and Economic Impacts of Land Titling Programmes in Urban and Peri-urban areas: International Experience and Case Studies of Senegal and South Africa: Final Report (Eng - 2006)

Tool 3: Deeds or titles

Registration of rights to land has always been an issue of concern for human settlements since land rights are of such importance for human life and that questions regarding protection and transfer of rights always have been regulated in different ways. Originally, transfer of land rights was handled orally by local courts, a transaction was presented at one or several court meetings and the court finally issued an evidence, a title, that the transaction has taken place and been lawfully recognized by the community. Later documents was established and stored in the archive of the court in chronological order and with file numbers. This is the deeds registration system, which also can be complemented with indexes, which makes it more easy to search in archive on different argument, like names or parcel numbers. The deed in a deed's registration system usually will be drawn by a special notary (lawyer), who also will guarantee the legal correctness of the transaction, among others that the seller is the lawful owner of a property to be transferred. In order to make this guarantee, the notary usually has to make a title search in the chain of transactions of the property, in principle back to the original allocation of the right by the state. The description of the property in question for a transaction is usually made in the deed in written form. This can be complemented by demands for a map created by a licensed surveyor.

The title registration system builds on another principle to organize the register. The parcels are numbered with a given identification and the transactions are recorded in the land book under the heading of each property. This will mean that the registry immediately will show the legal owner, which is the last registered title owner of the property according to the book. The registrar is obliged to check that the seller of a property is the title holder. The system is usually combined with legislation that gives certain preferences for the titled owner in case of sale of the same property to several persons. The State is also usually guaranteeing that the titled owner is the lawful owner in case any third person, who relies on this information, is caused damaged because of that the information turns out to be wrong.

In order to establish a title registration system, there is a need for a comprehensive cadastral map, that shows the whole area, so that each property can be given a unique identification. This calls for systematic mapping, which in the past has been costly and usually been combined with mapping for other purposes, especially for property taxation (the fiscal) cadastre). The description of the property to be transferred will mainly be made through the reference to a cadastral unit, which is mapped or will be mapped by governmental or private surveyors in connection with a transaction. On the other hand, once established, the title registration system will allow simple registration of consequent transactions. For instance, the notary will not need to be engaged in the process in order to provide legal guarantees. Good title registration systems usually rely on good computer systems and data bases as well as uncorruptible government officials.

Questions for tool developers

• The European approaches to land registration, deeds or title, need also to integrate in some way or another issues of registration of customary rights, informal rights etc. How can registrations systems best be designed, to protect existing rights, allow the development of an efficient land market and be affordable for poor people?
• Much of the design of land registration system has to do with traditions, heritage of colonial legislation, professional practices, etc, which sometimes have been overrun by technical development. How can these systems be developed into system that more directly corresponds to the demands of the poorer countries.

Tool 4: Socially appropriate adjudication

Although women's rights to land and housing are recognised in international law and by an increasing number of countries, they are still not recognised by all countries. Women generally lack security of tenure and persistent customary laws, traditions and cultural factors deny them their rights. For example, women are affected disproportionately by forced evictions and resettlement schemes, slum clearance, civil conflict, and development projects.

This is largely a result of gender-biased laws, which at best only protect married women and at worst do not protect women at all. Given their low socioeconomic status in many societies, women - and especially uneducated women - are particularly vulnerable to change in marital status. Well-educated, urban-based and relatively wealthy women are usually better protected.

Laws relating to marital property and inheritance rights remain discriminatory in most Sub-Saharan African countries and in some others. Widows, divorced, single or old women are particularly exposed. When customary practices are tolerated or formally recognised (see in Statutory and customary topic), patriarchal power contributes to the problems women face in access to land.

Women have been further excluded by unequal land distribution and widening gaps between rich and poor, overemphasis on privatisation, rigid planning procedures, registration of land rights and individuation of land tenure, and land market pressure.

The right of women to land and housing needs to be understood in terms of their entitlements.

A lack or absence of institutional support and gender-sensitive laws, policies and social practices, a lack of representation on decision-making bodies, and cultural attitudes are all factors which increase discrimination against women.

Without gender-aware officials in bodies dealing with land allocation, inheritance and dispute settlement, a male bias is likely to continue

Adjudication is defined as the process whereby existing rights in a particular parcel of land are finally and authoritatively ascertained. It is a prerequisite to registration of title and to land consolidation and redistribution using title deeds. The process does not alter existing rights or create new ones.

Adjudication is a tool used especially true when land is first titled. Generally the adjudication team which interviews the household to assess who holds what land where is male. Generally the adjudication teams has to identify one individual to whom the title deed will go.

Adjudication is also the procedure undertaken when there is a dispute over titled land and a team meets to adjudicate, reach agreement and award the land rights.

Questions for tool developers

• How can adjudication procedures be made more gender sensitive?
• Lessons from experience suggest that the most crucial issue regarding women rights to land is enforcement. Which adjudication bodies and procedures are likely to take into account women's right to land, especially with regard to resolving disputes, inheritance, records and registration of land rights?

Tool 5: Statutory and customary

Customary tenure is critical in both rural and urban areas. In many countries in the world the only tenure type available is customary tenure. This is true both in Africa as well as in Asia (e.g. India). Given the inability of the state to deliver security of tenure through existing statutory systems, customary tenure is critically important for food security, agricultural productivity, family and group right tenure approaches and protects the rights of secondary tenure rights holders.

For the majority of the poor in Sub-Saharan African cities, and in many other parts of the world such as the Pacific and parts of Indonesia, low-income demand for land is overwhelmingly met by informal delivery systems, which combine customary practices with other informal and formal practices. They work through individuals who have received their land rights from a customary system, but who treat these rights as market commodities. Customary " ownership" is usually tolerated, although it is rarely recognised by governments. Consequently, the populations concerned do not enjoy full security of tenure. Lack of clarity about the status of land rights may delay and obstruct development initiatives.

The failure of governments to provide land for the low-income sector, and the weakness of formal private sector systems have strengthened the attractiveness of customary land delivery systems in peri-urban areas, including on land which is not customary in the first place but belongs to the state. They are delivering land to the poor that formal systems have failed to provide. Compared with formal land delivery processes, they can deliver at scale, they are cheap, and they provide fast access to bigger plots. In many settlements, a grassroots land management body can mediate and arbitrate land disputes and make requests for services and development to public authorities.

Legal pluralism, land market diversity, and reluctance of governments to formally recognise customary land delivery and customary social land tenure systems gives rise to land policies whose unintended impacts can further reduce the access of poor households to shelter on the one hand and food security on the other.

Furthermore, the drying up of customary land reserves combined with the accelerated commodification of customary land delivery systems are leading to increased competition from low-middle and middle-income groups for access to land.

However, recognizing the decision-making power of customary systems and authorities may have serious implications for women's land rights (see under Socially appropriate adjudication topic) and those of the poor, as land allocation and dispute settlement tend to be dominated by elites, usually men. At planning level, it impacts negatively on urban management. Customary land development does not comply with formal planning regulations and norms, does not provide basic infrastructure and services, and the lack of transaction records generates a series of land disputes

Questions for tool developers

• Are customary systems a viable alternative to formal systems for delivering urban housing land to the poor?
• Are customary systems a viable alternative to formal systems for delivering tenure security in rural areas and for small farmer agricultural productivity.
• Does State support for customary processes reduce the advantages that these processes offer to poor people?
• What tools can contribute to streamlining and integrating customary land delivery practices in urban areas?
• Would incremental formalisation of land tenure practices allow a more flexible evolution of local land tenure, and thus avoid many of the problems that have arisen in previous land registration and titling?
• How can we ensure in the short term that there are reliable records of customary land transactions?

Tool 6: Co-management approaches

Applied to low-income informal settlements or irrigation schemes, co-management describes a situation where land management-related tasks (such as land information and records, tenure upgrading) are carried out jointly by a community and by another actor. This may be a public actor (local government, or a public body or agency) and/or a private actor (a private company, an NGO, a local development Institute), and/or a donor agency or a foundation.

This formula allows community participation in tasks that require professional qualifications and resources that it does not have. Furthermore, it allows transfer of knowledge to communities and from communities to professionals.

Land readjustment, land consolidation, land pooling and community land trusts are kinds of co-management. In some cases endash such as land sharing endash co-management approaches may involve private developers, public agencies and communities.

Public-private partnership in land development is a form of co-management.

Questions for tool developers

• What are the main characteristics of co-management?
• What are the main forms of land co-management, and which areas are concerned?
• Is co-management a relevant approach to the upgrading and regularisation of informal settlements?
• Is co-management a relevant approach for the management of irrigation schemes and/or agricultural inputs?

Tool 7: Land record management for transactability

The lack of reliable records of land rights and transactions at local or central levels is one of the main problems hindering the development of land markets. This concerns mainly, but not exclusively, informal and/or customary land markets. Even when titles or deeds have been issued and formally registered, land transactions or transfers may not be systematically recorded, or are recorded in registers that are not properly kept or updated. The cost of creating and maintaining land records, both in human and financial terms has meant that most of the developing world is less than 30% covered by land records held in a registry.

Inadequate land records give rise to a series of difficulties: problems identifying right-holders, risk of multiple sales of land plots, use of forged deeds or titles. This situation increases insecurity of tenure and generates land disputes, and without formal records of deeds or titles, landowners cannot have access to mortgage loans. Land management is also limited by a lack of records as it is difficult to put in economic and social services, such as roads, electricity, clinics etc without land records, also showing where is the state land.

Cadastres or any other appropriate land information systems may improve land record management. However, they must be considered as a long-term objective.

In the short term, simplified record techniques and procedures need to be set up.

These must be compatible with existing LIS, if any, and be able to be incrementally improved over time, and integrated into an LIS operating at district, city and national levels (technical obstacles, access to or updating of land-related information, and cost incurred).

Questions for tool developers

• In informal settlements, where tenure has not yet been regularised, which land right and transaction record procedures can be implemented?
• In rural customary areas where tenure has not yet been regularised, which land right and transaction record procedures can be implemented
• What particular techniques and procedures must be envisaged to record land rights and transactions in informal settlements?
• What particular techniques and procedures must be envisaged to record land rights and transactions in rural customary areas?
• Which actors are, or could be, in charge of land records/customary records: local or central administrations, private sector professionals, communities'85?
• How can communities concerned be integrated into the land record process?
• How can we ensure that land records made at local level are compatible with endash and could later be integrated into endash land registration systems operating at national level?

1. Training Package: Toolkit - Tools to Support Transparency in Land Administration (Eng - 2013)
2. Training Package: Trainers' Guide - Tools to Support Transparency in Land Administration (Eng - 2013)
3. Land Inventory in Botswana: Processes and Lessons (Eng - 2010)
4. Brief - Land Records for the Poor: Participatory. Affordable. Credible. Equitable (Eng - 2012)
5. Designing a Land Records System for the Poor (Eng - 2012)
6. Sustaining Urban Land Information: A framework based on experiences in post-conflict and developing countries (Eng - 2012)
7. Managing Urban Land Information, Learning from emergent practices (Eng - 2012)

Tool 8: Family and group rights

Customary rights endash which are one form of group rights endash are discussed under the Statutory and customary topic

Family land rights refer to the rights a family group exerts collectively on a land. Such rights may or may not be recognised by the public authorities or be registered, but they are recognised by the community to which the family belongs.

Group land rights refer to situations where people take responsibility for creating land management and administration rules within the area in which they live (from a plot to a clearly delineated settlement). They allocate land rights, set the rules for land transfers, and resolve land-related disputes. The rules set by the group can be run separately from, but not in opposition to, state rules.

This require social cohesion and well-organised communities that can deal with the authorities, and they must be backed by appropriate finance mechanisms (e.g. savings groups in the Baan Mankong programme in Thailand).

The management and administration of group land rights can be handled simply through oral agreement, or by a registered body. Examples are:

1. cooperatives where each member receives a share of benefits and costs involved;
2. Housing Associations, usually involving a large amount of land and housing stock under one agency;
3. Community Land Trusts where ownership is retained by a group, but members are allowed to hold long-term leases;
4. Condominium ownership, with individual ownership of the residential unit and common ownership of shared areas.

Group tenure arrangements may have several advantages: they can help maintain social cohesion, which frequently breaks down when individual title deedsare issued; they provide collective security of tenure; records of group arrangements can be improved over time, thus permitting an incremental approach to tenure upgrading; they are adapted to the regularisation of informal settlements, they can combine with land sharing agreements (India and Thailand), they are cost effective in terms of registration procedures, most customary social land tenure systems in rural areas involve some form of group right.

The main problems encountered are the frequent reluctance of public authorities to recognise group rights, difficulties in the identification of rights holders in the absence of records, and the lack of skills and resources: group tenure arrangements require specialised land administration approaches and complex forms of partnerships involving communities, landowners, public authorities or agencies, and NGOs.

Questions for tool developers

• Can group rights be considered as a sustainable response to provide security of tenure for informal settlements?
• Can group rights be considered as a sustainable response to provide security of tenure for rural customary areas?
• Should collective and group arrangements rather be considered only as a transitional or temporary form of secure tenure?
• How can compatibility be ensured between security of tenure for the group and for individuals over time (definition of rules for the allocation, use, and transferability of plots or dwelling units by individual members of the group)?
• How can group or community interests be protected from individual strategies, especially when better-off group members are able to link up with the market system?
• How can we ensure that the poorest segments of the communities are not excluded from group arrangements (especially cooperatives and condominiums)?