2.2.1 Property Rights and Land Tenure 1

PROPERTY RIGHTS AND LAND TENURE

UPA Package 2, Module 2

2.2.1 Property Rights and Land Tenure 2

• To understand the basic definition, system and the characteristics of land tenure and property rights, then its relationship with urban poverty alleviation

• To understand the criteria for assessing land tenure and property rights

• To understand the recent trends and demand of secure property rights

Aims of the lesson

2.2.1 Property Rights and Land Tenure 3

Definition of Terms and the Nature

Land Tenure:

It can be defined as the mode by which land is held or owned, or the set of relationships among people concerning land or its product. It also can be described as the manner in which rights in land are held.

2.2.1 Property Rights and Land Tenure 4

Property Rights: It can similarly be defined as a recognized interest in land or property vested in an individual or group and can apply separately to land or development on it. Rights may cover access, use, development or transfer and as such, exist in parallel with ownership.

Definition of Terms and the Nature

2.2.1 Property Rights and Land Tenure 5

Definition of Terms and the Nature

2.2.1 Property Rights and Land Tenure 6

Systems of Land Tenure and Property Rights in A General Perspective

Two Major Categories:

• The Roman law or the Napoleonic Code view land as a commodity which can be owned.

• The British common law regard land as something to which one can have rights.

2.2.1 Property Rights and Land Tenure 7

Customary Tenure and Property Rights:

• The major characteristic of customary tenure is that the land is regarded as belonging not to the individual but to the whole social group.

• It is found in most parts of Africa, the Middle East, Melanesia and North America

Systems of Land Tenure and Property Rights in A General Perspective

2.2.1 Property Rights and Land Tenure 8

Private Land Tenure and Property Rights:

• The concept of private property rights is an integral part of the legal structure of European society. (UN 1973)

• The combination of private ownership and extensive individual rights has been the cornerstone of Western European and North American societies for the last two hundred years.

• In developing countries it is imported and generally concentrated in urban areas. It may co-exist with other indigenous tenure systems. However, its primary limitation is the difficulty of access by lower income groups.

Systems of Land Tenure and Property Rights in A General Perspective

2.2.1 Property Rights and Land Tenure 9

Public Land Tenure and Public Control:

• The concept of public land ownership is largely a reaction to the perceived limitations of private ownership in that it seeks to enable all sections of society to obtain access to land.

• higher level of equity, but lower level of efficiency, or high costs of land management and investment constrains.

Systems of Land Tenure and Property Rights in A General Perspective

2.2.1 Property Rights and Land Tenure 10

Religious concepts of tenure and property right:

• Islamic concept

• ‘aqf’ land is land ‘held for God’, and owned by religious foundation.

• ‘musha', or communal land, is land owned collectively, originally under tribal tenure.

• ’mulk' land, or private land, is owned by an individual with full ownership rights and is also protected in law

• ‘miri', or state controlled land.

Systems of Land Tenure and Property Rights in A General Perspective

2.2.1 Property Rights and Land Tenure 11

• By the end of the nineteenth century, indigenous land tenure systems were operating in parallel with European concepts in most parts of Africa, Asia and the Pacific.

• Modern legal systems co-exist with legally adopted customary system.

Indigenous and imported tenure concepts:

Systems of Land Tenure and Property Rights in A General Perspective

2.2.1 Property Rights and Land Tenure 12

• A wide range of categories with varying degrees of legality or illegality: Include regularized and un-regularized squatting, unauthorized subdivisions on legally owned land and various forms of unofficial rental arrangements.

Non-formal tenure categories and property right:

2.2.1 Property Rights and Land Tenure 13

• Freehold

• Leasehold

• Conditional freehold

Box 2. Advantages with freehold and leasehold Advantages with freehold

Advantages with leasehold

Freeholds are perceived as more secure Less risk for the inefficient and slow processes of bureaucracies Decreasing readiness to invest towards the end of a leasehold Problems related to landlord-tenant disagreements

Reduction of increase in land prices Planned and controlled land development is easier if the government can act as the ultimate owner rather than a statutory regulator Regular rent review can ensure that capital appreciation is shared between the public sector and the developer or tenant Monitoring land transactions is easier with leasehold clauses (e.g. speculation in sites-and-services schemes) Offers possibilities for providing more equity to disadvantaged groups

National Tenure Policy Options

2.2.1 Property Rights and Land Tenure 14

• Clarity

• Efficiency

• Equity

Criteria for Assessing Tenure

and Property Rights

2.2.1 Property Rights and Land Tenure 15

• Discrimination exists against three broad groupings of people ----

women,

indigenous peoples,

minority groups of settlers

Discrimination in the Access to Land

2.2.1 Property Rights and Land Tenure 16

• To unify land markets.• To guarantee investments by providing real rights.• To permit beneficiaries to have access to mortgage

finance.• To develop or improve property taxation (linked with

decentralization policies).

In the 1990’s, the World Bank has put emphasis on tenure security policies based on access to land ownership. The objectives were:

Recent Trends and the Demand for Secure Property Rights

2.2.1 Property Rights and Land Tenure 17

• The World Bank’s draft Urban Strategy Paper (2000) emphasizes the need for ‘stronger property rights’ in real estate markets and ‘secure and clear’ tenure in upgrading projects. Tenure security and property rights are listed as among the most important factors influencing housing demand and it is claimed that insecure tenure leads to under-investment in housing and to reduce housing quality

Recent Trends and the Demand for Secure Property Rights

2.2.1 Property Rights and Land Tenure 18

“Security of tenure is a fundamental requirement for the progressive integration of the urban poor in the city, and one of the basic components of the right to housing … It guarantees legal protection against forced eviction …The granting of secure tenure is one of the most important catalysts in stabilizing communities, improving shelter conditions, reducing social exclusion improving access to urban services”.(UNCHS 1999)

Demand for Tenure Security