Transcript Leasehold Approaches

Land Law in a
Comparative Perspective:
African and Asian
Contexts
Dr. Fabian Thiel (CIM)
Faculty Advisor, Faculty of Land
Management and Land Administration,
Royal University of Agriculture (RUA),
Phnom Penh
Questions
Would land laws, on global scale, be
more effective and accepted if there
would be no exclusive private property
for land and other natural resources at
all?
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Comparative
Land Law
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“Making the land law work for
everyone”: Private property rights or
public common property rights? How
to secure land (use) rights?
Property Rights
Problems with the “Property Rights”:
Combat market failures by
generalizing a regime of exclusive and
tradable property rights?
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Comparative
Land Law
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Increase in efficiency with private
property? How to reduce transaction
costs?
Formal and Informal Rights
Registered Freehold
Leases
Group Tenure
Adverse Possession
Anti Evictions
Occupancy
Customary
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Formal Rights
Informal
Rights
Rule of Law for all?
• Today in many countries the state (including
the private purposes of the powerful) is the
primary threat to land tenure security (WB
2006)
• 50 % of all fertile soils are not used efficiently,
even on concession land
• 100 out of 200 countries show weak
Governance indicators
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Comparative
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• 4 billion people are excluded from the rule of
law (CLEP)
Property Forms in Africa
• Commercial Farmland (freehold
property)
• Communal Farmland (leasehold
property)
• Urban/Communal/Customary Land
(municipal property; tribal, chiefs´ and
customary land)
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• State Land (state property)
Customary Rights in Africa
• Customary rights are registered now
without conversion into introduced
forms (e. g. in Uganda, Tanzania,
Mozambique, Ghana)
• Customary rights rise status over
leasehold rights (most countries)
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• More than 90 % of rural landholding
consists of unregistered customary
rights which are ambivalent and
permissive (2-10 % formal tenure)
Country Case: Namibia
• Land Reform Advisory Commission
• Commercial Land (Freehold)
–
–
Is the only form of secure title
Requires holders´ ownership which is transferable,
inheritable and serves as a collateral
• Communal Land (Leasehold)
–
–
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Comparative
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Owned by government through Communal Land
Boards
User has a customary land right (right of use),
registered in the Communal Land Boards
Country Case: Mali
• Land Law (Code Domanial et Foncier)
• All land in Mali consists of: State Land,
Local/Regional Land and Individual Land
• Customary land rights are recognized by law
(Art. 43 Land Law)
• Malian legislator neglects the importance for
the state to keep control over the land and gain
revenues from the use
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Comparative
Land Law
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Country Case: China (1)
• Land Management Law of People´s
Republic of China (1998): “Strict
control on the usage of land”.
• Illegality to violate the general land use
plan and change the land use
• Three categories of land:
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– Agricultural land
– Construction land
– Unused land
Country Case: China (2)
• General Plan for National Land Use
(2006-2020): Quantity of cultivated
land reservation by 2020 is 120.3 Mio.
Ha
• Rural Land Property Rights System:
Turning the peasants´ land in to
property effectively to protect
agricultural land
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Comparative
Land Law
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Country Case: Mongolia
• Property on Land
– Private and state property
– Possession (up to 60 years)
– Use rights (foreigners, up to 5 years)
• Constitution from 1992 changed the
concept of property for land:
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Comparative
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– State protection
– Public and private property
– Leasing rights for foreigners
Country Case: Cambodia (1)
• Constitution (1993)
• Law on Land Management, Urban
Planning and Construction (1994)
• Land Law (2001)
• Sub-Decrees
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Comparative
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Country Case: Cambodia (2)
Sub-Decrees and Royal Decrees
• Sub-Decree (Examples: Phnom Penh
Strategic Development Plan; Rules
and Procedures on Reclassification of
State Public Properties)
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Comparative
Land Law
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• Royal Decree (Example: Decree on
transferring Public Properties)
Country Case: Cambodia (3)
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Comparative
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• Private and Public Ownership
(14,15,17)
• Principles of Ownership (4, 8, 66)
• Land Concessions (48-62)
• Ownership and Possession (29-47)
• Leasing (106-113)
• Co-Ownership (175-185)
• Immovable Property (2)
• Land Administration (226-246)
National Level
Regional Level
Province Level
Municipality Level
District Level
Commune Level
Commune Development
Concept (Masterplan)
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Comparative
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PLUP or /and Legally-binding
Land-use planning everywhere?
Building plan?
Restrictions on Property
• Governments may guide and restrict
the use of property to protect and
promote public interests, provided it
complies with the principle of
proportionality. Expropriation with
compensation.
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• Any restriction on private property is
constitutional if it does pursue a public
interest effectively.
Leasehold Rights
• Leasehold rights as alternative secure
ownership rights for agricultural land
• “Quiet Enjoyment”: Divided property
between lessor and lessee
• Integration of leasehold rights in
participatory land use planning
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Recognition of Land Rights
• Recognition of a variety of land tenure,
especially for customary tenure,
indigenous peoples´ group rights,
certificates and land titles
• Include these land rights into
standardisation processes and
integrate them into the legal system
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Comparative
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• Create a functioning land market with
leasehold rights (rental market)
Outlook
• Integrate customary land law into the
rule of law
• Harmonization of constitutional law
and basic (land law
• Information and education about the
rule of law
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Comparative
Land Law
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• Interpretation of law
End
Questions, please?
www.landmanagement-online.de
www.fabian-thiel.de
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Comparative
Land Law
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