Transcript Property Rights and Land Regularization

Property Rights
and Land Regularization
Edesio Fernandes
Law and informality
• Together with macroeconomic, political and
public policy reasons, informal development
results from the legal conditions determining
the recognition of land rights and the
possibilities of legal access to urban land
and housing
• Informal development involves violations of
private,
public
and
communal
land
ownership rights; of urban, environmental
and building regulations; of registration
requirements; and of taxation provisions
• Exclusionary land tenure regimes, elitist land
development regulations and bureaucratic
urban-environmental planning/management
systems
Land governance
• A great deal can be done to prevent
informal development at the national
and at local level through the
formulation of an inclusive legal-spatial
order
• Land, urban and housing policies that
intervene in the land structure can
widen legal access to serviced urban
land and housing, breaking the vicious
circle producing informal development
• This requires a land governance
process to democratize access to land
and housing
Regularization policies
• It is in this broad and integrated
context that regularization policies
should be discussed
• They are an important component of
the social right to adequate housing
and an expression of the legal notion of
the social function of private and public
property
• They cannot be the housing policy par
excellence
What regularization means
• In principle, residents of consolidated
informal settlements should not be evicted or
relocated, and should remain on the
occupied land, but under more adequate
living and housing conditions
• The relocation of entire consolidated
settlements should not be considered by
policymakers as a general principle
• If partial relocation is necessary, housing
alternatives must be offered by the
authorities and private landowners, and
properly negotiated with the residents
Permanence in consolidated
settlements
• There is not enough serviced land to make adequate
large scale relocation possible;
• there are not sufficient financial resources for that
purpose;
• the environmental footprint would be enormous;
• consolidated communities often do not want to be
relocated, especially given the rich social and capital
networks they have formed over the years;
• the public authorities have a legal obligation to
enable the urban poor to have access to adequate
housing;
• and in many cases, communities already have a
legal right to stay where they live, which should be
taken into account by policymakers
Ways to materialize
land regularization
• Land regularization policies have
varied in technical and legal terms in
several countries, and the format of
regularization policies has reflected the
different
objectives
declared
by
policymakers
• Two main legal paradigms that have
determined the objectives of most land
regularization policies
The broad approach 1
• An integrated approach has aimed to
promote legal security of tenure to the
residents together with the sociospatial
integration of the areas and communities
into the urban structure and society
• This means not only recognizing legal titles,
but also the creation of legal, urban,
environmental and social conditions to
improve living and housing conditions, as
well as the physical and administrative
insertion of the settlements within the city
and its urban management system
The broad approach 2
• Legalization policies have been articulated
with other inclusive public policies such as
upgrading, urban planning regulations, and
supporting socioeconomic programs
• This approach has required a greater
qualification of legalization policies to
guarantee
the
permanence
of
the
communities on the regularized land
• It has been mainly justified by the public
authorities’ legal obligation to enable the
urban poor to have access to adequate
housing
The narrow approach
• Although
more
dominant,
a
narrow
legalization approach has largely favored the
recognition of land tenure to the residents
through a more straightforward attribution of
individual freehold titles, aiming to enable
them to have access to official credit and
markets so as to invest in housing
consolidation
• Large scale titling has been justified within
the context of poverty alleviation strategies
Problems of narrow
legalization programs 1
• Empirical research has indicated that the expected
outcomes of large scale titling policies – access to
formal credit, housing improvement, and poverty
eradication - have not fully materialized
• Other serious unanticipated consequences have
been identified, namely the impact of titling on
growing informal land markets, leading in cases
towards gentrification, “eviction by the market”, and
further sociospatial segregation; the widespread
legalization of unsustainable settlements; the lack of
financial sustainability of titling policies; frequent
political manipulation of such policies; unnecessary
privatization of public land; and serious problems
with the registration of the new land titles
Problems of narrow
legalization programs 2
• Positive outcomes have been the promotion
of security of tenure to residents and the
growing value of titled properties
• The mere attribution of individual freehold is
an important legal option to be considered,
but it is not sufficient per se to achieve both
security
of
tenure
and
sociospatial
integration in a combined manner, and it may
fail to guarantee the permanence of the
communities on the legalized land
• How to achieve positive outcomes while
avoiding negative ones?
Reasons to promote legalization
• Promote full security of tenure and protection against forced
eviction;
• help governments to fulfill obligation to ensure the social right
to housing;
• ensure that proper compensation is paid in cases of relocation;
• minimize future marital, family, and neighborhood legal
conflicts, once existing legal problems have been sorted out;
• clarify land and property regimes and facilitate future
investments by residents and others, within the conditions
imposed by regularization policies;
• facilitate to some extent the materialization of the economic
contents of the residents’ rights and assets, if not by easily
offering their properties as collateral, by improving access to
other types of formal credit, in shops and suchlike;
• strengthen communities, recognize basic citizenship rights,
and promote sociopolitical stability;
• redress gender imbalance;
• promote a more coherent inscription of land plots and
constructions into the local property tax system; etc.
Set of legalization options 1
• Individual freehold;
• full individual and/or collective freehold, which can
be obtained mainly through sale or donation of the
land by the public authorities, and/or through
adverse possession;
• individual and/or collective leasehold over public
land (including variations of emphyteusis such as
the Concession of Real Right to Use and Concession
of Special Use for Housing Purposes widely used in
Brazil);
• community land trusts (used in Kenya, for example);
• co-operatives (still influential in Uruguay;
• land readjustment or land re-plotting schemes aimed
at land consolidation;
Set of legalization options 2
•
•
•
•
surface rights;
the demarcation of Special Zones of Social Interest
the anticretico rights used in Bolivia and in Ecuador,
titulos supletorios (supplementary titles) that
acknowledge possession, as used, for example, in
Nicaragua;
• temporary permits and/or occupation authorizations
(used in Kenya);
• social rental contracts, etc..
Lessons and recommendations 1
• Consider land regularization as a component of the land and
urban policy, and not as an isolated/sectoral policy in a single
branch of administration, articulating remedial regularization
policies with preventive land, urban, housing and fiscal policies
so as to democratize the legal access to serviced land and
housing;
• Consider regularization programs as part of a broader policy
aimed at promoting sociospatial integration, articulating
upgrading and legalization programs and socioeconomic
programs and other necessary supporting mechanisms;
• Involve all stakeholders in deciding where/how to formulate
regularization programs, as well as considering the payment
capacity of occupants, the need for public-private partnerships
and other sources of resources such as transfers of
development rights and capture of surplus values to fund
regularization programs on a larger scale;
• Contemplate the existence of more than one mode of land
tenure legalization, including collective legal solutions;
• Aim to guarantee the permanence of the communities, without
restricting mobility, using urban planning mechanisms
Lessons and recommendations 2
• Disseminate from the outset the objectives and
goals of the program and interventions so as not to
create false expectations in the context of
unavailable funds and resources;
• Define specific regulations and proposals for
specific areas, particularly by taking into account
their different legal problems;
• Be sensitive to issues of gender;
• Maintain unity across projects, programs, and
strategies;
• Intervene with the support of geo-referenced
information monitoring systems;
• Maintain the presence of the public authorities after
the regularization program is concluded, including
by incorporating the regularized areas into the city’s
cadastres and taxation system.
The ultimate lesson
• The formation of solid sociopolitical pacts is necessary to
guarantee successful regularization policies. Governments and
society must overcome prejudices and ensure legal access to
serviced land and adequate housing to the poor
• Given the scope/gravity of the phenomenon, solutions can be
left neither to the market forces alone, nor to the public
authorities alone either
• Proper responses will require national/public regularization
policies, involving all stakeholders, with support from
international development agencies and financial institutions.
Intergovernmental articulation, partnership between the private,
community, and voluntary sectors are fundamental
• This should be promoted within the context of a clearly defined,
comprehensive and articulated land governance framework –
and strong leadership is always of utmost importance
• Progress in the field of land regularization will depend on the
social mobilization of the communities involved, especially by
articulating a solid discourse of land rights