THE INVISIBLE LINE

For Helen
 The Invisible Line
Land Reform, Land Tenure Security and Land Registration

HENRI A.L. DEKKER

O Routledge
Taylor & Francis Group
LONDON AND NEW YORK
First published 2003 by Ashgate Publishing

Published 2016 by Routledge

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British Library Cataloguing in Publication Data

Dekker, Henri A. L.
The invisible line : land reform, land tenure security, and land registration. -
(International land management series)
1. Land tenure 2. Land tenure - Law and legislation 3. Land
reform
I. Title
333.3

Library of Congress Cataloging-in-Publication Data

Dekker, Henri A. L., 1940-
The invisible line: land reform, land tenure security, and lard registration / Henri A.L.Dekker.
p. cm. —(International land management series)
Includes bibliographical references and index.
ISBN0-7546-3637-2
1. Land tenure 2. Land reform. 3. Land titles-Registration and transfer. 4. Right of
property. I. Title. II. Series.

HD1251.D452003
333.3—dc21
2003048920

ISBN 13: 978-0-7546-3637-3 (hbk)

ISBN 13: 978-1-138-25870-9 (pbk)
 Contents

Figures and Tables xi

1 INVISIBLE LINES

1.1 The Nature of Invisible Lines

1. 1 . 1 Invisibility Made Visible 1
1.1.2 Invisible Features 2
1.1.3 Invisible Lines Lost and Found 3
1.2 Where Do You Live?
1.2.1 The ‘Written’ Line 4
1.2.2 Hunger and Land Distribution 5
1.2.3 Redrawing Invisible Lines 6
1.2.4 Land Reform Programs 7
1.2.5 Poverty, Hunger and Invisible Lines 8
1.3 Invisible Lines as a Tool to Battle Hunger
1.3.1 Hunger and Politics 9
1.3.2 State Policies 10
1.3.3 Sustainable Development 12
1.4 Why Create (More) Invisible Lines?
1.4.1 Land, Food and Shelter 13
1.4.2 Access to Land 14
1.4.3 Concern for the Environment 15
1.4.4 An Impulse to Agricultural Production 16
1.4.5 No Standard Solution 17
1.5 Why This Book?
1.5.1 A Technological Approach; Legal Engineering and
Institution Building 18
1.5.2 Private Ownership and Common Lands 20
1.5.3 The Aim of this Book 21

2 LAND AND RIGHTS TO LAND

2.1 Land
2.1.1 What is Land? 23
2.1.2 The Authority over Land 23
2.1.3 Elasticity of Land 24
vi The Invisible Line

2.2 Rights to Land

2.2.1 Protection of Rights to Land 25
2.2.2 Rights to Land may be Non-Transferable 26
2.3 Significance of Rights to Land
2.3.1 Land Parcels 27
2.3.2 A New Approach to Rights to Land 28

3 PROPERTY

3.1 Property, Rights to Property, and Property Regime

3.1.1 Property Rights 31
3.1.2 Property Regime 32
3.2 The Various Functions of Property
3.2.1 The Social Significance of Property 33
3.2.2 Property as a Social Relationship 34
3.3 Landed Property
3.3.1 Land and Prosperity 35
3.3.2 Urbanization 36
3.3.3 Industrialization 37
3.3.4 Continued Importance of Landed Property 38
3.4 Property, Market Economy, and Economic Development
3.4.1 The Standard Model 38
3.4.2 Market Economy and Landed Property 39

4 LAND TENURE

4.1 Land Tenure and Holding Rights to Land

4.1.1 Holding Rights to Land 43
4.1.2 Evolution in The Holding of Rights to Land 46
4.1.3 What, Who, How, Where, and When 47
4.1.4 Absolute or Relative Rights to Land 48
4.1.5 Rural and Urban Land 49
4.1.6 Land Tenure Perceptions 50
4.1.7 Change of Land Tenure Regimes 50
4.1.8 Land Tenure and the Role of the State 51
4.2 Land Tenure (In-)Security
4.2.1 Tenure (In-)Security 54
4.2.2 Change in Tenure Security 55
4.2.3 Various Aspects of Security of Land Tenure 56
4.3 Improving Land Tenure Security
4.3.1 Looking for Improvement of Land Tenure Security 58
4.3.2 Documented Land Tenure 60
4.3.3 Legal Framework for New Land Tenure Security 62
4.4 Common Lands
4.4.1 The Essence of Common Land 63
 Contents vii

4.4.2 From Common Land to Private Land? 65

4.4.3 The African Challenge for Legal Engineering 66
4.5 Re-Adjusting the Approach Toward Land Tenure
4.5.1 Resilience and Revival of Customary or Indigenous Property
Regimes 67
4.5.2 Renewed Attention for Communal and Customary Land
Tenure 68
4.6 Legal Pluralism
4.6.1 More than one Legal System 70
4.6.2 Customary Tenure Versus Statutory Tenure 72
4.7 Land, Vegetation, Soil and Air; A Different Tenure Regime
4.7.1 Various Concepts and Tenure Objects 74
4.7.2 Various Property Regimes 74

5 LAND REFORM

5.1 Non-Evolutionary Change of Land Tenure

5.1.1 Land Reform and Agrarian Reform 77
5.1.2 No Standard Land Reform Formula 78
5.1.3 Underestimated Requirements for Successful Land Reform 80
5.2 Motives for Land Reform
5.2.1 Political Reasons for Land Reform 82
5.2.2 Economic Growth Paradigm 83
5.2.3 Structuralism, Dependency and Liberation Theology 83
5.2.4 Land Reform and the Environment 85
5.3 Land Reform in Several Regions of the World
5.3.1 Latin-American Countries 88
5.3.2 Land Reform in Africa 90
5.3.3 Land Reform under Communist Rule 91
5.3.4 Land Reform Activities in Former Communist Countries 94
5.3.5 Land Reform in South East Asia 99
5.4 Land Reform Results and Expectations
5.4.1 Land Reform and Economic Development 102
5.4.2 Mixed Successes of Land Reforms 103
5.4.3 Evaluating Results of Land Reform 105
5.4.4 Decision-Making and Land Reform 106
5.5 Future of Land Reform
5.5.1 Land Reform for What? 107
5.5.2 Land; An Important Vehicle for Rural Development 108
5.5.3 Emphasis on Local Involvement 109
5.5.4 Introduction of Land Tax 110
5.5.5 Considerations about Land Reform to Change Land Tenure 111
5.5.6 Land Reform and Land Consolidation 113
5.5.7 Land Reform and Land Registration 116
viii The Invisible Line

6 LAND REGISTRATION

6.1 Land Registration Systems; A Concise Historical Introduction

6.1.1 Roots of Land Registration Systems 121
6.1.2 Implementation of a Land Registration 123
6.1.3 Land Law and Religion 125
6.1.4 Land Registration and Commerce 126
6.1.5 Families of Law 127
6.1.6 Land Rights in Different Law Families 128
6.1.7 Peculiar Terms Used in Land Registration 130
6.1.8 ‘Absolute’ Land Rights 131
6.1.9 Land Administration and Land Registration 132
6.2 Purpose of Land Registration
6.2.1 Land Registration as a Tool 135
6.2.2 Various Functions and Differences in Data Accuracy 137
6.3 Non-Documented Rights to Land
6.3.1 Customary Rights to Land 138
6.3.2 Considerations for Documented Land Rights 139
6.3.3 Cause of Dual Legal Systems 140
6.3.4 A Drive to Register Non-Documented Rights to Land 141
6.4 Evolution of Documented Rights to Land
6.4.1 Monuments and Curses 142
6.4.2 Clay Tables 143
6.4.3 Levying Land Tax 144
6.4.4 Data on ‘Land’ 145
6.4.5 Transfers of Rights to Land 146
6.4.6 Mortgages 147
6.5 Positive and Negative Land Registration Systems
6.5.1 A Comparative Review 148
6.5.2 The Position of the Registrar 151
6.6 Registration Resulting in Title Certificates
6.6.1 The ‘Torrens’ System 153
6.6.2 Introduction of Title Registration in England and Wales 154
6.6.3 Some Remarks about Registration of Titles 155
6.7 Negative Systems of Land Registration
6.7.1 Land Registrations Based on Deeds as Evidence 160
6.7.2 Complications in the Registration of Deeds 161
6.7.3 Conversion of Land Registrations 163
6.7.4 The Specific Situation in Former Communist Countries 164
6.8 Cadastre
6.8.1 The Origin of Cadastres 166
6.8.2 Use of the Term Cadastre 168
6.9 Cadastral Map and Cadastral Survey
6.9.1 Cadastral Maps and Topographical Maps 169
6.9.2 Linking the Cadastral Maps and the Registers 171
 Contents ix

7. SPECIFIC ASPECTS OF LAND REGISTRATION

7.1 Title Insurance

7.1.1 An Extraordinary System of Insurance 173
7.1.2 Title Companies 174
7.1.3 Indemnification by Title Insurance 175
7.2 Main Characteristics of Land Registration
7.2.1 Documents and Customs 175
7.2.2 Titles or Deeds 176
7.2.3 What is the Purpose? 177
7.3 Evolution in Land Registration and Cadastre
7.3.1 Some Examples 178
7.3.2 Various Cadastral Systems and their Legal Differences 180
7.3.3 Land Registration Systems in the USA 182
7.3.4 Parcel Identifiers 185
7.3.5 Parcel Based Registration of Deeds 189
7.4 Integrity of Land Data
7.4.1 Computerization 191
7.4.2 Land Data Exchange 192
7.4.3 A Multi-Layer Approach 194
7.5 Boundaries
7.5.1 Cadastral Boundaries and Topographical Features 196
7.5.2 Registered, Guaranteed, Fixed, and General Boundaries 198

Bibliography 201
Glossary 207
Index 213
Annex A 217
 Figures and Tables

Figures

4.6.1 Practical legal pluralism 70

5.5.7a Land titling document 117
5.5.7b Parcel distribution proposal 118
6.6.3a Part of title document used in England 157
6.6.3b Part of title document used in Moldova 158
6.6.3c Part of title document used in Latvia 159
6.9.1a Basic cadastral map 170
6.9.1b Contemporary cadastral map 170
7.3.3 FRS (Federal Rectangular System) 184
7.3.4a Center points 186
7.3.4b Part of a cadastral map showing ‘center’ points 187
7.3.4c Cadastral map with a national grid 188
7.4.2 Apartment building approach 193
7.4.3 Multi-layer structure of property data 194
7.5.lb Sections in the FRS 198

Tables

4.1.1 The bundle of rights 45

6.5.1 Diagram of land registration types 149
 Chapter 1

Invisible Lines

1.1 THE NATURE OF INVISIBLE LINES

1.1.1 INVISIBILITY MADE VISIBLE

Have you ever seen the Equator, or the Arctic Circle? Of course you have not; both
are invisible lines. You might have been told that you were precisely at the spot on
earth where an equator or where an arctic circle was supposed to be. There even
might have been a monument or marker to identify the location of the Equator or
the Arctic Circle. But you have not actually seen the Equator or Arctic Circle as a
line or as a physical phenomenon.
There are many such invisible lines on the globe. Any social organization has
established rules, institutions, and customary relationships governing the
behavioral relations among individuals and groups, and all these create lines most
of which are invisible. Institutions in this book are defined as the humanly devised
structures that regulate social interactions. Their invisibility has to do with the fact
that social relations do not follow topographic features. However, sometimes they
do and then a river, a shoreline, a hedge, a row of trees, a mountain range or a road
forms the border between two pieces of property with different property rights. But
in most cases the lines caused by a concept initiated in the mind of men remain
invisible features. Regularly we want the lines being made visible in the case of
disputes over behavior or in the case of uncertainty about rights to land. We want
to have certainty to what extent we can establish authority over land. Such actions
result in lines to be drawn on the globe, lines to be marked, lines that are precisely
described and may appear on maps, and lines that can be indicated and shown on
the ground. And although, at such occasions the invisible lines are indicated and
marked by topographical features, those physical features do not give any
guarantee. Physical features once used to mark the lines are not always reliable.
They can shift in position over time by actions of man or natural causes. They can
disappear, disintegrate or be taken away. What happens often is that the rights to
land change without giving much attention to the markers that once represented the
extent of these rights.
It also occurs that fences suffer from wear and tear and are being replaced by
newer features, which might be in a slightly different location. A line of small trees
replacing an old fence sometimes is planted at one side of the old fence to become
the recognized border of a piece of land over time. But then the registered
2 The Invisible Line

boundary - and perhaps the drawn boundary line on a map - differs from the new
perceived one. So it may happen that people are being misled by physical features
or that a mistake is made while determining the location of a physical mark.

1.1.2 INVISIBLE FEATURES

Customary land tenure comprises of privileges, duties, and mutual obligations that
bind the people of a community to each other and to the land that they regard as
their common pool resource. Because the rules are seldom documented, the
invisible features of local customs and customary land tenure are even harder to
discover. And although invisible, the lines are often deeply rooted in the social
relations of local people. These lines generally go unnoticed by outsiders not
familiar with the situation in the area. A story of a West African village tells us of
project personnel being under the impression that they were legally right and that it
was ‘worthless bush’ that belonged to no one when they bulldozed the community
forest for a plantation site. The local villagers returned the ‘favor’ a few years later
by burning the project plantation of exotic flora species to the ground, because that
‘worthless bush’ had provided the villagers for centuries with wood, animals to
hunt, medicinal plants, and fruits. By removing the bush the project personnel had
crossed the invisible line(s) of traditional customary rights.
To achieve a certain degree of control over its subjects a central government
strives to eliminate local customs. It cannot accept customary rules that vary
greatly among the various local communities. The government wants to have
insight into its ‘possessions.’ To do so it needs standardized data on local people
that can be compared with data from other local communities and can be put into
orderly statistics. But most of the local customs cannot be captured in written
documents. And thus it happens that governmental experts, in drawing new
legislation, overlook the traditional rights and responsibilities. However, this also
may happen intentionally because the customary rules do not easily translate into
‘modem’ documented legislation. There also is a strong tendency to approach
common property as a thing of the past that will eventually become obsolete.
Looking to the nation’s future common property is regarded as not much more than
institutional debris, social arrangements that may occur occasionally as an
exception outside formal modem legislation.
In customary tenure, we do not only encounter invisible lines, but also
invisible layers and time ‘slots.’ Many customary land tenure regimes carry for the
current users of the common land an obligation toward past and future generations.
This results in responsibilities toward invisible persons. All these customary
obligations establish different rights for several people using the land to harvest
plants or their fruits, use trees growing on the land as building materials, and pay
tribute to other generations. There are many accounts of cases where customary
mles distinguish between ownership of land and trees or crops on the land, or even
between specific trees or a specific crop on the land and the rest of the crop or
trees. Depending on the use of the land, there also can be sequence in use of the
same land, for example, the right to harvest crop for one person and to graze cattle
 Invisible Lines 3

for someone else after the harvest. Some of the land is set aside for religious
purposes including paying tributes to past generations. Many of these customary
concepts go unnoticed or purposely neglected by experts educated ‘Western’ style
when developing written regulations.
In some societies trees do not automatically belong to the owner of the land;
this distinction is almost as old as mankind. In Western societies it has almost
completely vanished with the demystification of natural phenomena. It is
interesting that one of the older documented accounts of a land transfer clearly
refers to a different regime for trees. One can find it in a story of Abraham (in the
Bible in Genesis 23; although, we will use the same story more extensively later
on, it is mentioned here). The story tells us about the death of Abraham’s wife
Sarah. Abraham wishes to buy a piece of land in which he can give her a proper
grave. After successfully negotiating with Ephron, the original owner of the land,
Abraham becomes the legal possessor, and the story concludes as follows: ‘Thus
the plot of land belonging to Ephron at Machpelah to the east of Mamre, the plot,
the cave that is on it, every tree on the plot, within the whole area, became the legal
possession of Abraham
Contemporary governments use a different system of layers of rights as well.
It is not unusual to encounter a limited depth of one’s right to land. Sometimes
governments restrict the ownership of land to a certain layer. All - especially ore,
precious stones and oil - that is found beneath that ‘layer’ is not automatically the
property of the landowner (see also 4.7.2). The same applies to layers of air above
one’s property. Generally the owner of the land cannot prevent use of the airspace
above the property by airliners.

1.1.3 INVISIBLE LINES LOST AND FOUND

Juridical regulations can create invisible lines or change their location over time.
The latter happens, for example, in the case of changing rights to land by
‘recognition.’ There is a possibility that this results in false markers or monuments.
But it is also possible that wear and distortion affect markers so that the lines they
represent become ‘invisible’ again. Sometimes governments create invisible lines
by new legislation to enable and control exploration of natural resources. King
Bhumibol of Thailand once referred to a situation where new juridical regulations
were put in place to regulate forest exploration. He even accused his government
of creating invisible lines irresponsibly. To explore Thai forests, traditionally home
to indigenous people - forest dwellers, new concessions were given out. The
concessions created new rights and thus new invisible lines. The new invisible
lines made the forest dwellers suddenly trespassers in areas of their ‘own’ forest
where they traditionally went out to hunt and to gather firewood, nuts, and
medicinal plants.
An administrative division of the land is generally depicted with lines on
maps. The lines determine the boundaries of the authority of specific governing
bodies. These lines may be invisible, however, as we all know they can cause
disputes, conflicts and even war. The mere fact that the lines are invisible does not
4 The Invisible Line

mean that they are harmless or without significance. History shows differently,
numerous wars have been fought about boundaries, about the invisible lines
dividing nations and limiting the extent of authority or the extent of someone’s
presumed ‘rights.’
In many former colonies, postcolonial governments have been faced with a
twofold legal situation. Customary rules dictate much of the life of native
inhabitants in the lesser-developed areas while the ‘developed’ regions of the
country were governed by ‘western style’ legislation. Several researchers have
drawn attention to the tendency to ignore customary rules in designing new laws
on property to unify rules in order to establish a uniform legal system. Most of the
time western style educated foreigners, but also natives educated abroad, design
the new laws. There is a tendency among them to dismiss the customary way of
land tenure as backward and not economically viable. Robert Chambers (1985 [16]
p.86 and 101) states in this respect:

Expatriates conducting agricultural research suffered from cultural conditioning which

made it difficult for them to see indigenous farming as anything but out of date ...
One first step is for outsider professionals, the bearers of modem scientific
knowledge, to step down off their pedestals, and sit down, listen, and ‘learn’ in order
to better understand the ways indigenous people have tilled the land already for
centuries.

Fortunately, in recent research one can find more respectful recognition of

customary tenure and common land use. There is a new interest growing to re­
establish or at least reinforce or even protect customary rules in land tenure.

1.2 WHERE DO YOU LIVE?

1.2.1 THE ‘WRITTEN’ LINE

While visiting various places in the world, one discovers that the ‘where’ of ones’
roots and residence can have an enormous impact on individuals. Your parents
determine most of your physical features. But very important for your possibilities
in life is the where of your birth, the where of your firstand subsequent residences,
and to a lesser degree the where of your education. These facts determine mostly if
you are poor or prosperous, if you encounter food security or food insecurity, if
you can travel freely or with a number of limitations and your prospects for a
healthy life. Such facts also determine the possibilities for education and individual
development, and what your average life span will be. So, there is a striking
difference in prosperity, technical skills, and knowledge among people in this
world depending on the spot where one grows up and lives. One can imagine that
there is much ‘written,’ that a lot can be told about a person, simply by knowledge
about those mentioned facts. It is, as if invisible, unwritten lines determine many
aspects of one’s life, even those aspects hardly noticed at first sight. Inequity
 Invisible Lines 5

affects people positively or negatively already before one starts to exist in the
world simply by the place where one is bom.
In this era of easy travel and access to different areas of the world for many
people, we are more aware of the fact that there is no equal distribution of what
generally can be called prosperity. It even seems that prosperous people are getting
more prosperous and that poor people are getting poorer every day. Of the world
population, 70 per cent is poor and most of them live in the so-called Third World
or lesser-developed countries. Some examples can be given. Yearly income per
capita in Burkina Faso is approx. US$ 150 compared to approx. $ 17,000 in the
USA. Most people in industrialized countries expect to live seventy years or
longer. In Burundi or Bangladesh it is fifty years. Illiteracy in Pakistan is over 60
per cent, in Honduras 40 per cent, and in North Western Europe is it less than 1 per
cent. Babies in Sweden have a chance of 996 per 1000 to survive, in Peru that is
918, and in Mali 827. It is not only internationally that these differences are
obvious. The livelihood standard of the average ‘African American’ or ‘Native
American’ in the USA is substantially lower than that of the immigrants of
Caucasian or Asian origin. Similarly the average native inhabitant of Australia -
the aborigine - has a significantly lower average standard of livelihood than an
average immigrant settler in that country.

1.2.2 HUNGER AND LAND DISTRIBUTION

The distribution of food over the globe is inequitable. With the rapid spreading of
news and the easy sharing of impressions from all over the world, most people
nowadays in ‘developed’ countries are aware of the fact that there are a number of
food insecure countries. During recent decades increased international attention
has been given to food security. Donors have invested in food insecure countries to
improve food security. Most food insecure countries are among the so-called
‘lesser developed’ countries. Foreign involvement often focuses on the distribution
and the access to farmland in order to increase agricultural productivity to increase
food security, to improve the quality of rural life, and to reduce rural unrest. Some
argue: Food security is a utopian concept; that is, it reflects an ideal or value-laden
state of well being unlikely ever to be fully attained. But this is not to imply that
nothing should be done. For many, food security is a moral imperative of die well
nourished (Lappe and Collins 1986 [50] and Aiken and LaFolette 1996 [2]).
In ‘Determinants of Food Policy: an Attempt to Understand Government
Behavior,’ [64] Michel Petit demonstrates that most countries have food security
policies because the elites are threatened, or at the very least embarrassed, by
famine. Such food insecurity reduction policies are implemented when acute
problems develop and social order is at risk. But this will not achieve a long-term
solution. Food security can only be achieved by substantial development of human,
material, and technological capabilities giving depth and resilience to broad based
food availability and access. Implementing long-term policies engendering strong
institutions, enhancing the widespread availability of sustainable livelihoods and
instilling a capacity to withstand food shocks requires a high level of social
6 The Invisible Line

organization. To achieve food security, markets have to work; property rights to

(rural) land must be distributed among the population and policymakers must work
also. It is remarkable that property rights and distribution of property and
especially land are mentioned in many documents about food security as a means
to alleviate hunger. The battle against poverty and the evolution of economic
growth in the world can be more effectively won with equal distribution of assets
than with more equal income distribution. The policy of distribution of assets first
and then measures to achieve more equity seems to work. In a recent analysis by
Deininger and Squire (March 1997 [21] pp.38-41) almost no association between
income inequality and economic growth was found. They note, ‘Even when
income inequality has worsened, its negative effect on the poor has been more than
outweighed by the positive effect of growth.’

1.2.3 REDRAWING INVISIBLE LINES

Land is the most fundamental resource for agricultural production, and many
governments of prosperous countries have sought an involvement in increasing
agricultural production in developing countries. Among researchers there is
general agreement about the positive relationship between a more equal land
distribution and improved food production. For this reason, land reform, and land
titling have been promoted by international development agencies the world over.
Moreover, improvement of land tenure security increases investments in land and
results in higher productivity of farms. A successful program of land reform and
land titling can give a strong impulse to perceived land tenure security. The higher
the degree of tenure security as perceived by farmers, the more they will invest in
production improvements of their land. The change of patterns of land tenure and
the enhancement of the security of land tenure have been starting points for
programs aimed at improvement of agricultural production. This will redraw the
invisible lines that represent the rights to land for many of the people.
Barraclough (‘An End to Hunger?’ 1991, [3] p.130) notes that in countries
where rural poverty is widespread and closely associated with power of the land
owning class, ‘Land reform becomes the only option for improving rural
livelihoods rapidly and substantially.’
Many of the new invisible lines are the result of the activity called land reform.
Land reform changes the invisible lines of the existing pattern of land tenure. It
changes both the mathematical lines - as laid out by surveyors in the past - and the
text ones - those in the documents describing rights to land, which do have such an
impact on the circumstances determining people’s lives. In our times, land
registration and land information systems are often part of land reform programs
(although, this is not a necessity). Where land information is part of the social
structure, the nature of land information implies a link with geographical, but
generally, invisible lines. The importance of land for human life determines the
link with the other ‘invisible lines,’ the unwritten ones that determine prosperity in
the broadest sense.
 Invisible Lines 1

1.2.4 LAND REFORM PROGRAMS

Land reform is the result of a drastic land policy intervention. In many lesser-
developed countries access to farmland remains a problematic issue still today.
Land is often misallocated among users, and potential users may not be able to
gain sufficient access to farmland. As long as the rural poor are unable to obtain
that access their best option to escape from continuing poverty might never be
within reach for them. Apart from large-scale re-distributive land reforms in many
former communist countries, large-scale expropriative land reforms are nowadays
outside political reality in most countries. But there may be alternative ways to
improve access to farmland for the rural poor. Land reform programs and their
results have been studied around the world and many scholars have reported on
them. Studying these reports show an array of land policy interventions to improve
welfare and efficiency of land use, but they also include the attempts of counter
forces at work to limit or completely turn back the results of land reform.
As an example the development in Chile can be described here (taken from
‘Broken Promises’ ([76], 1995). In Chile, the system of dual farming - some large
landholders on haciendas, owning much of the country’s best farmland and many
small farmers or campesinos (peasants), with farms hardly large enough to provide
sufficient food for the campesino family - has been known for a long time. When
Allende took over as president in 1970, he promised to eliminate all haciendas,
nationalize foreign mining interests, and expropriate the largest industrial and
commercial enterprises among others by pushing the existing reform law harder.
Little attention was given to production of food and marketing of output. Imports
of foodstuffs doubled, although, statistics of that period are still questioned.
Inflation was 35 per cent per year. Nationalization and a set of policies called
economic populism should tackle the problem. The first year brought a burst of
public spending. It brought euphoria, but ignored signals of danger. The
redistribution of income among the Chileans resulted in an enormous increase of
the demand for food. Imports increased dramatically. Plummeting foreign
exchange reserves and inflation (up to 217 per cent annually in 1972 and 606 per
cent in 1973) plus price controls brought increasing scarcity in some consumer
goods. It prepared the country for a military coup which did occur in September
1973, and it ended Allende’s life and dismantled the agrarian reform. Campesinos
completely lost voice in matters of government. Land was given back to previous
owners, mostly members of the class of old landlords (hacienda owners).
An interesting example of the attitude of the large landowner, and in
particular his counselor, is very well characterized in Carlos Fuentes novel, ‘The
Death of Artemio Cruz’ (1991[38] p.48). The story is situated in Mexico at the
time of government intervention in land tenure and distributing land of large land
holdings to land poor peasants. One character in the novel, the counselor, advises
the landlord and large landholder Don Gamaliel:

You said it yourself, Don Gamaliel ... It’s impossible to stop the course of events.
Let’s turn over those plots to the peasants; after all, they’re only good for dry farming,
8 The Invisible Line

so no one’s going to get much out of them. Let’s give out those plots so they can be
used only for small-scale farming. You’ll see that, to thank us (when they are obliged
to us), they’ll leave their women to work that dust and come back to working our good
land {irrigated fields HD). Think about it: you could turn out to be a hero of the
agrarian reform, and it won’t cost you a thing.

While working in several of the former communist countries where

privatization of former state and collective farms initiated a land reform program, I
did observe a remarkable similar attitude among the agricultural elite. With
hindsight on the many activities that are called land reform in those former
communist countries, one might well conclude that many government officials
responsible for the management of the large agro-industrial complexes do not
behave so much different from private large landholders elsewhere. These public
officials do, to a large extent, ‘hold’ the land. Much of their status and power in the
dominantly agricultural areas rely on that position, and it is difficult for them to
give up power. Sometimes subtle, but also blatantly bold they will oppose
distribution of land to individuals. They will try to limit the extent of land reform,
or find ways to reverse most of the effects of land reform programs by
intimidation, enforcement or even cheating the powerless peasants who are more
or less lost in the professional language of officials, lawyers, surveyors, and
topographers. I know of several cases in various areas where board members of a
former collective or state farm offered ignorant or little educated peasants
assistance with land reforms’ bureaucratic requirements. The result was often that
the peasants ended up being employed as farmhands on their newly acquired land,
which they had unknowingly ‘handed over’ to the former ‘apparatshiks.’

1.2.5 POVERTY, HUNGER AND INVISIBLE LINES

Poverty and hunger are not easy to defeat. If one could solve the problems of the
rural poor by just improving their access to land, land reform programs should be
implemented in lesser-developed countries without delay. However, studies show
that conditions have to be met to make access to land effective in battling poverty.
Speaking about access does not always mean that ownership of land is the best
possible key. Property over a resource consists of a multiplicity of rights of which
access, appropriation, management and alienation are the most important in this
respect. Lesser rights than ownership can achieve secure access to land. Studies
show that there is not one dominant form and that all kinds of rights have their
merits under specific circumstances. In recent times a number of new issues came
up like protection of the environment, the increased respect for customary land
tenure, and how to handle land tenure questions in case of common lands. This
book will not give full answers on those questions nor is it the aim here to give
answers on the questions of food security, to give guidelines for over-farming,
over-grazing, deforestation, desertification and even less to revive the Malthusian
notion. (Thomas Malthus, an English economist, wrote this notion in 1798 [56]).
According to Malthus, population increases geometrically, that is, in the order of 2,
 Invisible Lines 9

4, 8, 16, 32, and so on. However, food supply can only be increased arithmetically,
that is in the order of 1, 2, 3, 4, 5, and so on. Accordingly, population would
eventually outdistance a nation’s food supply with famine, war, and disease as the
inevitable consequences). But it also is not realistic to diminish the colossal
problems of food and energy (especially the problem of too much firewood
gathering) that is linked with research on agricultural production, the protection of
(rain)-forests and the distribution of available agricultural land the world over.
Estimates of the world’s carrying capacity (Cohen; 1995 [18]) ranged from 1
billion to 1,000 billion people and so it might not yet look dramatic. However,
three problems continue to worsen with growth; carbon dioxide accumulation in
the atmosphere, solid waste accumulation and resource depletion of fossil fuel and
other nonrenewable minerals.
In is important to note in this context that the World Food Summit, in
November 1996 in Rome, issued a declaration which pledged eventual food
security for all, with immediate target of reducing the number of undernourished
people by half by no later than 2015. (FAO; Rome [34]: The Rome Declaration on
World Food Security and the World Food Summit Plan of Action; 1996). Some
experts believe that this is too optimistic. See, for example, Tweeten in ‘The
Economics of Global Food Security’ [81] (p. 12) where he states that this is
challenging and probably unattainable. It may be as quixotic as Henry Kissinger’s
call at the 1974 World Food Conference for no person to go to bed hungry by
1984.’
Whatever the discussions and deliberations in international conferences,
activities resulting in invisible lines are most likely to take place all over the world
in coming decades. In that context I will review the origin, the management, the
legal, the political, the social, the religious, and the practical implications and show
a framework in which invisible lines are rooted, defined and maintained. It is my
aim to provide background information and possibly some new approaches on how
to solve or alleviate the problems of rural poverty, food security and environmental
issues the world will face in the 21st century.

1.3 INVISIBLE LINES AS A TOOL TO BATTLE HUNGER

1.3.1 HUNGER AND POLITICS

Solon Barraclough describes the social origins of food strategies in ‘An End to
Hunger?’ [3]. First of all he shows that issues of food security are very complex
and cannot be treated in an isolationists way. They are rooted in the social,
economical and political circumstances and can only be solved by studying the
complexity that in practice varies from country to country. His book also does not
tell success stories of land reform and tenure changes. It is not an optimistic review
of attempts to fight hunger, nor does it give a clear outline of how to solve the
problems connected with improving food security.
In the preface of his book Barraclough (p.iii) states:
10 The Invisible Line

Hunger will not be alleviated by wholehearted adherence to the current free market
ideology, or by placing blind faith in any general development paradigm. Problems
have to be worked out on the ground, in specific contexts, and above all with the
participation of the people whose food security is threatened by existing arrangements.
And these grassroots solutions require supportive contexts both nationally and
internationally. It is crucial to understand the socio-economic processes within which
most people in the Third World countries must attempt to make a living. Urbanization,
industrial development, technological change in agriculture, the incorporation of semi­
subsistence households irtto the market economy, and migration all affect food
security. So too, do climate and national and international politics.

It shows that creating new - and generally more - invisible lines by land
distribution is only a tool and that it should be part of a more substantial political
package of the government to be effective in alleviating food insecurity. A cynical
reality is that hunger or under nutrition sometimes persist among abundance of
food supplies. In the USA, half of the population is, more or less, daily struggling
with obesity, while 10 per cent of the population is affected by under-nutrition.

1.3.2 STATE POLICIES

Historical experience suggests that rapid economic growth and modernization does
not automatically reduce the number of hungry people in countries where access to
productive resources, technology and markets is highly unequal. Rapid economic
growth results often in a decay of traditional food systems. So will increased food
production result in lower prices initially reducing agricultural prices. It would
help for a moment but farmers will decrease production of food because of lower
selling prices. These production cutbacks would leave the total situation pretty
much the same. There is a similar, perhaps even worse danger, with food-aid. It
will never be an incentive for local farmers to focus on higher food production; on
the contrary, the resulting lower prices for locally produced food will decrease the
intention of food production by local farmers.
The Malthusian diagnosis to give priority to food production will not work.
Even if a whole society becomes more productive and richer, relative poverty
would continue and might well become more pronounced. Global studies can
seldom reveal the mechanisms through which increased ignoring and polarization
occurs. From the vast literature about food security and land reform, it is clear that
in the existing world order, only the State has the potential capability to deal with
the range of problems involved in ensuring food security. One of the more drastic
steps a State can make is to ration food supplies. But rationing of food works only
if it is nationwide and politically consented with a highly competent, non-corrupt
state bureaucracy. Less drastic steps are to improve institutions and to address
social issues in a new way. But no matter how essential institutional and social
issues may be for success of a development strategy (and their importance is often
overlooked), technical innovations and capital accumulation remain crucial
components. The kind of investment the state makes or stimulates tells much about
 Invisible Lines 11

its real priorities. If the state emphasizes agriculture, food processing and food
marketing, food security will be high on the agenda. Of course the food produced
must not primarily be exported leaving behind a starving population, but this is
very seldom the case. It can be assumed that greater food production will reduce
hunger and improve food security. It is also presumed that the higher food
production can be achieved in a sustainable way. This implies that the level of food
production does not lead to overexploitation of the available natural resources or
use of extensive fertilizers that will eventually destroy the quality of the water that
is also used for irrigation. Similarly, the livestock production must be fed with
normal levels of grazing and not overgrazing or leading to over production of
manure.
It is normal that a state faces dilemmas in determining its policy. The state
greatly depends on the support of dominant social forces. These are often
contradictory, but the organized interest groups supporting the state almost
invariably include the landlords. They seldom include almost landless peasants.
The state cannot be expected to adopt policies benefiting a fragmented and
unorganized peasantry at the expense of landlords and other groups on whom it
depends for support. Programs and projects to battle food security are often the
result of external pressures and do come with international funding and support in
the form of financial and expertise aid. Longer-term consequences of land reform
for food security depend on the previous agrarian structures and on the dominant
forces determining national development strategy and the external context. Land
reform is a complex activity. The redistribution of land implies also a redistribution
of power and prosperity possibilities. To succeed with improvement of food
security by land reform the state has to forge an alliance with the rural poor to
maintain sufficient support because they will alienate themselves from the old class
of landowners. Most of the measures involved in land reform are only tools to help
a good food strategy work better.
A central issue confronting governments is the need to provide cheap food for
consumers and simultaneously provide farmers with adequate price incentives to
increase output. In developing countries where agriculture remains the most
important source of income and employment, producer subsidies and price support
programs are much more difficult to manage successfully than in developed
countries. Land reform beneficiaries tend to increase their effort and output in
response. Those who were living near subsistence levels before reform naturally
place a high priority on increasing their own food consumption. If they do not have
to deliver part of their output to the landlord or patron they eat it. After land
reform, food delivered to cities falls. But as soon as local markets are re­
established and consumer goods become available in exchange for food, peasants
marketed more and more by increased production. However, longer-term effects of
land reform are practically impossible to disentangle from the effects of the
broader processes of which land reform is only a part and it will always be
disputable that land reform has been the catalyst.
12 The Invisible Line

1.3.3 SUSTAINABLE DEVELOPMENT

Sustainable development can be described as ‘using natural resources in such a

way that future use by next generations is not jeopardized.’ It is in particular
agricultural use of land that is seen as a threat to sustainable development. For a
sample of about 30 countries Berry and Cline [7] show that small farms generally
have a higher value of output per unit of land and capital than do large farms. They
analyze the relationship between farm size and intensity of land use and between
agrarian structure and agricultural growth and give empirical evidence. Some of
their conclusions are that the large farms use the land less intensively than the
small farm sector and that farm output and employment per area of available land
are higher in countries with smaller average farm size and more equal distribution
of land. In their studies they confirm the negative relationship between farm size
and output per unit of land area available. This negative relationship holds, even
when removing the influence of land quality.
More intense farming may harm the environment. A 1987 publication of the
United Nations sponsored Brundtland Commission [82] ‘Our Common Future,’
draws attention to what is called: ‘Sustainable development.’ The Advisory Panel
on Food Security to the Brundtland Commission stated very clearly its limited
belief in balancing the factors determining food policy (Food 2000 op. Cit. p. 103):

The real danger to sustainable food security comes from the greed of the rich and the
spread of careless technology. The genuine needs of the poor for fuel and fodder do
cause damage in some places, but this damage pales into insignificance when
compared to extensive and often irreversible damage done by commercial forestry and
mining operations, careless road construction in undulating terrain, construction of
huge dams and reservoirs, highly mechanized agriculture leading to soil erosion,
improper irrigation resulting in water logging and salinization and multiple industrial
pollutants.

The distribution of scarce land is of growing importance, due to increasing

concern for the environment in our times. Many interests compete for land use. In
lesser-developed countries it is primarily the farmers who are in need of land. We
are familiar with the accounts and images of landless people starting to cultivate
fields cleared by slash and bum methods of what was tropical rainforest. Or the
images of peasants in need for more land who clear mountain slopes and till the
newly claimed hillside fields, perhaps until a tropical rainstorm washes most of the
topsoil away to leaving barely any topsoil left. Such activities are environmentally
dangerous, but must not be blamed on the individual peasant hungry for land. It is
the political system, the political decisions and the development of the national
economy as a result of actions of the government in that particular society. It is
there that responsibilities should be placed first.
 Invisible Lines 13

1.4 WHY CREATE (MORE) INVISIBLE LINES?

1.4.1 LAND', FOOD AND SHELTER

In his book ‘Land Law and Registration’ [68] the author, S. Rowton Simpson,
gives as introduction (p 3):

Land is the source of all material wealth. From it we get everything that we use or
value, whether it be food, clothing, fuel, shelter, metal, or precious stones. We live on
the land and from the land, and to the land our bodies or our ashes are committed
when we die. The availability of land is the key to human existence, and its
distribution and use are of vital importance. Land records, therefore, are of great
concern to all governments. The framing of land policy, and its execution, may in
large measure depend on the effectiveness of “land registration,” as we conveniently
call the making and keeping of these records.

The concept of land, being immovable, basically indestructible, and bringing

forth fruits and plants, is full of important consequences and has been already for
our ancestors. Land poses a problem in the sense that it is impossible to hand over
land literally. Movable objects can generally be handed over as proof of a transfer
of rights. To transfer rights to land, early civilizations developed ways to imitate
the act of handing over.
Thirty centuries ago it was custom in the Middle East to hand over a shoe or
sandal as a symbol of handing over the land. Some scholars relate the mandatory
shoeless entry of a mosque to the avoidance of profanation of their holy,
consecrated grounds. In other regions people used a branch of a tree or bush on the
land, a tile of the roof, or a bunch of grass taken from the field, as an imitation of
the transfer of land. In Western Europe in the Middle Ages it became custom to
announce transfers of land (also called conveyance of land) in the churches on a
couple of Sundays in order to give publicity to the conveyances. This was
sufficient because everyone was expected to visit a church anyway so it could be
seen as full publicity.
Among the essentials for human life, the highest priority is given to food and
shelter. Food and shelter are directly linked with the land. Before people became
settlers, they surveyed the land to locate suitable places for temporary shelter and
they explored the land for possible sources of food. Initially ‘agriculture’ was a
very limited activity. With a relative small population the occasional fruit of the
field, supplemented by the trophies of hunting and fishing was sufficient to provide
food security.
Population growth and the development of agriculture made settlers from
most of the hunters and fishermen that once roamed the plains. After the people
once roaming settled down, agricultural production had to secure the basic supply

1 Note that ‘land’ here is meant to include all real property, in similarity with the use of the
term ‘land’ in Land Information Systems and Land Registration systems.
14 The Invisible Line

of food. That food had to be grown next to their dwelling places. Fundamental to
food production is the access to land, and what might be even more important, a
long-term guarantee of the use of a particular plot of land and the tenure rights
thereto, by individual farmers.

1.4.2 ACCESS TO LAND

Perhaps because land - consisting of clods of earth - cannot be transferred

literally, or because land is something that lasts forever, several societies on earth
do not recognize the full concept of ownership of land. There are today societies
where private ownership of rights to land or exclusive use rights are not regarded
as essential or where it is seen as impossible. That does not imply that such
societies do not establish invisible lines on land. Many customary and religious
rules will cause these lines, although, often hard to detect for outsiders. (See, for
example, the narrative of Chief Seattle [71]).
In societies that do recognize ownership of land many invisible lines are
necessarily drawn, defining the extent of the ownership of rights to land between
different individuals. The interest in these lines differs greatly among the various
societies in the world, and is often the result of political and social factors of a
particular society.
Recent research shows that there are four main reasons for an increased
interest in access to land by land reform and changing existing patterns of land
tenure and thus in creating more ‘invisible lines.’ These reasons are; alleviation of
rural poverty, concern for the environment, reduction of inequities in distribution
of agricultural assets, and improvement of food security. The link is obvious
between alleviation of rural poverty and access to land to make one’s own living.
The link between rural land tenure and environmental protection is
particularly recognizable in agriculture. Of the major economic sectors the one
most vulnerable to environmental degradation is agriculture, simply because it is
so directly dependent on natural systems and resources.
In general it can be noticed that economic development tends to increase
interest in rights to land. This is not the only factor. Rights to land are of
importance for environmentalists due to the increasing concern for the
environment. Alleviating food insecurity will generally result in augmentation of
agricultural production, which might require more land, land that may be fragile,
less suitable for agriculture, or land that only will produce after an intensified use
of fertilizers. This presents an environmental concern.
Several countries follow a principle of justice in which possession is the root
of ownership. Amongst scholars of English law the expression, ‘Possession is
nine/tenths of the law,’ points clearly in that direction. Possession of land - which
in itself is immovable - under this principle, leads to ownership as long as the
possession is in good faith and has lasted for a reasonable period of time.
Under the doctrine of constructive adverse possession in the USA, for
example, a claimant may acquire title by adverse possession even though he does
not take actual possession of all the land in question. His actual possession of a
 Invisible Lines 15

part of the claimed land adversely affords constructive possession of the remaining
area. However, this doctrine is applicable only if claim to the entire area is made
by one who acts in good faith and under ‘color of title.’ That is to say, his claim
must be based upon a written instrument that purports to be a conveyance. This
instrument must contain a description of the land in question. (A claim of
constructive possession fails with respect to land that is in the actual possession of
another.)
It will be clear that such doctrines result in several invisible lines representing
the extent of ownership of land without even the owner and the previous owner
knowing so.
As long as land is abundant, there is a limited interest in ownership of rights
to land. As soon as land as a commodity is scarce, it becomes subject to
economics. Some real property agents have adapted Mark Twain’s remark about
that scarce source being land: ‘The world is not growing, the population does. Buy
land today, it might be impossible to do it tomorrow.’

1.4.3 CONCERN FOR THE ENVIRONMENT

Economists study human behavior. It is the study of how individuals in a particular

society choose to allocate scarce resources in order to produce goods that are
demanded by that society. Economy also involves the process of deciding how
goods are distributed to various individuals and groups within a society as well as
dealing with the study of economic growth within the society. Economy has
become part of the decisive elements in land reform programs. Environmentally
responsible behavior is now becoming part of the economic approach toward land.
It is not that long ago that people were hardly concerned about the environment.
Exploitation of (farm) land, industrial waste, and a smoking chimney were seen as
signs of progress and development. What was happening with our planet did not
bother us too much. Recently that has changed, and genuine concern for the (near)
future of natural resources and preservation of those resources became an issue.
It has been sufficiently shown in research results that if a peasant or farmer
has a secured long-term access to a plot of land of sufficient size to support the
family and provide food security, environmentally responsible farming can be
expected in turn. Even in times when food security is threatened by natural
disasters, peasants with long term secured access to land tend to ‘trade’ a part of
their food security to preserve the land. They might allow fallow times even under
harsh circumstances, in order to ensure future crops. They exercise a responsible
stewardship over the land. Secured long-term access relates to a reliable system of
institutions regulating the registration and protection of land rights. Long-term
access can be titled and be used as a collateral thus providing capital for
improvement of agriculture. This in turn results in economic growth and improved
food security.
Contemporary land reform is also closely linked to ecological and
environmental issues. Thiesenhusen states (1995 [77] p.208): ‘United States
support of (land) reform will not come from an altruistic spirit, but from concrete
16 The Invisible Line

economic realities - as well as from a realization that the worldwide ecosystem is

challenged if peasants are forced to farm in fragile areas.’ Many donor
organizations follow those same principles.

1.4.4 AN IMPULSE TO AGRICULTURAL PRODUCTION

A recent new reason for increased attention for land tenure and land reform is the
problem of privatization of farmland after the overthrow of the communist regime
in many countries. A review of the impact of the improvement of agricultural asset
distribution and access over the past thirty years shows near universal agreement
that family-size farms are more efficient than large farms. The important question
in the former communist countries is ‘How can we best distribute the land in an
economic efficient way while maintaining agricultural production?’ In other
words: What type of land tenure regime serves best the economic development of
this particular country? In paragraph 5.3.4 the answer on this important question is
described in more detail. In a FAO report in 1971 Domer and Kanel (p.l)
conclude:

Though ideological arguments on the best ways of organizing agriculture continue, no

land tenure system can be adjudged best in abstract. Any judgements concerning a
particular system must take note of the institutional and technological conditions in
the society and the stage at which that society lies in the transformation from an
agrarian to an industrial economy. Judgements should also consider what specific
groups and individuals in the society are attempting to accomplish.

It is believed that more than half of the world’s arid and semi-arid lands are
affected by the problem of desertification of productive land as a result of over
farming and overgrazing stock animals. But it is not necessary for the world
population, although, still growing, to violate the environmental carrying capacity
of the earth. Land tenureship patterns and available technologies, along with
pricing and marketing policies exert a determining influence over the size of
population that a given agricultural region can adequately support.
Renewed emphasis on land tenure and land reform is not only the result from
growing awareness of the inequity in food security, although, increasing of food
security can often be convincingly used as the start of a land reform process. In the
food security synthesis as developed by Tweeten et al [80], food insecurity traces
to poverty, poverty can be addressed by economic development and economic
development flows from the application of a set of rules referred to as the ‘standard
model’ (See Annex A). The standard model is a policy blueprint. It describes the
requirements for a society under which the process that alleviates poverty and food
insecurity will flourish. The standard model is a set of rules to guide the process by
which culture, natural resources and institutions create capital and economic
growth to decrease poverty and food insecurity. Application of the standard model
is not a guarantee, but rather a proven base for sustainable economic growth. An
advantage of economic growth is that it provides resources to fund social critical
 Invisible Lines 17

functions such as education and research, health care, infrastructure and what is
perhaps most important it implicitly reduces population growth.

1.4.5 NO STANDARD SOLUTION

Research shows the following:

Gross inequalities in land distribution have been a highly destabilizing force in rural
areas, associated with numerous instances of rural rebellion in the developing world.
At the same time, many land reforms have failed to quell insurgencies or to affect the
underlying inequalities reflected in income. An effective land tenure program must be
crafted in response to the complex of factors that defines the agrarian structure of each
country.... No single formula will work for all countries at all times. Knowledge of
the existing land tenure structure is a sine qua non for an intervention in this area.
(Virginia Lambert, 1997 [51] pp. 153-154.)

Although, there is a standard model, this does not imply that there is a
textbook, desktop solution for the problem of food insecurity and inequity in land
distribution. There is a trade-off between the hunger for land to feed the world
population and the protection of the environment. The principal challenge to
economic growth as a means to food security comes from the environmentalists.
The increasing concern for the environment is pushing a new set of land tenure
issues to the forefront. Land tenure regimes normally comprise different
characteristic approaches to the issue of how to divide up the different rights
associated with the ownership of land and are typically codified or at least well
documented within statutory or other legal or customary frameworks. In modem
societies land ownership is preserved in formal systems that document or register
the ownership of land together with a governmental guarantee on security of land
tenure. Most of these systems are self-supporting. The users of the system pay for
the cost of running the system. In part, this is the fee paid by the individual users of
the registration organization to check on the extent of land rights, another part is
paid by the government itself for the data the system provides to government
agencies to levy land tax and to provide public services with data. Property tax is
not only a source of income for the government, but some authors (see, for
example, Tweeten) promote land tax as an additional means to influence equality
in asset distribution.
Following the renewed attention on land tenure, professionals have in turn re­
evaluated documentation of land ownership. The Statement on the Cadastre of the
FIG [37] contains a ‘definition’ of a Cadastre. It reads: ‘A Cadastre is normally a
parcel based and up-to-date land information system, containing a record of
interests in land (e.g. rights, restrictions, and responsibilities). It usually includes a
geometric description of land parcels linked to other records describing the nature
of the interests, and ownership or control of those interests, and often the value of
the parcel and its improvements. It may be established for fiscal purposes (e.g.
valuation and equitable taxation), legal purposes (conveyancing), to assist in the
management of land and land use (e.g. for planning and other administrative
18 The Invisible Line

purposes), and enables sustainable development and environmental protection’.

The FIG statement also contains a very brief description of land tenure. It says:
‘Land tenure is concerned with the rights, restrictions and responsibilities that
people have with respect to land.’ The FIG statement mentions many land linked
concepts and land related activities in which land related data play an important
role. In this book many elements of the main concepts and activities of cadastres
and land registrations have been reviewed.

1.5 WHY THIS BOOK?

1.5.1 A TECHNOLOGICAL APPROACH; LEGAL ENGINEERING AND

INSTITUTION BUILDING

Among experts it is not unusual to meet a strong preference for technical solutions
for problems associated with land tenure. To describe the danger of a one sided
approach dominated by technology, I paraphrase the facetious story of Suarez
Miranda2(and retold by Jorge Luis Borges in ‘Historia Universal de la Infamia’):
In that republic the science of cadastres was rapidly expanding. Scholars were
developing techniques to register any detail about any given property in huge
computerized databanks in an orderly way, and simultaneously, cartographers
developed a special technique to prepare a map of the individual properties at large
scale. Eventually they found a way to make a map of the property that coincided
point by point with the reality. Of course, such technological advancements
required enormous office buildings to house the computers with their electronic
databanks and the chests with drawers to store the maps had to be build in a special
furniture plant. It all seemed perfect and the citizens of the republic felt very secure
in their tenure with such a perfect and accurate registration of their properties.
But over time the citizens started to complain about the time needed for such a
detailed registration of their properties and the high costs involved in the very
accurate and detailed maps that were also awkward to handle. Transactions of land
became time-consuming matters because of the amount of officials needed to
handle all the prescribed activities required by the high standard of accuracy end
dependability. Moreover, the cost of maintaining such an elaborate cadastral
system became a heavy burden on the state budget. Instead of paying the
substantial fees for transactions, the citizens started to convey land in an informal
way. They took the unavoidable loss of security by informal transfers for granted
and so eventually the cadastral system fell into disrepair. Nowadays the only traces
that can be found in the hallways and alleys, once bustling and full with busy civil
servants, is a single old graying servant sweeping the dust. Hardly any customer
ever enters the vast halls containing the enormous collections of cadastral records
once thought so important for the development of the republic.

2 Suarez Miranda: ‘Viajes de Varones Prudentes’ (1658)

 Invisible Lines 19

Of course, the fictitious republic is called Utopia (Greek for ‘there is no such
place’) but it illustrates in exaggeration what might happen when there is too much
emphasis on technology. Although technology allows highly perfect systems to
serve our needs, these systems do not always provide the best economic viable
solution and should never be seen as a goal in itself. Technology offers the tools to
serve the needs of society. Nevertheless, such a focus on the technology paradigm
is sometimes evident in our modem cadastral organizations. More than once one
can hear cadastral experts defend that a Cadastre is an indispensable tool for
development, although, this view presents only part of the truth. A cadastral system
can be a very useful tool to assist a country in achieving economic growth by
providing quick and reliable answers on questions about the rights to property.
This ensures relatively cheap and easy transfers of property with a high degree of
dependability stimulating optimal use of available land resources. But it is only a
tool. To safeguard economic development in a sustainable way much more is
needed.
During a recent assignment I noticed an indisputable drive among officials
for perfecting the institutions recording land transactions and providing data on
property rights, together with a strong emphasis on appropriate legislation to
govern those transactions. The project in that country focused almost completely
on the development of a new legal and institutional framework for dealings in land
and for the registration of rights to land. Existing offices were refurbished to
become more customer friendly in the expectation that this would stimulate the
land market.
Here an institutional paradigm was clearly the dominant and leading element in
restructuring the land registration. In the project documentation, economic
development was regularly mentioned as the main aim to undertake the
restructuring activities. It was not well received when I, as a foreign expert,
emphasized that institutional reform is only a tool in assisting a country in
achieving economic development and that more was needed for a successful land
registration project.
Among many of the experts there seems to be a persistent idea that once -
some of - the tools are in place, economic development is almost automatically
about to start. Monitoring of most project results reveals however, that seldom a
spontaneous economic development will evolve irrespective of how close the
similarity of the new rules and regulations of the new institutional arrangements is
with that of well known market economies. There obviously is something else
more relevant, which has to be in place, than a protected private individual
ownership of rights to land before economic development will pick up.
The main and overriding condition that will stimulate people to invest in then-
natural resources in a sustainable way is their positive perception of land tenure
security. It is not surprising that perception of land tenure is often overlooked
because it is not measurable directly. Land tenure security is the perceived feeling
of being secure in one’s access to land without the risk of losing it to someone else
without consent or proper compensation.
20 The Invisible Line

Land tenure security cannot be guaranteed by putting in place a certain

system or a set of regulations and establishing appropriate institutions. Each
country will have its specific land tenure concepts and historical and cultural
values that determine the current property regime. Overlooking the existing
framework while developing a new situation will result in disappointing project
effects.

1.5.2 PRIVATE OWNERSHIP AND COMMON LANDS

Private individual ownership is a key element in market economies the world over.
This is particularly true for private individual ownership of land because it
provides the possibility for private decision making and this encourages
investments. In market economies private individual ownership is the usual form
of land tenure because market economies depend heavily of private initiatives and
mobilization of private investments. This form of tenure provides individuals with
funds because land can be used (and is widely used) as collateral as long as
markets are developed. This is generally not (yet) the case in transitional
economies and in lesser-developed countries. And although in many jurisdictions
where individual ownership is the most common form of tenure, common property
in various forms can be encountered. Common property is much more wide spread
in lesser-developed countries than is private individual ownership.
Invisible lines are a central theme in this book to provide an introduction to
complex phenomena like property, land tenure security, land reform, and land
registration issues. Striving to use a concise concept, one might not escape the danger
being over simplistic and providing a sort of caricature of reality. This is particularly
so in categorizing land registration systems and looking at those systems in
contrasting simplifications as positive and negative systems, systems for legal
protection or for tax purposes, title or deeds registrations, and so on. Even without
giving any additional judgment about one system being ‘better’ than another, there is
the risk that a reader might get the impression that every land registration system is
easily categorized in this way. Reality is much more complex however - one could
also say it knows a myriad of invisible lines - and the multi-facetted appearances of
land tenure as a result of specific land registration systems operational around the
world bear witness of that. A land registration system should be approached as a
system in its totality and be considered as part of a complex structure regulating the
social relationships among citizens in a given society.
It is remarkable that the caution with details exercised by authors in
describing land tenure in western type economies sometimes seems almost ignored
when a description is given of common tenure as the usual land tenure regime in
lesser developed countries and areas. Common land tenure can only be used as a
generalization, and it certainly may not imply that under such systems all
individuals share most of the features of common tenure in a similar way.
Common tenure does not mean that individuals have equal rights in every piece of
the common land. In grazing areas where land is relatively abundant almost equal
communal rights in grazing for all those belonging to the community can be
 Invisible Lines 21

observed. But this observation changes in areas where land is in short supply. In
these areas people sometimes encroach on communal grazing land by bringing
small parts of it under cultivation. The communal grazing rights are obviously not
vested in any authority to prevent this from happening. Often the right to a piece of
arable land of the commons is very similar to private individual rights. Even in
shifting cultivation an individual exercises rights over a plot of land for only a brief
period. When the land is exhausted the individual passes on to another plot of land
to be cleared and used as his (seldom her) land for another period of time during
which the tenure is perceived as being private individual and exclusive use. It may
be that after such a brief period of individual exclusive use land returns to the
common pool of land. Research shows that with increased attention for agriculture
and cash cropping, emphasis on individual private and exclusive rights in land
tenure emerges. Land does generally not return anymore to the common pool but is
transferred, inherited, or exchanged among individuals (and seldom abandoned),
supporting the establishment of permanent individual rights to land.
It leaves no doubt that common tenure as exercised today carries as much
variation as private individual ownership in market economies, but its variety
cannot be captured in the legal and regulatory languages that we have developed in
our societies. And so the richness of common tenure appearances is at best
overlooked or ignored. Language being the vehicle of transmission of thoughts in
this book, it also tends to oversimplify common tenure, and the least I can do is to
warn the reader for this oversimplification. Be aware that common tenure is as
diversified as western style land tenure, but that ordinary language fails to describe
its variations in a proper fashion. This ambiguity might create an unintentional
unbalance between the description of common land tenure with its institutions and
western style land tenure and its institutions in this book.

1.5.3 THE AIM OF THIS BOOK

This book aims to review the main elements that constitute the basis for land
tenure security in any given society. The growing interest in claims on land by
displaced indigenous population groups to restore their rights to land and the
mixed success of many land reform projects in countries in transition show that
there is a lack of understanding of all the elements that contribute to the perception
of land tenure security. It is clear from the previous chapters that the elements
which matter in respect to land tenure are numerous and differing in nature and
origin. The perceived land tenure security is still little understood. So far it seems
that results from most of the recent research of the last decades have failed to give
corrective impulses to general policy prescriptions as used in privatization projects.
An introduction into the perception of land tenure security can help to increase this
understanding and it can be organized in several ways. I have chosen to begin with
defining the basic building blocks of land tenure security. Many other elements
also may contribute to land tenure security and most of them will be mentioned in
the chapters of this book.
22 The Invisible Line

It is impossible to summarize the conditions that have to be met by successful

institutional and legal provisions for land registration institutions and property
regime provisions. Nevertheless, some general guidelines can be given.
In focusing on customary land tenure, recent research shows that a sustainable
solution for the recognition of customary rules in land tenure should be guided by
three basic principles that root in anthropology and sociology of law. Firstly, new
legislation should incorporate the cultural, sociological and agro-economic
assessment of the existing land tenure situation. Secondly, new legislation should
protect existing (customary) rights in land tenure while creating secure conditions
that benefit both investors in and local users of resources to create incentives for
new investment. Thirdly, the new legislation should encourage natural resource use
in such a way that it ensures an equitable and sustainable economic development.
Many countries in transition have sought the solution for stagnation in the national
economy by introducing western style legislation and institutions for a new regime
of land tenure. Most modem societies seem to have almost perfect systems for land
data collection to protect individual rights to land. This book will show that there is
no standard system and that the apparent similarity between the various systems in
use for land registration and cadastres is misleading. Modem contemporary land
data collection and cadastral systems show several differences and they change
over time and are often more flexible than expected. Showing the variations
between the systems will contribute to the understanding of different land
registration systems and, in doing so, will assist in developing country-specific
systems reflecting the cultural heritage, anthropologic roots, and social values of
that particular society.
The constructive elements of land tenure security that will be reviewed are
land and rights to land (chapter 2), property, property rights, and property regimes
(chapter 3) and land tenure in chapter 4. One of the most dramatic ways to affect
existing land tenure is by non-evolutionary change of land tenure - land reform -
and chapter 5 will pay extensive attention to that phenomenon. In chapter 6 the
important tool of land titling systems, land registration organizations, and cadastral
institutions will be reviewed. Chapter 7 summarizes various specific aspects and
practical applications of land registration systems. The book also contains a
glossary of terms and as annex the ‘Standard model’ for economic development as
designed at Ohio State University (Columbus Ohio, USA).
 Chapter 2

Land and Rights to Land

2.1 LAND

2.1.1 WHAT IS LAND?

‘Land is surprisingly difficult to define. The common concept is some form of the
idea of terra firma or dry land, but this is inadequate’ (Davis in [20] 1975 p. 10). A
good short definition is: ‘Any part of the earth’s surface which can be owned as
property, and everything annexed to it, whether by nature or by hand of man’
(Random House Dictionary). In legal terms however, there is more to it. At least
always a (thin) layer of earth beneath the property and a certain layer of ‘air’ above
the property belongs as well to the property and rights to land can also be executed
as the same rights in those layers. However, others defend the ‘carrot-theory’ in
which a volume of space from the center of the earth to the infinite sky with a
variety of rights and objectives determines the extent of the land rights. To many
‘common’ people it is simply all the space in use for human activity as reflected in
the different forms of land use. A United Nations (UN) ad hoc group of experts on
cadastral surveying and land information (1985) defined land as an area of the
surface of the earth together with the water, soil, rocks, minerals and hydrocarbons
beneath or upon it and the air above it. It embraces all things, which are related to a
fixed area or point of the surface of the earth, plus the areas covered by water
(including the oceans).

2.1.2 THE AUTHORITY OVER LAND

A modem society recognizes ownership of rights to land, including all the

possibilities which ownership contains. Most societies nowadays accept the fact
that ‘land can be bought and sold.’ That has not been always the case. Even today
there are societies in which (private) ownership of land or exclusive use rights are
not recognized.
In (‘Land Use’ [20] 1975 p.7) Kenneth Davis vents his opinion, ‘The Judeo-
Christian tradition in the Western world gave rise to the concept that people were
created separately, after other living things, and were not a part of nature. People
were admonished to “be fruitful, and multiply, and replenish the earth, and subdue
it.” The idea that the earth and all upon it were for use and exploitation by the
people has become deeply established. Authority has been established by conquest,
24 The Invisible Line

by might, and in Judeo-Christian areas, God has frequently been invoked as the
superior authority. However, the source of authority has shifted from “God” to the
state or “society”.’
In our times laws given by government or state have mostly replaced might in
matters of tenure, but even recent history shows that rights of tenure are no
stronger than the power of the sovereignty that grants them.
History also tells us that in the conquest and settlement of colonizing states, settlers
blatantly considered the newly ‘discovered’ land as being theirs (or at least as that
of their government). In an urge to subdue the wilderness (and necessarily
removing the people already on the land) this view was frankly exercised. There is
a humorist caricature in which a white immigrant settler in the USA is complaining
about the influx of too many emigrants in recent years. When he exclaims, ‘All
these immigrants should leave the country,’ a Native American immediately offers
the immigrant settler to help him pack.

2.1.3 ELASTICITY OF LAND

Land and in particular rights to land - when duly protected - can give men the
feeling of long lasting security. This aspect is essential and it requires careful
managing in the administration of the plots of land the rights refer to. This is not
always understood well. In many Eastern European countries for example, under
communist rule, land was treated as an area simply on paper. One piece of land
could be exchanged for another, by writing only numbers in registers. The land
was not connected anymore with the clods of earth of which it originally consisted,
thus creating not genuine or invisible land. In those cases it can turn out very
difficult to ascertain land boundaries showing the extent of individual ownership
rights.
An account of this practice can be found in: ‘The Elasticity of Land’ by
Katherine Verdery (p. 1083 [83]):

In the village of Vlaicu one clerk was a notorious drunk and he could readily be
persuaded for a bottle of brandy, to reduce the recorded size of one’s holdings. The
system used by the government was to set quotas to be produced and handed over to
the state by farmers depending on the size of their farm, quota whose magnitude
increased exponentially with the size of the holding. Sizes of holdings were based on
village registers (not on a Cadastre). Any holding thus dipped in brandy shrank,
invalidating the area reported in the 1950s. (One farmer could show seven different
recorded figures for the size of the farm, each figure responding to a particular need of
the time, and each as the result of liberal applications of brandy). Such shrinkages
have effects in the present, as owners of shrunken fields often find it difficult now to
stretch them back out to their former dimensions. But this situation gives way for
officials (as insiders) to use the remaining land for their own purposes.

The observations of Verdery are correct. In all my assignments in former

communist countries I did notice the same practice of shrinking of land. In the
 Land and Rights to Land 25

privatization process it caused disputes and contradictory declarations and it

sometimes resulted in interesting puzzles for land surveyors.

2.2 RIGHTS TO LAND

2.2.1 PROTECTION OF RIGHTS TO LAND

Ownership of rights to land is intriguing. Denman et al. (1972 [25] p i 8) points out:

Land is a resource of primary consequence in the economy of any country, especially

if we permit the definition of lands to include water. Whether we regard it in pure
form as one of the given things of nature or as manipulated by the hand of man by
developments of various kinds, land has about a static quality, which by its
uniqueness has a significant bearing upon the manner in which decisions can be made
about the use of it. An owner of an interest in land cannot pocket his possession. To
use it he must go to it and work upon it, or permit others duly authorized to do so.

Because land tends to be forever, one cannot hide, or as a rule, destroy it

completely.
Ownership of rights to land and legal protection of those rights providing for
land tenure security is a matter that attracts attention at global level. In a global
plan of action for sustainable development (adopted by the Rio Conference in 1992
- agenda 21) global objectives of combating poverty, sustainable agriculture and
forestry are directly related to the land issue. The 1996 Habitat IIconference in
Istanbul considered sustainable housing as having a roof aboveone’s headand
having enough room, having access to land and providing security of tenure. The
plan advocates legal security of land ownership and use, an equal distribution of
land to all people and protection against illegitimate expropriation. There have
been more declarations as a result of international conferences like in New Delhi in
1996 and in Bathurst (Australia) in 1999 emphasizing the appeals for clear
protection and procedures to exercise ownership of rights to land. The UN
commission on Human Settlements launched in December 2000 a follow up of the
Istanbul Habitat II conference by starting a global campaign for secure tenure.
Secure access to (rural) land and a reliable institutionalized system of transfer
of rights to land is seen as an important requirement for increasing livelihood
standards for the majority of the poor in the world. A secure tenure of land, and in
particular rural land, that can be inherited and transferred is the principal vehicle to
acquire income and accumulating wealth. But, land tenure security is only the
basis, other elements - common in modem societies, like reliable banking systems,
appropriate infrastructure, an efficient governmental system - are important as
well. (See in this respect the conditions as formulated in the ‘standard model’ in
Annex A.)
In most western industrialized societies the economic function of property is
dominant. Most of these societies once knew a land tenure regime based on
26 The Invisible Line

communal or customary rules. In those customary land tenure regimes the social
function of property was the main focus. With new emphasis on a growth
paradigm, the focus shifted toward the economic function of property. Property
should be used to its full potential in order to reach its maximum value and assist
and support the economic growth of a country. More about this social function as a
different approach to property and property rights can be found in 2.3.2 and in
chapter 3.

2.2.2 RIGHTS TO LAND MAY BE NON-TRANSFERABLE

Most customary property regimes recognize the non-transferability of land. A well-

known description of a specific view on land ownership is found in ‘How can one
sell the air?’ The manifesto of Indian Chief Seattle of the Duwamish people in
1855 (Native American Books; 1943 onp.1-5 [59]):

The Great - and I presume - good White Chief sends us word that he wishes to buy
our lands but is willing to allow us enough to live comfortably. We shall consider
your offer to buy our land. What is it that the White Man wants to buy my people will
ask. It is difficult for us to understand. How can one buy or sell the air, the warmth of
the land? That is difficult for us to imagine. If we don’t own the sweet air and the
bubbling water, how can you buy it from us? Each pine tree shining in the sun, each
sandy beach, the mist hanging in the dark woods, every space, each humming bee is
holy in the thoughts and memory of our people ... We know that the White Man does
not understand our way of life. To him, one piece of land is much like the other. He is
a stranger coming in the night taking from the land what he needs ... Every part of
this soil is sacred in the estimation of my people. Every hillside, every valley, every
plain and grove has been hallowed by some sad or happy event in days long vanished.
Even the rocks which seem to be dumb and dead as they swelter in the sun along the
silent shore thrill with memories of stirring events connected with the lives of my
people, and the very dust upon which you now stand responds more lovingly to their
footsteps than to yours because it is rich with the dust of our ancestors, and our bare
feet are conscious of the sympathetic touch. (Indian Chief Seattle of the Puget Sound
tribes in 1855)

Many centuries before Chief Seattle lived, a similar misunderstanding about

land as a simple material thing or as a much more meaningful element occurred. It
has been recorded in 1 Kings 21 (New Revised Standard Version Bible USA,
1989) where one can read:

Naboth the Jezreelite had a vineyard in Jizreel, beside the palace of Ahab king of
Samaria. One day Ahab said to Naboth: ‘Give me your vineyard that I may have it for
a vegetable garden, because it is near my house; I will give you a better vineyard for it
or, if it seems good to you, I will give you its value in money.’ But Naboth said to
Ahab, ‘The Lord forbid that I should give you my ancestral inheritance.

The perception of land tenure - the holding of the land - in these two
examples is clearly that of stewardship. The individual is not an owner in the
 Land and Rights to Land 27

absolute sense but merely someone who is responsible for taking proper care of the
land. The latter example also reflects a perceived trans-generational character of
land use.

2.3 SIGNIFICANCE OF RIGHTS TO LAND

2.3.1 LAND PARCELS

Rights to land (as will be discussed in chapter 3.1 encompassing rights to all real
property), carry emotional, social, and sometimes great material value. The main
focus of this book is on rights to land and their protection. Like almost all rights,
rights in land are generally invisible. The relationship between an individual and
the land on which he or she claims to have a right is certainly not clear ‘at first
sight.’ Even if that relationship is made known, it is not often obvious where
exactly on the land the actual physical beginning and the end of the right(s) held by
the individual is, and where the rights of other individuals begin or end. There is an
invisible border - an invisible line or link - between the land and the holder of a
(real) right on that land. Those rights may be recorded in a land registration or
cadastre.
Land is divided into smaller portions and in many societies individuals can
and do hold exclusive rights to such a piece of land - commonly referred to as a
parcel - but what piece of land is that parcel exactly? With movable objects there
is often no doubt about the object to which rights are held. For most movable
objects possession is the common way of ownership and most movable objects are
physically clearly identifiable.
With land (including real property) in general, it is often difficult to
determine the relationship between an individual right holder and the land whereto
the rights are held. Land does not always come in easy to identify separate objects.
It cannot be physically possessed and normally it is connected to other real
property to which other individuals are holding different rights. And to make it
even more complicated, it is not uncommon that various individuals hold different
rights on the same land. One individual may hold the ownership rights while
another one holds a right of lease, a third one can hold a right of way over the land
and a fourth one can hold a mortgage. These rights do not necessarily have the
whole piece of land as object, but can also be limited to a part of the land to which
the first person holds ownership rights. The effect is, of course, that there are
several invisible lines or boundaries when several individuals hold different - and
partial - rights on a parcel. A parcel is the smallest unit of land (land, including
real property) distinguished in a system of land registration, mostly on the basis of
different rights hold to this parcel and other neighboring parcels.
Designing, measuring and mapping of these lines is the professional activity
of ‘geodesists’ (professionals in geodesy = determining the exact shape of the
globe, as well as the science of earth dividing). The lines that are the result of land
distribution define the border between neighboring parties. Apart from possible
28 The Invisible Line

physical marks, these lines are invisible, although, often registered and mapped
somewhere and somehow. It is the geodesist or land surveyor who can re-establish
these lines in the ground upon request. For lines representing the extent of rights to
land, or the administrative division, this requires background knowledge and a
predetermined accuracy.

2.3.2 A NEW APPROACH TO RIGHTS TO LAND

Modem ‘western’ people tend to see land primarily as a means for private benefit
by exploiting it, and seldom do they focus on its functioning to establish social
security. I observed in many countries that property is dominantly approached at
the level of use and exploitation in the field of private law. Thus the legitimate
authority to control, allocate and exploit property is one of the most salient
elements of power through which people can be subordinated at all levels of socio­
political organization.
The majority of poor people live in less developed countries and the poorest
of those people live in rural areas. Secure and lasting access to agricultural and
pastureland is for many of them the only possibility to increase the quality of their
livelihood. International donors have a tendency to support projects by looking for
developing new systems providing (enhanced) protection of rights to land in light
of the economic growth paradigm, which starts with the provision of secure rights
to land. In most donor-funded projects there is an almost automatic emphasis on
establishment of rights to land tenure according to western style principles. The
private individual ownership of land in a more or less capitalist society provides all
the elements that are commonly seen as necessary for economic growth. Such an
oversimplified approach overlooks the existing social relationships and cultural
values in a given society and jumps to conclusions to justify the import of western
style institutions although these might be alien for the local people. It undermines
existing social relations and can postpone any development in certain areas.
Sometimes a quick fix is necessary to solve urgent problems of land rights, but a
sustainable solution for the protection of rights to lands requires the establishment
of an idiosyncratic institution, which can only be accomplished by a process-
oriented project approach. Such an approach has to determine the nature of
customary rights to land to be preserved, and the discrepancies that might appear
between the region specific rights to land and requirements of economic
development. In many donor funded projects this is as yet not viable because of the
desire for a speedy project completion and little possibilities to develop a specific
regional solution for securing of rights to land. Nevertheless, it is my belief that a
solution paying serious attention to institutional arrangements for rights to land that
appeal more to the perception of the population could provide a more lasting
solution to support economic development in several regions. For such an
approach local participation is essential to ‘translate’ customary rights into formal
legislation although this will most likely consume more time to clarify the project
targets and to balance the inputs of foreign (expatriate) experts and local experts.
Of course, there will be challenges to find suitable solutions for economic
 Land and Rights to Land 29

questions like those connected with using land as collateral and as a sound basis
for investment. But these questions and the proposed solutions will have a more
global character and might be applied in many other projects as well. The situation
can even be more challenging when not only customary rights to land have to be
incorporated in the new system of rights to land, but when there is also a
significant presence of land rights that approach land as a common pool resource.
Recently more and more attention has been paid to communal property regimes
and their significance for some of the problems that only in a poor way can be
addressed by private property regimes. Hoekema [45] (p.51) argues: ‘The notion
that only individual western style ownership provides enough individual security to
promote an economic take off has been substituted by the opposite notion: only
communal tenure (in areas where it still holds) provides enough security.’
Because of its less exploitative and more socially oriented nature, the practice
of communal rights to land has come to be seen as a possible solution for problems
of depletion of resources. It is a sometimes hotly debated issue and there still is
confusion about how to understand communal rights to land. Modem languages
are often not capable of capturing all the elements of communal land rights and
recent research shows that communal land rights do vary from region to region
showing significant differences between the individuals that can use a common
pool resource. Within communal land rights, individuals can have exclusive use
rights for part of the common pool resource for a specific time period.
David Stanfield, while writing about the situation of land titling and
registration in Latin-America and the Caribbean, notes (1990 [75] p. ix):

The effectiveness of customary means for protecting rights of ownership have been
underestimated while the advantages of the formal Cadastral Land Information
Systems have been overly praised. The means for improving security o f ownership are
not limited to improving or extending the laws of property and the capacities of public
agencies to define or defend ownership claims. Functioning customary systems exist
in many parts of Latin America and the Caribbean for defining property rights, usually
without a formal legal basis but with the support and respect o f the local community.
These customary systems are cheap to operate, are accessible to local people, and are
socially and economically advantageous. Moreover, the holders of customary titles
may prefer these systems.

Different researchers confirm this view also for other regions in the world.
The biggest challenge facing advocates of communal land rights is their
lesser suitability for such land to be used as collateral in a market economy. While
individually owned, clearly titled, and easily identified parcels of land are widely
accepted as basis for collateral, communal land does hardly attract moneylenders.
This makes communal land perceived to be less suitable for economic
development as will be explained in the coming chapters. The bottom line however
is, that it will be possible to build a system of communal land rights that is very
well capable to recognize individual proprietorship - albeit perhaps not ownership
in its ‘absolute’ sense - and marketability of land. To establish a land rights system
that above all provides for social security and social objectives rather than focusing
30 The Invisible Line

on economic development and growth. My personal experience is that in

transitional economies the temptation is to jumpstart the establishment of
individual private land ownership with all the pitfalls of importing alien juridical
concepts. Nevertheless it is my belief that in many areas more attention should be
given to the social function of land ownership and that where common resources
are rule a specific role must be adjudged to communal ownership.
 Chapter 3

Property

3.1 PROPERTY, RIGHTS TO PROPERTY, AND PROPERTY

REGIME

3.1.1 PROPERTY RIGHTS

In this book the term ‘property’ will be used to describe real property as we discuss
the (material) objects. ‘Property rights’ are the sets of rights and responsibilities
that come with the object. Property rights in my text always mean a very general
category and are not limited to, for example, private property rights, unless
explicitly stated. A property right is an enforceable authority to undertake
particular actions in a specific domain.
Bruce [13] defines property as ‘a set of rights and responsibilities concerning
a thing; property also is the term for the thing itself.’ When we use property as the
thing itself, we can distinguish two different types of property: private and public
property. Private property is held by private persons and includes property held by
legal entities such as corporations or partnerships. Public property is property held
by any level of government. When we want to make it clear that we are using
property as a set of rules and responsibilities, we often say property rights. Formal
regimes of land tenure are based on laws, commonly designed according to
‘Western’ views and concepts on legal matters. Western law recognizes two basic
kinds of property. One is real (Anglo-American Law) or immovable property
(European Civil Law). This is property in land and attachments to land like trees or
buildings. A real right ‘follows’ the object. An example of a real right to real
property is the right of ownership. Heirs of a deceased owner are entitled to have
ownership by succession to the real property. The real right ‘follows’ (is attached
to) the object (in this case real property). The second kind of property is personal
(Anglo-American Law) or movable property (European Civil Law), which is
property in all other things. (The Dutch Civil Code states, ‘Movable property is all
that is not immovable property’ - article 3.1.1.2 part 2). A personal right to real
property can be rent. Heirs of a deceased renter are in Western style law not
automatically entitled to continue the rent. (However, in local law or under
customary rules, this may be different.)
32 The Invisible Line

A specific category of property rights less important for this book is rights in
non-material things like the intellectual property rights, the copyrights, patents, and
brand names.
Possession is the root to ownership (‘possession is nine/tenths of the law.’),
but neither land nor the attachments to it can be possessed literally. Most movable
property can be possessed literally or at least movable property can be moved from
seller to buyer.
Because of the easy confusion about the meaning of words like real
property/immovable property and their translation, from this point on in the book I
will use, as much as possible, the word ‘land’ also when that is more than clods of
earth. Thus the term ‘land’ will be used in compliance with the meaning in ‘land’
information and ‘land’ registration. So ‘land’ will cover all real property unless it
is obviously better to use a more specific term.

3.1.2 PROPERTY REGIME

A ‘property regime’ is a complex of rules, principles, and procedures that in a

specific community or society regulate legitimate control over, access to, and
conditions of use of the means of existence and of production (resources), as well
as the acquisition and transfer of such resources (Hoekema [45] p.78/79).
Property rights incorporated in the institutional structure of a country are the
building blocks of land tenure, but in a modern society, land registrations and
credit structures are also included. Property objects are vital for the existence of
mankind; the field of property law and property rights is one of the most important
fields of research and theories in law and economics. Von Benda-Beckmann [5]
(p.21) states, ‘Property is a sanctioned social relationship between persons - not
between persons and objects - with respect to material and immaterial objects.’ In
[6] it is argued that there is a lack or neglect of anthropological approaches towards
property rights in law and economics. The function of property is biased towards
economic organizations with commodified property in order to be easily
exchangeable and contributing to efficient and optimal allocation. The assumption
is that legal reform toward marketable individual ownership rights would
significantly contribute to economic development by creating greater legal
security, freeing the individual property holder from communal constraints. These
constrains prevent him or her from becoming the ‘homo economicus’ capable and
willing to pursue maximizing of his property as economic theory has laid out for
him or her. In doing so, land will also provide a basis for collateral to obtain
productive credit.
The homo economicus approach is typical for the Western property concept.
It ignores the fact that common property can be utilized in a sustainable and
efficient way. Recent research shows that common property regimes are potentially
efficient and more equitable when utilized to manage ecological fragile areas.
There is evidence that, for example, in forest areas management by powerful
national government agencies did not always result in ecological sound practices.
It is also known that a common property regime can overcome the ‘tragedy of the
 Property 33

commons’ and that local user groups can manage forest areas in a sustainable and
efficient way. But that cannot be a reason to turn over all forest areas and other
natural resources to local user groups in the expectation that this always will be the
best way to safeguard their efficient and sustainable management.

3.2 THE VARIOUS FUNCTIONS OF PROPERTY

3.2.1 THE SOCIAL SIGNIFICANCE OF PROPERTY

During the past centuries many economists and social researchers have focused on
property regimes and property rights. Economists have given numerous reflections
on the economic significance of property, for example, Adam Smith and John
Kenneth Galbraith. Most publications about property rights focus on how property
regimes should be with emphasis on the future. Denman warns for such a one­
sided approach. He draws attention to the inter-relations between persons that play
an important role in property regimes. These inter-relations are seldom recognized,
acknowledged and taken into account in policy making. Nonetheless, they work
away under the surface, often confounding policies (1972 [25]).
Von Benda-Beckmann [5] (p.20-23) emphasizes in his theory of the various
layers of property the sanctioned social relationship between persons with respect
to material and immaterial objects. This social relationship can be observed in four
layers of social organization of which the most relevant for this book are the
cultural (and ideological) ideals, the normative and institutional regulations and the
social property relations. There are normatively defined relationships in a general
way between property holders and the objects as a bundle of rights. They differ
from the actual social relationships of concrete property holders. The latter can be
the stranded bundle of social relationships in kinship, neighborhood and religious
groups. He also distinguishes a fourth layer, the social (property) practices. Here
we find a dual distinction one that deals with the practice in which people simply
use, transfer, inherit or dispute the right to a concrete resource. This is to where the
law refers. The second type can be found in social processes in which property law
is reproduced and changed. The nature of the property rights is discussed,
explained or disputed in interactions in parliaments, universities and mass media.
Property should be attributed a social function, emphasizing that all property
can serve a common good or has to be justly distributed among society’s members.
In many projects I observed that property rights were mainly approached at the
level of use and exploitation, in the field of private law. Public authorities came in
as an agency to regulate the property rights of private right-holders, in such a way
that at least some elements of the social function are safeguarded. The regime
established by licenses, production quotas, and subsidies is an example. In matters
of landed property one can think of zoning laws, environmental regulations,
eminent domain, all the measures that in modem societies regulate - both
stimulating or limiting specific types of - agricultural production and laws that
provide subsidized housing for low-income households. Although seldom
34 The Invisible Line

explicitly referred to in donor-stimulated projects, it should be remembered that

there are generally substantial public law constraints on private property in most
Western societies. This sometimes goes so far that observers wonder whether there
still is ‘private individual property.’

3.2.2 PROPERTY AS A SOCIAL RELATIONSHIP

Several decades ago researchers already described the merits of a more socially
oriented approach for tenure regimes, but modem ‘western’ people continue to
look at property at the level of use and exploitation and seldom at its functioning to
establish social security. One of the questions raised in this book is to consider the
option of a land tenure regime that does not primarily use the common exploit and
use approach of property, but goes for a more socially oriented property regime.
With many countries in transition looking for the most suitable property regime to
establish, there must be an opportunity for such a project. Of course this might
weaken the possibility of employing all the common economical aspects of land.
So research stemming from this should focus, for example, on how investors will
look at land when it has a social mortgage. Property has a social mortgage when
the use of the land is bound to various limitations and privileges that come with it
because of the applicability of common property rules and customs often typical in
a local context. Will such a social mortgage jeopardize the perception of land
tenure security? Will it put a constraint on land to be transferred, will it lower the
value, and will it be less attractive as collateral for loans?
In the approach of early settler administrators there has been a certain bias
based on the observed contrast between individualism and communalism in land
tenure. While individualism was the main rule in land tenure in the colonizers
home country, they hardly could appreciate the benefits of communalism that
apparently ruled the land tenure of the indigenous people in the new colonies. That
communally held land could not be sold by individuals, was one of the main
reasons for marking that kind of tenure as backward and not fit for economic
development. The fact that such a phenomenon as private property had not evolved
among the indigenous people functioned in some cases as a justification for
ignoring existing land rights and it was used as an incentive to replace them by
private individual land rights to benefit the colonizers.
It is important to note here that the social relationship in property regimes, as
perceived by local people or by indigenous groups, should not be underestimated.
Extensive studies of the World Bank and the Land Tenure Center (LTC) find:

... that national legislation of tenure reform has a limited capacity to change behavior
... although, the titling and registration program had individualized tenure, indigenous
values concerning land persisted and the majority of titleholders felt that they could
not sell the land without approval of their families. Such behavior is not perverse. It
reflects a judgement on the part of small-holders that the social security function of
land remains paramount in these circumstances, and that compliance with community
mores and access to community mechanisms for coping with hard times are still of
great importance ...
 Property 35

(Bruce et al [14] p.259, 1994). For land tenure policy Bruce (p.261) recommends
that attention be redirected to more incremental approaches for changing
indigenous tenure systems. Gradual changes should be practiced. We should move
away from a ‘replacement paradigm,’ in which indigenous tenures are to be
replaced by tenure provided by the state, toward an ‘adaptation paradigm.’ More
research will be needed to define the basic legal and administrative requirements of
a land policy that uses such an adaptation paradigm.

3.3 LANDED PROPERTY

3.3.1 LAND AND PROSPERITY

Some literature refers to ‘landed property’ when focusing on property rights and
the function of land being held under ownership rights. In ‘A journey through
economic time’ Galbraith [39] reviews the roll of feudalism and capitalism (p. 10-
13). Galbraith’s interesting line of arguing is often cited in the following passages.
On the earlier mentioned pages he argues:

Those who ruled were the surviving expression of the landed power, as especially was
the officer class in the armies. It was a serious social and political disqualification to
be in trade. In Europe the landed aristocrats remained fully dominant in the
government and the military establishment until the twentieth century. They, not the
bourgeoisie or the industrialists, made the decisions to go to war and to prepare the
plans for conducting it. One of the most notable consequences of this role of the old
feudal classes was the belief that territorial conquest was the basis of wealth and
power. With land came economically productive peasants, public and personal
revenues and men available to wage armed combat for their master. For centuries,
political authority in Europe had been, to a greater or lesser degree, associated with
landed proprietorship or, at a minimum, with landed aristocratic tradition. So also, and
more markedly, had military power ... There were notable consequences of this
continuing role of the old feudal classes. One was the profound centuries-old instinct
that war has primarily to do with landed territory. Once, indeed, this had been true:
territorial conquest was the basis of both wealth and power. With land came
economically productive peasants, public and personal revenues and men available to
wage armed combat for their master ... It was to be one of the modem and welcome
triumphs of the capitalism attitude and achievement to diminish the acquisitive need
for more land. In the highly prosperous city-states of Singapore and Hong Kong, land
has been shown to be wholly irrelevant ... And when in the years after the Second
World War many European nations ... as well as the United States, all shed their
colonial possessions; scarcely a ripple was felt in their domestic economic well being.

However, this does not imply that landed property has lost its role as a generator of
economic well being and the development of a nation. In many lesser-developed
countries the process of industrialization is in progress or has hardly even begun.
El-Ghonemy (1990 [33] p.296) argues:
36 The Invisible Line

While it is true that for rich industrialized nations, historical structural changes have
substantially lessened the relative economic importance of land, in many lesser
developed countries land continues to be of crucial importance as the major domestic
food-producing and labor-using asset. This is particularly true for agrarian economies
where land remains the main determinant of class structure, and of social and political
power.

Many peasants have to rely on the land as the source of sustenance for their
living. In such countries land has not at all lost its meaning as a source of wealth
and influence. In most of the countries in transition agriculture is the most
important employer and source of income. It would be a gross error to
underestimate the potential effects of the establishment of a new (imported)
property regime there.

3.3.2 URBANIZATION

What is now called capitalism, or perhaps more precisely industrial capitalism,

emerged in the late eighteenth century in a world dominated for hundreds of years
by feudal agriculture. The merchants - those who procured and sold simple basic
products like textiles, apparel, and spices dominated the commercial world and its
economics.
During the last three centuries before capitalism emerged, the economic
policies pursued in Europe are known as the era of mercantilism. Mercantilism is
the belief that the economic welfare of the State can only be secured by
government regulation of a nationalistic character. Mercantilism is defined
(Random house Encyclopedia) as a trade policy advocating state intervention in
economic affairs; basically state regulation of the economy to maximize exports.
Foreign trade was to be publicly controlled so as to produce the maximum possible
surplus in the nation’s trade balance, thus increasing the country’s store of gold
and silver, which constitute the ‘nation’s wealth.’ Others define mercantilism (for
example Robert B. Ekelund Jr. and Robert Tollison, 1981 [32]) as the supply and
demand for monopoly rights through the machinery of the state.
Although the subject is still debated, the economic system that appeared
thereafter was, in substantial measure, the offspring of technology. Here the forces
of change were at work. New production methods invaded especially the textile
industry. This industry was important, for after food and shelter, clothing is what
people in both cold and temperate climates need most. To a marked extent, attire
remains to this day, even more than learning or intelligence, a prime badge of
social position and distinction.
To the factories and other enterprises that emerged during the early years of
capitalism, a stream of potential workers evolved workers who hoped to escape the
worse deprivations of feudal and peasant agriculture. For them the modest, even
meager, living standards of the urban worker, as well as the new social ambience
of the new city, were quite wonderful as compared with rural privation, oppression
and social isolation.
 Property 37

But by moving to the cities they left behind their relative independence in
respect of food supplies. Food was no longer a product of the field that they tilled.
They could not obtain food relatively easily from their own fields even in hard
times. Now food had to be paid for. Paid with the money they earned in complete
dependence of the new capitalists. And although working was hard, not working
was even worse. There was no unemployment insurance, and no welfare system.
Wages were so low that it was impossible for families to save against the disaster
of unemployment. A new class of people emerged here; the class of the proletariat,
workmen (as they are called usually, although many of them were women and
children) who were completely dependent. They no longer had any relationship
with land and thus no possibilities to supplement their meager food diet with fresh
products of their own plot of land (or the land they used to work for the landlord).

3.3.3 INDUSTRIALIZATION

The Industrial Revolution was a vast and complicated process. It involved drastic
economical, technological, social, and cultural changes, and it is impossible to say
exactly when those changes began. In the broadest sense it can be said that the
Industrial Revolution began whenever the first manufacturing enterprise was
mechanized. It is still going on, perhaps over a larger portion of the earth than even
before. And there is no end in sight.
The widespread and sudden industrialization required huge amounts of
capital (money) to finance it. The new machinery was expensive, as were the
factories needed to house it. Although, individual wages were low, payrolls taken
as a whole added up to substantial amounts of money. Time was needed to build
the new factories and to begin production, and until the factories were producing,
none of these enormous expenses could be paid from income. They had to be paid
for by investment, by capital. The result of this requirement was to transform what
had been essentially command mercantilist economies into market, capitalist
economies.
It is surprising that the capitalist system endowed those who owned the plant
and machinery with authority. The same goes for those people that had the means
to acquire a plant or machinery. The feudal and very influential landlord owed his
authority to his ownership of the land. And the participants in the great trading
companies of earlier date owed their importance to the ships and the money they
supplied.
Nonetheless, there was something special about the new industrial capitalists.
As compared with the ancient landed classes or the merchants, they were new
comers and although economically committed, they were seen as socially crude. In
particular among the old class there were questions as to how such individuals
could have earned their place.
There was also something peculiar about the masses of workers the plant
owner could mobilize and visibly control. The great landlord, in descent from
feudalism, had as much authority over his more widely distributed peasants as had
the greatest industrialist over his assembled proletarians, it was only that the
38 The Invisible Line

authority was less visibly exercised. The peasant worked on the land of the lord
and contributed directly to his household by tilling of the landlord’s fields and by
providing all kinds of additional services to the landlord. There was a kind of trust
between the landlord and the peasant that was not found in the relationship
between the industrialist and the employee. As Galbraith states it: ‘From those who
toiled in the fields, it exacted a traditional rather than an overt, pecuniary
response.’

3.3.4 CONTINUED IMPORTANCE OF LANDED PROPERTY

In many lesser-developed countries the process of industrialization has only

marginally progressed or has even hardly begun. And although an increasing
migrant stream of peasants is on it’s way to the already overcrowded cities, there
are many peasants still highly dependent on land. It is the most daring part or the
most desperate part of the peasants that migrate in an attempt to escape the
deprivations of peasant agriculture. Not all of them succeed and some fail,
becoming part of the poor and misery in the city. But because many peasants still
rely on the land as the source of sustenance for their living land has not lost its
meaning as a source of wealth and influence.
Another already mentioned factor plays a role in the general political interest
for agriculture. Agricultural production forms the basic protection against food
insecurity. Measured by accepted standards, many Central and Eastem-European
countries are hardly ‘food secure’ yet. Domestically grown produce contributes
highly to national food security. Thus increasing agricultural production improves
food security and also supports economic growth. Hence the emphasis on land
reform in all former communist countries in Eastern Europe and Northern Asia.
There is a similarity between the developing countries, the Latin American
countries and the countries of the former communist world. The situation for the
inhabitants is comparable. As in the Third World, in Latin-American countries and
in former communist countries access to enterprise is limited to individuals or
groups who had or have political connections (‘political capital’) and can repay the
government for the privilege of operating a legal business. Businesses are like milk
cows; supplying the government with the funds it needs to achieve its power
objectives. Both in Third World countries and in the now former communist
countries assets of farming families are to a large amount the lands they regard as
theirs. Land titles are important as they represent the wealth of the people.

3.4 PROPERTY, MARKET ECONOMY, AND ECONOMIC

DEVELOPMENT

3.4.1 THE STANDARD MODEL

The link between poverty and food insecurity is universally acknowledged. As

Tweeten states in the food secipty synthesis [81]: Food insecurity traces to
 Property 39

poverty, poverty must be addressed by economic development and economic

development flows from the application of a set of economic rules referred to as
the standard model (See Annex A). Since World War II, validation of the standard
model for economic progress has been seminal. The standard model relies on
markets to allocate goods and services according to a market economy with a
government correcting for externalities causing social costs to deviate from private
costs.
The standard model stresses as one of the requirements necessary for food
security and economic growth, die existence of a land market where land can be
freely traded and exchanged. Economists generally assume that over time, efficient
land markets will optimize land distribution and access. Programs increasing the
supply of land can counter distortions in land markets in less developed countries.
There commonly is not sufficient land that is accessible for peasant purchase or at
least peasant occupation. Furthermore, a skewed land distribution will hinder
economic development because there is no possibility of a large part of the
population to participate in the economic exchanges in the country. It can only be
improved by giving the poor access to land in order to have them operating on the
market for capital and labor and so gain prosperity by giving them buying power.
Prosperity in this context (and in general in this book) can be seen as a
standard of life to be measured in the way of yearly income per capita, life
expectancy, literacy, and the survival rate of young bomes. And there is no doubt
whatsoever of the direct relationship between economic growth and prosperity,
measured by these standards. The key to develop prosperity is to develop the
economy of a nation.

3.4.2 MARKET ECONOMY AND LANDED PROPERTY

The economist Adam Smith wrote as early as 1776 [73] that the most important
motive for people to be economically active is self-interest: ‘They do not pursue
economic goals to contribute to the wealth of the nation, but to gain their own
wealth. A free market economy is a prerequisite for this.’
Economists show us that increasing agricultural production (together with a
stable government and education, but these elements are not within the direct scope
of this book) and a free market economy are requirements for economic
development.
Hernando DeSoto, Peruvian economist and director of the institute for
democracy and freedom in Lima has stated (1994 [26] p. 10):

Those countries which have market economies have prospered so much more than
those which have not that today nobody dares propose a solution to underdevelopment
that disregards the market. Every year international agencies and successful capitalist
nations spend billions of dollars trying to export market-economic systems to the rest
of the world. Yet with a few notable exceptions in East Asia, these efforts have failed.
40 The Invisible Line

DeSoto recalls that about 25 of the almost 200 countries in the world have a
developed free market economy. A free market economy is a capitalistic economy.
It is the free market that establishes the best value. He predicts that those countries
spending their energy ensuring that property rights are widespread and protected
by law can join the countries that today enjoy a developed market economy. In his
opinion, a market can only work if there is enough property available. (Hernando
DeSoto in ‘The Missing Ingredient,’ 1994 [26] p. 10):

To be exchanged in expanded markets, property rights must be “formalized” - in

other words, embodied in universally obtainable, standardized instruments of
exchange that are registered in a central system governed by legal rules. This affords
holders indisputable proof of ownership, and protection from uncertainty and fraud.
Property rights can then enter the marketplace in a form adapted to massive and
frequent exchange, which facilitated the transfer of resources to their highest-valued
use.
To be prosperous, property rights must enter the marketplace in a form adapted to
massive and frequent exchange, which facilitates the transfer of resources to their
highest-valued use. This is an economic law. Modem market economies generate
growth because widespread, formal property rights permit massive, low-cost
exchange, thus fostering specialization and greater productivity. Without formal
property, a modem market economy cannot exist.
When it comes to land, property rights should be embodied in formalized titles. A
piece of land without such a title to specify its ownership at low cost is extremely hard
to market. Any trade of this land will require enormous effort to determine the
following: Does the seller own the land and have the right to transfer it? What are the
boundaries? Will those who enforce property rights accept the new owner as such?
What are the effective means to exclude other claimants? If finding the answers is
difficult, then there will be no exchange at all, or exchange will be restricted to closed
circles of trading partners who trust one another.

Together with labor and capital, economists conventionally consider land as

one of the three basic ‘factors of production.’ As such in a market economy, land
must be capable of being ‘traded’ - bought, sold and rented, like labor and capital.
Thus, there is a market for land as for the other two, and the combination of
relative scarcity and monetary productivity of land should determine its value in
the market. Will a market function in the sense of economic theory, then it should
(more or less) fulfill the following requirements:

• A substantial number of buyers and sellers so that no single purchase

influences the price and an individual’s demand or supply may increase or
decrease without affecting prices;
• Homogeneous units to ensure that buyers and sellers are indifferent about
from whom they buy or to whom they sell;
• Easy and equal access for buyers and sellers to information about current
transactions, including prices and bids;
• No influence of customary and institutional rules on the distribution of
resources among prospective buyers and land sold to the highest bidder;
 Property 41

• Complete freedom of entry and exit from the market for both buyers and
sellers; free movement of resources into uses which are in great demand, thus
replacing inefficient resource users by efficient ones.

Although these ideal conditions do not exist completely for any of the production
factors, they particularly hamper for land. It is clear that, for example, a particular
parcel of land seldom attracts a substantial number of buyers, and several sellers
never offer a similar parcel of land for sale at the same time. Land ‘units’ are not
homogeneous. The economic practice to compare goods by its value at unit prices
will for land come down to a value per square meter or acre. But for land there
remain many other factors that determine the (un-) attractiveness of a parcel of
land and so the price to be paid for a parcel of land. And again, property rights in
land represent a large portion of people’s wealth in dominantly agricultural Third
World and in former communist countries. Land markets are everywhere more
distorted than the markets for labor and capital, but in some regions they are even
less likely to meet the hypothetical conditions for a perfectly competitive market.
In terms of the market, the fundamental difference between land and other factors
of production is that it is fixed in place and it is not (infinitely) reproducible in the
way that labor and capital are.
 Chapter 4

Land Tenure

4.1. LAND TENURE AND HOLDING RIGHTS TO LAND

4.1.1 HOLDING RIGHTS TO LAND

In the previous chapter attention has been given to land, to property and the
functions of property in society. In this chapter land tenure; the way people ‘hold’
rights to land and real property will be explored. The term ‘land tenure’ is used
both as a legal term and as a more emotional term. In this book emphasis will often
be on the emotional significance of land tenure; the way individuals perceive
benefits, enjoyment, and obligations in respect to real property. Put in this way,
land tenure emphasizes the perceived way of exercising rights to land by any
owner of such rights, demanded and expected by society and/or community.
The term ‘tenure’ comes from English feudal times. After their conquest of
England in 1066, the Normans declared all previous land rights void and replaced
them with grants (also called land grants - according to Rowton Simpson ‘grant’ is
a general word signifying the transfer of property; the grantor is he or she who
transfers to the grantee) from their new monarchy (in which the monarch thus is
the grantor). Derived from Latin for ‘holding,’ land tenure means the conditions
under which something is held: the rights and obligations of the holder. From the
perspective of society land tenure can be described as the legitimate manner of
holding land and the behavioral characteristics stemming there from in that
particular society. It includes cash rental, sharecropping, usufruct rights, outright
ownership (in fee simple) common property and so on. In the latter description
when land tenure is approached more from the legal perspective, several scholars
state: ‘Land tenure is a legal term that means the right to hold land rather than the
simple fact of holding land. In a society with well-documented rights to land one
may have tenure but may not have taken possession’ (Bruce, 1998 [13] p.l).
When land tenure is primarily seen as the experience of an individual, land
tenure can be described as the perception of rights, restrictions, and responsibilities
people have with respect to the land (defined as all real property). Land tenure thus
can be defined as the perceived institutional arrangement of rules, principles,
procedures, and practices, whereby a society or community defines control over,
access to, management of, exploitation of, and use of means of existence and
production. Some confusion might be caused by the use of the term land tenure
44 The Invisible Line

system because that can be experienced as almost synonymous with property

regime. A land tenure system is made up of all the types of real property tenure
that are recognized by a national and/or local system of established rules and
customary relationships in a social organization.
A property regime was defined earlier as, a complex of rules, principles, and
procedures that in a specific community or society regulate legitimate control over,
access to, and conditions of use of the means of existence and of production
(resources), as well as the acquisition and transfer of such resources. The term
property regime underlines the legal and all other regulatory aspects of use,
exploitation and transfer of real property in a specific society or community
implying the view from the legislative and controlling viewpoint. But in the
literature the terms land tenure system, land tenure regime, and property regime are
often used as (almost) synonymous.
Studying the various land tenure regimes - or property regimes - cannot be
done in abstract. As John Bruce points out: A land tenure regime cannot be
understood except in relationship to the economic, political, and social systems
(and the institutional arrangements governing registration of tenure, HD) which
produce it and which it influences.
From early times on, men have tried to envisage and to express the almost
mystical relationship that many of us feel with land. Kissing the ground after
arrival in a certain place is one way of expressing that almost mysterious
relationship, taking a handful of soil from a current to a new residence is another.
But modem society needs more than a relationship that is expressed by symbolic
actions. Nowadays we want to have clear notions of who is ‘holding’ certain rights
to the land. Looking at agriculture as a source of prosperity, it is important to know
more about the rights to land of individuals, corporations and the State. The way
the ‘holding’ of the land is organized and recognized in the various countries may
have widespread effects on agricultural production and the distribution of wealth
and income. In many countries rights to land are distributed among individuals,
corporations and the State. In most modem societies also legal entities can hold
rights to land. In many legal systems, the effect of who actually owns the right to
land whether it is an individual, a corporation or the State, does not have a different
effect on the judicial approach. So, although the word ‘individual’ appears in the
following, it may well be meant as individualized rights, instead of explicitly
referring to an individual as opposite to a corporation or the State.
Practices among people about what rights are held, by whom, and for what
length of time determine the character of land tenure in a country. Land tenure can
be described in terms of a ‘bundle of rights’ - specific rights to do certain things
with land or real property. Rights that are often related in a hierarchical order
providing stronger and weaker rights as, for example, in European Continental real
property law where ownership is stronger than lease and lease is stronger than
possession. If someone has a right, other individuals have a commensurate duty to
observe that right. A squatter, for example, might use land but does not have a
property right.
 Land Tenure 45

De Janvry et al ([48] p. 135-136) categorize the bundle of rights associated

with positions in a system, as given in Table 4.1.1.1 have altered their approach a
little to avoid misunderstanding and confusion in their term ‘access’ (to land)
which I prefer to describe as ‘passage’:
Claimants possess the operational rights of access and withdrawal plus a
collective-choice right of managing a resource that includes decisions concerning
the construction and maintenance of facilities and the authority to devise limits on
withdrawal rights. Proprietors hold the same rights as claimants with the addition
of the right to determine who may access and harvest from a resource. Many so-
called common-property regimes involve participants who are proprietors in this
sense, although, they can often bequeath the management and exclusion rights to
members of their family.
In indigenous land tenure regimes this type of proprietor rights can be found
and research shows that this type of property rights when being well defined and
secure do not need to involve the right to alienation. Research findings also suggest
that such proprietor rights are not a constraint on agricultural productivity.

Table 4.1.1 The bundle of rights

Owner Proprietor Authorized Authorized Authorized

Claimant User Entrant

Passage x x x x
Withdrawal x x x x
Management x x x
Exclusion x x
Alienation x

Passage l: The right to enter a defined physical area and enjoy non-
subtractive benefits (e.g., hike, canoe, enjoy the scenery)
Withdrawal: The right to obtain resource units or products of a resource
system (e.g., catch fish, gather nuts, collect wild berries)
Management: The right to regulate internal patterns of use and transform the
resource by making improvements
Exclusion: The right to determine who will have an access right, and how
that right may be transferred
Alienation: Theright to sell or lease management and exclusion rights

In customary tenure, the bundle of rights can exist of rights that are sequential
in time, different for the land and the crop on the land and so on. To summarize it

1 Note that de Janvry et al. ([48] p. 135) use the term ‘access’, which I changed in ‘passage’
because in this book the term ‘access’ is used to describe the possibility to enjoy the rights
as a ‘proprietor’ in the definition of proprietor given above, in ‘access to land’
46 The Invisible Line

briefly: Land tenure determines who can use what land how much of it and how.
The institutions governing land tenure answer the question, ‘What, who, how,
where, and when?’

4.1.2 EVOLUTION IN THE HOLDING OF RIGHTS TO LAND

Our earliest ancestors were nomads, traveling around with herds to find suitable
pastures for their flocks and places for temporary dwelling. With the increasing
skill for agriculture, a more settled life-style evolved. In the times of the dawn of
our civilization, the human population of settlers was concentrated on the banks of
some rivers, having access to water and taking advantage of flooding to restore
fertile earth layers for new crops to be planted and harvested. To maintain the
irrigation works and the protection measures to avoid too much flooding every one
had to take his part in the building and maintaining of irrigation works in the
organized communities. Over time, specialization made some people more skilled
in farming and others more in protecting against intruders in battles or in
maintaining a defense system against the water while simultaneously providing for
irrigation. This resulted in confiscation of some of the crop of successful farmers
for those who protected them against intruders and against too much or too little
water. People using more land had to pay more taxes in harvest than others, but to
keep track of these, collectors needed data on the size of the lands used by each
individual.
Historically land tenure was controlled by customary rules. Community
customs, rules of the clan or the village often mixed with those of kinship and
descent, governed the land tenure regime in a certain area. During the Middle
Ages, in what is now the Western world, land tenure varied from peasant or
landlord freehold ownership to leasehold or annual renting from landlords, with
rents being paid either in cash or in labor. Now, land tenure is comprised of a wide
variation of possibilities and of various contents of rights to land.
A whole separate chapter could be dedicated to the phenomenon of
legitimacy of rights to land. In this time and age one can observe a growing respect
for people who have been deprived from rights to land, which they once had. It
happens in former communist countries, in post-colonial countries, and in
countries where indigenous people have been driven away from their ancestral
lands by more or less aggressive actions of immigrants.
There are quite a number of projects to ‘restore’ some of the rights these
people claim. In several post communal countries land reform projects have been
carried out in which former owners were adjudicated in their rights to land. The
legitimacy of rights to land could turn out to be more relative than many current
holders may be willing to accept. There is immediately a rapid building of strong
resistance once a group of indigenous people starts to think about staking a claim
to ancestral land rights as can be observed in, for example, areas in the United
States or Australia. There have been enormous problems with land claims between
former landowners and current users of land in post communist countries. Why
would one claim to be more legitimate than any other and where should a
 Land Tenure Al

government draw the line? Are claims that are thirty years old more legitimate than
claims that are two hundred years old? There is no general answer to these
politically and sometimes religiously tinted questions; and the continuous struggle
for peace in, for example, the Middle East bears witness to the emotions that go
with land claims that can be thousands years old.

4.1.3 WHAT, WHO, HOW, WHERE, AND WHEN

How a land tenure regime operates in practice depends on the types of

relationships that evolved over time among the participants. Property rights and
land tenure regimes are far too complex to explain in a few sentences. But it will
be clear from what has been written above that the ‘What’ is the set of rights in the
bundle held by any individual or distinctive group of people.
The ‘Who’ refers obviously to the individual, the individuals, or the legal
entity holding a particular bundle of rights (not necessarily the full bundle) and the
set of individuals who are expected to respect those rights as legitimate. The set of
rights holders may be very well defined, for example, when rights are allocated to
members of a clan or ethnic group, or the residents of a village. It is not only
individuals who hold rights to land. Rights to land may be held by a corporation or
other legal entity. Nevertheless, economic theory also presumes that a corporation
will act in the same way ignoring the fact that it might not be easy to reach an
agreement within the corporation on how to manage the resource to gain maximum
returns. The problems involved in reaching a unanimous decision most likely
inherent to corporate decisions are ignored in the literature or at least taken lightly.
The set of people who are expected to respect a property right is also an important
‘who’ question. In relatively stable communities, most relevant individuals can be
expected to respect property rights. Colonial powers have rarely fully respected the
property rights of the original inhabitants of the areas they wanted to colonize, and
even less so, when the property regime of the indigenous people was alien to the
concepts of the colonizers.
As can be expected, the ‘How’ describes the process used to exercise rights.
Economic theory presumes that an individual holding a right to land will act so as
to maximize the returns of the property. This presumption does not always hold
since there can be failures of the market and the society that prevents individuals to
do so. One of the most important perceptions for individuals to pursue maximum
returns is to experience the perception of land tenure security. In many countries
people do trust the land registration and the government to sufficiently protect their
rights. One of the remarkable features of yards in the United States is that they are
seldom fenced other than for the purpose to retain pets or little children. In Central
American countries the opposite seems true for the more affluent residential areas.
It is not only fences, but also guards, guns, and dogs that seem necessary to protect
private ownership. (This of course also tells something about the obvious lack of
respect that other people - the other ‘who’ - have for property rights.)
There now is growing interest and respect for community based resource
management because of some promising findings. But there is a strange
48 The Invisible Line

contradiction. When a legal entity holds rights to land there almost complete
ignorance of the possible problem of corporate decision making in holding of
rights to land. However, when describing the expected results of exercising rights
to a common pool resource by a local community under customary rules strong
concern is commonly expressed. There are doubts expressed whether such a
community is able to manage the resource efficiently and effectively. Research
shows that many such groups of people are able to craft rules for managing the
resource in a sustainable way. Of course, all kinds of corporations as well as
individuals will make mistakes and the community is no exception.
The ‘Where’ in the above context refers to the location where the right can be
exercised. Originally it was presumed that this was always in a one-to-one situation
with the surface of the earth. The evolving infrastructure causing crossing of roads
and waterways and utility lines overhead or underground started to present
dilemmas in this respect. The expansion of utility lines and infrastructure, and the
high-rise buildings containing several separately and individually owned property
units demanded a solution for this problem. In western style property regimes
strata rights, rights of way and easements have been introduced for this reason.
Similarly in customary tenure rights are encountered that cannot be described in
conventional terms of where rights may be exercised. Such rights are those that do
not confirm to the western concept of ‘Where’ of a specific location in relation to
the surface of the earth.
The ‘When’ of a right to land relates to the length of time involved in holding
that particular right. Note that it is not uncommon for an owner to give different
individuals a certain right to land that may overlap or coincide with rights that
other individuals have to the same parcel, while the owner simultaneously remains
owner and keeps the fullest right (that of ownership).

4.1.4 ABSOLUTE OR RELATIVE RIGHTS TO LAND

Several (modem) societies claim that they recognize rights to land that provide
absolute ownership of the land. At the same time however, most of these societies
put a number of limitations on exercising such absolute ownership rights. There are
several duties and obligations that come with ownership to land by matter of public
law and regulations. Also every owner is bound by limitations of socially
acceptable behavior and pressure felt from neighbors and others making the
absoluteness of ownership rights a myth. This forms a third category of ‘invisible
lines.’ Similar to the first category, the invisible boundary lines, they establish
limitations on the use and exploitation of land. (The second category of invisible
lines was the ‘written’ lines created by birthplace and residence).
In several jurisdictions the authority over land by the owner is not given to its
full extent. In Anglo-American law land ownership in its full extent is a
prerogative of the Crown or the State. Individuals can obtain grants to inheritable
and exclusive use of land, although this is often experienced as ownership of land.
Roman law, as practiced in almost all of continental Western Europe, theoretically
recognizes an absolute ownership of rights to land. It is theoretical because almost
 Land Tenure 49

every society knows of legal or customary provisions for the authorities to deal
with land even against the will or the permission of the owner of rights to the land.
In this respect it is interesting to notice that the French Civil Code sees ownership
as the absolute right to dispose. Similarly this was the case in the Netherlands but
in the new version of the Civil Code of the Netherlands this has been changed into
‘the most complete rights one might have.’ The economist Galbraith ([40] p.20)
says about this concept of property:

Although, not recognized as a part of the historical tradition of economic thought, the
Roman commitment to the sanctity of private property, as it would now be called, was
a tremendous legacy to economic and political life. It was to be the source of
innumerable peasant uprisings against the power of landlords and aristocrats and
eventually of the greatest social revolution of modem times - the socialist revolt
against the power and the ability to win submission that accompany or once
accompanied the possession of industrial (and also landed) property.

The theories of Ricardo, Marx, and Engels denounce the right of people to
make a private profit from a resource that is so vital for the existence of all.
Communism made land the object of state ownership (and the state being owned
by all the people) in order that all people could share in the benefits property can
bring to the ones who hold the rights to it.

4.1.5 RURAL AND URBAN LAND

In terms of the economic market, the fundamental difference between land and the
other factors of production, as recognized in economic theory, is that land is fixed
in place and that it is not reproducible in the way that labor and capital are. In 3.4.2
it was already stated that land is not homogeneous, but rather heterogeneous
because it differs from place to place.
Rural areas are frequently considered as an entity distinct from other types of
area, typically from urban areas. In many former communist countries, the present
context of agricultural restructuring and land tenure puts the emphasis on
agricultural rural property. The distinction has some rationale, in that the nature of
enterprises and the social and economic characteristics of the population and of
their problems tend to differ significantly from those in urban areas. It is important
however, to bear in mind that agricultural and rural property is a part of a changing
but integrated system that is less definitively bounded than might be initially
supposed. In the so-called urban-rural interface, many matters ask for attention
like infra-structural development, planning and land ownership, cross the
rural-urban boundary. The boundary itself shifts in location with considerable
implications for those areas affected. Issues as diverse as taxation policy, land use-
planning policy, and the performance of alternative investments may have a
profound impact across the board for the owners of interests in land and, as a
consequence, have an impact on related social and economic matters. Therefore, it
seems irrational to distinguish between rural and urban land in judicial approaches.
50 The Invisible Line

4.1.6 LAND TENURE PERCEPTIONS

For men, land is the key to existence. The distribution of land among people has
always been a potential source of conflict in interests. As soon as more people are
gathering around the same grounds, rules had to be established through the right of
die strongest, the most powerful, or in some cases by a religious leader or an elder
in the community or tribe, who was authorized to set such rules. In the
development of tribes and small communities into nations, the establishment of
those rules followed specific lines according to the use, the custom and the
religious beliefs of the mixture of the people of which the nation consisted. It is
therefore not surprising that the separate development of many of those rules
among the different tribes and communities led to different regimes of land tenure
and land use among the many people and nations nowadays. Since the pace of
development varied from place to place, in some places rudimentary systems can
be found, while elsewhere (very) sophisticated systems govern the land tenure and
the use of land.
Land tenure regimes are the result of different characteristic approaches to the
issue of how to divide up the different rights associated with the ownership of land.
The rules are typically codified or at least well documented within statutory or
other legal or customary frameworks. Land ownership is frequently likened to the
ownership of a bundle of rights. In the context of this book, land ownership is
taken to be the ownership of all rights in the bundle of rights unless otherwise
specified. These rights can be separated and disposed of within the constraints of
the law according to the wish of the owner and providing, of course, that there is
some form of demand for the rights in question.
Land tenure regimes vary from place to place and from country to country. In
Hong Kong, for example, tenancies can be as short as one day (at least when it was
still a British dominion). In France eighteen year and eleven year term tenancies
are commonplace whereas in the United Kingdom the statutory Agricultural
Holdings Act gives the tenant lifetime security of tenure possibly together with the
rights for the succession of the tenancy for two generations. Land tenure
perceptions and land tenure regimes change over time because they are dynamic
and respond to changing economic, social and political pressures. The current land
tenure regime is a product of the historic social, political and economic
development of the state or community in question.

4.1.7 CHANGE OF LAND TENURE REGIMES

Intentional change in the land tenure regime - which can also be described as a
deliberate change of the existing property regime - may well be, per se, an
important element in the social and economic policies of a government and the
development of its agricultural tenancy legislation. This certainly has been the case
in the former communist countries of Central and Eastern Europe when land was
originally socialized to a greater or lesser extent in order to fit the communist
doctrine after World War II. And again so after the collapse of communism in the
 Land Tenure 51

last decade of the twentieth century when high priority has been attached to the
‘de-socialization’ or privatization of the land (A more detailed description of this
process is given in chapter 5).
Both the World Bank and the Group of Seven, G7, have identified the need to
make assistance to the transitional economies conditional upon, among other
things, land reform. The returning of property rights to original owners as a result
of political decisions in some of the former communist countries in Central and
Eastern Europe has, aside from technical and practical problems, meant sometimes
a return of the tenure as know in the pre 1947 situation.
The complex ramifications of the transition of national economies from a
command economy to a market based economy have a significant bearing on
questions relating to land tenure. There is, however, no generally accepted standard
for a ‘market economy’ or for what that implies in terms of land. The systems of
agricultural price support and protection typical of the European Community and
the United States, for example, are poor illustrations of the operation of a free
market, although, they do illustrate the use of market price mechanisms as a tool in
government policy. Only two decades ago the United Kingdom was once again
giving serious consideration to the nationalization of land and had, in fact, enacted
the Community Land Scheme which was effectively designed to nationalize, if not
land itself, at least some elements of the development rights associated with land.
The fact that the United Kingdom has reacted by not electing the political party
that originally proposed such intentions in four successive general elections in spite
of the dropping of such views long ago, may be indicative of peoples’ concern over
land related matters.

4.1.8 LAND TENURE AND THE ROLE OF THE STATE

In theory only, market related prices determine decision making, but in practice
market economies are invariably mixed economies with elements of central
planning to a greater or lesser degree. Market economies as opposed to command
economies are those where the market or market related prices act as the signal for
decision making in the use and disposition of resources. The owners and providers
of resources make responses to such signals. They in turn and in consequence
provide responses affecting land and land tenure. Land markets and their
associated tenurial structures provide a mechanism for the allocation of land
resources. The price or market value is the key factor because it reflects the
perceptions of those with land to sell or lease and those who are in the market to
buy or rent. Many factors may influence the perceptions, value these perceptions,
the underlying factors, as well as tenurial structures change, and prices do fluctuate
and change.
Some elements of state control are generally perceived to be a necessary
adjunct to the sound management of the country but the line is drawn differently in
different places and, of course, the line shifts over time. The role of state
involvement tends to be concentrated in three areas.
52 The Invisible Line

Firstly, there are areas where for practical and other reasons it is argued that
only the state must fulfill certain roles. Into this category fall a variety of matters
ranging from the provision and maintenance of infrastructure to the defense of the
state, like the maintaining organizations for law and order, defensive military
forces, provision of safe drinking water, (natural) gas, and reliable electricity.
Sometimes the provision of affordable priced public transport and national
highways are also seen as typical state task.
Secondly, in theory, land markets and competition generally encourage the
highest and best economic use of land. But there are areas where market signals,
being predominantly a function of current and short term investment and pricing
decisions, are perceived to be so weak that the state is the only body able to take a
systematically detached view to protect those assets that have significant non
market values. Into this category fall the environmental resources of one kind or
another that are frequently protected by some form of planning mechanism
restricting or curtailing some or any types of land use in relevant areas.
Thirdly, because market economies tend to be, although, are not by any
means exclusively, both democratic and accountable, the political process provides
a mechanism whereby social, political and economic objectives in a broad sense
can be targeted for legislative adjustment. Each of the areas of state intervention,
even in the context of a market economy, may work through adjustments in the
nature of land tenure where relevant. Each may have an impact on the land tenure
regime.
In examining the transition from a command to a market economy and the
way in which this transfer needs to be managed in the context of land tenure, three
primary areas for management and institution building arise. The needs implied by
the above factors are three; firstly, the fundamental consideration of appropriate
land tenure regimes; secondly, that of the state’s needs, and thirdly, the effective
functioning of the market. In the context of Eastern and Central Europe there are a
number of differences that considerably affect distinctions both of order and of
quantum. For example, the position of Poland is fundamentally different from that
of Bulgaria. In Poland roughly 725,000 sq. mi. (18.9mln ha) of the country’s
1,200,000 sq. mi. (31,300,000 ha) are agricultural land. Of this only 169,000 sq.
mi. (4.4mln ha) were in the socialized sector, which includes State farms,
co-operative farms and agricultural associations. Furthermore 57.2% of the 2.7mn
private sector farms were smaller than 12 acres (5 ha) and only 6.9% were of more
than 36 acres (15 ha) in 1987.
In Bulgaria roughly 25,600 sq. mi. (6.6mn ha) of the country’s 103,544 sq.
mi. (lim n ha) is agricultural land. Of the total of 17,850 sq. mi. (4.6mn) ha of
arable land all except 12% was in use and managed by 2,300 social
enterprises/collectives ranging in size from 3,000 acres (1.200 ha) to 15,000 acres
(6.000 ha). The remaining 12% comprised the ‘garden plots’ in the semi-private
sector that were contracted by the socialized sector to their retirees or members.
The position of Bulgaria is in some respects similar and in some respects
different to that of, for example, Albania. In Albania agricultural land comprised
roughly 42.140 sq. mi. (l.lm n ha) of the total 103,544 sq. mi. (2.7mn ha) land area
 Land Tenure 53

in 1987. Agriculture, as in Bulgaria, was almost completely socialized with private

plots attached to individual homes being limited to 0,05 acre (200-sq. m.). In
Bulgaria the Law on the Ownership and Use of Farming Land lays down the
requirements for the re-adjudication of farming land to the former owners
(Government of Bulgaria, 1991). In Albania the government land commission felt
that attempting to restore land to previous owners would have left many families
landless. The Albanian solution has therefore been to grant every rural family a
parcel of land.
In this respect Albania has more in common with countries in Central Asia
like Kazakhstan, Kyrgyzstan, and Uzbekistan. In Albania all land was declared
state owned land after the communists took over the government. In the now new
independent republics that once belonged to the USSR, land ownership was
abolished earlier in the last century. In the ‘Stan-countries’ this happened in the
1920s making private land ownership something nobody actually knows about.
After the declaration of independence from the USSR in 1991, it was decided, for
example, in Kyrgyzstan to distribute all real property among the people. Urban
dwellers could buy the apartment they lived in (mostly for a low ‘symbolic’
purchase price) and rural inhabitants could obtain land shares. Land shares were
distributed according to availability of land and the potential number of claimants
to every family member. So the size of land of the former state or collective farm
and the number of claimants determined the size of the land share and of the size
of agricultural assets one could obtain. Land shares did not represent actual parcels
of land. The family was originally supposed to continue working as farm
employee, although the farm was now the cooperative ownership of all
shareholders. Later in the process shareholders could pool their shares and obtain
land certificates to start private farms or small cooperative farms.
A somewhat different picture can be drawn about a relatively small country
as Moldova. This is a landlocked independent successor of the Moldova Soviet
Socialist Republic (in turn more or less the successor of Bessarabia). The country
of 13,000-sq. mi. (33.700 sq. km) is located between Romania and the Ukraine.
The Moldovian economy is predominantly agricultural with 3 million of its 4.5
million citizens living and working in the countryside. Agricultural land comprises
over 70% of the total land area. Here US-AID has been assisting the government in
re-establishing private ownership of agricultural land. Citizens who qualify as
farmers receive parcels of land of various (soil) qualities and for different use
(meadows, vineyards, orchards, agricultural croplands) depending on the size and
use of the land by the former collective farms of the village of residence. It is
interesting to note that apart from this program every household in Moldova is
entitled to a small ‘house plot’ for horticulture to encounter the difficulties with the
scarce national currency in Moldova. However, I have to make a comment on the
distribution of land in Moldova among private farmers. During my stay in the
country I observed that the whole matter of distribution seemed to lack supportive
flanking and subsidiary activities. I have seen maps handed over as part of the new
title documents. Those maps were taken from a smaller scale map (a map of a
larger area) showing access roads to the newly distributed parcels of land, where in
54 The Invisible Line

reality no such roads existed, nor were there plans for establishment of roads by the
government in the near future. It is doubtful, given the current subsistence or barter
economy in the country, that these roads will ever be completed. But this leaves
new farmers for the coming period of time no other choice than to make mutual
arrangements with neighbors to use their fields to be able to reach their own parcel
of land, without demolishing crops or destroying the harvest.

4.2 LAND TENURE (IN-)SECURITY

4.2.1 TENURE (IN-)SECURITY

In World Bank reports, the issue of land tenure security is underlined: Tenure
security, the assurance of continuing access to resources is a characteristic goal of
customary as well as formal tenure systems. In private property systems, tenure
security ultimately rests on legal documentation and the state’s guarantee of user
and ownership rights. Land ‘titling’ programs involve the issuance of private
property titles to holders of parcels of land, and ‘registration’ refers to the
recording of these titles by the state. (David Stanfield 1985 [74] p.l). Stanfield
describes the meaning, origins and implications of legal insecurity:

The concept of land tenure relates to the mles whereby a society defines the access
people have to land and the uses to which people put the land, including the economic
benefits generated there from. Tenure then, includes such terms as property title, life-
estate title, leasehold, usufruct, and the like. There are a myriad ways of defining
entitlements to and uses of the land, and all the social creations, that is, agreements
among people about what rights are held, by whom, and for what length of time. To
provide structure to such agreements, laws are passed in most societies about what
sort of tenure arrangement is supported by the power of the state. Tenure insecurity
under such conditions is a combination of objective and subjective situations.
Objectively, tenure insecurity can be exacerbated by the absence of a legal document
defining a particular right or the existence of multiple documents describing the same
rights for different people or entities over the same piece of land. Subjectively,
insecurity can occur in situations of a rising probability of losing rights to land, which
occur when society’s rules of tenure change or when the power of one group to defend
its rights wanes while that of a competing group increases. The complex histories of
property legislation in most countries testify to the different manifestations of tenure
insecurity and to the futility of eliminating its occurrence. However, when excessive
tenure insecurity affects large segments of the population, people tend to devote their
energies to protecting their claims to land. They tend not to make the necessary
investments of capital and labor for improving productivity and meeting the needs of
society. In this sense, providing an adequate security of tenure is a precondition for the
functioning of a modem economy, although this is certainly not sufficient in itself for
achieving economic, social, and environmental progress.

Change of a property regime can be necessary because of changes in the

society and must be considered as soon as the customary law starts to lose its
 Land Tenure 55

dominance over formal law. At that moment only more formal systems can
maintain the guarantee of security of land tenure. This is the case in several
countries, which came under communist rule almost directly from a feudal past.
An important aspect of changes in land distribution and access is the positive
relationship between tenure security and productivity. A peasant secure in the
access to land works the land more intensively, tends to make more long term
capital investments, exhibits greater concern for soil conservation and practices
more effective stewardship than someone with tenuous ties to the land.

4.2.2 CHANGE IN TENURE SECURITY

People derive rights to land in a number of ways, each of which has a risk of
increasing their insecurity of tenure, because of the very nature of land. One way
of most likely increasing the insecurity of tenure is by negotiated transfer. Land
cannot be handed over and cannot be hidden; thus rights to land are the subject of
negotiations and transfer. In most countries the law encourages the recording of
changes of ownership or other long-term entitlement to land in a land registration
system (also referred to as a property registry, which will be given ample attention
in chapter 6). Generally any right that is not recorded will be superseded in a court
of law by a right that is registered, as will a right registered prior to the registration
of a similar one.
In many modem Western style countries, land registers are available to the
public and in this way these provide for increased security of land tenure. But in
some countries the registers are in bad physical condition it occurs that information
is missing, cadastral records have not been updated for several years, and there
may be no cadastral maps. It is clear that in those countries such a situation
particularly affects the security of negotiated transfers of land.
A more unfortunate way to lose rights to land is by force; the conquering of
one people by another, the obligation imposed on a weaker person by a stronger
one, or the use of the state’s (police) power to acquire private property. Here again
recording is encouraged to avoid that a subsequent court decision which could
reverse the forced acquisition. Colonization and land reform are examples of social
allocations of rights to land. The insecurity of ‘forced’ transfers can last a long
time. Indigenous people and ethnic minorities are now recovering their ‘rights’ on
land in many countries, because they do not recognize the legitimacy of the forced
annexations by immigrants or by a government supported by the (ethnic) majority.
Historically not-too-subtle ‘negotiations’ of a government now causes
feelings of injustice among indigenous or displaced and minority people. But the
aspiration of these population groups can cause tenure insecurity for the people
currently using land under a supposed legitimate title granted by their government.
Such land might nowadays be claimed by those minorities or indigenous people
challenging the current ‘legal’ possessors with possible lawsuits. Another factor
influencing tenure security is the questioning of the legitimacy of past
governmental acquisitions and allocations of land. This occurs in former
communist countries. The general and often quick reversal of government actions
56 The Invisible Line

carried out during communist after the abandoning of communism leaves present
occupants of land in possible doubt about the security of their newly acquired
claims to land. There is no guarantee for them that any future government may
again reverse actions of a current government. Past claimants of land likewise have
little assurance that they will recover the land or, if they do so forcibly, what the
consequences will be over the coming years.
Under such conditions, violence can become a serious problem in both rural
and urban areas. Regularly present occupants of land react angrily to the threat of
eviction while claimants attempt forcibly to reoccupy the land, producing a
conflictive situation, which can only prejudice the long-term investment process
required for economic progress in the country. Under such circumstances the
prospect of a solid economic development is at least doubtful because of the weak
land tenure security perceived by the population.

4.2.3 VARIOUS ASPECTS OF SECURITY OF LAND TENURE

For several decades the philosophy of the World Bank for good governance policy
has been that legal reform toward marketable individual private ownership rights
will significantly contribute to economic development. This concept still is the
most used scientific legitimization for restructuring of land laws. Development of
institutional arrangements establishing a (new) system of land registration can be
done without involving too much of a distinction between the various forms in
which people enjoy rights to land. Proper development of land depends on
‘security of tenure’ rather than on the form in which people enjoy the ownership of
rights to land. Rowton Simpson [68] (p. 8) remarks:

A person has security of tenure if that person is secure or safe in the holding of land,
but when ordinary man speaks of ‘security of tenure’ he is almost certainly thinking
more of security of possession or occupation than strictly of tenure. To be adequate to
encourage or even permit development, security of tenure need not amount to
ownership, nor need it last all the time. A lessee has security for the time of the lease
and, for as long as the lessee complies with its conditions the law will give complete
protection even against the owner of the land.

For land tenure security the emotional use of the term land tenure in this book
becomes dominant and my definition of land tenure security is this: Land tenure
security is tenure perceived as held without risk of loss except for customary
rulings or formalized expropriation with fair compensation. The term that would be
appropriate in my ‘definition’ of land tenure security is ‘sustainability of tenure.’ If
the question, ‘Can I uphold the tenure against others in a sustainable way?’ is
answered positively, then there is land tenure security. Whether that security is
achieved by effective protection by respected authorities or by customary
recognition for property rights is not relevant.
It is important to bear in mind that security of tenure in many societies even
today can be and frequently is enjoyed without any concrete evidence of title other
 Land Tenure 57

than occupation. Security of tenure is a question of fact and, as a fact, it can exist
whether there is documentary evidence to prove it or not. It does not necessarily
rest on statutory title or on a system of written record. In several countries around
the world, security of tenure of land exists without any formal record at all.
Security of tenure describes the level of trust or certainty individuals have in
the continuous protection of their tenure against ‘third parties.’ The tenure itself
may be short, for instance, two months, but if the leaseholder can be certain that he
or she will be able to keep the land for the two months, then the tenure is secure. It
implies confidence in customary support (thus not necessarily a legal system!) and
lack of worry about loss of one’s rights. This is the narrowest usage of the term
‘tenure security’ common among legal professionals. According to Bruce [13]
economists often use the term to include the confidence factor noted above and a
second element: long duration. Any two-month tenure would be insecure because
it is brief. The ‘insecurity’ used here relates to incentives for investment. Someone
with a two-month lease will not plant trees because there is no expectation of being
able to use the wood or the fruits. Place et al. [65] (p. 19) describe land tenure
security as follows: ‘Land tenure security can be expected to exist when an
individual perceives that he or she has rights to a piece of land on a continuous
basis, free from imposition or interference from outside sources, as well as the
ability to reap the benefits of labor and capital invested in the land either in use or
upon transfer to another holder.’ They distinguish three components in their
definition, breadth, duration and assurance with legal and economic dimensions.
Breadth of rights has to do with the robustness of the rights to land and is related to
exerting the property right and the costs of enforcing the right. Duration has, in my
opinion, mainly an economic dimension and thus is something to take into account
when economic dimensions are important for the perception of tenure security. For
farmers the economic dimensions will be important as indicators of land tenure
security because they are directly related to decisions about agricultural
production. The duration of rights, the possibility of exerting the rights and the
costs of enforcing the rights, highly determine the choice of exploitation and use of
agricultural land but have less to do with tenure security in a legal sense.
Assurance of rights typically has a legal dimension. It is an important building
block of security of land tenure, but it is important to realize that rules and
regulations are not sufficient to provide a perception of land tenure security. In
particular in post communist countries it can easily be observed that protection by
the government of rights to real property is generally approached with ambiguity
as referred to in 4.2.2. The feeling the ‘big brother is protecting you’ is often
preceded by fear of ‘big brother is fooling - or even sometimes outright cheating -
you. The behavior of the communist government during collectivization, does not
give much assurance of land tenure among rural people and often one can hear
farmers express their fear for expropriation by the government without hope on
proper compensation as experienced at the time of collectivization. Only a shown
commitment to protection of property rights and fair treatment of owners of rights
to land by ‘big brother’ for more than a generation of farmers will be able to
restore the perception of land tenure security in this situation.
58 The Invisible Line

Although, the relative character of the content of rights under communal

tenure is often seen as an impediment to security of title and thus security of
tenure, Bruce [10] shows that also under communal tenure market oriented
agrarian business could develop. As to security of tenure the common outlook on
western style ownership only providing for tenure security has changed, and it is
recognized that in areas where communal tenure still holds it provides perceived
security.

4.3 IMPROVING LAND TENURE SECURITY

4.3.1 LOOKING FOR IMPROVEMENT OF LAND TENURE SECURITY

Land reform and land titling have a direct relationship with land tenure. Changing
patterns of land tenure by land reform and improvement of security of land tenure
by land registration and land titling projects have been starting points for programs
aimed at improvement of agricultural production. As stated before, land titling
projects in Latin America have sought to improve the extent and ease of land
titling for small farmers in order to increase their security of tenure and to raise
their productivity and hence their ability to acquire more land. While the long-term
effect of these projects on the land market is not known yet, it is clear that the link
between titles and land prices is not automatic. Feder et al ([35], 1986) have
carried out specific research analyzing the economic aspects of land registration
and titling in Thailand. In this study he reports a clear positive correlation between
land titling and economic development. However, it is interesting to note that
Feder in later publications shows an increasing restraint in advocating a
straightforward positive correlation between land registration, land titling, and
economic development. This is in line with findings of Place et al ([65] 1994).
Most research now indicates that there are a number of conditions that have to be
fulfilled in order to make land titling and land registration projects successful.
Titles may increase access to credit only if credit is available. Using titled land as
collateral not only may increase investment but also may lead to foreclosure and
land loss. So it is not all-positive effects that can be expected. Another finding was
that titles might offer more advantages to large farmers who have better access to
markets in general than to small farmers. In general large farmers do not only have
better access to markets but they also can take more risks with their investments
because their resources are generally more flexible and longer lasting.
Land - consisting of clods of earth - and the very concept of ownership of
interests in land has always had an intriguing effect on mankind. From the early
days of mankind improvement of the protection of these interests in land has been
the subject of a search a search to find effective methods to secure the interests in
land from fraudulent people, intruders and trespassers. One of the oldest methods
of protection was to call the help of the Gods. Anyone intruding upon the right of
someone else to land was cursed. This curse was also used to people who
intentionally tried to extend their interests in land at the expense of others.
 Land Tenure 59

In Deuteronomy we read (19; 14):

‘Do not move your neighbor’s boundary stone, fixed by the men of former
times in the patrimony which you shall occupy in the land ’
In Deuteronomy 27; 17:
‘A curse upon him who moves his neighbor’s boundary stone..’
And among the saying of the wise in Proverbs 22; 28:
‘Do not move the ancient boundary-stone which your forefathers set up’
And using the threat in Proverbs 23; 10:
‘Do not move the ancient boundary-stone or encroach on the land of orphans:
they have a powerful guardian who will take up their case against you.’
Hosea 5; 10:
‘The rulers of Judah act like men who move their neighbor’s boundary; on t
hem will I pour out my wrath like a flood.’

From 3500 BC archeological evidence is supplemented by contemporary

writings and scholarly detective work has unlocked the secrets of many earlier
scripts. By this work we can now ‘read’ the laws, and histories, bills and receipts,
sacred writings and epic poems. One of the most impressive examples is the law
code of Hammurabi of Babylon, written in cuneiform script in 1750 BC to record
laws made ‘so that the strong may not oppress the weak, and to protect the rights of
the orphan and widow.’ Mesopotamian laws told people how to handle their
money and property, how to collect damages, how to get a divorce, and so on. In
Paris, France, in the Louvre museum a huge stone tablet found in Susa in 1901 can
be seen. It is a block of diorite, seven feet six inches (2.5 meters) high in which
282 cases of jurisdiction in the kingdom of Hammurabi are inscribed in 49
cuneiform packed columns. One of the legal codes is about acquisition: ‘Thus you
shall do every acquisition with witnesses and written consent. If not done so, the
transaction is void, the obtainer will be punished as a thief, with the death penalty’
Witnesses are essential for the legalization of the transfer of ownership. This was
widespread understanding in the ancient world. An old story in the Bible, referred
to in chapter 1 already when talking about the different regime for land and trees,
gives evidence of this practice of the use of witnesses also. Genesis 23 tells us of
the death of Abraham’s wife Sarah and about his wish to buy a place in which he
could bury her body. Abraham, being a stranger in that land, has to go to a place
where the Hittites - the original inhabitants of that country - were usually meeting.
This was in those days normally the city gate, where always enough witnesses
could be present and where all matters of importance where discussed. So if one
wanted to discuss an important matter it was custom to do so at the city gate where
always some of the elderly were present. In the English translation Abraham is
called a ‘prince,’ in other translations he is referred to as a rich and noble man. It is
known that Abraham was wealthy and prosperous. (Genesis 23; 3):

I am an alien and a settler among you. Give me land enough for a burial-place, so that
I can give my dead proper burial. The Hittites answered Abraham, Do, pray, listen to
what we have to say, sir. You are a mighty prince among us. Bury your dead in the
60 The Invisible Line

best grave we have. There is not one of us who will deny you his grave or hinder you
from burying your dead. Abraham stood up and then bowed low to the Hittites, the
people of that country. He said to them, If you are willing to let me give my dead
proper burial, then listen to me and speak for me to Ephron son of Zohar, asking him
to give me the cave that belongs to him at Machpelah, at the far end of his land. Let
him give it to me for the full price, so that I may take possession of it as burial-place
within your territory. Ephron the Hittite was sitting with the others, and he gave
Abraham this answer in the hearing of everyone as they came into the city gate: No
sir; hear what I have to say. I will make you a gift of the land and I will also give you
the cave, which is on it. In the presence of all my kinsman I give it to you; so bury
your dead. Abraham bowed low before the people of the country and said to Ephron in
their hearing, If you really mean it - but do listen to me! I give you the price of the
land: take it and I will bury my dead there. And Ephron answered, do listen to me, sir:
the land is worth four hundred shekels of silver. But what is that between you and me?
There you may bury your dead. Abraham came to an agreement with him and weighed
out the amount that Ephron had named in the hearing of the Hittites, four hundred
shekels of the standard recognized by merchants. Thus the plot of land belonging to
Ephron at Machpelah to the east of Mamre, the plot, the cave that is on it, every tree
on the plot, within the whole area, became the legal possession of Abraham, in the
presence of all the Hittites as they came into the city gate.

Apart from the clear evidence that witnesses were essential - and the frequent
reference made to their presence underlines that - there are other interesting notes
to be made here. Firstly, it is clear that there can be no misunderstanding about the
parcel of land that Abraham acquires. It is described quite meticulously. Secondly,
it is interesting to note that Abraham would have been satisfied with only the cave,
but that Ephron makes him buy a whole field with the cave at the far end. Ephron
clearly would avoid any right of way over his territory and he rather sells the whole
field. And thirdly, it is noticeable that Ephron refers to his kinsman during the
transaction. In doing so his people are committed to the transfer and will recognize
Abraham as the legal possessor of the acquired field. As mentioned in chapter 1,
attention is drawn to the explicitly mentioned fact that every tree on the parcel
became the legal possession of Abraham. In those times it was not unusual that, for
example, trees and springs were public property. Remainders of that can still be
found in the Hindu believe (see chapter 6). Trees as living creatures cannot belong
to man completely. Full ownership of trees is not always an option.

4.3.2 DOCUMENTED LAND TENURE

In later days when documents could be used to register a transaction the use of
witnesses remains. An interesting description can be found in Jeremiah 32, 9-15:

... So I bought the field at Anathoth in Benjamin from my cousin Hanamel and
weighed out the price, seventeen shekels of silver. I signed and sealed the deed and
had it witnessed; then I weighed out the money on the scales. I took my copies of the
deed of purchase, both the sealed and unsealed, and gave them to Baruch son of
Neriah, son of Mahseiah, in the presence of Hanamel my cousin, of the witnesses
 Land Tenure 61

whose names were on the deed of purchase, and of the Judeans sitting in the court of
the guard-house. In the presence of them all I gave my instructions to Baruch: These
are the words of the Lord of Hosts the God of Israel: Take these copies of the deed of
purchase, the sealed and the unsealed, and deposit them in an earthenware jar so that
they may be preserved for a long time.

Jeremiah himself is - at the time of the formal purchase - imprisoned in the

court of the guardhouse attached to the royal palace and therefore he has to instruct
a friend to take care of the deeds; the sealed and the unsealed copy. The sealed one
could be kept sealed at all times - it is the original document, while the unsealed is
the ‘open’ copy. If a prospective buyer did not trust the seller, the sealed copy
could be brought to the court, in the presence of witnesses the seals were broken
end the contents of the sealed copy could be compared with the contents of the
‘open’ copy.
Ever since, many societies use documents to register the ownership of land
and today most ‘civilized’ countries offer institutionalized systems of land
registration where registration is based on written evidence. But some societies
survived very well without any form of written documentation about rights to land.
It must be bom in mind that no land registration system can be adjudged best in
abstract. Any judgment concerning a particular system must take note of the
history, the institutional and technological conditions in the society, and the stage
at which that society currently lies. Each land registration system is embedded in
the national structures and institutions and is therefore different from any other
national land registration system because it is very specific for that particular
nation. As Stanfield concludes (1990 [75] p.2):

Customary tenure forms are dictated by rules, which a local community defines and
changes ‘without help from the legislator.’ Land held under a customary tenure
regime, for which there is no state-sanctioned, title-identifying ownership, may be
viewed as being less securely held than land for which a legally recognized title exists.
But there is no automatic equivalence of formal title and ownership security,
especially when a customary regime of ownership has proved its usefulness and
adequacy for the management of ownership matters over a period of years.

One could also say that the effectiveness of customary means for protecting
rights of ownership have been underestimated while advantages of the formal
Cadastral Land Information System have been overly praised. And indeed the
issues for consideration in the identification of an appropriate property regime can
be viewed from several perspectives. This is of particular interest in many Eastern
European countries where a transition takes place using land reform as the main
method to privatize land.
And although no system of land registration can be adjudged best, it is
possible to list some general requirements as a kind of legal framework. However,
the requirements as stated here are not excessive, and it is not realistic to expect
even these requirements to be fulfilled at the implementation of land reform
activities. There is a misfit in synchronization between land reform programs and
62 The Invisible Line

the program to establish a new or improved land registration. The first is politically
motivated, while investors, banks, foreign governments and international donor aid
often pressure for a land registration program. It is not always easy to convince
politicians that many of the institutions needed to establish a modem land tenure
and land registration system, form the backbone of a sound development towards a
property regime that provides long term security for the land users.

4.3.3 LEGAL FRAMEWORK FOR NEW LAND TENURE SECURITY

To establish legitimate ownership rights to land in Eastem-European or Central

Asian countries, often a ‘Western style’ legal system is imported. It is not likely
that such a system would evolve over time because of the understandable wish to
establish a market economy as quickly as possible. But in order to be appreciated
and understood in the local situation, it is necessary to translate the legal concept as
nearly as possible in the local language and social context, and to train local legal
specialists. Importing Western style property regimes to facilitate rapid
development in countries in West and Central Asia with a population not
accustomed to and possibly not yet fully understanding such property regimes
might cause future disappointment and dissatisfaction. Therefore, certain
requirements can be recognized. The requirements are for a property regime, which
is sufficiently certain to satisfy principles for the demonstration of ownership,
offers a sufficiently attractive range of interests in land for the land tenure pattern
and is able to respond dynamically to changes in the needs of landowners. The
system therefore, needs to be able to offer possibilities for easy, quick and
inexpensive proof of title for sale, transfer, letting or other dealings with property.
It needs to be flexible. The initial provision in some Eastern European countries
after the turn over of power, that restrictions should be placed on any sale of
restituted farmland for several years was withdrawn in most countries. It is
arguable that ceilings on the ownership of land (for example in Bulgaria of 20ha
(58 acres) in favored areas and 30ha (75 acres) in mountainous areas which is a
re-enactment of a pre 1947 provision) may also, in time, be discarded.
A basic provision of legal institutions and legislative structures that will
fulfill most requirements is a legal framework. It implies a legislative framework
that deals with issues relating to the law of property and provides a sound base for
secure ownership of valuable title in land. There needs to be appropriate legislative
provision for the granting of leases and other interests, which will protect the rights
of the parties involved. Such legislation will of itself help to protect those lending
money against the security of property, but their position should also be
specifically provided for. The establishment of a land registration system can
pursue this by recording interests in land and developing specific legislation.
The consideration of the state’s needs includes the provision of infrastructure,
the creation of environmental protected areas, and the identification of planning
constraints. These are all examples of needs, which may have a greater or lesser
impact on the interest in land enjoyed by a landowner.
 Land Tenure 63

The transitional period for the national economy in many Eastern European
countries is likely to lead to significant developments in all such areas. These
developments will require important legal and financial questions to be considered
by the government of the day. What precisely is the nature of the interests retained
by the state? Do minerals vest in the state? Should development rights or some
development rights vest in the state? If they do not, should landowners be
compensated for the refusal of permission by a competent planning authority to
develop land? Should the situation be the same for all areas with planning
restrictions, and should it include environmentally important reserves on the same
basis as ordinary physical planning? Where land is taken for infrastructure
development how will recompense be made to landowners? And so on.
It is a requirement that there are appropriate legislative provisions - adapted
to the specific situation and institutional settings of the particular country - to deal
with issues of this kind. There need to be enactment and some form of arbitration
body or court to deal with state and statutory acquisition of land and other interests
such as rights of way and easements. The basis for compensation needs
consideration in the light of the individual state circumstances. Planning legislation
for dealing with restrictions on development and environmental restrictions needs
to be very carefully considered and enacted.
The importance of appropriate institutional provisions for the effective
functioning of the market in view of these requirements is absolutely vital for
everything in the transitional process from successful land reform to success in
policies of privatization. The private ownership of property and everything that
springs from it like the ability to insure the property and thus safeguard assets
against insured risks, the ability to use land as security for loans to finance
development all require appropriate provision for the market to function. At its
most basic, the institutional foundations that are necessary include those that are
often, although not always, provided by the state. One of the most relevant of
these, the provision of an appropriate form of property registration, is singled out
for special discussion in chapter 6. Aside from other matters typically dealt with by
the state during and after the reform process, the other main institutional
foundation is the need for appropriate training courses for valuation and land
management skills that will be demanded during and after the reform process.

4.4 COMMON LANDS

4.4.1 THE ESSENCE OF COMMON LAND

Originally most of the land in Europe once was held under communal rules in
which land was primarily seen as a resource for survival for everyone belonging to
the clan or the group dwelling in a certain area. Individuals had a sense of
belonging. Belonging to the clan, the group, the kinship, or the village, was
expressed by submitting oneself to the customs of the clan, the group, the kinship
or the village.
64 The Invisible Line

Respect for the most essential resources often had a religious connotation and
this can still be found in some societies. A strict set of rules was in place
manifesting the appropriate and respectful way to use and exploit the resource.
Land was seen simply as too important a means of existence to give private
persons any individual power of control, allocation and exploitation over it. The
individual was tied to the explicit consent of the group or the clan, the kinship or
the village. By social convention the individual also was tied to the land. The land
imposed cultural and religious obligations upon the users, for example, taking into
account some duties to ancestors and to yet unborn offspring. Instead of using the
term common property, some researchers prefer the term common pool resource;
the latter terni underlines the openness of the resource (but not in the sense of open
unconditional access!). Another reason to prefer the term common pool resource
over common property is that common property suggests that there is a common
property regime for such property which is often not the case.
Under customary rules, use and exploitation of land is bound with a social
mortgage on every tenure right. In much of Africa, customary rules remain the
primary method of land tenure. Pauline Peters writes in ‘Dividing the Commons,
Politics, Policy, and Culture in Botswana’ (University Press of Virginia, 1994
[63]): ‘The communal range of Botswana remains largely unfenced, but has been
subject to increasing individualization over the past fifty years as privately owned
bore-holes in communal land have been used to change herd management
practices, and in combination with shifts in authority over land allocation have
encouraged claims to exclusive use of pastures. Fences have become a contested
image of actual and threatened division and a focus of public discussion.’
Boreholes as permanent sources of water in a drought-prone range have been used
to change practices of herd and pasture management. From the 1930s through
today, the struggles to obtain exclusive rights over command resources have turned
on re-interpretations of the terms ‘custom’ and ‘communal tenure’ and on
redefinition of who does or does not ‘belong.’ As indicated earlier, certainly
another aspect of life is reflected here belonging to the family, the clan, the tribe,
or the group. Although, little understood by many westerners, this state of
belonging proves to be sufficient for survival in an environment in which
communal tenure and customary rules dictate life.
In ‘The Tragedy of the Commons,’ an essay by Hardin (1968) [43], we can
read the following:

Picture a pasture open to all. It is expected that each herdsman will try to keep as
many cattle as possible on the commons. As a rational being each herdsman seeks to
maximize his gain. Explicitly or implicitly, more or less consciously, he asks, “What
is the utility to me of adding one more animal to my herd?” The rational herdsman
concludes that the only sensible course for him to pursue is to add another animal ...
and another; and another. But this is the conclusion reached by each and every
herdsman sharing a commons. Therein is the tragedy. Each man is locked into a
system, which compels him to increase his herd, without limit in a world that is
limited. Ruin is the destination towards which all men rush, each pursuing his own
 Land Tenure 65

interest in a society that believes in the freedom of the commons. Freedom in a

commons brings ruin to a ll...

Pauline Peters [63] comments with: ‘If the power of a paradigm lies in the degree
to which it captures the imagination, then Hardin’s ‘The Tragedy of the
Commons” must be considered a wild success. It became the guideline for
livestock and range policy in Africa during the last five decades.’
One can raise doubt with the often-heard concept, ‘What is everybody’s is
nobody’s.’ This is valid for the grazing on most of the commons. Like Bishop and
Ciriacy-Wantrup in an almost classic study state: ‘Common property is not
everybody’s property’ (in ‘Common Property’ [10] pp.713-727, 1975). They
clearly mark the difference between open-access regimes (where no one has the
legal right to exclude anyone from using a resource) and common-property (where
the members of a recognized group have a legal right to exclude non-members
from using a resource). Open-access regimes govern what is indicated in legal
doctrine by ‘res nullius’ and include, for example, the open seas, waterways and
the atmosphere.
There is currently sufficient evidence that indigenous people are very well
able to manage resources in a sustainable way. These people are generally well
aware of the threats to their environment learned during hundreds of years of living
in that environment. Although there are some exceptions,2 they seldom will
overgraze common land because they simply know that they should respect this
most valuable source to keep their main asset (livestock) in good shape. Unless
pressed by foreign influence from expatriate experts or even worse forced to
compete for land with foreign conquerors or privileged land purchasers, they will
generally preserve the common land by limiting their livestock.

4.4.2 FROM COMMON LAND TO PRIVATE LAND?

Platteau shows in ‘The evolutionary theory of land rights’ that there is an

evolutionary development toward a more individual property regime without
formal institutional arrangement changes. A central theme of this theory is that
‘under the joint impact of increasing population pressure and market integration,
land rights spontaneously evolve toward rising individualization and that this
evolution eventually leads right-holders to press for the creation of duly formalized
private property rights.’ (Jean-Phillippe Platteau [66] in the ‘Abstract’).
Empirical evidence encourages governments to involve indigenous people or
ethnic minorities and giving special attention to community law and local customs
in exercising natural resource management.
Hoekema [45] states (p.37), ‘Once upon a time in Western societies,
communal land tenure prevailed. Private property had a marginal status. In the
course of the centuries, particularly in the 18th and the 19th centuries, private

2
Some Native American tribes, for example, following a religious belief in a divine
abundant supply, have over-hunted buffalo herds.
66 The Invisible Line

property took over, hand in hand with the rise of a market oriented capitalist
economy.’ Moore [58] (p.8) formulates this in 1968;

Under the pressure of circumstances, the medieval notion of judging economic actions
according to their contribution to the health of the social organism began to collapse.
Men ceased to see the agrarian problem as a question of finding the best method of
supporting people on the land and began to perceive it as the best way of investing
capital in the land. They began to treat land more and more as something that could be
bought and sold, used and abused, in a word like modem capitalist private property.

However, not everyone supports the move toward privatization of land in areas
where common land is the major tenure situation. This is particularly the case in
Africa.

4.4.3 THE AFRICAN CHALLENGE FOR LEGAL ENGINEERING

The African continent differs from most other continents in the world insomuch as
it contains vast areas of common lands or ‘commons’ as they are generally referred
to. This poses a challenge for legal engineering in Africa. As mentioned in 1.1.2
communal land tenure differs from area to area. It also is comprised of numerous
elements that cannot be documented easily. For the central government it poses a
problem because of the compatibility among the local systems and the fact that it
cannot be captured in standardized national legislation without sacrificing much of
its original social functions. Most governments simply design legislation that only
recognizes small parts of the customary elements, and that even in a non-
satisfactory fashion, which makes local people continue to follow the customary
rules rather than the procedures required by statutory law.
One of the strongest advocates for rethinking of issues of access, control and
management of Africa’s commons is Okoth-Ogendo. In an excerpt from his
keynote address ([61] June 2001 p.2) one can find a strong recommendation for
legislative action in at least three directions:

The first is to raise the status of customary law in the hierarchy of applicable laws
above such received law, as has not been enacted into statute, and to require the courts
to apply it, and not merely to ‘be guided by it.’ The second is to accord customary law
more general applicability as the personal law of the majority of indigenous people.
That would eliminate the general tendency to hop in and out of foreign law on grounds
that the application of customary law is inappropriate in certain contexts. The third is
to move toward progressive codification of customary rules of law, which apply in
specific contexts.

Oketh-Ogendo is not the only one favoring an upgrading of the view on

customary land tenure. More and more researchers share the view that one of the
ways to achieve sustainable development in areas where customary land tenure
governs most of the land is to increase the impact of customary tenure rules in the
statutory legislation. Some of them go so far as to advocate customary land tenure
 Land Tenure 67

as the leading element in national land policies and legal provisions. Empirical
evidence shows that most governments are rather quick to acknowledge the
existence of customary practices, but do have strong reservations in recognizing it
in any formal sense.

4.5 RE ADJUSTING THE APPROACH TOWARD LAND TENURE

4.5.1 RESILIENCE AND REVIVAL OF CUSTOMARY OR INDIGENOUS

PROPERTY REGIMES

One can wonder why people seem to accept rather easily considerable constraints
on the full enjoyment of land, while at the same time proclaiming the principle of
absolute ownership. Is this perhaps the effect of our mystical relationship with
land? Is there ‘deep down’ an undeveloped understanding that in reality we cannot
claim the land as being fully and exclusively ours to enjoy privately and without
taking into account possible interests of others?
What is the root of the drive among indigenous people and ethnic minorities
all over the world to plead for traditional property regimes? What drives them after
they have been exposed - sometimes for centuries - to a regime of land tenure that
advocates absolute and private individual ownership as the best way to achieve
economic development? The answer to this question lies most likely in a mixture
of a re-evaluation of ethnic roots, a strong awareness of being different than the
foreign (European) conquerors and immigrants, and the sense of belonging that can
be expressed by a common socially oriented property regime. The Ecuadorian Luis
Macas3 points to this importance of ethnical roots when he states that indigenous
people ‘...believe that without roots the people are dead. Compare it with a tree;
without roots the tree topples over and dies. The people must go back to their roots
in order to survive.’
Take, for example, the United States of America. Although native Americans
have been taught and experienced for over two centuries the ‘white man’s’
concepts of land tenure and the strong belief that this is the way to economic
progress, native Americans do want to exercise their traditional regime of land
tenure in reservation areas. Similarly, the aborigines in Australia strongly oppose
the ‘white man’s’ view of land tenure. And in South-America several indigenous
Indian tribes still struggle with understanding land tenure ‘Spanish style.’ At the
commemoration of the ‘discovery’ of the Americas by Columbus some 500 years
ago, indigenous people referred to the revival of their cultural heritage as the
‘dusting off.’
Recent research shows new interest and understanding of indigenous and
traditional ways of land tenure, partly because of the importance of environmental
protection to save yet unknown species from extinction. It is generally expected

3 Luis Macas, President of the Movement for Indigenous Ecuadorians quoted in ‘Personajes
Indigenas’ by I. Cachiguango, 1991, p. 8
68 The Invisible Line

that communal land tenure, as practiced by these indigenous groups and ethnic
minorities will help preserve nature’s richness better than the often-exploitative
way settlers do and especially lumber and mining companies do.
But one must be realistic, this attitude is sometimes fuelled and funded by, for
example, the pharmaceutical industry. It has nothing to do with respect for the
indigenous people and their way of indigenous land tenure but everything with
pure self-interest to preserve yet unknown but possible beneficial medicinal
ingredients in plants and nature.
Nevertheless, the renewed attention given to customary land tenure can and
often does benefit native people in their struggle to regain some of their cultural
heritage. Hoekema argues in ‘Reflexive Governance and Indigenous Self-Rule’
(2001, [46] p. 157): ‘The rediscovery of communal tenure as an effective and
democratic institution in development theory helps to propel a movement toward
politically and legally upgrading existing community-based tenure regimes and
inventing new ones.’
This means that there might be a possibility to develop new tenure systems
that treat land more as a communal good than as a commodity that should be made
suitable for easy exchange to stimulate economic development. Portraying land as
the engine for economic development and suggesting that simply freeing it from its
social mortgages would catapult economic development as a result of improved
trading; collateral use of land has been proven to be sometimes deceiving. Besides
such an approach may overlook an important question. First of all one should find
out what is the best development strategy for an area. It is important to determine
whether investment is a realistic option and where the investment must come from.
Can land tenure security improvement really encourage investment? And another
important question is of course whether or not social security needs to be secured
and be taken into account in designing a development strategy for the various
categories of land use (agricultural, industrial, residential, commercial, etc).

4.5.2 RENEWED ATTENTION FOR COMMUNAL AND CUSTOMARY

LAND TENURE

Why not take customary land tenure one-step further? One could wonder whether
such a ‘Western style’ liberation of communal mortgages of land is not
contradictory to the mystical relationship that people all over the globe seem to feel
with land. Is it not more according to human nature to start looking for a new
property regime in which the social function of land has a more prominent role?
How otherwise can it be explained that, after exposing indigenous people for
centuries to the ‘western way’ of conceptualizing real property, these people still
battle for their own traditional - and often more socially oriented - way of land
tenure. Indigenous descriptions of the ‘liberation’ experienced by these people
when they are allowed to treat land with their way of tenure have not yet caused a
general wake-up call, a call to actively participate in specific research to explore
more socially oriented property regimes that can also serve economic development.
It might well be that the Western demystification has suppressed our natural
 Land Tenure 69

feeling of the special relationship with land and the genetically inherited
knowledge that land may not be perceived as something to enjoy or exploit fully,
exclusively and independently by an individual person. Perhaps it is a vague proof
of the conviction that land is something to be shared in the interest of the group,
the community or the society of which people are part. Why not expect that
explicitly oriented research in this field could show us a possible way to develop
such a system?
In the recent past, ecological and environmental concerns became more
prominent. Several research projects conclude that areas still untouched by the
typical economically driven exploitation forces have remained relatively very
stable in respect to ecological and environmental continuity even when native
people used the resources for their subsistence. This initiated new respect and
appreciation for native customary property regimes.
There also might be proof of possibilities nearby in Western societies. In
Sweden there is one right that everyone, young and old alike, respects. This is the
‘Allemansratt’ (everyman’s right), an ancient tradition that is not written in law. It
allows anyone passage over any wood or field, regardless of ownership. It is a little
wider than the ‘passage’ used in the bundle of rights in 3.1.2 because it not only
covers the possibility to walk over fields and through forests, but it also allows
passers to gather wild flowers and mushrooms, or even camp, on private property.
There are no laws of trespass. This right, which Swedish people treasure, is rarely
abused. Those who make use of it are careful not to destroy the nature that they
have come to appreciate and to share with each other. It is an example of sharing
the enjoyment of property by landowners who obviously do not have to fear loss of
any rights to the property. Denman (1972 [25] p.27) refers to a similar right in
Britain which he calls ‘Rights to enter upon land vested in members of the public
at large.’ He states that,

Similar rights are given to the public under the authority of access agreements or
access orders authorized by the provisions of the National Parks and Access to the
Countryside Act 1949 in Britain. The privileges have a universality about them. Such
access rights give sanction to a positive act - to enter upon land for recreation and
exercise; and also although the area of land over which the rights are exercisable may
be very extensive, it is nonetheless identifiable by specific boundaries. Clearly this is
so in Britain where the land involved in the terms of the access agreement or order,
and in Sweden the Allemansratt is not indiscriminate as it is limited to open land
beyond specified distances from buildings.

Note again that there might be confusion about the term ‘access’ used here in the
sense of ‘authorized passage’ and not as a possibility to use the land for individual
purposes and gains. The latter meaning is given to the term ‘access’ when used in
the conjunction ‘access to land’ in this book.
70 The Invisible Line

4.6 LEGAL PLURALISM

4.6.1 MORE THAN ONE LEGAL SYSTEM

If there is a situation in which the institutions of law and authority of national

minorities or other distinct communities are recognized within the legal and public
order of a national state we speak of legal pluralism. Pluralistic legality has been
defined by Hoekema (2000 [45] p.25): ‘A set of values of political morality,
discernible in (parts of) the national legal order and the main social institutions of a
country, in which the presence of distinct social entities within the national
boundaries is recognized, and for that reason the right to wield public authority and
to entertain a proper legal order is given to these entities.’
A short description of legal pluralism, suitable for the purpose of this book
will be as follows: Legal pluralism is the simultaneous existence of multiple
normative constructions of property rights in a social organization.
Generally customary practices do not comply with the ‘western type’ concept of
land tenure, but they have a compelling presence in the community from which
they originate. A prerequisite to become recognized is that the customary rules
must be effectively practiced. Legal pluralism can develop in each country in
which specific ethnic or different cultural groups live together in a multi-ethnic or
multi-cultural setting. Often the origin of legal pluralism goes back to the time of
the great ‘discoveries.’ (Who discovered whom?) Today in several former colonies
of western countries two or more legal systems co-exist in the same social field,
originally one system for the colonizers and the other(s) for the colonized.
Figure 4.6.1 depicts the contents of an article by Amity Doolittle describing
such a situation in Northern Borneo (1998 [29] pp. 1-5). In the case Doolittle
describes, the native chief and other leaders from the area negotiated with the
colonial officials to declare the village’s communally owned lands as a Reserve. In
this way it emerged as a native effort to maintain local control over village lands.
But after some time, colonial administrators became concerned with the perceived
inability of natives to manage their lands within the rapidly changing market
economy. For instance, during land settlement, natives who could prove customary
rights to land were issued a Native Title.

LEGAL PLURALISM

Laws for the colonized Laws for the colonizers

Native titles + Native Reserves Private title to land

(Registered customary rights + Village lands) (Individual property)

Figure 4.6.1 Practical legal pluralism

 Land Tenure 71

Doolittle notes, p.3: (The ‘invention’ of the) ‘Native title’ was considered a
generous title by colonial officers since it carried no premium, had an annual rent
of only 50 cents an acre, and constituted a heritable and permanent title. But
natives could not sell or transfer native titles to non-natives without governmental
permission.
The notion behind this restriction was that natives did not understand
commercial land transactions. If they were not protected from their own
improvidence, they would sell all their land to foreign speculators and be left with
nothing. The belief that the North Borneo native is a poor unsophisticated wight,
who is easy meat for a non-native shark, was a persistent threat in colonial
discourse. Even in the late 1950s, colonial officials expressed a moral duty to
protect natives from the cutthroat aspects of an emerging market economy.
Consequently, many colonial officers made it difficult for natives to sell land to
non-natives by charging substantial premiums for the transfer of native titles.’ This
practice mostly left the natives behind in the economic development. Today,
natives with native titles may sell or rent their land without significant
governmental interference because of the lifting of most of the restrictions imposed
in the 1950s. The example shows that natives are not always better off with legal
pluralism. A serious danger in such cases can be that Westerners may try to grab
control over the communal institutions by trying to influence a chief and steering
toward fragmentation of local groups in order to gain more control. (See also M.D.
Olson pp.6-7 in [29] 1998)
In former colonies the weakness of the dual system in legal pluralism is often
the fact that the laws for the colonized are based upon the political and economic
agendas of the ruling elite. The result is that registration attempts - according to
‘Westem-Style’ law - tend to oversimplify the complexity and flexibility of
customary rules. At the same time the new formal law undermines the authority of
the traditional leadership in exercising, watching, and preserving the customary
rules.
A number of countries today practice a dual legal system regarding land
tenure, one system based on local or tribal law and one system based on formal
law. Both systems informally operate in concurrence. Sometimes a government
grants indigenous people a kind of ‘self-rule’ but this is often limited and rather
vaguely described without giving much land tenure security. An example of this
practice can be found with the Mojenos (in Bolivia) and many other Indian tribes
living in Latin America. There are also countries that have deliberately made legal
dualism constitutional, like Ethiopia in its 1994 Constitution (art 39-1) although, in
reality, it is not (yet) practiced in Ethiopia. The tendency among government
officials often is to stick to the legal system of the colonizers. Another example can
be found in Canada - albeit limited to its Nunavit province in the Northern
Territories - where legal pluralism was introduced in 1999. Most other countries
just accept the dual system as a matter of fact. This seems surprising, but one has
to realize two complicating elements. First, transformation of indigenous rules or
traditional customary rules into formal ‘Western style’ laws is very difficult. Most
72 The Invisible Line

customs and tribal rules can not be translated into Western concepts or terms
because formal language does not provide enough richness to do so, leaving
indigenous people with the feeling that the authority of the imposter of those rules
is either ignorant or straight out stupid. Most indigenous people live with a rich
oral tradition in which customs are explained and maintained. These people do not
understand the legal language which is brought to them by government officials
who stumble themselves over the difficult legal language. They regard the officials
as dummies, treat officials as such, and do not pay much attention to their attempts
to introduce formal law. So there is a widespread tendency among indigenous
people to simply hold on to their traditions that give the natives a perception of
much higher land tenure security. Indigenous leaders have good reasons to
encourage this because it guarantees them a continuation of their social status.
Meanwhile governments trying to introduce formal law are often hindered by lack
of funds and sufficiently trained staff to effectively impose and maintain the new
rules of land tenure.
A second element is that for a highly important subject as land, which also
has substantial strategic significance, it is not always easy to convince a
government to pursue legal pluralism. As Hoekema [45] states in ‘Some reflections
on modernity and law today’ (p.l) ‘... the colonial and post colonial state did
interfere effectively with all the means at their disposal, thereby causing a type of
war between ‘the modem’ and ‘the traditional’ elements in society.’ Indeed, it is
not hard to imagine that in some cases formal law and the policy geared toward
economic development, individualization and commercialization of property
clashes with ongoing practices of indigenous people or ethnic minorities. A main
line of thinking can be discovered in the attempts to uniform the legal system in a
country where customary mles exist next to formal state law. It is the tendency to
think of customary property regimes as being inferior to ‘western style’ property
regimes. In most of the legal engineering processes undertaken during the past
century this is almost obvious. However, research shows that indigenous values
and property regimes are both persistent and flexible.

4.6.2 CUSTOMARY TENURE VERSUS STATUTORY TENURE

In the 1950s and 1960s the poor economic performance of some countries was
blamed on the practice of customary land tenure. The customary rules were
incompatible with the requirements of a market economy. By pointing to the
provision of equality and equity for everyone in the country, a government could
easily defend imposing formal law. It also enhanced the influence of the central
government. But in the local communities, often the plurality of identities and of
customary land tenure, traditional chieftainship and all the other institutions rooted
in the specific cultural heritage of minorities did not disappear. Some groups of
people claim more or full sovereignty and do so even by force and terror like the
Tamils and the Chechens, some do it more moderately like the Kurds and the
Maoris. As stated in 4.6.1 certain societies officially recognize the presence of
 Land Tenure 73

specific indigenous communities or ethnic minorities and grant them a form and a
degree of self-rule. There are ethnic minorities that have accepted and developed
their capacity to treat natural resources like land along lines of local, often
communal practices. The recognition of their different ways of governing by legal
pluralism can preserve their cultural heritage. Several groups recently succeeded in
achieving the formal right to be different and to form a community that can
develop its own political and legal institutions. As mentioned earlier, it happened
with the Inuit in Nunavit in Northern Canada and (for some longer time) many
Native Americans living in reservations on US territory. But it has to be mentioned
also that the possibilities given to native people often differ considerably from true
notions of self-rule because of the very limited and haphazard character of their
rights of self-governance as given by a central government.
It is nowadays widely accepted that cleansing a customary property regime
from the social mortgages and commodifiyng it to fit into western style legislation
may not be the best solution for the needs of lesser-developed countries and their
inhabitants. Empirical legal pluralism exists with or without recognition. By such
cleansing techniques, vulnerable groups in lesser-developed countries like
pastoralists, indigenous farmers, and hunter-gatherers often experience and
perceive a threatening limitation of certainty about their traditional rights and land
use methods. When these groups represent a large part of the population, limiting,
undermining, or eliminating some of the traditional land tenure elements can have
considerable consequences for the nation as a whole.
New emphasis is put on legal pluralism - and seldom by the authorities but
by grass roots movements supported by non-governmental organizations (NGOs).
This is particularly important in countries where enforcement or enhancement of
communal rules and tradition can regulate or at least hinder undesirable behavior
of the government. Such behavior includes land theft (by turning a blind eye to
manipulating officials) and issuing concessions to mining or lumber companies to
exploit the natural habitat of indigenous people or ethnic minorities. One has to
realize that prospective investors often initiate formal land laws by the State
because their claims to land lack legitimacy under indigenous systems. Land
registration and cadastral surveys are commonly a means by which elites and
dominant ethnic groups can strip peasants and the not intensive or seasonal users of
their resources for livelihood.
However, a recommendation when establishing legal pluralism is, to do so
only after extensive investigation of the local situation. Prerequisites are that the
customary rules should have a long and undisputed standing in the community and
should not be invented by local judges and legal specialists to serve the assumed
‘rights’ or ‘needs’ of a community. They also should not be imposed on other
communities presenting sources of future conflict and litigation. Establishing legal
pluralism is a complex matter and legal pluralism can certainly not be established
overnight.
The rising sympathy to develop customary land tenure rules does not yet
imply that customary property regimes have received recognition as the leading -
let alone exclusive - property regime in a country. The most far-reaching view
74 The Invisible Line

would be to make the customary property regime the primary legal institution; but
this will most likely happen only after extensive research regarding the capability
of supporting economic development in this type of property regime. The question
is whether or not customary tenure can assimilate with the western style
institutions to provide a solid base for economic development. Defenders of the
western style tenure system might say that it will not perform as well as the
individualistic and commercialized western style property regimes, but without
specific research one could even say that customary land tenure might perform
better in achieving economic development. The challenge will be to construct a
legal framework for customary land tenure in which the elements that enable
economic development are implemented and can be made operational.

4.7 LAND, VEGETATION, SOIL AND AIR; A DIFFERENT TENURE

REGIME

4.7.1 VARIOUS CONCEPTS OF TENURE OBJECTS

Increasing attention has been given to the simultaneous existence of multiple

normative constructions of land rights in some societies since the 1970s. In a plural
legal situation, constructions of property law and relationships may be duplicated
with respect to several components of property relationships.
The spatial structure of property rights may be simple as in the ‘western style’
concepts. But it also can be rather complex as in some of the indigenous law
systems (Described by von Benda-Beckmann [6]) Immovable property in the
western concept is the land and all (semi)-permanent attachments to it. But in
customary property regimes vegetation can belong to someone other than the
landowner. It may be even more complex: The one planting a tree, plus the one
caring for the tree (with water), plus the owner of the land on which the tree grows
all have an equal share in the fruits of the tree. No one can cut the tree down
without permission of the others and heirs of a descendent share (according to
customary rules of inheritance) part of the fruits of the tree. It is not unusual to find
a situation where the fruits of a tree are divided among many heirs. Some will each
have 1/8 of their third of the total; other heirs will have 1/9 as their share of 1/3 and
so on. For the villagers this is no big deal. When the time is there, the total amount
of fruits of the tree is brought together in one heap and is divided among them. For
a government official who wants to put this arrangement of ‘ownership’ in written
documents and to bring it under statutory law this might be a nightmare of lengthy
descriptions and several explanatory remarks.

4.7.2 VARIOUS PROPERTY REGIMES

In many legal systems rights to land are not limited to the surface of the parcel
only. In earlier days the concept was often that one owned the rights to the land
and all the layers of soil underneath in a kind of cone towards the center of the
 Land Tenure 15

earth (the so-called ‘carrot’-theory). With the exploitation of minerals and other
valuables from the land, many governments have limited the extension of the rights
to land. In some jurisdictions, an explicit number is given. A number of feet or
meters below the surface are regarded as being ‘attached’ to the parcel. Everything
found below that number is regarded government property. Sometimes shared
ownership between the landowner and the government is exercised for anything
present below the surface of the land.
With the concept of strata rights - an example of this is the ownership of a
single apartment in an apartment building - the idea of ownership of only land or
real property directly attached to the land became obsolete. In many jurisdictions it
is perfectly possible to be the owner of a single apartment on the third floor of an
apartment building. But what is the regime for the air above a piece of land for the
owner of rights to the land?
The question of Indian chief Seattle ‘How can one sell the air?’ got a new
dimension with the development of utility lines and air travel. Does one have the
right to put a high voltage line over someone else’s land or fly over the land that
belongs to others? It is possible that in normal circumstances no actual physical
contact occurs between the utility line and land (by means of a pole - or in the case
of an airplane, no physical contact between the plane and the land or any structure
on it). How low may such a utility line be or how low may an airplane fly over
someone’s land? How far do rights to land stretch into the air? Several societies
developed legal rules for the protection of owners of rights to land. In the
Netherlands the law states that the right extends into the air above one’s property
as far as one has a proven interest in the extension. So this article gives a judge, for
whom the interest should be defended, ample flexibility to deal with changing
circumstances as a result of new technology.
Land tenure regimes differ from country to country as local customs do. Most
of the terms and conditions are developed over the years using - of course - the
native language. Translating these concepts is always accepting a certain level of
abuse because such terms may - and often do - not have the exact similar
significance or legal ‘value’ in other languages. This is in particular the case when
translating legal terms from countries where common law is the rule into the
language of a country that dominantly describes land tenure in terms of civil law
and vice-versa. But it also occurs when translating legal terms from one civil law
environment into another civil law environment or from one common law
environment into another common law environment (for example between the UK
and the US).
Prospective house buyers should be aware of this fact because what in one
country or society belongs to the land as an attachment is seen as a separate item in
another society. Many of the above mentioned legal rules are not obvious a prima
facie in a society, but nevertheless, are integral part of the tenure of land and real
property. When attempting to understand the existing tenure - let alone propose
changes in an existing tenure system - it is necessary to realize the complexity of
the rules and customs that shaped the current tenure regime in a particular society.
 Chapter 5

Land Reform

5.1 NON-EVOLUTIONARY CHANGE OF LAND TENURE

5.1.1 LAND REFORM AND AGRARIAN REFORM

Land reform is the deliberate act to change the existing land tenure in a rural area
making it a non-evolutionary way to change land tenure. Agricultural production
practices have evolved over the years including the way in which farmers wanted
their fields to be arranged and adapted to new techniques and new agricultural
assets. The invisible lines determining ownership, rental and use rights have
changed constantly both as a result of changing economic circumstances and
technological developments. Renters became owners, squatters became renters and
sometimes owners became renters. The application of artificial fertilizers changed
the demand for land plots previously seen as hardly worthwhile tilling; now the
same plots provide opportunities for growing valuable crops. New and bigger
agricultural machinery required fields to be of some minimum size and of optimal
form. The application of irrigation techniques made it necessary to change the
layout and the composition of fields. It all changed the plot sizes, the original
boundaries of land parcels, and the tenure of rural lands in an evolutionary way. It
challenged tenants constantly to explore new ways and new rights to be able to
exploit the land. But land reform is different. Land reform changes the tenure
situation almost overnight and has far reaching social and political consequences.
Traditional land reform or agrarian reform - as opposed to land redistribution
by privatization of previously collectivized land in former communist countries -
is not a contemporary invention. It has been practiced over the centuries. The
official motive for land reform has been one or another (and in some cases both) of
these two: the motive to modernize agriculture or to redress inequalities in the
distribution of land assets. An example of the first official motive is the reform by
the Diaz government in Mexico at the end of the 19th century. Examples of the
latter motive are the Mexican uprising of 1994, the Chinese revolution of 1949 and
the Russian revolution of 1917 although, the latter did not accomplish what
Russian peasants expected. Instead of farmer-owners they became agricultural
employees on large state owned farms. We refer to it as the ‘official’ motive
because there often are non-spoken motives rooted in political or power balance
78 The Invisible Line

interests and those motives stay invisible. In this respect they represent also a not
to distinguish sentence or an ‘invisible line.’
Land reform can be defined as any fundamental alteration of the existing land
tenure, usually understood as redistribution of tenure rights from one group (elite
landowners) to others (peasants) without land, too little land to make a living, or
with insecure access to land. In Eastern Europe land reform is widely defined as:
the redistribution of land and property rights and/or granting land users secure,
long-term tenancy while privatizing the former ‘socialized’ property. When
speaking of land reform most people think primarily of agricultural land of which
the land tenure changes. However, ‘land reform’ in this respect should be under­
stood as encompassing changing the tenure situation of all real property.
The start of a non-evolutionary change in land tenure often is the result of a
politically instigated land reform program. Currently such a program, when carried
out nationwide, will most likely be implemented with (foreign) donor support and
foreign funding.
Land reform should be distinguished from agrarian reform, being the
complex of changes in rural structure that occur as a matter of passing of time, as a
governmental supported activity to assist farmers in achieving more efficient
agricultural land use, but also always as part of land redistribution processes either
on purpose or as a side-effect. Agrarian reform has long been regarded a powerful
weapon against rural poverty. Whereas affirmative action in industrial countries is
a conscious government-sanctioned policy to redistribute opportunities more
equitably, agrarian reform in agricultural societies is a method to apportion land, a
major source of employment.

5.1.2 NO STANDARD LAND REFORM FORMULA

It is generally assumed that the leading cause of rural poverty by far is the lack of
access to sufficient land and low productivity of land use for the peasants.
Inequitable distribution of land resources is the norm in Latin America where a
tiny minority of landlords holds a high percentage of the best land and the majority
of the rural people are crowded onto tiny holdings of lesser quality land. There is
evidence that large farms tend to include even more acreage while smaller farms
are subdividing. In Latin America there were somewhat more than 4 million
subfamily (units not large enough to provide year round sustenance for a family)
farms in 1950 and this number had more than doubled at the end of the previous
century.
The experience with land reforms in Asia suggests that successful agricultural
intensification requires (as Platteau states) ‘local farmer organizations and
decentralized forms of peoples’ associations able to mobilize communal labor and
to take on-the-spot initiatives.’ Asian countries were in a certain way unique. They
started in a society where smallholding was rule. The agricultural structure of
South-east Asia is based mainly on small but fertile irrigated rice fields. Farmer
organization was strong and many farmers knew entrepreneurship, they were
 Land Reform 79

owner-operators. The dominantly Latin-American feature of a dual system of small

holding and large hacienda (a farm with on its vast lands, smallholders who not
only provided the patron with a part of the crop of their small farms but also
provided readily available laborers in times of harvest), was unknown in Japan,
Taiwan and South Korea.
For the most part, African people living in rural areas have adequate and
surprisingly equitable access to land for farming compared to farmers in Latin
America and South East Asia, (although, not always land of high quality, still
sufficient land to develop sustainable individual farming). But landlessness is a
problem in some African countries, especially in former white settler colonies such
as Zimbabwe and South Africa, where Africans were historically displaced in large
numbers from prime farmlands. In Zimbabwe the president (Mugabe) has used the
inability of the government and the growing frustration among the landless class to
start mobs of black people spreading terror and fear among white farmers in order
to get those ‘foreigners’ out of the country and (re-)claim their land.
During the last decade of the twentieth century, a vast number of land reform
projects have been started in former communist countries after the political
changes that took place. In former communist countries the reason for land reform
is two-fold and sometimes three-fold. First, there is the evidence that agricultural
production on large-scale farms is substantially lower than productivity on small
family-size farms. Secondly, most of these countries want to improve the living
standard for the peasants. By de-collectivization and privatizing the lands (and
other assets) of the large state and collective farms, governments hope to increase
the participation of peasant-owners in the development of the national economy. In
several countries in Central and Eastern Europe, there is a third reason. It is the
now seen illegality of many actions taken by former communist regimes. A clear
distinction should be made in this respect between the former parts of the USSR
located in Europe and those in Asia. In Central Asian countries the communist
doctrine of state ownership of (almost) all real property existed for over sixty years
by the end of the communist era. Hardly anyone now alive had a sense of private
ownership of land and the whole rural infrastructure was based on large-scale
farming. For most European countries private individual land ownership was
common in the 1940s, although, in some countries more widespread than in others.
During the gradual collectivization of farmland in the late 1940s and 50s, private
farmers were expropriated or they joined cooperative farms. Although, originally
the cooperative farm did recognize the formal ownership of the members of the
cooperation, in practice the farm management gradually took over the
responsibilities and rights of ownership.
The change of regime in the 1990s resulted in an urge to reverse the now
declared illegal expropriation or taking by the state of agriculture land to be
incorporated in the agro-industrial complexes of the communist model. But as said
before, this does not apply to all former communist countries. In the European
countries there was the choice while reversing the collectivization of land and re­
adjudication of former owners of land or to distribute land among former workers
on the farms, and this choice caused much variation between the different new
80 The Invisible Line

Republics. In Albania (as the exception in Europe) and the Asian new Republics
the land was distributed among actual workers in agro-industrial complexes either
in the form of shares of land or it was a distribution of vouchers good for buying
property among all their citizens. Most of the time in these countries (part of) the
agricultural lands was distributed among all the households in the country. The
latter is particularly important in countries were money is in short supply and
where money is mistrusted in general. Under such circumstances money does not
yet play a significant role in the rural economy.
As is clear from the description above, most land reform projects are specific
for the region where they are planned and carried out. They are idiosyncratic in
nature and never fully comparable or similar as land reforms carried out elsewhere.
The 1970 US-AID #3 Spring Review [1] noted that this strange animal called land
reform is an animal that changes its colors, its appearance, its anatomy, and its
physiology almost as often as much as other strange animals called democracy,
freedom, capitalism. Virtually every author of our analytical papers apparently felt
he or she had to define the term. Definitions vary according to whether you favor
or oppose land reform, whether you treat it as an ideological symbol, or as an
achievable goal, or look at actual results. Although this description reveals
difficulty in determining the contents of land reform, one thing is obvious; land
reform aims at changing the existing pattern of land tenure in a society.
It is important to note that the agrarian sector has changed with and without
reform. Cynically one can make the remark that in Latin America the non-reform
sector has benefited most. Capitalist agriculture in the non-reformed sector has
shown most of the growth. It also receives the bulk of public services, credit,
infrastructure and research (De Janvry 1981). Although met by criticism, De
Janvry’s explanation seems to fit rather well a number of situations in Latin and
Central America. Rather different is the story in Asia. The economic boom of
South-east Asia during the last half of the twentieth century was not the result of
changing agricultural practices. Here the combination of widely available
entrepreneurship and an abundant amount of relatively cheap labor spurred small-
scale industrialization.

5.1.3 UNDERESTIMATED REQUIREMENTS FOR SUCCESSFUL LAND

REFORM

Land reform can only be successfully performed in areas where at least modest
amounts of social infrastructure already exist. Land reform should be accompanied
by ‘supportive flanking policies’ to make it work. It is neither sufficient to tell a
number of peasants that they can now use the land of the former collective, nor is it
sufficient to let them distribute the land among themselves. It also will not work to
only give peasants titles to land or to peg the parcels in the field as described in the
titles.
The process of land redistribution requires the establishment or (re)
enforcement of institutional arrangements in society that grant a state guaranteed
right to land, provide long term protection and public accessible information about
 Land Reform 81

the rights to land. Political support should be given to develop a land market, to
develop loan provisions using the land as collateral, and to provide education to
new farmers. But this is not all. The establishment of a physical infrastructure,
especially in rural areas of countries in transition, should also support land reform.
This is indeed more important for rural areas than for urban areas where most of
the roads and utility provisions will be in place and where access to privatized
property is not basically changing from the access to individually used - but
formerly state owned - property. In rural areas however, the communist view on
agriculture with its large state and collective farming structures caused an
adaptation of the topography to suit the needs of large-scale farming.
The failure to achieve broader amelioration in the distribution of income and
in the incidence of extreme poverty stem in part from the dimensions of the
problem, but also from the strategy followed, which is to seek maximum growth,
with the belief that more equitable distribution would follow automatically. The
unprecedented financial and economic dislocations of the 1980s and the
adjustment programs that were put in place in response to these problems
exacerbated structural disequilibria and distributive inequities that had long existed
within the regional economy.
The change to smaller privatized farms has consequences for the topography
and the utility provisions. Roads should be constructed to give new owners access
to their fields and to transport cattle, harvests and crops. Utilities like water and
electricity, telecommunications and a possibility of drainage by small canals must
be provided, also a specific adapted irrigation infrastructure, when topographical
and/or climate conditions do require this. Together with a real physical
infrastructure also a virtual infrastructure - possibilities for credit, for expertise
agricultural assistance, for agricultural market information, and education - is
necessary to enable new owners to make optimal use of the acquired land.
William C. Thiesenhusen points out in ‘Broken Promises’ [76] that land
reform should not be focused on land alone. Attention should also be given to land
transfer and financing mechanisms. Short-term credit (6-12 months) is to finance
annual production costs, and 3-5 years credit is for livestock and farming
machinery. But land is perpetual. Land banks should get their money from the
government. This is tradition in some countries in (Western) Europe for over 100
years and in the US since 1916.
In respect of agricultural subsidies an important research finding by Shearer
et al (1990 [72] p.37/38) is the effect of unequal access to subsidies according to
scale of the land size. It has been found that, ‘Although subsidies in a development
context are typically designed and implemented without regard to scale, they are
available, in fact, more to large than to small farmers.’ A notable example of such
subsidies in the past has been the official agricultural credit policies common to
many countries, which supply credit to farmers at negative real rates of interest.
The large farmers - more often than not - capture the benefits of these programs as
mentioned already in chapter 4.3.1. These large farmers not only have better access
than small farmers to the information and legal council needed to take advantage of
them, but are also more likely to possess the land titles required for eligibility.
82 The Invisible Line

Moreover, subsidized credit is often allocated to large farmers because even public
lending institutions are reluctant to lend to small farmers. (See also Binswanger [9]
1987 p. 16)

5.2 MOTIVES FOR LAND REFORM

5.2.1 POLITICAL REASONS FOR LAND REFORM

In many lesser-developed countries efficient and effective use of the available

farmland for the whole rural population remains an unresolved issue. Land is
misallocated among potential users and research shows that both incomplete
protection of rights to land and incomplete documented and clear rights to land
result in lower economic value than potentially possible. Many poor rural
households are unable to gain sufficient access to land, although, this might be
their best (and sometimes only) option out of poverty. From a national point of
view there are negative welfare and environmental consequences by the fact that
access to farmland is not at its optimum. With or without political support, the
peasantry of the world has not been entirely docile and acceptant of its landless
status. Left wing extremism can add to the pressure but is not the root. During the
last decades the barriers of communication between the countryside and the city
have broken down. Roads and (privately) operated buses have provided means of
transport and the peasantry has come in contact with urban intellectuals. These
intellectuals may have espoused revolutionary ideas in the heads and minds of
peasants. For politicians this means that there might be political gain among the
rural population by measures to provide better access to farmland. Land reform in
the 1960s was largely motivated by the fear of insurgencies and political unrest.
Political stability was an incentive for foreign aid donors to provide funding and
technical assistance. The transitional imperative for a land tenure regime from the
social and political points of view is the need for the system to satisfy the
aspirations of the people as expressed through the democratic process.
Land reform can also be pursued in a country because it will show the world
that this particular national government wants to develop the country. The massive
support of foreign aid agencies for land reform projects has encouraged hesitant
governments to embrace it, even if there was little political support for all the
complementary measures that should be accomplished as well. The result is often
a short term but not sustained positive effect on the rural economy, which is left
with insufficient institutional and infra-structural arrangements to make the land
reform successful in the longer term.
A fundamental problem in trying to show the outcome of land reform projects
is to separate or isolate the consequences of reform from the totality of dynamic
forces driving change and development. And there is another problem. In some
cases recipients of land both in urban and rural areas did gain status and economic
advantage. But sometimes these gains were made at the expense of even poorer
landless families. In other cases the beneficiaries received land, but were then
 Land Reform 83

ignored and neglected with the bulk of the government services going to pre­
existing commercial farmers (or a few large farmers)

5.2.2 ECONOMIC GROWTH PARADIGM

Many researchers stress that land reform to improve equal land distribution and
provide a new framework of more secure and enforceable property rights is a
precondition for investment and economic growth. Moreover, improved access to
land allows the rural poor to make more productive use of family labor; it will
stimulate consumption, and might provide better access to credit markets. This
importance of land distribution for growth as well as poverty reduction is
confirmed by cross-country research findings. Property rights that provide longer-
term tenure security will increase the demand for long-term investment and thereby
establish the basis for an increase in farmer’s assets. Farmers apply more manure
and labor, and as a consequence harvest more from land for which they obtained
more secure property rights. A growing literature supports re-distributive land
reform by showing that asset ownership in rural areas is important for human and
physical capital formation and economic growth.
Economic growth and increasing food security seem to be the most general
aims for land reform projects around the globe. This traces back to what is called
‘the growth-modemization paradigm,’ which became a popular development
paradigm for lesser-developed countries half a century ago. In this paradigm
primarily copying the economic and social structure of ‘western’ societies pursued
development for less developed countries. So less developed countries should
increase their productivity by maximizing goods and services. Underdevelopment
was seen as the effect of their traditional or ‘backward’ social and economic ways
impeding agricultural and industrial productive activity. By adapting the society
toward a ‘western style’ society, similar developments as in ‘western’ countries
could be expected.
As mentioned above, one of the ways to achieve this was by land reform.
There are however, a number of adjustments in later views on land reform like
structuralism, dependency, institutionalism, and liberation theology in which the
loss of general confidence in the economic growth-modemization paradigm is
reflected.

5.2.3 STRUCTURALISM, DEPENDENCY AND LIBERATION

THEOLOGY

There is a vast amount of literature about Latin American land reforms. Although,
several countries in Latin America have their special characteristics, one common
feature is that they have all been heavily influenced by the Spanish/Portuguese
conquerors and this shaped much of Latin American society as it is today. Most of
the rural regions in Latin American show remarkable likeness and this made these
areas important for cross-country land reform research. Many of the theoretical
considerations about land reform have been formulated studying the situation in
84 The Invisible Line

these Latin American countries, but bear important implications for land reform
activities elsewhere. Doubts about the neoclassical economic view of international
free trade signaled the rise of structuralism. Under the existing structure of division
of labor, countries of the periphery produced and exported raw materials to
countries in the center that specialized in manufacturing goods. As a result, the
periphery was always subject to deterioration in terms of trade and chronicled slow
down in domestic capital accumulation. Gains of free trade were concentrated in
the center. Backwash effects might even lead to worsening conditions in the
periphery. Technological progress reduced production costs and increased profits
in the center resulting only in (relatively) lower export prices.
In criticizing the modernization paradigm, around 1965 - 1968 dependency
theorists agreed in challenging its definition of development, its universal
applicability and its analytical approach. The symptoms of underdevelopment are
not simply deviations of the ideal path, but they are the consequences of a formal
system with two mutually reinforcing structures.
A dependent relationship exists when a country can only develop as response
to the expansion of the dominant countries. The metropolitan centers will extract
surplus from the hinterland. It is sometimes called internal colonialism or the
development of the underdevelopment. To break the vicious cycle it is advocated
to use land reform, but the prospects are limited if the traditional landowning class
joins forces with the modem industrial class.
The reformulation of development theory by institutionalists dictated that
both growth and equity could and should occur together. The supply side of the
theory is based on the observation that an inverse relation exists between farm size
and productivity, and a change in demand will occur among the low-income rural
majority as a result of land reform. As Domer and Kanel (1971 [30] p.7) underline:
‘This institutional policy approach produces the required increases in agricultural
production and avoids displacing labor prematurely from agriculture. It is a
prescription for agricultural research, for large increases in the use of yield
increasing inputs such as fertilizer, improved seeds, insecticides and pesticides, for
increases in irrigation facilities, and for building service institutions in extension,
marketing, and credit. It is also a prescription to minimize mechanization,
especially when it serves to displace labor.’ It might work, but it requires the
necessity of state intervention in a systematic and enduring way.
Liberation theology makes land reform a major issue. This theory originated
among Latin-American Catholic theologians. It asks Christians to involve
themselves in constructing values in consort with groups that represent the wishes
of the people and respects the interests of the disinherited masses. It needs a
structural revolution (not avoiding that word; as Bishop Camera said in 1969).
Such a revolution was initiated here and there and led by Marxists thus not by the
church. But Liberation theology rejects capitalism as immoral and as structurally
incompatible with social justice; even liberal capitalism has its own materialistic
roots and is directly responsible for the international dictatorship of economic
power. Socialism is advocated.
 Land Reform 85

New theologians defend private property, but reject the idea that the right to
private property is natural and inalienable. Everything beyond necessity says
Dussel (1976, a second car, a second home, and so on) if attained by depriving
others, is unmistakably against the doctrine of Christian tradition.
The fundamental approach of liberation theory is that one cannot continue to
live tranquilly within the established order, for that established order is grounded
on sin and unjust domination. If the established order is grounded on domination of
other human beings, then it should not be respected. To obey laws that are part of
such an order is to commit sin. The new theologians argue that reforms to date
have failed to solve the problems of the great mass of landless workers, tenants and
small-parcel owners. Land monopoly and feudalism in labor relations have
persisted, especially in plantation agriculture (sugarcane, coffee, bananas and the
like). Camera (1969) urged an authentic, large-scale land reform program for Latin
America - not pilot projects or ineffectual colonization efforts. He recommended
that the Latin American Episcopal Conference (CELAM) would pay special
attention to organizing peasants and small-parcel owners for truly re-distributive
land reforms.

5.2.4 LAND REFORM AND THE ENVIRONMENT

In spite of all the progress in agricultural management techniques and the

development of agro-biotechnology, humankind so far did not succeed in solving
the problem of persistent poverty and food insecurity among a considerable
number of people in this world (although, some spectacular results have been
reported). It also is a fact that sustainable subsistence living of many native people
is constantly threatened by expanding industrialization and exploitation of natural
resources. In areas where land-hunger is still dominant, the link between rural
poverty and environment dangers is obvious and is confirmed by research findings.
Those who are poor and hungry will often destroy their immediate environment to
survive; cut forests, overgraze grasslands; overuse marginal lands; crowd into the
cities (Brundtland commission 1987, [82]) and work highly erosive hillsides and
land in other precarious locations. Several land reforms contain auxiliary
colonization provisions in ecologically fragile areas (except where indigenous live
already) and are dangerous to the environment.
In Latin America, the inability to incorporate the poorest of the poor, a large
and desperate class, is a sorry legacy of agrarian reform in the region. For Latin
America the present climate of neo-liberalism is thus that some believe that the
primary issue is not whether new agrarian reform will occur, but how fast the
current ones will unravel.
In Africa many of the poorest people have not yet seen any land reform. For
Africa political instability is often the reason that in many regions land reform
programs are not yet considered because of the very small chances that such
projects will deliver in the often by war devastated country side.
The question arises whether a land reform program could change the attitude
of people toward land in a sense of greater awareness of stewardship. It is a known
86 The Invisible Line

fact that in communist countries the population’s awareness of stewardship for the
land rapidly decreased. This was the result of two factors, one being the
establishment of collective farms where former peasants now became agricultural
laborers, the other factor has been the lack of responsibility felt by the people for
the environment they lived in. All decisions were made by the ‘state,’ represented
by councils and governing bodies. Individual decision making and taking of
responsibility resulted eventually in a situation were such a person was regarded as
dangerous for the common - communist - case. Almost all travelers in communist
countries during the 1970s and 1980s must have noticed the carelessness for the
environment as demonstrated by both the population and the government alike in
those countries.
Many environmentalists have some hopes that land reform in former
communist countries can provide at least not too environmentally unfriendly land
reform results. Some give environmentally responsible stewardship for the earth a
strong religious root. Kenneth Davis starts his book ‘Land Use’ (1975 [20] p.3)
‘As circumscribed by the earth, the area of what is now considered to be land is
finite and fixed in place. Land uses are subject to control by people, whose
numbers are not fixed, who have many needs, and who move easily. Most of
people’s need for food, clothing, shelter, and energy come from the land, as do
many of their needs for the amenities provided by fields, landscapes, and forests.
The importance of land and the concern for its stewardship are built into the
people’s religions.’ In this respect researchers point at the Judeo-Christian inspired
belief of stewardship of nature, which lets some people act as preservers of the
earth. But it is also possible to point to many scientists well known for their
affirmations of scientific materialism and consequent renunciations of any
religious interpretation of the cosmos, who are nevertheless, outspokenly genuine
in their concern about the environment. Concern can be shown even if one
considers the cosmos as an absurd accident and life within it to be no more than
another accident. (A similar contradiction ‘in terminus’ can be found among
believers: One believes in God as the Creator and Provider, yet happily participates
in the destruction of creation by exploitation and over-usage of God given
resources.) Perhaps this is why a new development theory has been introduced,
called ‘sustainable development’ as described in [82]. Davis ([20] p.3) describes
stewardship (which he gives biblical origin) as the ‘responsibility for continuing
and prudent management of something held in trust, as an agent for another,
without impairment to what is being managed - and also, it is hoped, with
improvement or augmentation. Stewardship also contains the idea of dominion
over that what is managed and can include the concept of harmony of opinion and
interests, which well describes the goal of good land use.’
Land reform programs should continue because they provide small farmers
with a possibility to sustain themselves and their families. Land reform presents
people living in rural areas with a chance to improve their life, decreasing the
attraction of cities. Land reform makes small farmers responsible and challenges
them to use the land efficiently. There still is hope that a small farmer and
 Land Reform 87

landowner will protect the land from overproduction and overgrazing in his own
interest and will in general exercise responsible stewardship for the land.
Responsibility cannot be asked from peasants who themselves have no
responsibilities. When a family grows its own food and produces for its own living,
the work they put into the production brings personal rewards higher than the basic
emotional level of food and shelter. It takes them to the level of security and it will
give a desire to reach beyond that. Responsible stewardship for land and
environment can only be expected if the peasant has been made responsible
himself. Here lies, in my opinion, the rationale for land reform.
The already mentioned 1987 publication of the United Nations sponsored
Brundtland Commission report ‘Our Common Future’ [82] draws a lot of attention
to the concept of ‘Sustainable Development.’ It is a term everyone seems to like,
but nobody is sure what it exactly means. The report defined it as a development
that meets the needs of the present without sacrificing the ability of the future to
meet its needs. The question of course will be immediately, ‘What are “the
needs”? Such a vague definition allows a broad consensus, but it also becomes a
breeding ground for disagreement.
John Gowdy (1997 [41] p.27) underlines the limited carrying capacity of the
earth, but he shows also the opposite view when he quotes Solow, who wrote:

History tells us an important fact, namely, that goods and services can be substituted
for one another. If you don’t eat one species of fish, you can eat another species of
fish. Resources are, to use a word of economists, fungible in a certain sense. They can
take the place of each other. This lesson from history is important because it suggests
that we do not owe to the future any particular thing. There is no specific object that
the goal of sustainability, the obligation of sustainability, requires us to leave
untouched. ...Sustainability does not require that any particular species of fish or any
particular tract of forest be preserved.

Solow (Solow R, ‘Sustainability: An Economist’s Perspective.’ In ‘Economics of

the Environment’; 1993) denies that species are unique. But very few people
nowadays will agree with Solow. It is today globally accepted that there are limits
to the carrying capacity of our planet. Responsible stewardship of the natural
environment is a requirement we owe to ourselves and, in particular, to next
generations.
Abraham Maslow presents in ‘Towards a Psychology of Being’ (1962 [57]),
his hierarchy of needs that must be satisfied by mankind. His theory builds a
pyramid of needs. Basic physiological requirements at the base of the pyramid are
food and shelter, followed by security on the next level, above that the requirement
to love, esteem and finally at the top ‘self actualization.’ Maslow developed self-
actualization as a goal to all humanity. Humans have unique levels of potential
development, unique in relation to observable life because the human’s individual
potential is open-ended. To this is in particular Maslow is calling attention; people,
once satisfying more basic needs, tend to develop higher needs which drive them
to attain more of their own potential.
88 The Invisible Line

In modem factories, many operations have become increasingly subdivided

into petty operations that fail to sustain the interest or engage the capabilities of
humans with the generally present levels of education. A similar situation was
encountered in large state and collective farms. The agricultural laborer, working
in a command economy, was told what crops had to be planted, what fields he had
to work, and what plants had to be pruned, also when to sow and when to harvest.
The machinery was provided and maintained in the workshop of the large farm,
which operated as an agricultural plant. The work was subdivided by the scale of
the collective farms, which were generally comprised of thousands of acres of land
used for one particular crop.
The separation that has taken labor to limited production at the cost of
personal worth was typical for all communist countries. It can be (at least partially)
turned back by distribution of land into family size farms. Research shows that
(smaller) family size farms have a higher production per acre than large size farms.
But this is not the only rationale for land reform aimed at distribution of land into
family size farms. Land is not only a factor of production but also a source of hope
and a vehicle for self-respect and developing skills among youngsters.

5.3 LAND REFORM IN SEVERAL REGIONS OF THE WORLD

5.3.1 LATIN-AMERICAN COUNTRIES

Peter Domer [31] characterizes the situation in Latin America as follows:

The salient reform issue in Latin America and elsewhere is and has always been
redistribution of agricultural lands. Inequities associated with land tenure have been
the cause of rebellion of peasants. The French Revolution, the American Civil War
(also over slavery), the revolutions in Mexico, Bolivia, Somoza’s overthrow and that
of Batista in Nicaragua and Cuba, as well as the civil war in El Salvador and the
continuing turmoil in the Philippines. All have their origin in land tenure institutions
that favor a small group of wealthy families at the expense of millions of
impoverished rural people. Landless peasants have provided the rank and file support
for most of the great twentieth-century revolutions - those, in particular, of Mexico,
Russia, China and Vietnam. They have played a similar role in many lesser
bloodlettings, such as Cuba, Ethiopia and Bolivia and the failed insurgencies in
Kenya, Malaysia and the Philippines. The problems of landlessness are heavily
implicated in many other episodes of upheaval and civil strife, ranging from the civil
war in Spain to the overthrow of the Shah in Iran.

Analyzing land reform projects show three categories of land reform as practiced
in the Latin American countries. Reforms that opened new developments (Mexico
and Bolivia and partly Chile), failed reforms enacted by one administration and
rolled back by its successor (in Guatemala and partly in Chile), and incomplete
reforms that were bom out of sharp contrasts but were stifled in civil wars (El
Salvador and Nicaragua).
 Land Reform 89

In the ‘Introduction’ of ‘Broken Promises’ (1995 [76]), Thiesenhusen

describes the reason for land reform in Latin America: ‘Like the homeless in US
cities, the rural landless in Latin America are people whom society chooses to
ignore. Only peripheral vision noticed them in the debate on Latin America,
focused as it is on postwar reconstruction in Central America, economic
rejuvenation, the environment, drugs, free trade, privatization and neo-liberalism.
Tragically, the chances today seem slim that the rural poor will be positively
affected by public policy anytime soon. The available means for public programs
have diminished. The political will to ameliorate is also weak. Meanwhile rural
poverty is stubborn among mostly unorganized campesinos.’
Emphasis on land transfer and financing mechanisms in land reform has been
rather limited in Latin America. One such effort was helping campesinos acquire
land under the Land Sale Guaranty Program financed by AID in Ecuador and
Costa Rica in the 70s. (See Salas et al. [69], 1970). But little land was offered for
sale. In 1984 another attempt has been carried out in Guatemala under the penny
foundation (Fundacion del Centavo) under grant agreements under which the
Foundation had five specific tasks. It should negotiate the purchase by paying up to
50% direct and the remainder over a 3-5 year period; it must divide the farmland
into commercial viable family sized farms. It should select eligible participants
capable of 10% down payment. It has to finance the sale of land to selected
participants and finally it must provide technical assistance and production credit.
It is not unusual that little agricultural land is offered for sale in areas of land
reform. Current reports from countries in transition show similar observations as
were made some decades ago in Latin-America.
During the decade of the 1980s (national) debt and civil war dominated the
region of Central America. With better markets and improved technology not land
but capital became the most important factor of production. Yet agrarian reform is
a matter that tends to resurface. Misdistribution of land is the fundamental cause
for wars in Guatemala, El Salvador and Nicaragua during the 80s and 90s.
Moreover, agrarian reforms in some countries are reshaped in Mexico, Peru, and
Honduras. In Chile and Guatemala there is renewed concern that the campesinos
are not participating in the economical spheres.
Land reform in Latin America is closely linked to agricultural commer­
cialization (campesino welfare has not been the first and foremost aim). A new
entrepreneurial class to enhance their own status, sometimes dualistically
relegating something to campesinos but ensuring the bulk for their own sake, has
manipulated it. A few entrepreneurial campesinos emerged from the masses, but
most campesinos now rely increasingly on wage work as farms shrink with
division by inheritances over the generations. And commercial farms show appetite
for wage laborers. Reforms always guaranteed that a controlling niche of the local
economy remained with the landlord. If one substitutes landlord for former
communist ‘apparatchik’ it is easy to check the danger of current land reforms in
countries in transition. Most of the reforms granted land to those who were
organized - the upper echelon of farm workers - those who already lived on
haciendas, had at least some usufructuary access to land, and could coordinate
90 The Invisible Line

political action. Since these populist experiments end in inflation, which ultimately
hurts the intended beneficiaries, why repeat reform? The answer lies in politics and
the unequal pattern of development that has threatened peace and has fuelled
insurgency in the various countries. Perhaps the leaders hope to survive on, or be
rescued by outside funding. It needs a strong commitment and sufficient political
will to counter the always-present opposition. It seldom lasts for more than a few
years (Exceptions are the Castro regime in Cuba and the Sandinistas movement in
Nicaragua).
In all countries of Latin America, peasants were driven to rebellion by the
mass media, interpersonal communication (possible by opening the countryside
with busses and mass information means like radio and TV), education, and
streamlined organization. Today the increasing peasant awareness, developed over
the last several decades, provides the background for reform’s modest
accomplishments and bleak failures.

5.3.2 LAND REFORM IN AFRICA

Africa is distinctive from other continents. As Paarlberg [62] notes, compared to

Asia and Latin America, Africa has a natural resource base less suited to
productive agriculture. In Africa, soils tend to be poor, even by the standards of
tropical countries; they are highly weathered, acidic, and generally low in fertility.
Rainfall tends to be scarce or excessive, excessively violent, or unreliable. An
estimated two-thirds of the continent is subject to high risk of drought, and some
46 percent has less than 75 days of rain a year, too little to even raise the poorest of
all crops; millet. Tree planting is normally an option for conserving the soil, but
this is not viable in parts of the African continent because rainfall is not adequate.
Another problem that is more present in Africa than elsewhere is the wide variety
of pests and diseases that routinely attack crops, livestock and people.
Africa’s relatively poor performance in attracting foreign direct investment
into agriculture in part reflects the region’s poor infrastructure, low labor skills,
high indebtedness, and relatively small markets. Government policies also play a
role. Although agriculture may account directly or indirectly for 80 percent of
employment in Africa and for 50 - 90 per cent of export earnings, national
governments have typically devoted less than 10 percent of their public spending
to the farm sector. The African countryside is poorly organized and politically
weak. Africa’s popular grass-roots political organizations in rural areas are much
weaker than those of either Asia or Latin America. The most important instruments
of local agricultural control - genuinely independent farm cooperatives - are
typically missing in Africa. A specific feature of the African rural scene that is
distinctive from Asia and Latin America can be found in social inequity. The most
prominent dimension of social inequity in rural Africa occurs along gender lines,
not ethnic lines. Females in Africa are far worse off than elsewhere; they suffer
much more from food insecurity and lack of education than male Africans.
A specific anomaly in the distribution of land parcels compared to rest of the
world is encountered in Sub-Saharan Africa. Family parcels are cultivated under
 Land Reform 91

the authority of the male population, but women cultivate separate parcels. The
products of the family parcels are used to feed the family and to obtain income by
sale on the market but all under the authority of the male head of the family.
Women maintain control over the product from their parcels; it is sometimes used
to complement the family diet. The phenomenon is not found as such elsewhere in
the world and research has not yet given complete answers why this is so in the
upper part of the African continent.
A deeper problem in Africa may be the physical insecurity in rural areas -
often the result of violent conflict along clan, ethnic, or sectarian lines. Over the
past three decades many of the world’s most violent conflicts have taken place in
Africa.
Currently however, land reform programs on the African continent are
limited and if present, only performed on a small scale and relatively insolated.
The tendency in Africa recently seems to have shifted to undertake land reforms in
which the focus is on implementing land tenure regimes protecting existing
community based structures like in Senegal, Mali, Mozambique, Uganda, and
South Africa. The comments on these activities vary and some African experts
judge them as insufficient, but nevertheless, it is important to note this - in my
opinion important - trend. (See, for example, Okoth-Ogendo H.W.O.; 1996 [60]).

5.3.3 LAND REFORM UNDER COMMUNIST RULE

In Central and Eastern Europe and other once communist countries, a specific
development took place. During the communist era most of these original
agricultural countries had to undergo a rapid change into industrialization. Also the
traditional agricultural production was adapted and reshaped into the industrial
system by looking at it as an industrial operation. Agricultural land was brought
into large cooperative farms or expropriated to become part of large State farms.
The topography of the rural areas was drastically changed to accommodate for
large-scale farming operations. Existing topography was removed and new farm
buildings were erected to serve the large machinery and other assets for the state
and collective farms. Sometimes villages were demolished and the inhabitants
were moved to apartment buildings in nearby smaller towns. The whole rural area
was adapted to suit the large farms of communist ideology referred to as agro­
industrial complexes. On these large farms a new class of workers originated: The
class of the agricultural laborers. Former peasants became farm-laborers often on
their former fields. Their work force was now used as an instrument to comply
with decisions taken by the central government. For them, the majority of the land
area in the country lost its direct value as source of food because they had to buy
from the cooperative shops with money earned by working in the fields. The only
individual crops they could reap exclusively for private benefit came from ‘house
plots,’ small fields left to the population to work, as they preferred. Saving was
hardly possible, but it was not too important and not necessary except for luxuries.
The state took control of people from birth until dead and provided all basic needs.
92 The Invisible Line

In most villages, the state provided entertainment free or at a nominal fee. Here
(state approved) movies were shown or theater performances took place.
The behavior of the government in communist times was almost comparable
to the way governments behaved under Mercantilism as described in chapter 3.3.
The Mercantilist system was composed of all the devices, legislative,
administrative and regulatory, by which societies still predominantly agrarian
sought to transform themselves into trading and industrial societies. To achieve its
objectives, the Mercantilist State grants privileges to favored producers and
consumers by means of regulations, subsidies, taxes and licenses.
Farming, or rather the peasantry, did not get first priority in communist times.
And as elsewhere there was the irresistible pull of industrialization and
urbanization. People living in rural areas were moved to newly build apartment
buildings in small towns. There they experienced the benefits of utilities and all
kinds of provisions (like shops and schools) almost next-door, something often
unthinkable in the rural areas from where they came. They had to ‘commute’ to the
fields of the collective farms while the social contacts and rather comfortable
living conditions in the towns, estranged them from the rural lifestyle. Even when
the sometimes-cramped apartments had to be shared with more generations, the
new urban citizens did not linger always to the farm.
One of the great achievements of communism undoubtedly is the enormous
effort put into education. In all former communist countries illiteracy is low and a
considerable number of citizens have been able to complete higher education and
many of these have university degrees. The result has been that in several former
communist countries the perception of farming as a profession has evolved into
something backward. This perception is also enhanced by the fact that (higher)
education was almost exclusively given in the Russian language and often only in
Russia. The traditional language of the country became the language of the
peasants and the under-educated while the others spoke the local language at home,
but used Russian when among people in the somewhat higher circles of society
(and often as the main language in politics). The laws and regulations were
formulated in Russian (and sometimes translated in local languages), and almost
all instructions related to the five-year economic planning and production came in
Russian.
For Western observers it was often remarkable how much emphasis was put
on scientific research in agriculture while at the same time specific incentives for
agricultural laborers were overlooked or ignored. Scientific research went as far as
determining ten main classes of soil quality which were further distinguished in ten
subclasses each, leading to one hundred soil qualifications complete with (large-
scale) maps and field work to maintain and update the almost purely theoretical
differences.
For the rural workforce the situation has been characterized quite clearly by
Zvi Lerman in ‘Agricultural Land Ownership in Transitional Economies’ (1994
edited by Gene Wunderlich) [85] p.54 - 57):
 Land Reform 93

Socialist agriculture was characterized by large collective and state farms which were
introduced in the Soviet Union mainly in the 1930s and extended to the dependent
Republics. These agricultural production units evolved into core institutions regulating
virtually all of rural life, from political and civil order to social services, welfare and
retail trade. From the beginning the collective or state farm was more than just a
production unit; it also served as local government and social community. The chairs
of kolkhozy controlled the budgets for schools, clubs, roads, and similar infrastructure
and facilities. Resident permits and internal passports were issued to and held by farm
authorities so that until the late 1950s peasants could not leave without the chair’s
permission. Farms, not the local communities, designated building lots and household
plots on which members could keep livestock and/or grow subsistence crops for their
households. The yields of these auxiliary plots tend to be a great deal higher than on
former collective and state farms, not only because this land grows higher-value crops
and is better tended, but also because the farm management can, if it wishes, permit
petty pilfering of inputs from the collective.

Others have remarked that the chairman of the farm board controls the lives
of his agricultural workers: he chooses whether or not to provide them with
transportation to the city when they get sick, he can and his bookkeepers and
brigadiers can assign the agricultural employees good-paying or poorly paid jobs
or simply cheat him their pay. The chairman often decided what kind of
entertainment was available in the farming villages and what other kind of
enjoyment was provided to the workers. Often the office of the chairman was the
only one with a telephone line although sometimes the village had one other
telephone connection in the village office of the communist party. Around the
larger cities and along major roadways one could encounter police stations where
permits to travel were checked to avoid people moving around the country freely.
Everyone had to carry a domestic passport - which was (and still often is) not valid
for international travel - to provide controlling officials with proof of identity and
residency. The foregoing description depicts fairly adequate the situation that could
be encountered in rural areas of all the communist states in Europe and Asia.
It is important to note that already during the communist era it became clear
for the leadership that the combination of large state and collective farms, which
resulted after the massive collectivization of farmland and the five year economic
production planning, did not perform as could have been expected in comparison
with the performance of farmers elsewhere in the world. The advantages of scale
did not come about, the free-rider problem of large scale farming with agricultural
employees instead of owner-operators and the unavoidable mistakes with a large
bureaucratic planning mechanism made large scale farming under-perform. In
some states of the USSR under glasnost (rAACHOCTb = openness) experiments
began in the late 1980s with smaller scale privately managed agricultural
production units. Land was taken out of the vast tracts of state or collective farms
and given in exclusive use to selected farming entrepreneurs to improve
agricultural production. The rapid political changes in most communist countries at
the end of the 1980s overturned these experiments and sometimes caused bitter
94 The Invisible Line

disputes between the recently selected farmer entrepreneurs and former owners of
the land in those new republics where re-adjudication occurred.

5.3.4 LAND REFORM ACTIVITIES IN FORMER COMMUNIST

COUNTRIES

Generally most land reform research focuses on agricultural land, but it is ‘land’ in
the wider sense of all the real property, that is the subject of ‘land’ tenure change in
many countries in transition. For urban property the reform in these former
communist countries is generally rather straightforward. The tenure of urban
property changes from state to private individual right holders with little or no
adjustment to the real property objects at all. Depending on the rules, generally a
certain - but mostly modest - amount of money has to be paid to become private
owner of rights to urban land (real property). Most urban real property does not
need any adaptation to be used as individual private ownership. It generally has
easy and complete access to public roads and utilities, and it is clearly
distinguished from the neighboring ‘land parcels.’ A description or record of the
new individualized property can often be made without land surveys and
delimitation of boundaries because the extension of the rights of the new owner is
well defined and clear.
The process of de-collectivization in urban areas where apartment buildings
are the main residences seems so hands-on easy, that frequently one of the more
complicated issues of real property in apartment buildings is ignored or
overlooked. Although, apartment buildings do have easily identifiable individual
units, they also have common areas like stairways, elevator shafts, front doors, and
a surrounding area used by all owners together. During communist times all real
property belonged to the State and no provisions were necessary for these
commonly used parts of the real property. They were maintained by the owner of
the building and funded out of the government budget. The governmental
organization responsible for maintenance of the buildings still may be operational
but the funding is currently a problem. Most of the income came from payments
for issuance of permits for alterations in or at the state owned apartments. With the
new ownership situation people do not need permits so there is no guarantee that
maintenance can be funded and will be carried out. There should have been made a
provision for payment by all the owners for this type of maintenance in common
areas as is done in apartment buildings under a ‘western’ style tenure regime.
Since most apartment buildings have no individual supply of utilities that can be
billed individually, this also can become a source of disputes and problems. It is
not uncommon that one or two owners of an apartment do not sufficiently pay their
share of the utility bills, consequently other owners in the building have to pay for
them to avoid being cut off from these utility services.
The process of de-collectivization in rural areas is often much more complex
requiring land surveys, boundary delimitation and additional measures to ensure
access and utilities to be available to new owners of newly formed parcels of land.
And although this complexity is normally well understood and approached with a
 Land Reform 95

political willingness to address it, funds are seldom sufficiently available to really
tackle the many problems associated with rural land reform projects efficiently and
effectively. For the relatively expensive land survey and delimitation processes
often a provisional or tentative solution is sought compromising the land tenure
security for the time being. Land parcels are not marked on the ground and it is left
to the new owners to make arrangements about temporary boundaries and access
possibilities. Especially the problems involved with access roads and utility
provisions can remain unsolved for many years to come because of lack of funds.
Out of fear of misuse of newly obtained rights, another compromise toward full
ownership rights in rural areas is that governments often impose conditions on new
owners of rights to (agricultural) land. A condition may be a limitation on sales for
a number of years after the de-collectivization, an obligation to use the land
productively or appropriately, etc.
Among some former communist countries there exists the possibility for
citizens to claim land once owned and among other countries this possibility has
not been created after the political change in the last decade of the twentieth
century. It has much to do with the different situation in the communist countries
before the fall of communism. One situation refers to all new republics that were
part of the Soviet Union from before World War II. Here all land was state owned
in the pre-reform situation. In these countries there very few people alive today
that could make legal documented claims of ownership rights to land anymore.
Another formal situation existed in former communist countries of Central
and Eastern Europe (except Albania where the communist government simply
declared all agricultural land state owned and ignored possible claims of former
owners). In the European countries some lands were expropriated to become part
of a state owned farm (Sovkhoz or Gozkhoz). But much of the land owned by
small farmers was brought into a collective farm (Kolkhoz). This land remained
collectively owned although, the former owner effectively lost the property rights
because the farm management changed boundaries of parcels, changed the
topography when needed and made improvements on the land without the consent
of the original owners. Nevertheless, the old owners never completely lost their
formal ownership of the land. In countries where original owners had land returned
there is a dilemma; will the urban populace endowed with farmland find their own
creative way to cope with farming and living in the more remote rural areas again?
Thus the options that are available for governments in the new independent
republics range from the restitution of the primary interest in the land as it stood
before socialization, to privatization (distribution) of real property to possessors of
it at the time of privatization. A further choice must be made for farmland; to
distribute the farmland on the basis of some specified policy to only agricultural
workers or some mixed solution of re-adjudication and distribution in which all
citizens could benefit from the distribution of land. However, there is a
complication; land has changed during Soviet agriculture and actual restitution is
not always possible. New villages may have been built on former agricultural land,
roads have been constructed and so on. In these cases compensation to former
owners is a possibility. Newly constructed apartment buildings on claimed land are
96 The Invisible Line

of course in use by other citizens than the former owner of the land and re­
adjudication would be a complicated matter. In these cases often compensation is
the simplest practical solution to avoid complicated procedures and possible
litigation.
A few countries did not re-adjudicate land at all, but choose to compensate all
former owners of land and buildings or their heirs with land vouchers that could be
used for the purchase of land from a national Land Fund. Dismantled large farms
transferred a portion of their land to such Land Funds.
Former owners were an important category of beneficiaries in the Baltic
States, Bulgaria, Czechoslovakia (currently the Czech and Slovak Republics),
Hungary (here the system of compensation with vouchers was popular), and
Romania. In Poland (where only limited amounts of land were collectivized) and
Albania land is not returned to former owners. The Polish government offered land
of former state and collective farms for sale, as did to a lesser extent governments
in the Czech Republic, East Germany, Hungary and Slovakia. The vouchers that
the citizens received during the privatization process could be used to pay the
purchase price.
In Czechoslovakia and Poland special organizations were created for the
privatization. In Bulgaria, municipal land commissions were charged with the re­
adjudication and redistribution of agricultural land. In Romania the state owned
enterprises were privatized via shares distributed by a special agency to Romanian
citizens in the form of vouchers, which can be freely traded by them. In the case of
Albania, land was re-distributed by granting every rural family a parcel of land
while former owners received some form of compensation. In Hungary coupons
that could be used to buy land, apartments or life annuities compensated former
owners. In Czechoslovakia the choice was made to issue shares to former
landowners in cooperatives that will still continue to operate under their original
management.
In many former dependent republics of the USSR in Central Asia, as well as
in Russia itself, the process of expropriation and collectivization took place so long
ago that ownership rights cannot be re-established because hardly anyone currently
alive will have a remembrance of private ownership of land. In some areas people
can apply for land on the basis of their skills to till it as farmers or to develop it by
building on it under strict conditions. In Russia, the Ukraine and Belarus land was
also distributed among the farm workers in the form of ownership shares. In some
countries farm employees received vouchers valued on the basis of their
contribution to the former farms or other state services (and they could purchase a
parcel of land or other real estate with the vouchers given to them).
One of the main problems facing newly established small farms is to get
access to credit. For this reason land banks getting their money from the
government where individual farmers in a new situation would been able to get
relatively cheap loans using their titled land as collateral, are very much needed
during and directly after the land reform process in former communist countries.
Unfortunately the possibilities for governments are extremely limited. High
inflation and annual interest rates in double or even triple digits make it almost
 Land Reform 97

impossible to provide adequate financing for farmers in those countries. Donor aid
in this respect has also been limited and many farmers could not make the start
with agricultural production the way they envisaged when getting their new
individual fields. And even if credit was in reach for them the annual inflation and
high interest rates made some farmers lose their land - their only source of
subsistence. Not only the former communist world underestimates the complexity
of a successful land reform program. There could have been more awareness
because of land reform experiences in other parts of the world that were
extensively documented some decades ago.
One of the most obvious aspirations that have been apparent in former
communist countries has been the desire for speed. In most urban areas in
transitional economies this resulted in (re)establishment of ownership rights to
urban property. For rural areas it has been more complicated as explained before.
The progress of land distribution is sometimes hard to monitor. Personally, I have
noticed that there often was a rather substantial difference between official figures
produced on the progress and the field observation my teams would make. It
always came down to the definition of restitution or distribution of land.
Government officials saw a signed agreement between the management of the
former state or collective farm and the members of the farm about the split up (and
agreement about the distribution of the paper land vouchers) as distribution or
restitution and the large areas where this happened appeared in the statistics.
Expatriate experts were much more inclined to see such an accomplishment only
as the first step of the process of land reform and stated that only areas where all
land was actually surveyed, distributed and documented could be considered as a
completion of the process. So it could happen that we reported that 27 per cent of
the land reform was completed while official statistics mentioned completion of
land reform for over 80 percent.
The reason for so many large-scale land reform programs as started in Central
and Eastern Europe and somewhat later in Central Asia former communist
countries can be found in a statement made in a World Bank report focusing on
Eastern Europe (PHARE-World Bank Task Force, October 1992):

The economic reform program combines stabilization and structural adjustment

policies designed to limit the current economic decline and to initiate a rapid
transition to a market economy ...
Clear, secure, and tradable property rights are necessary for a successful
transformation to a market economy. The process has three main elements: the
restitution of land, the reallocation of non-land assets of collectives through
liquidation and the privatization of agro-industries.
The restitution of land and the liquidation of collective farms are interrelated and
transitional arrangements are necessary to enable the new owners to assume their
rights as soon as possible. In addition, the privatization of the agro-industries is
necessary for successful transformation to a market economy in agriculture. The
process of restoring ownership rights is under way, but it must be refocused and
accelerated.
98 The Invisible Line

The WB report contains three important elements. It draws attention to transitional

arrangements, and to refocus and accelerate the process of restoring ownership.
As far as transitional arrangements are concerned it can be noticed that fighting
economic decline as became manifest under communist rule is the main target of
land reform in former communist countries. The market economy evolving after
privatization is assumed to improve the situation automatically. The desire for speed
often prevails or covers up measurements that should be taken to make land reform
not only a short term success but a sustainable long term support for the economy.
The most important among the supportive actions that a government must start
simultaneously are: the adaptation of the imported tenure system to local customs
and historical and cultural values, the active support for development of a land-
market, effective protection of newly acquired private rights to land, credit facilities,
and development of the (rural) infrastructure. Thus, the process of land reform should
be framed in a wider process of supportive flanking policies and subsidiary measures
as mentioned above enabling the land reform to be successful.
Too often the haste to accomplish land reform results in disappointment for
the new private farmers. Disappointment because the land they have got is hardly
accessible by lack of infrastructure, it can not be used as collateral by lack of
accessible credit facilities, the title is not secured, it can not be properly marketed,
no agricultural research assists them in their decision making process, and there is
no easy access to agricultural education. Nowadays we can look back to different
land reform programs, which started in some former communist countries. Many
people in these countries have been restored in land ownership or have been made
private farmers using and owning their own land and thus having private individual
land use. Most of them are not satisfied and are disappointed with the possibilities
they expected to have with land. On the other hand the land they now possess is of
great importance to them and they do not want to risk losing it. Faced with a failing
economy and drastic measures to make ends meet by the government, land is again
the principal source of wealth of the people. The assets of the population in many
of the former communist countries will for over 80 per cent consist of their rights
to land. In rural areas of lesser-developed countries land is often the primary means
for generating a livelihood and the only asset to hand down to the next generation,
so it is the only possibility to accumulate wealth for a family.
The second point as propagated by the WB - refocus on restoring ownership
- is necessary given the poor results of land reform in transitional economies so
far. Galbraith (1994 [39] p.226) states:

The history of the Second Great Russian Revolution (he means the reforms of the late
1980s HD) is not yet complete.... Nor is that of the other countries that once
composed the Soviet Union. It will not, one can already say, be celebrated as a
compelling exercise in human intelligence. This was a transition that demanded
restraint, careful analysis and, above all, thought. In the place of these, there was
action according to metaphor and doctrine. The hope was that a sudden change -
shock therapy - would bring the magic transformation to capitalism. A brief period of
pain, and the new system would be successfully in place. Many, including a sizable
number of western advisers, believed that this should not be the mixed economy of
 Land Reform 99

Western Europe, the United States and elsewhere in the world but rather the idealized
capitalism of free enterprise. Ideologically motivated scholars from the West found
allies in enthusiastic new converts in the East.

Observers will agree that this was not to be. The rapidity of events may have
surprised many people, but its results also have deeply disappointed many people
especially those in the former communist countries that are confronted with the
daily reality of those effects. Many westerners have since been employed in
projects to enhance, to improve, to empower, and to adapt systems and institutes,
or even to redesign processes, procedures, and rules together with local experts and
the institutions in those countries, in a major effort to refocus on the land reform
process. But many of the systems and institutions were - as now can be concluded
in hindsight - created too hastily and too much according to a ‘western’ concept
and not rooted in the local social and cultural contexts and thus often rather too
alien to local people. The lesson to be learned is that a more gradual change would
possibly have turned out to deliver more manageable results. The whole
institutional design and implementation should have been more in line with the
local cultural and conceptual perception of the local people to more easily gain
their trust and cooperation.
The third element in the WB report is the acceleration of restoring ownership
rights to land. Privatization is a little wider and often does include distribution of
new ownership rights to workers on large farms. Is acceleration really a good
approach here? It is not difficult to notice that the progress of land reform in the
various countries is generally slow. Problems, mainly originating in the
inappropriate and often shoddy way of the communist habit in registration of land,
ethnic conflicts, contradictions between witnesses, and not to be forgotten the
possession by some of ‘political capital’ result in complex procedures. As seen
before, the adaptation of the landscape to agro-industrial farming adds to the
problem when a country decides to restitute land to former owners or their heirs.
But there can also be criticism about the speedy way in which some land reform
projects are implemented and carried out. In the next paragraph the incremental
way for land reform is defended as in contrast with the ‘shock’ therapy exercised
in many countries in the former USSR. No final conclusion can yet be drawn on
the subject of land reform in former communist countries. However, there are at
least lessons to be learned already and one thing is certain; land reform activities in
former communist countries are far from over.

5.3.5 LAND REFORM IN SOUTH EAST ASIA

The successful experience of South East Asian land redistribution has already been
mentioned. Asia’s farmers in general were used to small individually owned farms
and had a good sense of entrepreneurship. Of course large parts of Asia were also
‘discovered’ by colonizers and land was claimed for the new settlers. Experiences
described by the World Bank show that the Bank’s supportive role resulted in
successfully redistribution of lands from European settlers to Asian farmers. Some
100 The Invisible Line

literature from Asia also point out that fixed wage permanent contracts will not be
chosen unless tenancy is prohibited. The associated permanent labor contracts are
much less efficient than tenancy or owner operated farming and may then lead to
inefficient factor substitution away from labor. Examples where land reform
legislation has led to widespread and inefficient adoption of wage labor include,
among others, India and the Philippines.
The largest and most recent land reform activity in Asia has taken place in
China. Most outsiders have heard about China and the great leap forward policy
propagated by Mao Tse-Tung. Although, especially focused on industrialization,
the Chinese communist view on production did also change the agricultural
structures. Initially the leap forward for rural China was nothing more than a
disaster. Some even refer to it as a largely man made famine in which tens of
millions of people perished (Frederick Crook [19] p.59). Mao returned to the
political stage with the Great Proletarian Cultural Revolution in 1966 to fight
against the return to a Soviet model of agriculture. His alternative for agricultural
production is based on a dismantling of central bureaucracy replacing it with a
cellular system of autonomous local initiatives and projects. This actually did
change the situation in rural China and more recently there is substantial positive
progress, which stimulated Lin et al. to publish ‘The China Miracle’ (Lin, Cai and
Li [52]). Tuan and Ke underline in [79] (p. 16) that in China’s Agricultural Policy
the general goal of agricultural and food policy was to develop the country’s
economy. According to Lin et al. [52] (p.290) ‘Economic reform began with the
delegation of autonomy and the sharing of profit with micro-management units.’
This happened under the so-called household responsibility system, later
complemented with the town and village enterprises. It is important to note that
(p.295): ‘China opted for an incremental reform strategy with low costs and risks,
but which yields timely returns. In contrast, the Eastern European countries and the
former Soviet Union opted for the opposite, which caused tremendous friction and
social shock and which up to now has not brought about growth.’
So, the main difference with the land reform of the late twentieth century
among former communist countries is that China did not propagate a radical but
rather an incremental reform that does not center around privatization. In this way
Chinese politicians hope to avoid inequality that arises from the re-allocation of the
stock of state assets and the conflicts arising there-from.
China chooses to continue the system of distributing only the right to (exclusive)
use of agricultural land in a very special way. In ‘Land tenure policy in rural
China: development and prospects a re-evaluation of the institutional reform of
rural land use,’ Zhang Hongyu [47] (p.76 and p.77) distinguishes three stages in
land reform in China’s recent history. The first major institutional reform involving
land tenure occurred in 1952 (the agrarian reform) when land was taken from
landlords and put under private ownership of peasants. The result was greater land
productivity. The second land reform occurred as the people’s commune
movement in 1957, when peasants’ private land ownership was changed into
collective ownership. This change to public ownership did not produce a notable
rise in land productivity. The third reform, the family contract responsibility
 Land Reform 101

system did not change the foundation of collective land ownership, but it restored
family based agricultural operations, which turned out to have a positive effect on
agricultural production and improvement of the agricultural sector.
The basic form of the family contract responsibility system is equal allocation
of land according to the number of people or number of able-bodied laborers in the
family. One of the special characteristics of Chinese land reform is the continuous
linking of the area of land contracted with the household size, for fifteen-year land
use contracts. But even during the contract term, adjustments (or rather so-called
the system of re-adjustment) could be applied to change the area of land
contracted. In China the general rule is that a change in household members results
in a change in the amount of land contracted to the household. If, for example, a
household member dies the size of the land the family holds will be reduced but
the amount of land reduction varied among the provinces. In some provinces it
might be reduced with half the amount that was originally given under contract for
that member of the family. Normally the family had no say in which part of the
land was taken back to be re-distributed, but sometimes the farming household
itself could select the piece of land to be handed back. It is interesting to observe
that this practice, although providing a certain degree of tenure insecurity, did not
result in a substantial disincentive for farming households. Research [53] (p.293)
shows that agricultural output grew 56 per cent during the 1978 - 1984 period.
About 60 per cent of the land in China has been distributed under this rule. There
are two constraints. Uncertainty about the term of contract and no clear definition
about the right of use making it impossible to transfer. In the 80s the term was set
at 15 years, and in the 90s any extension was set at for a contract period of 30
years.
Liu Jianwen describes the uncertainty about the current land tenure regime
among farmers in ‘Utilization of Land and Water Resources in China’ in [49] (p.
115):

At present, the core of the land tenure system is based on two inseparable institutional
arrangements: (a) the farmers’ collectives own the land; (b) land is contracted and
managed by the individual farmer household. In reality, the collectives as well as the
farmer households both have the right to own, use, dispose of and benefit from the
land. In addition, the State can buy and use the land on a payable basis or take over the
land without any payment according to certain legal regulations and procedures.
Therefore, the land is not simply owned by the farmers’ economic collectives as it is
stipulated in the policies and regulations, but in reality is co-owned by the State, the
collectives and farmers. Needless to say, there are many defects and loopholes in the
present land ownership system. They are related to the ambiguous definition of the
rights of the State, collective and individual farmer’s households to own the land. To a
large extent, this is an operational and design problem in the practical application of
the collective land ownership. For example, there is no clear definition on the farmers’
economic collectives, as the owner of the land; there is a lack of legal regulation and
institutional guarantee for the collective ownership. Besides the right of contract, the
collectives should also exert and ensure the ownership, right of disposal and right of
benefit. There is no clear definition of who is eligible to contract the land and there is
only a rough definition for the structure of rights, which is far from complete. There
102 The Invisible Line

are no clear definitions on what role the government should play and how to eliminate
the external problems related to land institutional arrangements (such as the co­
ordination among the state, collectives and farmers). There is a lack of clear regulation
on the formulation, pricing and resource allocation functions of the market for the
transfer of right of use of the land, etc ...

Some researchers argue that the real start of China’s land reform program was
very recent at the moment of the adoption of the revised 1998 People’s Republic of
China Land Management Law by the Standing Committee of the National People’s
Congress on August 29. (See Prosterman et al. [67] p.l). It is their argument that
with this law the nearly 200 million farming households can be provided with land
tenure security necessary for long term productivity-enhancing investments in their
land. They point in particular to Article 14 of the law restricting the practice of
land re-adjustments. They call this practice of re-adjustment (p.l): ‘The single
greatest threat to land tenure security since collectively owned agricultural land
was allocated to farm households under the Household Responsibility System.’ It
should also be noted that Article 14 only prohibits the conduct of large land re­
adjustments (the practice to take back all land in the village and reallocate different
land to the households). It also limits the conduct of small re-adjustments (to
change the size of land allocated to one household) to ‘isolated cases.’
The adoption of the Land Management Law is a step toward more individual
privately owned land rights and it must be expected that the debate on small land
readjustments and the calling for implementation of ‘long-term, protected rural
land rights’ continues among China’s politicians and farmers.

5.4 LAND REFORM RESULTS AND EXPECTATIONS

5.4.1 LAND REFORM AND ECONOMIC DEVELOPMENT

The first attempts to improve the economic situation in a country by introducing

land reform were mainly based on the assumption that after land reform an
economic development would automatically start. The newly established smaller
farms would generate employment and buying power on local markets for
agricultural tools and for improved products. This so-called growth-modemization
paradigm, however, hardly emerged. Doreen Warriner, professor of Social and
Economic Studies of Eastern Europe at the University of London, (1971 [84] p.l 15)
writes: ‘Land reform will not do everything needed to set a country on the road to
development. The results of land reform to be expected in Asian and Latin-
American countries are important, but the limits of what land reform can be
expected to achieve are important also.’ According to her, it should be emphasized
from the start that land reform, in the sense of redistribution of land, involves a
conflict of interest between haves and have-nots, and thus land reform is primarily
a political decision.
 Land Reform 103

Research shows that land reform projects did not deliver a sustainable
development out of the poverty trap for many of the rural poor. State mandated re­
distributive land reform is off the agenda in countries that saw massive land reform
projects in the 60s, 70s and 80s of the previous century. So in the last two decades
of the previous century emphasis was put more on ownership of assets in such a
way that it could be used as collateral to escape the poverty trap. In several post
land reform countries, projects were carried out for land titling and land
registration to increase the protection of ownership rights and improve land tenure
security. A new type of negotiated land reform - the market assisted type of land
reform - evolved to deliver a more equal distribution of prosperity. Under this type
of land reform negotiations between buyers and sellers take place with the
government establishing the necessary legal framework and land purchase grants
to eligible beneficiaries. Moreover local user groups are involved in the process by
developing criteria for selection and identification of potential beneficiaries for the
project.

5.4.2 MIXED SUCCESSES OF LAND REFORMS

The history of land reforms has been one of mixed success. Impressive land
reforms were carried out in Japan, Taiwan South Korea, Egypt, Iraq, and Israel.
Bolivian peasants took possession of the Altiplano, and Mexico’s reform
movement is well known. Guatemala’s Arbenz government distributed land to
100,000 families in 1953 only to have the process reversed by a US backed
counterrevolution. In Cuba land reform came together with the revolution in the
50s, and a similar situation is found in the huge communist revolution in China.
All these reforms addressed fundamental political problems. Many were successful
and formed the basis for the ‘Alliance for Progress,’ an organization established
with the support of the United States among nineteen states in the Caribbean and
Latin America. Many of those states passed land reform legislation. Some Alliance
inspired legislation was designed specifically for settlement and colonization
projects on public lands.
In Latin American and Caribbean countries a recognized obstacle to rural
development is the inequitable land distribution and the inadequate access to
sufficient agricultural land for the majority of the people. There is a close link
between land tenure structures and civil unrest, social welfare, environmental
degradation and agricultural performance. (See E. Shearer, S. Lastarria-Comhiel
and D. Mesbah, LTC Paper, October 1990 [72].) The ‘Declaration of Punta del
Este’ of 1961 has for many years in Latin America dominated the view on socio­
economic development of that region. In the ‘Alliance for Progress’ governments
committed themselves to set up programs to support the economic development by
land reform measures. The Alliance for progress stated:

To encourage, in accordance with the characteristics of each country, programs of

comprehensive agrarian reform leading to effective transformation, where required, of
unjust structures and regimes of land tenure and use, with a view to replacing
104 The Invisible Line

latifundia (large-holdings) and dwarf holdings by an equitable regime of land tenure

so that, with the help of timely and adequate credit, technical assistance, and facilities
for the marketing and distribution of products, the land will become for the man who
works it the basis of his economic stability, the foundation of his increasing welfare,
and the guarantee of his freedom and dignity.

The Alliance assumed, however, nearly ideal circumstances., for example,

strong leadership in a government committed to reforms, peasant organizations that
would play a key role, an effective agricultural bureaucracy, accurate and readily
available records of land ownership, accurate land use and land qualification maps
and a well-developed infrastructure for transport and communication. And even
this is not sufficient as can be learned form the long standing land reform
experience in Latin-America and which should be remembered when further
organizing land reform in other countries and especially in Eastem-Europe.
But those who expected effective and long term solutions to rural poverty and
those who wanted to see measurable progress toward poverty alleviation must
surely be disappointed by a number of land reform programs throughout the
twentieth century. Although, reforms carry the potential to ameliorate poverty, that
relief has not been forthcoming as a general effect of reform. Gains are largely
attributable to modernization in the non-reform sector of agriculture (Thiesenhusen
in Broken Promises [76] 1995). Land Reform is expected to address so many
problems at once. The outspoken ones are production improvement, equitable
distribution of resources and income; add effective demand and recently protection
of the environment. But, in many cases, the non-spoken aims were even more
important; strengthen capitalism, neutralize campesino opposition, win votes, fend
off extremist ideologies, provide counter insurgency, and foster social stability
needed for a secure investment environment. In some regions in Latin America,
basic re-distributive land reforms made a major difference. Experience shows that
political commitment should be high. Agricultural development deals with an old
preexisting institutional legacy and these institutions must be modified and
restructured. In many ‘older’ countries this process has been revolutionary and
violent at the same time with massive industrialization.
To the extent that poverty and land-related grievances breed insurgency,
which threatens both national and international security, land reform can be used as
an effective counter effect. Land reform is a kind of patronage by the government
and it is often related to expected political support. This is obviously applicable
within countries and also internationally. When a government takes actions to
improve security of peasants on use of their land who might ordinarily be swept up
by insurgents, it ensures peasant support.
When a foreign government helps with land reform it is sometimes out of fear
for unwelcome insurgency in the supported country and/or it is an attempt to win
the hearts and minds of the people in that country. But whatever the cause of land
reform, most of the time it will result in a large number of beneficiaries: the
government, the peasants, the economy, and the foreign power that protected and
 Land Reform 105

supported the government. The losers in this game are insurgents and the
landlords.
As a more direct type of land reform, agrarian reforms have not done well in
ameliorating rural poverty, improving equity or creating employment largely
because of the multiplicity of their expected accomplishments and because they are
vulnerable as policy instruments. Although the agricultural sector became more
‘modernized,’ most change occurred in the non-reformed sector and benefited
those who were not peasants. There was not sufficient credit to support the reform
or technology transfer on a large scale for most peasants. In various cases the
government took away by stealth what it had given with a flourish.

5.4.3 EVALUATING RESULTS OF LAND REFORM

The AID report (Spring Review 1970 [1]) states:

In most land reform countries changes in output cannot in any clear way be traced to
land reform. In most of them it is clear, however, that the growth in output has been
quite satisfactory, and thus no specific drawback to the economy stems form reforms
as such ... Evidence on land reform as promoting or hampering productivity is in most
cases even more indirect and tenuous than in the case of output...In its most precise
form, the question is: does the land system established by land reform do a better job
than the pre-reform system would have if it had continued, and does the reformed
system allow the highest rates of increase in productivity which other systems would
permit?

So, the results of land reform programs are difficult to quantify per se. A
specific problem with land reform programs is that they should not be compared
with one another. The situations in which land reforms appear differ greatly and
the impact on agricultural production, peasant income and employment on the
basis of the relationship between productivity and farm size, do vary. It varies with
the pre-reform situation, the nature of the reform, the level of socio-economic
development and the general economic conditions of each country. In a list of
variables issued by the World Bank in 1978 for the evaluation of land reform this
becomes sharply clear. It summarizes the pre-reform variables such as the type of
lands distributed, the farming characteristics, the beneficiaries and the level of
infrastructure. For the reform process it takes the extent, the expropriation model,
the organization of beneficiaries and public and political support and the general
economic conditions into account. In addition to the World Bank list, the role of
aid donors, the input of foreign expertise, the supply of equipment, and the
continued political commitment of sometimes rapidly changing governments can
be mentioned.
For Latin American and Asian reforms it must be remembered that potential
gains of land reform now may well be lower than the original potential gains of the
reforms as carried out 25 years ago. This however, could be different in Central
and Eastern Europe, where after the political changes of the late 80s, land reform
policy is implemented as a means to distribute the agriculture land of former state
106 The Invisible Line

and collective farms. As mentioned before, it has been practiced in various ways.
Land has been re-adjudicated to former owners, has been distributed among the
many farmers or former workers on cooperative farms (large agro-industrial
complexes) or has been ‘shared’ out among the eligible populace of the country. It
is important to check the structures of land reform processes in Central- and
Eastern Europe on the existence of possible hidden setbacks and constraints to
development like the ones described above. The lessons to be learned from the
experience in other countries should not be excluded from everyday practice of
land reform in former communist countries.

5.4.4 DECISION-MAKING AND LAND REFORM

The decision to start a land reform program is nowadays generally a collective

choice. The opposite of a collective choice is the decision as made by a dictatorial
regime. Dictatorial choices were not and are (yet) not uncommon in Latin America
and the former communist countries. In Central- and Eastern Europe and in
Central-Asia recent choices for a nation-wide land reform were made through
representation - elected people who represent the populace of a nation - making it
a collective choice. What are the criteria for the decision to implement land
reform? The answer on this question is not easy. Mostly the real criteria for such a
collective choice are hidden or kept privately in the minds of the elected
individuals. It is like the collective choice at a small scale in a neighborhood.
People might like small neighborhood parks and libraries, but they might be hard-
pressed to say exactly why they feel this way. Fortunately, it isn’t usually
necessary to agree on criteria if a course of action can be agreed upon. I might like
parks because they provide open space; you might like them because trees and
grass release oxygen, a third person might like them because they have a positive
effect on the value of his next to it located property. Together, we can agree that
we should have parks, although, for different reasons. The collective choice
process features agreement on actions, rather than agreement on objectives, one
that stresses means rather than ends. If a project developer proposes to develop the
neighborhood park into a housing estate how would we protect our self-interest?
People in this situation tend to use ‘public interest’ with a collective rationale to
fight the proposed change: It would ruin ‘our’ neighborhood, it would increase
noise and nuisance in ‘our’ streets, and it would clog ‘our’ parking spaces. It may
be advantageous to be vague or misleading about one’s reasons for opposing or
supporting certain courses of collective action.
The mind of people is hard to read in this sense. Sagoff (1988 [70]) carried
out an interesting experiment in this respect. In the late 1960s Walt Disney
Enterprises proposed to develop a ski resort in the Mineral King Valley in Sequoia
National Park in California. In an informal survey among his students Sagoff found
a striking difference between the choices people make as consumers and the
choices they make as citizens. Very few students expressed a willingness to visit
the area if it remained a wilderness; the vast majority indicated strong interest to
visit Mineral King Valley if it were developed as a ski resort. Would these students
 Land Reform 107

choose to develop the area if the choice were up to them? The response was nearly
unanimous. In spite of their consumer preferences, the students opposed the Disney
plan to develop the valley.
With Land Reform proposals, elected representatives, the politicians, often
try to secure electoral support in rural areas, or they hope to avoid an insurrection
of the peasantry, they also might expect to avoid an increasing lure of already
overpopulated cities. But it is seldom explicitly stated in that way. In most cases
the emphasis is put on public interest by stating that land reform is good for the
national economy, that it will increase food security and/or will assure economic
growth in the region.

5.5 FUTURE OF LAND REFORM

5.5.1 LAND REFORM FOR WHAT?

After the considerations and the review of some land reform practices, it can be
questioned whether Land Reform is still relevant. Should new land reform
programs be pursued? With the results of an evaluation of land reform programs
such as published in the AID Spring review in 1970 (see [1]) and Thiesenhusen
(1995 [76]), there were certainly grounds for a no answer. More reasons to express
doubt about a positive attitude towards land reform are; capital and technology are
now more important than land. The youth of most of the rural regions feel that
anything is better than working on a small farm with all its uncertainties like
disappointing harvests, pests, credit debts, droughts etc. Large capitalized farms
are stronger than ever, both large farms and large cooperatives can engage much
more political support. So some researchers expect that as the agriculture sector
shrinks, land reform might become less important as a policy tool.
But others say that land reform programs are necessary to ward off future
conflicts; excess capacity in farming can generate additional employment.
Resettling of farmers might prevent further deterioration of fragile land; idle land
can be used as welfare system to sustain humans. Furthermore, indigenous people
or ethnic minorities - and sometimes they are actually a national majority - are no
longer a population group that can be ignored in their claims for land and they are
making more claims than ever before. In those former communist countries where
state owned large collective farms are still operational, land reform can be pursued
to distribute the land of the large farms in to smaller agricultural units owned by
private persons or corporations.
In countries with an unequal distribution of land, some argue against land
reform in terms of the near-sacred rights of private property (a right they claim to
be ordained by natural law). They base their opinion on the statement that private
property is the pillar of civilized society. But if this is true, how can it be that so
many are deprived of private property? Private property is a creation of the state
and it places many restrictions on it. In some Latin American states a search and
recovery of national lands is going on for which current owners have no title
108 The Invisible Line

because the land is given to them by previous regimes of which the activities
nowadays are regarded illegal. This situation can also be found in Central and
Eastern Europe where the communist regimes of the 70s and 80s are now seen as
regimes that illegally deprived the people of their land. The circumstances in many
former communist European countries are, however, quite different form those in
Latin America.
Land reform has been high on the agenda in developing countries and at
meetings with international donor agencies in the 1950s, 1960s, and 1970s. The
rapid rural-urban migration in several countries and the difficulties experienced in
other countries with a political reality full of tensions between population groups in
a post land reform society, resulted in a decline of land reform programs in the last
decades of the previous century. Persistent continuation of rural poverty in many
post land reform countries and the occurrence of rural poverty due to the poor
economic performance of Soviet agriculture, lead to new emphasis land reform and
change of land tenure regimes. Thiesenhusen (1995 [77] pp.207-208) states in his
review ‘Land Reform Lives!:’

It is quite possible that land reforms in the future will not look much like land reforms
of the past; at least their rationales will be different. Rather than pitting landlords
against campesinos in traditional agrarian conflict, the two groups have probably
reached a stand-off; market oriented measures with fewer government ‘levers’ will
doubtless be employed more in the future than in the past. While the pressures will
most assuredly be related to the mitigation of poverty and the creation of jobs, new
arguments will be added.

5.5.2 LAND; AN IMPORTANT VEHICLE FOR RURAL DEVELOPMENT

There is almost general agreement about the fact that gross inequalities in land
distribution have been a highly destabilizing force in rural areas. A country-
specific (both effective and efficient idiosyncratic) program to change the existing
land tenure should be developed in response to the complex factors that define the
agrarian structure of each country. No single formula or desktop solution will work
for all countries at all times. Knowledge of the existing land tenure structure, its
history, the social setting, and the understanding of cultural values are crucial for
intervention in this area.
In ‘Access to Land, Rural Poverty, and Public Action’ edited by de Janvry et
al [48], access to land is considered to remain an important policy issue. Some of
their important considerations in line with the purpose of this book are as follows:

• ‘While not the only pathway out of poverty, ample evidence suggests that
access to land is effective in helping rural households generate higher
incomes. At the same time, access to land is neither the only strategy out of
poverty, nor is it sufficient to guarantee escaping poverty. Access to land,
when land is combined with variable inputs and with other assets, provides
 Land Reform 109

beneficiary households with a source of income. Access to land is, however,

not sufficient to secure higher household incomes. This is the case when the
policy context is adverse to farm profits, competitiveness is undermined by a
lack of supportive institutions, assets transferred are not valorized by
complementary public goods (e.g. access roads), and investment is deterred by
insecurity by regarding the conditions for access (p. 4).
• Access to land helps give value to assets held by a household with zero or low
opportunity cost outside the land. These assets typically include captive family
labor such as children, elderly people, women in reproductive phases of their
life cycles, adults during weekends, and unemployed people. They also
include draft animals, labor supervision capacity, and managerial skills.... For
the household that gains access, there are both social efficiency gains through
mobilization of otherwise idle resources and individual welfare gains. In this
respect it has to be bom in mind that families in lesser-developed countries
tend to be large with many children and that those children spend little time in
school (p. 5)
• Access to land allows direct use of factors of production held by the household
at a lower cost than for buyers of these factors. This is the case for family
labor with an opportunity cost outside the farm.
• Access to sufficient land to avoid being a buyer of food provides cheap food
when there are food market failures. In addition, since there is typically hidden
information in the quality of food products transacted on informal markets
(e.g., white com in Mexico and rice in West Bengal), production for home
consumption secures access to better quality food.
• Access to land is a source of insurance against price shocks on the food and
labor markets. Positive shocks to food prices create welfare losses for landless
households as their real incomes fall. Consumers may insure themselves
against food price risk by directly producing some of their needs.’ (p.6)

5.5.3 EMPHASIS ON LOCAL INVOLVEMENT

Access to land may not be the result of ownership rights in the ‘western’ style
fashion. Access to land can be the effect of belonging to a clan, group or
community. As noted before this is often the case in lesser-developed countries
where community land is used as a common pool resource. Research shows that
there may be advantages to maintain resources as community land rather than
change the tenure into individual access. Some efficiency effects come from the
fact that some resources are hard to distribute like waterholes for animals and
customs that regulate irrigation in such a way that it effectively limits soil erosion.
Continuation of the use of land as a common resource may also provide economies
of scale. Careful consideration should be given because it is also well known that
holding resources as common pool resource can induce risks like extensively
described in ‘Tragedy of the Commons’ (Hardin [43]). Most success stories on
110 The Invisible Line

continued common resource use are in those areas where cooperation is supported
by all participants because of the clear individual gains and a possibility of
monitoring and enforcing input of each individual (thus avoiding free-rider
behavior).
For forest areas involvement of local management is a contemporary
approach. Especially for common pool resource forests and forests lands the state
normally wants to retain some control, which can be accomplished by shared
responsibility with local user groups of the resource. There is a strong interest for
this shared responsibility among researchers with emphasis on the fact that this
seems to be a new development. This is remarkable if one realizes that in many
modem societies emphasis has been on decentralization with a process to shift
responsibilities toward the local government level.
The recognition that control by the state alone was not the most effective way
to manage common pool resources, and this has made governments seek ways to
share the management with local user groups. However, it is important that rural
people in lesser-developed countries are educated and be prepared before they take
individual responsibility to exercise stewardship over natural resources. The
human resource plays a double role. People are resources as well as users of
resources. Making people responsible gives a right to expect responsibility in
return. This is the way to develop environmental responsible practices by farmers -
to secure responsible stewardship toward the ecology and preservation of the earth
for future generations.

5.5.4 INTRODUCTION OF LAND TAX

In agriculture-based economies, land is the most significant source of wealth and

thus a major potential source of revenue. Ideally and theoretically land taxation
could serve redistribution of land if it can be a significant burden on landowners
showing poor stewardship, in particular, where it would be progressively higher on
larger land parcels/holdings. Furthermore, land taxation uses records that if made
public, arouse the awareness of large holdings. The revenues can be used to
subsidize credit for small holders and special penalties can single out undesired
forms of land tenure.
Shearer et al, (1990 [72]), propose land taxation as a tool to attain a more
even distribution of fertile agricultural land. The incentives of land tax might be
revenue, increased productivity, and land redistribution. But as Virginia Lambert
points out (1997 [51] p.174/176):

The costs of land taxation seem to outweigh their benefits in less developed countries
... Land taxation, as a means of influencing land use and agricultural growth has
generally not been successful. The most important condition for implementing such a
system is political support to enact the system with rates high enough to have an
impact on the landowner behavior. A second condition is an administrative system
sufficiently strong to implement the legislation. The ineffectiveness of land taxation
systems in many less developed countries is due to their high cost. On the other hand,
 Land Reform 111

under some circumstances a land taxation system may generate enough revenue to be
sustainable. After all, self-financing systems exist in all industrialized countries.

Establishing an operational land tax system can be done gradually in such a

way that it does not negatively affect the state budget. An often followed method
(and practiced in land tax projects in Bolivia and Costa Rica) is to start with the
relatively easy to identify objects in urban areas. These will bring in relatively high
tax revenue to be used to fund the incremental extension of the system to more
rural and less revenue collecting areas.
But what might seem ideal in theory is not always workable practice. A low
yield from land taxes can reflect poor registration, land valuation, and/or incapable
authorities to timely collect land taxes or enforce payment of land taxes. As with
re-distributive policies, the major obstacle for land taxes is on the political level.
Land taxes must be administered fairly and efficiently and revenues should be used
in ways which taxpayers consider acceptable and equitable.

5.5.5 CONSIDERATIONS ABOUT LAND REFORM TO CHANGE LAND

TENURE

There is today a greater professional consciousness, more widely held, of the

implications of land tenure diversities and the impact of land tenure institutions on
both economic performance and environmental protection. In the 60s the transfer
of land from large farms to small farms was successful because of the inverse
productivity - farm size relationship. But the transfer of land from large farms to
small farms requires a change in the patterns of production, farm subdivision, and
construction of complementary infrastructure. When such changes are not
anticipated and supported by the politicians it may severely hamper the long-term
success of land reform projects.
Land reform was also proposed as a measure to increase productive
employment, to achieve a more equitable distribution of resources and income, and
to enhance market demand for consumer goods to stimulate the industrial sector
and to maintain or increase output at lower production costs. It means reduced use
of high social-opportunity-cost capital and increased use of low social-opportunity-
cost labor. While these goals are still relevant, one could wonder if land reform is
still the most effective way to reach goals. Are alternatives available with a higher
rate of success? Fundamental to correcting the current course of agricultural
stagnation, rural poverty, deforestation, and soil loss is the correction of land
tenure regimes. Often it is unfair to point the finger to the peasant who actually
executes the deforestation and practices slash and bum agriculture; it is in most
cases the land tenure regime that protects the landlord, although he might be using
the best lands sometimes very wastefully. As we follow what De Janvry et al.
noted in 2001 [48], we have to conclude that land reform is still necessary,
although, land reform is not the standard solution for all rural problems. But small
efforts with only half-hearted support, similar to those of the 60s, will not suffice.
On page 23 (in [48]) de Janvry et al. state: ‘... to be effective, land policy reforms
112 The Invisible Line

need to be embedded in comprehensive policy and institutional reforms, and to be

complemented by effective rural development interventions in support of the
competitiveness of beneficiaries.’ And a little further on that page: ‘Land reforms
following de-collectivization in Eastern and Central Europe need extensive
institutional reconstruction to insure the international competitiveness of
beneficiaries.’
There is no final chapter on land reform programs. Only periodic
observations and evaluation of specific programs can be made to see whether that
particular program satisfied the pre-reform expectations. It has been said before.
Land reform should not been taken lightly. It is not something a government can
decide upon ‘the other day.’ Land reform is a process of changing the existing
patterns of land tenure with all the consequences of that change.
To avoid the possibility that such change is conceived as a threat, providing
institutionalization and regulations should complement large-scale tenure change.
Institutes should be established to provide assistance and security of tenure for the
farmers and legislation should provide long-term use of land. Land reform requires
a commitment of the government and can only be successful with sufficient
supportive flanking policies and subsidiary measures. De Janvry and Sadoulet
(2001 [48]) warn against half-hearted support and too high expectations, and
Thiesenhusen points to necessary transfer and financing mechanisms. It is not an
easy task to perform land reform, but natural resources are finite, human skills and
intelligence are not. It is a tragic waste that millions of humans have no or so little
opportunity to be challenged to develop their human capacities especially those
living in rural areas of lesser-developed countries.
Most research findings suggest that it will take at least ten to fifteen years to
stabilize the relative economic position of losers and gainers from land reform, and
thus for beneficiaries to experience their new responsibilities in production,
marketing, capital formation and participation in the development of their
communities. One may assume that the manifestation of improved abilities in
beneficiaries, as a consequence of new motivations, better nutritional standards and
developed skills, takes the same amount of time. If this is applicable for the
majority of land reform programs as initiated in Central and Eastern Europe and
Central Asia after the political changes in 1989, then little can be said about the
effects of land reform in those areas yet.
A large-scale land reform project is not the final activity that will provide for
long-term sustainable rural development and increased agricultural production.
Soon after the completion of a land reform project energetic farmers may want to
pursue land consolidation to exchange their parcels of land and to change their
pattern of land holdings in order to create better conditions for more efficient and
effective agricultural production. Thus land consolidation may well be the next
tool for improvement of agricultural production after a successful land reform
project.
 Land Reform 113

5.5.6 LAND REFORM AND LAND CONSOLIDATION

Agricultural production processes are not static; they change over time because of
changing demand for agricultural products, improved agricultural production
techniques, and new agricultural technology. Different crops may require different
sowing and planting patterns, introduction of mechanization or new mechanical
devices require different shapes of land parcels, building of irrigation systems may
affect the use of parcels of land and make some parcels hard to use, etc. Because
land is the main production factor in agricultural production, it has to adapt
constantly to maintain a certain level of effective and efficient farming.
Land reform is the break-up of large land holdings and the redistribution of
the land. In its traditional form the land was handed over to farmers with little land
or none. As described earlier land reform in countries in transition is a distribution
of land to new farmers that were agricultural employees on the large land holdings
(the state or collective farms) or to people with ancestral land claims. Land reform
is often a donor supported large-scale process that will include several regions or
even the whole area of a nation. Land reform is a non-evolutionary change of land
tenure and its success depends on lasting political support and supporting side
activities by the government. Land reform can affect both rural and urban areas. As
far as the rural areas are concerned, it will be clear that the parcel distribution that
evolves from land reform is not always the most efficient for agricultural
production. Often rather soon after a land reform project, farmers start to look for
ways to alter the number of parcels they can use, to exchange parcels in order to
locate them more efficiently, and to attempt adapting the parcel shape. Basically
this type of activity is referred to as land consolidation and it is generally limited to
rural areas only. In a land consolidation process the land tenure situation changes
in respect to the objects of tenure; the land parcels. And although, participants can
use a land consolidation process to make adjustments to their land tenure, a land
consolidation process certainly is not primarily intended to change the land tenure
situation as a whole like a land reform process. Moreover land consolidation is
limited in scale and a land consolidation process normally covers only part of a
nation or region. The consolidation plan should present fewer parcels of better size
and shape. But that is not enough, the new holdings should have better access
roads, parcels that are less vulnerable to soil erosion, and often the authority
involved in the consolidation process should also carry out rural improvements to
ensure better community services. Both in rural land reform and in land
consolidation, the aim is to improve agricultural production; the impact on the
people living in the area can be considerable. Land consolidation is the process to
eliminate (very) fragmented land holdings - each consisting of a number of parcels
- into fewer blocks with larger parcels of land. And although, land consolidation is
not part of land reform it often appears on the national policy agenda not long after
a land reform project. Many of the considerations that are part of land
consolidation processes are of equal importance for land reform projects. In this
book I will not attempt to give an extensive description of the many different
114 The Invisible Line

approaches to land consolidation but rather describe some general common

features and some recent developments in land consolidation processes.
Farmers give up the land that they are using and receive on reallocation
different land in its place. Farmers that submit to this change of objects of tenure
should be certain that the process or reallocation is fair. As Rowton Simpson ([68]
p.249) states, consolidation operations can be divided into two main stages. In the
first or preparatory stage the consolidation area is defined, the existing land parcels
are determined, the rights exercised in these parcels are ascertained, and the land is
classified and valued. These operations are not necessarily all conducted at the
same time. A well functioning land registration can mean an important benefit in
this respect. Land registration will provide normally the real rights only and not
personal rights exercised in the area while land rent and land lease are important
rights that must be taken into account in a land consolidation process.
In the second stage of land consolidation a ‘consolidation scheme’ or
‘consolidation plan’ is drawn up. In this plan all the important factors needed to
achieve a fair, balanced new land distribution must be incorporated. In several
modem societies the land registry plays a substantial role in this process because of
their experience and knowledge of land related data management. But as far as
rural landscaping and rural development ideas are concerned, cooperation with
other experts like landscape architects and sociologists must be part and this is an
increasing field of expertise necessary for a successful development of any
consolidation plan. During the preparation, participatory discussions with all the
parties involved in the land consolidation process are necessary. Voting by the
legally recognized interested persons to adopt or reject the land consolidation plan
seals its validity or the fact that it should be re-done. The second stage of land
consolidation is completed with the implementation of the plan.
In most literature seven operations are distinguished that are required after the
consolidation area has been defined. These are:

• Preparation of a plan of the proprietary land units in the consolidation area

• Preparation of a schedule showing the names of owners, the number and areas
of their parcels, any subsidiary interest, the type and quality of the land and
any other relevant particulars
• Classification and valuation of all parcels
• A geographical representation showing the proposed layout of new parcels and
the infrastructure measures and engineering works that will be part of the
consolidation process
• A schedule showing the number and area of each new parcel, the new owner’s
name, classification and valuation data per parcel, and the apportionment of
existing encumbrances
• A list of the cash balances which each owner must pay
• A statement of the cost of the operation showing the contribution of each
participant in the land consolidation process (unless the State bears all the
costs)
 Land Reform 115

Part of the procedure of land consolidation is a solid legal base for appeal for
those farmers who are not satisfied or convinced of the fairness of the process.
Abandoning one’s land is an emotional process and when a certain degree of
compulsion is involved the rights and rules need to be safeguarded by adequate
procedures.
A much-debated issue is whether a government should resort to compulsion
in the execution of land consolidation programs. Some consolidations are carried
out voluntarily because all farmers involved see the potential benefits of it.
Generally the government contributes to such activities as they are seen also in the
interest of the general public, worth spending public money for governmental
assistance. The negative side of compulsion can be sweetened by inducements of
the government like credit facilities, soil improvement works, infrastructure for
better access, and other improvements to rural living. An important element in land
consolidation projects is the involvement of local people with the proceedings.
In many developed western countries the land consolidation process has
changed into a more comprehensive land development activity. In land
consolidation originally, the main objective was to promote the interests of
agriculture, horticulture, forestry, and husbandry. This was logical at a time when
the rural area was regarded almost exclusively as agricultural production space. A
lot has changed. The conservation of culture, nature, and landscape, the growth of
recreation activities, urban sprawl, environmental concern and the expansion of
provisions for traffic and utilities all have an impact on the rural areas and demand
their share of the land. The more scarce the land for all these competing demands,
the more the need to an integral approach in which all the interests can be
balanced. Land consolidation thus became land development. When speaking of
land development for rural regions most experts distinguish between four types of
land development.
Land redevelopment - the first type - is intended for areas in which other
functions besides agricultural production play an important part. Land
redevelopment is applied when re-balancing of the competing functions claiming
part of the rural area is deemed necessary. It also can be used for boosting the
attractiveness of the rural scenery and so contribute to rural living in a positive
way.
Land consolidation in its original form and objective is the second type. It is
applied when the area is mainly used for agriculture and other functions of the land
are of minor importance only. But in more recent land consolidation projects,
measures are taken to conserve nature and to improve landscape attractiveness to
fulfill recreational and other public functions.
Land adaptation is intended to remove constraints for agriculture arising from
engineering works for roads, railway lines, new zoning and physical planning
developments, construction of irrigation installations and water reservoirs. The
scope of adaptation is often limited and should be done only in connection with
engineering works that carry regional or national interest.
Land consolidation by agreement is the fourth type. As the name implies it is
an agreement between all the owners of land in generally a small area. Mostly the
116 The Invisible Line

result is a relative simple exchange of land parcels without additional engineering

work.
An interesting application of land consolidation in a specific situation can be
found when in a country a relatively large amount of new agricultural land
becomes available for distribution by land reclamation. Land reclamation makes
otherwise inaccessible areas or agriculturally useless areas of land available and
suitable for agricultural use, like reclaimed swamps, irrigated deserts and
submerged coastal areas. A specific type of land consolidation was applied in the
Netherlands where in the previous century rather large areas of land were
reclaimed from what once was the ‘Zuiderzee.’ Large tracts of this fertile land in
the new polders - the ‘new land’ - were used to expand the national agricultural
production area. Farmers could move to the new land (and take up residence in the
newly built farmhouses) but they had to hand over the ‘old land’ of the farms they
left to a government agency. The agency used this land to increase the farm size of
otherwise economically inefficient sized farms on the old land. Such situations are
however, exceptional.
Due to the highly intertwined interests in rural land by many groups of people
with more or less conflicting objectives, land consolidation can be a tool to
accommodate these interests in a balanced way. That is why more recently in some
countries the process formerly referred to as land consolidation has become now
more or less a process of participatory rural engineering. With participatory rural
engineering a government aims to integrate conflicting objectives of parties with
highly diverse interests into one feasible and sustainable solution for the rural areas
in the country.

5.5.7 LAND REFORM AND LAND REGISTRATION

It must be noted here that land registration can be a component of a land reform
program, and this is highly recommendable to avoid future problems and litigation.
But land registration is not an element of land reform sine qua non. Since land
reform is often politically motivated and setting up and maintaining a land
registration is very costly and normally requires outside funding, some land reform
projects start without the land registration component in place.
Comparative studies by LTC ‘indicate that survey and registration costs in
small-holder agriculture, even in a systematic process using the most cost-efficient
methods, run at least $50 and often $100 or more per parcel. Multiplying this
figure by the number of parcels in any country produces alarming figures.’ (See
[14] p.256, 1994). Nevertheless, it is strongly recommended to implement both
activities simultaneously. It should be borne in mind that, especially in agricultural
areas, the land reform process requires generally an enormous amount land
surveying in order to prepare maps for decision making and planning of
infrastructure to provide access to the individual plots of land. Surveys are also
required for the preparation of documents for transfer of land to individual owners.
This means that most of the surveying necessary has been completed already in
 Land Reform 117

advance for the land reform project in order to have a proper process of
redistribution of land, regardless of the establishment of a land registration system.
Figure 5.5.7a shows an example from Bulgaria of a land document. It is an
official land document issued on March 25, 1993, by the municipal land
commission (LKAD) of Sungurlare, describing land parcel 707 in the village of
Lozitsa with an area of 67.785 dka. (a specific area measure in Bulgaria in dekares,
the size of a parcel of land of 67.785 dka. is approx. 17 acres).

C K H u A
N° / 25.3.1993 r.
M 1 : 10000

Ha napuejr N° o t Macnd N° no njiaHa

Ha c. JI03HIJA, EKHM 44149, odji. Cymypjiape,

IlapaejibT e coScbchoct Ha HacjiejtHHitHTe Ha:

no pemeHHe N° . . . 199 r. Ha odiHHHCKaTa no3eMJieHa komhchh,

cbrJiacHOHH, 17. aji. 2 ot3CI133

ILiom Ha napuejia : 67.785 AKA. HaHHH Ha ipaHHO nojradaHe:

KaTeropHH Ha 3eMflTa npn hchojihbhh ycjioBHH :
flapHejTBT ce HaMHpa b MecraocTTa * * npn ipaHHQH h cbceAH:

H3padomn: / /
Figure 5.5.7a Land titling document
118 The Invisible Line

The map fragment in Figure 5.5.7b shows how land surveyors in a region in
Bulgaria prepared maps for the re-adjudication of land of a former large agro­
industrial complex. After the distribution of land on paper, land surveyors marked
the new parcels of land on the ground with monuments before these parcels were
shown to the new owners. Note the numbered - temporary - monuments (2, 3, 34,
35, 36, 27, 26, and 25). These monuments will be measured and given coordinate
values in the national grid. In several cases nowadays this can be done by GPS to
provide their coordinates. (GPS or Global Positioning System is a satellite using
location system with which land surveyors determine the exact location of points
on the earth’ surface.) The recorded measures will uniquely locate the parcels of
land and determine their size and shape.

Figure 5.5.7b Parcel distribution proposal

 Land Reform 119

Land reform focuses on changing land tenure and distribution of property

while in rural areas in countries in transition often the distribution of agricultural
assets is included. For the protection of rights and a perception of land tenure
security, a new legislation in which protection of new property right holders and
the legitimate authority of public records of property rights to provide improved
security in land transfers is laid down. The latter is an important requirement for a
land market to evolve and to stimulate economic development, and to be most
effective it should be already in place. Land and agrarian reform puts emphasis on
agricultural production. Land tenure is changed and individual farmers are made
responsible for the way in which they till the land as long as can be expected that
this will result in increased agricultural production.
From an economic and financial point of view, the land registration system
needs to be able to cater to the requirements of all of those who are potentially
going to be involved with the land. These include, but are not limited to the
following:

• Property owners who wish to sell or lease their land and prospective
purchasers or tenants;
• Property owners who need to borrow money against the security of their
interest in property and banks or credit houses interested in lending;
• Landowners who wish to put their land into a cooperative in return for a
defined share of the cooperative;
• Newly created long term land tenants that are looking for ways to improve
agricultural production;
• Corporate entities (businesses) that have to comply with accounting
requirements and require a defined interest for their assets; and so on.

The complication lies in the fact that various forms of tenancy, for example,
sharecropping, land rent, or owner-operatorship, as well as the legal requirements
for corporations and production cooperatives are different and in a formal sense
often not fully comparable with each other in the different countries in the world.
And although a certain form of standardization may be encouraged in light of the
expanding ‘global market,’ land registration should thus primarily be developed to
accommodate the needs of a specific country in accordance with the current legal
and cultural values that exist therein. Land registration is unlikely to be successful
when established using a general blueprint.
 Chapter 6

Land Registration

6.1 LAND REGISTRATION SYSTEMS; A CONCISE HISTORICAL

INTRODUCTION

6.1.1 ROOTS OF LAND REGISTRATION SYSTEMS

The administrative infrastructure to properly manage and maintain a land

registration system and the land rights recorded therein are important public goods.
Land registration systems reveal much of the wealth of a nation and its distribution
among the population. With the increasing attention for protection of privacy this
is a much-debated issue because several experts see it as a threat to many and to
the security of the nation. Full publicity of the system is sometimes curbed and
governments, as well as individuals, have tried to distort the functioning of land
registration systems. In economic theory, full and easy access to information is
essential for the operation of markets, and a limited publicity of land records
supposedly results in a constraint for land markets to develop and to allocate land
to the most efficient user. For economists limited land information will
theoretically prevent land from reaching its highest value and, again theoretically,
this will also affect overall growth in rural areas in a negative way. In modem
computerized systems some protective measures can be taken relatively easy in
this respect, e.g., to give access only to one specific property at a time and not
show all properties registered in the name of a person or entity, to levy progressive
fees for data retrieval - the more properties the higher the fees - and/or to register
the full details of applicants. Sometimes a national law requires a proven interest or
even explicit (written) permission of the registered entity to enable a registrar to
submit information on the property.
Land registration systems can only be operational in an organized society. To
introduce such a system, a certain level of national government and the ability to
maintain a recording on land tenure are necessary characteristics. It is useless to
create a land registration system on the basis of varying standards and local
customs. A land registration system requires radical standardization and a Cadastre
needs national codification to be effective. As long as each locality uses its own
measurements and standards there is no compatibility on land data and hence no
way to implement a national land registration. In a social context land registration
systems should first and foremost serve the perception of land tenure security.
Being operational in an organized society they should never be judged on the basis
122 The Invisible Line

of their constituting elements like title or deeds registrations, positive or negative

systems, but always approached as a system in its totality and be considered as part
of the complex structure regulating the social relationships among citizens in any
given society.
Most of the ancient governments initially developed as a result of the harsh
circumstances created by a drastic change in climate around 5500 years ago. After
the Stone Age the climate became dryer and people were forced to set up
communities along the banks of the big rivers and inland lakes of those days. The
almost endless amount of usable land available to a rising number of people
diminished rapidly. The fertile fields of northern Africa vanished into a vast desert
known today as the Sahara, Arabia turned into a desert, and also in the inhabited
areas of Asia and Australia, the desert-like circumstances became common. When
focusing on holding rights to land in 4.1.3 attention has been given to the fact that
people gathered around rivers like the Tigris and Euphrates, the Nile in what is
now called the Middle East and the Hoangho River in China. In this paragraph the
focus is on governing. To have maximum profit of the available water, rules had to
be developed and maintained for the use of water and thus a form of government
appeared. Canals were dug, dikes were erected and irrigation works were
established among people who worked cooperatively on riverbanks. The necessity
to make maximum use of water forced people into (mini) societies with a form of
government. To maintain the irrigation system such governments needed funding,
and so the habit of levying taxes developed. In most of the ancient societies this
took the form of land taxation to be levied by a central recognized government. In
ancient Egypt the province was the governmental unit based on the irrigation
works along the Nile. In Mesopotamia ‘polders’, which were the usual water
regulating areas, determined the governmental units.
A good example of rules based on the need for water can be found in the
proclamations set out by van Riebeeck in the newly formed Dutch colony of South
Africa. The Dutch East India Company needed a station on the long journey to
India for its ship crews to cater fresh produce. What better place could be chosen
than the Cape of Good Hope, half way between Europe and India? So in 1652 van
Riebeeck established there a colony and one of his earliest proclamations forbade
‘aancomende opperhoofden en minder gequalificeerde persoonen’ (potential chiefs
and lesser qualified people) from washing themselves or their clothing in the Table
Valley streams, which were used by the community as drinking water. Penalties
were prescribed for any disobedience upon the part of the Company’s servants. In
1661 both the Company’s servants and the free ‘burghers’ were forbidden to divert
water from the Table Valley streams for the irrigation of the land to the detriment
of the Company’s requirements. In 1761, as a result of disputes between the
Company’s miller and the owners of farms higher up the valley, the Council of
Policy imposed a penalty for the unauthorized use of water. It charged
‘burgherraden’ (civil councils) with the duty of fixing turns of water leading
among the landowners during the hours from 5:00 am to 7:00 pm on certain days
in each week.
 Land Registration 123

This example shows how a form of government can empower and maintain
rules to regulate the way of life in a community. Because water is a necessity for
life, but also a threat when uncontrolled flooding occurs, emerging governments
had to take actions for protection against but also fair use of the available water
resources.
Hence the history of land registration systems as written records on land
started in agricultural societies around the Nile, Tigris and Euphrates. Little is
known about China in this respect.
It became common practice that part of the harvest was handed over to the
authorities to provide for the maintenance of irrigation works and, if there was a
ruler, also for the monarch’s often-wealthy ways of live. This required a form of
land registration since fairness required that not everyone had to donate the same
volume of crop. The argument was that people owning and using more land had to
hand over more crop because they made more use of irrigation works and available
water. For those collecting the crop, it was necessary to have knowledge of the
ownership and the size of the land. To establish the size of a piece of land a certain
level of knowledge of mathematics is essential to calculate the area of land. These
calculations were made on the bases of surveys of the land. The land had to be
marked on the corners by benchmarks. Remains of benchmarks found today
sometimes date back to 3,000 years before the Western calendar started.
Archeologists have also found clay tables used in court sittings regarding land
disputes. The tables describing the ownership of rights to land sometimes even
include a map as proof of rights to be used in those court sittings.

6.1.2 IMPLEMENTATION OF A LAND REGISTRATION

Someone once made the remark that a language is a dialect with an army. When a
dialect can defend itself with force, it might signal the creation of a social
organization eventually becoming a sovereign state that distinguishes and separates
itself from neighboring people speaking a different dialect. Internal empowerment
can create a state with rules and standards to implement an idiosyncratic system of
land registration. But maintaining a successful and operational land registration
system does require more than empowerment. Rules to regulate and use must be
common knowledge and they must be followed to maintain the land registration
system and keep it up to date. But the most important requirement for a national
land registration system is the existence of standard measurements. It does not
make sense to use distances in blocks in urban areas since the length of a block
differs from town to town. One cannot measure the size of a field by using the
number of bushels of a crop that one can harvest from it nor will it be adequate to
register an area by using the time it takes to circumvent it on horseback. Most of
the latter ‘measurements’ will differ with the terrain accessibility and its
topography. Besides a standardized measuring system, it is necessary that the
people understand the rules and use a common language. The invention of paper
and ink meant another step forward for ruling powers to maintain land registration
systems and the introduction of money made building of large bams in which the
124 The Invisible Line

tax - often in the form of part of harvests - was stored, unnecessary.

In earlier days, authority and religion were closely related. There was hardly
any distinction between these two. The existing knowledge was tightly connected
with religious affairs, schools were usually in temple complexes and the temple
was the place where scholars would gather. Religious education and instruction,
teaching reading and training in writing skills were strongly interconnected.
Trespassers of the established laws and rules had not only to fear civil punishment
but also the religious expulsion. The latter could take the form of curses that were
often inscribed in the benchmarks that indicated the boundaries of the land. Curses
were common practice in those days and were not only laid on trespassers of
boundaries but also on thieves of other possessions. Religion played a large role in
the every day life of the people. Protection of property was a matter of the Gods.
Gods were used to curse anyone trying to intrude on the private property. Many
stones inscribed with curses for the trespasser have been found and also in ancient
literature cursing is widely used. In chapter 4.3.1 several easy to check examples
have been given of such curses.
In lesser-developed regions where common land is dominant it still can be the
priest, the holy man, or the witchdoctor who governs the community and its
common land tenure. Not only will he or she maintain the religious tradition, but
there is also a strong involvement in the distribution of land among the members of
the local group or the tribe. In many of these communities land is considered
common property governed by traditional or tribal land tenure regimes, usually
described as customary land tenure. Rights in land are allocated and protected by
established rules of customary law, which can vary between the different localities.
Under such rules exploitation of land and land use carries obligations toward
ancestors and future generations. The boundaries on common land and between
family plots are not marked. ‘Virtual records’ of rights on land exist in the minds
of the members of a community. The land possessed by the native people is never
regarded as belonging to anyone privately or exclusively, but it is often seen as the
common property of the tribal community with its ancestors, those now living and
in possession, and the countless many who have yet to be bom.
The development of land use is generally distinguished in three stages of
communal use; primary, secondary communal use and a tertiary communal stage
as a reaction on individual private land use.
Use of land is seen as primary communal if there exists no other right for
those using the land than fishing, hunting, collecting fruits and use of wood for
building and for heating. In the course of time most of the primary communal use
changed into secondary communal use when individual rights developed. The
individual and exclusive rights were originally included in the tribal use of land.
Members of the tribe were entitled to use parts of the tribal grounds for their own
use. The exclusive use rights are often only for a specific time to take care of a
certain crop and collect the harvest after which other people in the community can
take possession of the land for private or public use (again). The fruits of a tree do
not always belong to the user of the land, but can be property of the heirs of the
one that planted the tree. Even if someone has exclusive access to a plot of land,
 Land Registration 125

others may have the right to use the land for passage and to collect firewood from
bushes planted along the plot.
In secondary communal land use family ties can be recognized and often
traces of religion mixed with law are also found. Overtime and in more developed
communities a division between government and religious leaders appears. In most
of the modem societies of today religion and government are separated although,
some countries tend to return to (or stick with) a government that is based upon
religious traditions as is clearly noticeable in the Middle East. But this is even
more obvious in Iran, in Afghanistan under the Taliban mle, and in various other
parts of the world.
Exclusive land use changed to private ownership as the significance of the
family broke down and mystical thinking became more and more rational over the
course of time. Private ownership of land is the common form of land tenure in
most of the ‘Western’ world and with it capitalism developed. As a reaction to this
development, tertiary communal land use could emerge. This reaction was not a
normal development but a result of revolt. An example thereof is the emergence of
communism as a national doctrine.

6.1.3 LAND LAW AND RELIGION

As stated in 6.1.2, there once was a strong relationship between law and religion.
Although, nowadays this relationship is much weaker, it has not completely
disappeared. Christianity has had a specific influence on most law systems where
people came in contact with this religion. As a result of the vast colonial past of
several Christian nations of Western Europe - where colonization, claiming of land
for colonial settlers and the conquest of native people was sometimes justified to
spread Christianity - this influence can be traced in many countries throughout the
world. But other religions have also had their influence in the countries where they
were practiced. Christianity is not very specific about land law; therefore influence
on land law has been limited compared to some effects of other religions on land
law.
The influence of the Islam and particulars of Islam on land law can be noticed
in most of the typical Islamic countries. According to Islam there is no government
that can issue law. A government can only interpret the Koran, Mohammed, and
the Sunni and perhaps implement analogue practices. The government is an
executive of the rules as based on the Islam itself. Mortgage is unknown in Islam.
Public land can be used by anyone as long as this does not come into conflict with
the public use. However, anyone can demand removal of objects erected on public
land. Water, one of the precious things in the Middle East, is regarded in Islam as
public property that everyone can use. Water must always be accessible because it
is needed for public purposes and for religious matters and thus accessibility to
water is a basic right for everyone under Islam. The only water that can be used
exclusively and privately is water in private storage tanks.
In Hindu Law the common definition of ‘svatva’ (sva = own, tva = ness) is
‘fitness to be employed at pleasure.’ The asset is called ‘dhana.’ The owner is
126 The Invisible Line

called svami (literally, possessor of ‘sva’). A problem arises when it turns out that
many svamis (owners) cannot employ dhana at their pleasure. At last it has been
defined as an ontological category of its own nature. Where dhana implies
ownership of land (originally dhana also could be ownership of slaves and of
movables), it did not necessarily imply ownership of trees, boreholes, and wells
there on, and conveyance documents would mention these separately.
Although not a ‘religion’ in the traditional sense, communism has had a
strong influence on land tenure developments in Russia, Central and Eastern
Europe, and in Central Asia. Private ownership is adverse with the ideas of the
communism. Land registers in Central and Eastern European countries - especially
the ones that knew private land ownership before the communists came to power in
the middle of the nineteenth century - do seem to show private property, but the
word land tenure more adequately defines the real quality of the holding of the
land (although, the term ‘ownership’ is used in translations). Much emphasis in
communist countries was put on the economic aspects of land use. Particularly, the
possibility to use land for agricultural production became a strong tool in the
economic planning of socialist-communist countries. Most of the communist
countries had legislation leading to a form of private land tenure under which
selling or granting of land to individuals is impossible or forbidden. Only the state
is entitled to accept land from grants of individuals.

6.1.4 LAND REGISTRATION AND COMMERCE

For many of us land has two special characteristics distinguishing it from most
other commodities known to commerce. It is immovable and so it cannot
physically be transferred from one person to another and it cannot be possessed in
the same way as an article that can he handed over. Also, in most law definitions,
land is everlasting; it may be spoiled, it may be eroded, it may be flooded, or it
may be quarried, nevertheless, there will always remain a location known as that
piece of land. In legal Latin it is expressed as ’Cujus est solum ejiis usque ad
coelum at ad inferos.’ In other words: It is the surface and everything on it till in
heaven and under it to the center of the earth. In this respect, land is a segment of
the earth from the center of it, into outer space, and unchangeable. (Elsewhere
referred to as the ‘carrot’ theory)
The immovability and the everlasting attribute of land makes it different from
most commodities, whilst ownership of it is different and more complicated than
with movable goods. The owner of land can never destroy it or remove it as he can
do with most other goods he owns. This is true in every law system or law family
in the world. Whether it is regarded as absolute - as in Roman law the ‘dominium,’
in European continental law ‘allodial,’ or in Islamic law ‘mulk’ - or as in English
law where the owner or possessor is called a ‘tenant in fee simple.’
Economists in the 19th century devoted some of their theories to land. Adam Smith
justifies the payment of land-rent or ground rent as the logical price the land user
has to pay for the beneficial use of this relative scarce commodity.
In his ‘The Principles of Political Economy and Taxation,’ David Ricardo
 Land Registration 127

presents a different opinion. Rent paid for land is not based on relative lack of land.
Ricardo develops a theory of differential ground rent - more fertile land will have
a higher rent than poorer soil. Ricardo developed this theory to explain that
landowners only collect money without any quid pro quo. If they can provide
renters with rich soil the payment is higher than when poorer soils are offered, but
their own involvement is just nil. This he condemned as unjust. Reading Marx
theories reveals a similar opinion. In Marx’s theory about the class-consciousness,
he criticizes the landowners for not doing anything at all, whilst the laborers have
to work (too) hard to earn their meager income.
Nowadays land is widely used in the national economy to borrow money by
using the land as a security for a loan. To have a mortgage is common in most
industrialized countries and in no way a matter of shame. Here we see another
aspect of land. It is a secure instrument that never can be obscured. It is always
there and one cannot hide it. That does not imply however, that the stability of land
is absolute. Looking at a globe with Pitlo, one can imagine that hundreds of
millions of years ago a piece of land separated itself from another piece of land
drifting along the vast waters of the ocean. Nowadays we call one such piece South
America and the other piece Africa. On a smaller scale we might see the same
thing. By the tide movements along shores, sand will be replaced from one soot to
another; land may be extended or may be diminished. In river deltas, pieces of land
may drift away and collide with other pieces where they form new land connected
by roots and plants. Rivers can change in location, making land appear differently.
In this respect it is illustrative to study a map of the Mississippi River where it,
only a few centuries ago, became the border between the states of Louisiana and
Mississippi. What was once land is now water and vice versa. But the land
(perhaps now underwater) is still that land. Thus, most people regard land as
immovable and as a firm and secure base providing for land tenure security and
collateral.

6.1.5 FAMILIES OF LAW

Attention must be given to different law families when we are going to look into
land registers and systems of land registration. The relationship between land and
man has been the subject of study for over thirty centuries, and the influence of
many different opinions and religious circumstances can be seen in the systems
that exist in the world today. In fact each country has its own system of land
registration that may have similarities with the systems of neighboring countries.
But seldom will it be exactly the same. It is boring and hardly useful to describe
the system of each country separately, but we need to distinguish the main
differences and similarities of the many systems. In a very general way three types
of law systems in the world - also called law families - can be recognized. Apart
from these law families there is a vast number of countries using customary rules
for the regulation of land use and land tenure. These customary rules however, are
so distinct and different per region that they will be referred to as a general
category of rules. But it should be bom in mind that customary rules govern land
128 The Invisible Line

tenure in many areas.

The three law families, apart from customary land tenure are:

• The Common law and Equity family

The origin of this law family is found in Great Britain, where Common law
was developed at the court in Westminster as a reaction to custom. The other
part of this law family, the Equity, is a collection of rulings by the Lord
Chancellor. It is a collection of decisions of the supreme authority, the
sovereign king, presented to him in a petition by civilians seeking justice.
Equity has priority on Common law.
• The Roman-German law family (also referred to as the civil law family)
In continental Western Europe the principles of this law family can be found
in many places. The French ‘Code-Civil and the German ‘General Klauseln’
show their descent of this Roman-German law. Some authors suggest that
also in Scandinavian countries the influence of this law family is noticeable
while others argue that Scandinavian law has an origin of its own.
• The Socialistic-Communistic doctrine
In very general terms it can be stated that there are three dogmas of
communism in the doctrines of Marx and Lenin:
Maintaining material safety by a strong society that discourages
potential enemies of the society and forces them to peaceful
coexistence.
Education of the civilians with a strong focus on destruction of their
antisocial behavior.
Development of the production of the country leading to abundance to
supply everyone’s needs.

The latter dogma leads to a land registration system in which the planning of
agricultural production forms a key element. This is noticeable in almost all
countries where the influence of the Marx doctrine is present, such as Cuba,
Angola, and Zimbabwe etc.

6.1.6 LAND RIGHTS IN DIFFERENT LAW FAMILIES

As a result of the existence of a British Empire, many land tenure regimes all over
the world reflect the strong influence of English law. In English law (the law in
England and Wales) the owner is called a ‘tenant in fee simple’ which in legal
theory does not recognize the ownership of land but only the ownership of estates
and interests in land, but in every day practice the ‘fee simple’ is absolute
ownership. This form of land tenure stems from a historical development of the
feudal system in England. Feudalism consisted of a relationship between a
monarch and his followers, called tenure that resulted from the privilege of holding
land, rather than owing land. The land held on behalf of the superior ruler was
called a feud, fief, or fee, and the mode of holding established the form of tenure
involved. Feudalism in England rests upon the hypothesis that all land in England
 Land Registration 129

was held in a relation that traces back directly or indirectly from the king. The king
granted feuds to his most important chieftains, known as tenants in capite. The
chieftains in turn made grants of the land to other tenants, with the result that a
landholder could have the status of both a vassal and a lord. Such a dual status
resulted in one’s becoming a ‘mesne’ or middle lord. Thus, a vast structure of
tenure developed in which the king was lord paramount. Land was not the subject
of ownership; it was the subject of tenure. A person could not own land as he could
own a chattel. All that he could own was an estate or interest in land (See William
Burby [15], 1965).
Feudalism on the Continent of Europe was different from English feudalism
only in one major way. It contemplated the rendition of military services by the
tenant to his immediate overlord, instead of a service to the lord paramount.
Systems like these do not contribute to a strong central government. The lack of a
central government resulted on the continent of Europe in feudalism that in a
practical sense developed like it did in England, only more differentiated among
the various little nations both in time and statutes. So the root of the feudalism in
continental Europe is different and thus the attitude towards real property in
Europe is different from that in England. But land tenure (both in England and on
the continent of Europe) did occur in two senses; free and unfree tenure. And
although, the names, indications and time periods may differ slightly, the basic
development shows a remarkable similarity, apart from that fundamental one as
described in tenure from lords and tenure from the lord paramount.
A tenure that involved the rendition of services deemed appropriate to be
rendered by a free man was free tenure. Free tenure came with different names.
There were tenures in chivalry, imposing an obligation to render military service as
a knight or the obligation to carry the king’s sword as grand seijeanty (also
referred to as sergeanty). When the service to the king did not involve military
service but some other trivial performance associated with war it was called petit
seijeanty. Free tenure also existed as socage tenure, imposing non-military duties
such as to perform acts related to agriculture or paying a fixed sum in lieu of
(escuage). Frankalmoign is a tenure applied to the rendition of services of a
religious nature, such as the saying of masses (Frank=exemption, Ailmoign, or
allmone in tenure = tenure by devine service). In the case of tenures in chivalry and
socage, there sometimes existed additional obligations on the tenant, in addition to
the rendition of services according to the nature of the tenure involved. These were
called incidents, such as knight service, aid, relief services, etc.
Otherwise the tenure was unfree. It was called tenure in villeinage
contemplating the rendition of menial services upon the lands of the overlord.
Originally the common courts did not protect unfree tenure. It was a matter that
was settled between the tenant and the overlord the latter being free to do as he
liked. Eventually however, the extent of the duties involved in tenure in villeinage
became fixed by custom, and the courts protected the interest of the tenant. Rights
and obligations of a tenant were recorded and one could obtain a copy of that re­
cord. So ‘copy-hold’ tenure developed as in the course of time the various services
arising from tenure came to be regarded as coming from the land itself and not
130 The Invisible Line

from the holding of the land.

With free tenure the main objective was to continue a dependable military
society through knight service. Instead of knight service however, the payment of
money in lieu came into use. The result was that the system of tenure gradually
degraded into a system that had, for its principal purpose, the furtherance of the
overlord’s personal gain. Eventually, the pecuniary advantages to the overlord
arising from the obligation of service declined to such an extent that their value
became nominal.
The Statute Quia Emptores passed in 1290 in England provided for the right
of alienation by substitution by a tenant, without the consent of the overlord. The
Statute also put an end to sub-feudalism. Where land was conveyed in fee simple
absolute, the transferee would be deemed to hold directly from the overlord and
not from his immediate transferor. The mesne or middle lord was thus eliminated.
On the European continent we see similar statutes and laws to limit the different
types of tenure. The Statute of Tenures, enacted in 1660, erased practically all of
the feudal incidents. It turned knight tenure to socage tenure so that paying of
money instead of rendering services remained.

6.1.7 PECULIAR TERMS USED IN LAND REGISTRATION

Although the development of feudalism shows similarities, the names nowadays

used in England (and in several of its - former - colonies) to describe land tenure
are peculiar in a certain sense, and they only can be understood with a little
explanation. On the Continent the absence of land tenure derived from a lord
paramount causes less complexity and more uniform words to describe the
ownership and the holding of land.
Some attention will be paid to the English terminology. In England, the word
‘fee’ is used to describe an estate of inheritance, thus distinguishing it from a life
estate. An estate in land is an interest in land that is possessory or may become
possessory. Possession may be in the future due to the fact that only one subject at
a time can be the possessor although, there may be more persons with interests
(estates) on the same piece property. For example, A, the absolute owner of land
can convey it to B for life and direct that after B’s passing away the absolute
ownership is to be in C’s hands. During lifetime B may lease the land to C for a
number of years. There are hence three parties with an estate in land, although,
only one (C) is the possessor.
In the early development of the feudal system, tenants holding under free
tenures were considered to be life tenants. In time it became possible to convey to
the tenant and his heirs and, by using such language, assure that at the tenant’s
death the estate would pass to his heirs. This was also in favor of the lord because
of the fact that a tenant, knowing that the tenure would not be lost by his death,
was more devoted to fulfill his obligations and incidents. These estates were called
‘freehold estates’ because they were suitable estates for free men.
An estate in fee is an estate, which has a potentially infinite duration or is
terminable upon an event, which is not certain to occur in a fixed or computable
 Land Registration 131

period of time or bound to lifetime(s). An estate in fee is the case, for example, in a
conveyance of A to B and his heirs under the condition: ‘so long as Westminster
Cathedral stands. It can then be referred to as an estate in fee simple, in which
simple means that there are no restrictions with respect to the inheritable
characteristics of the estate. The word absolute is added to indicate that the estate is
not unrealizable upon the happening of an event.
Another form of estate is an estate in fee simple determinable, to be seen as
an estate that is to terminate automatically upon the happening of a stated event,
for example, a conveyance of A to B and his heirs so long as the land is used for
agricultural purposes. Another form is an estate in fee simple subject to a condition
subsequent. The conveyor has the power to terminate the estate upon the
happening of a named event, like a conveyance of A to B and his heirs upon the
condition that the land is used for residential purposes. So, A may terminate the
estate if the land is not used for residential purposes. Finally an estate in fee tail is
an estate that involves a restriction with respect to inheritance, nowadays it means
that if A conveys to B and B’s line of inheritance becomes extinct the property
goes back to A or his heirs.
On the European Continent, the development of feudalism to a system degra­
ded to land tenure in socage tenure of which the only important incident of tenure
left was the escheat - originally paying money to the lord and later the fact that the
land becomes property of the (over) lord or state when there are no heirs. This
came finally to an ownership in which no lord paramount was recognized. The
ownership became absolute, as it had been for centuries for a few overlords under
Roman law.

6.1.8 ‘ABSOLUTE’ LAND RIGHTS

Roman law as practiced in many parts of continental Western Europe, theoretically

recognizes an ‘absolute’ ownership of rights to land. It is useful to note that,
although the term ‘absolute’ appears, most jurisdictions do not give the owner
authority over land to its full extent. Absolute land ownership is often a theoretical
phenomenon. Theoretical, because almost every society knows of legal or
customary provisions for the government to deal with land, even against the will or
the permission of the owner of rights to the land. In this respect it is interesting to
notice that the French Civil Code sees ownership as the absolute right to dispose.
In the new version of the Civil Code of the Netherlands the similar notion appeared
in the old Code but has now been changed into ‘the most complete rights one
might have.’
In Anglo-American law, land ownership in its full extent is a prerogative of
the Crown or the State. Individuals can obtain grants to inheritable and exclusive
use of land, although this is often experienced as ownership of land. In all of the
known regimes of land tenure both in England and continental Europe, the central
government or that government represented by the crown is the final heir of all
land if any holder of rights to land passes away without any heirs.
132 The Invisible Line

Under communism, basically there is no private land ownership. All real

property belongs to the State as the representative of the people. After the political
changes toward independence in the late 1980s, newly elected governments in
former communist states introduced a ‘western pattern’ for rights to private
property, individual taxation, and taxes on agricultural land (which now had to be
paid in money rather than in food quota as was usual practice at the large state and
collective farms). This requires the governments to make institutional
arrangements and establish agencies that identify boundaries, register property
descriptions and identify the taxpayers. The main question throughout the process
of privatization of real property is ‘who gets the land?’
In Chapter 5 the main difference between the former communist countries in
Central and Eastern Europe, where re-adjudication is an option, and those countries
that belonged to the USSR before World War II where only distribution of land is
practiced, has been explained.
The distribution of property rights is an important issue because property
rights in land represent a large portion of people’s wealth, and property rights have
a strong function as an element of power. Redistribution of rights to land is
decisive for the future possibilities of many of the citizens. In particular, in less
developed countries people do not have easy access to banking facilities and other
means to acquire funds for investment. The capital they own is in their right to
property, for example, in the USA on average over 40 percent of family assets
consist of rights to land, while in developing countries this figure can be well over
90 percent.

6.1.9 LAND ADMINISTRATION AND LAND REGISTRATION

Any documentation about land is in fact a land administration. Land administration

is a wide term encompassing all types of recording of data on land, but what makes
such a recording of data on land a land registration system? In most western
societies the existing land registration system is the result of a historical
development1 but also based on cultural and sometimes religious values of that
society. Land registrations have a legal basis, which of course is expressed in the
native language of the society. Already that makes it difficult to exactly define
what the contents of a land registration system should be, because every translation
is a violation. Legal concepts and cultural values cannot be translated without
jeopardizing their precise content. There certainly is not a blueprint for a
universally applicable land registration system. A land registration is at its
minimum the recording in a register of the ownership of real rights - legally
recognized interests - to land. Currently modem land registration systems are
computerized, parcel based, and up-to-date, land information systems containing a
record of interests in land (e.g. rights, restrictions and responsibilities). They
usually include a geometric description of land parcels linked to other records

1 ‘Western societies’, because a historical development is of course non-existent in many

countries in transition where ‘western’ style land registration systems have been imported.
 Land Registration 133

describing the nature of the interests, and ownership or control of those interests,
and often the value of the parcel and its improvements.
Scholars have developed a set of rules or requirements that can be recognized
all over the world and that make a systematically recording of land data a land
registration system. But there is not a standard list of requirements that can be used
as the blueprint to recognize a land registration system. Although they are strongly
intertwined, some of the requirements are a kind of principles that define the
minimum contents of the data sets, some are more or less goals to be fulfilled by
the registration system and some are the expected results of a land registration
system.
The paragraph in 1.4.5 mentioned statement on the cadastre of the FIG [37]
and shows the difficulty in translating terms as cadastre and land registration,
bearing in mind that some countries do have land registration systems, but no
cadastre. The definition given of a cadastre is: ‘A parcel based and up-to-date land
information system containing a record of interests in land.’ For a land registration
the same statement gives the following definition: ‘The official recording of legally
recognized interests in land and usually part of a cadastral system.’ The difference
suggests that a cadastre might contain more data on land (also non legally
recognized interests?), which may not have an official character. Anyway since a
land registration is clearly defined as part of a cadastral system the criteria for a
cadastral system can apply also to a land registration system. ‘While success may
be a relative term, there are a number of well-recognized criteria for measuring the
actual or potential success of a cadastre. These criteria include:

• Security: The system should be secure such that a land market can operate
effectively and efficiently. Financial institutions should be willing to
mortgage land quickly and there should be certainty of ownership and parcel
identification. The system should also be physically secure with
arrangements in place for duplicate storage of records in case of disaster and
controls to ensure that unauthorized persons cannot damage or change
information.
• Clarity and Simplicity: To be effective the system should be clear and simple
to understand and to use. Complex forms, procedures, and regulations will
slow the system down and may discourage use of the system. Simplicity is
also important in ensuring that costs are minimized, access is fair, and the
system is maintained.
• Timeliness: The system should provide up-to-date information in a timely
fashion. The system should also be complete; that is all parcels should be
included in the system.
• Fairness: In development and in operation, the Cadastre should be both fair
and be perceived as being fair. As much as possible, the Cadastre should be
seen as an objective system separated from political processes, such as land
reforms, even though it may be part of a land reform program. Fairness also
134 The Invisible Line

includes providing equitable access to the system through, for example,

decentralized offices, simple procedures, and reasonable fees.
• Accessibility: Within the constraints of cultural sensitivities, legal and
privacy issues, the system should be capable of providing efficient and
effective access to all users.
• Cost: The system should be low cost or operated in such a way that costs can
be recovered fairly and without unduly burdening users. Development costs,
such as the cost of the adjudication and initial survey, should not have to be
absorbed entirely by initial users. Low cost does not preclude the use of new
information technologies, as long as the technology and its use are
appropriate.
• Sustainability: There must be mechanismsin place to ensure that the system
is maintained over time. This includes procedures for completing the
Cadastre in a reasonable time frame and for keeping information up-to-date.
Sustainability implies that the organizational and management arrangements,
the procedures and technologies, and the required educational and
professional levels are appropriate for the particular jurisdiction.

In some literature about land registration (see Rowton Simpson [68] p22 who calls
the criteria ‘principles’) another list of criteria for success of a land registration is
used. These criteria are often found in documents - in English - referring mainly to
‘Torrens’ types of land registrations:

• The mirror criterion, which provides that the register of title is a mirror,
which reflects accurately and completely and beyond all argument the current
facts that are material to title. With certain inevitable exceptions - like
overriding interests - the title is free from all adverse burdens, rights and
qualifications unless they are mentioned in the register.
• The curtain criterion, which provides that the register is the sole source of
information for proposing purchasers who need not and, indeed, must not
concern themselves with trusts and equities, which lie behind the curtain.
(Some knowledge of English land law is needed for a proper understanding
of this criterion, and of course we must not forget that inspection of the land
is always necessary, as also is inquiry of local and other public authorities
with regard to such matters as planning proposals)
• The insurance criterion, which is that, if through human frailty (in the
Registry), the mirror fails to give an absolutely correct reflection of the title
and a flaw appears, anyone who thereby suffers loss must be put in the same
position, so far as money can do it, as if the reflection were a true one.

A land registration has to fulfill certain principles. Experts on land registration

matters developed these principles over the years and they can be summarized as
follows (See for example Henssen [44] p.7):

• Booking principle: A change in real rights on an immovable property,

especially by transfer, is not legally effectuated until the change or the
 Land Registration 135

expected right is booked or registered in the land register

• Publicity principle. The legal registers are open for public inspection and also
that the published facts can be upheld as being more or less correct by third
parties in good faith, so that they can be protected by law
• Specialty principle: In the land registration system the subject and object
must unambiguously be identified
• Consent principle: The legal entity booked as holder of the rights described in
the register must give consent for a change of the recording in the land
register

It should be noted here that the principle of publicity is interpreted differently in

various countries and the same is true for some countries with other principles (for
example; the change of a right is not depending on its actual registration) but in
many countries registration offers protection against claims by third parties. As far
as the publicity principle is concerned various countries have made a trade-off
between full publicity of the recorded land data and the protection of privacy
resulting in different applications of this principle among existing (and in my
opinion nevertheless successful operational) land registration systems. (See also
6 .2 .2)

6.2 PURPOSE OF LAND REGISTRATION

6.2.1 LAND REGISTRATION AS A TOOL

In chapter 4 the relation between land tenure security and land registration has
been mentioned. It was shown that land tenure regimes do exist in various forms.
What goes for land tenure regimes does go similarly for land registration systems.
As in land tenure concepts land registration is the result of a historical development
of society and reflects the application of technology and knowledge in a specific
society. Land registration systems in modem societies are an indispensable tool for
the protection of rights to improve land tenure security. They also facilitate land
transfers. The term, conveyance, is often used instead of transfer of land to
describe the change of rights to land from one person to another.
To understand the nature of land tenure security improvement and the way in
which a specific society protects the rights to land, it is importantto recognize the
main features of the various land registration systems. A primary distinction in
land registration is between systems with documented and non-documented land
tenure.
Non-documented land tenure often is associated with land tenure and land
use that is ruled dominantly by traditional tribal law or local law, because this
generally consists of non-written traditions and customs. There is growing interest
in the customary land tenure regimes because under certain circumstances they
prove a high protection of rights to land and of a sustainable use of natural
resources. In several countries where formal systems govern rights to land,
136 The Invisible Line

customary rules may also have a considerable impact on the tenure system. Land
registration is often seen as the vehicle to escape food insecurity and to achieve
economic development.
Land registration is a modem tool, but it is not the only answer on questions
of land tenure security and certainly not the only condition to be fulfilled to
accomplish food security and rural development. To be really effective in
protection of rights to land, alleviating food security, and economic development,
land reform and land registration activities must be supported by the whole society
in which they take place. Prerequisites for success are a stable government,
protection and security for all citizens, and an institutional framework in which the
forces of a market economy can flourish. The latter remark also includes a land
registration to facilitate dealings in land designed according to the social and
cultural circumstances under which the system will function.
Reform of registration systems and reduction of transaction costs for small
purchases and sales can be an advantage to small holders. Land titling projects in
Latin America have sought to improve the extent and ease of land titling for small
farmers in order to increase their security of tenure and to raise their productivity
and hence their ability to acquire more land. To obtain credit by using land as
collateral, rights must be clear and unambiguous. Ownership of rights to land
cannot be proved by physical possession. Registration of rights by a trustworthy
authority is the best guarantee for prospective buyers of land. As mentioned in
chapter 3.4, Hernando DeSoto [26] states: T o be exchanged in expanded markets,
property rights must be ‘formalized’ - in other words, embodied in universally
obtainable, standardized instruments of exchange that are registered in a central
system governed by legal rules.’
When introducing a new land registration system, records must be compiled
either from existing files and records, or totally from scrap. The care taken by
admitting land data to be recorded in a new land registration system will highly
influence the reliability of the new system. Often this is a reason to consider
careful monitoring of the data before acceptance. The most common way to avoid
future problems is tosverify the data of every object and subject individually. This
verification (land titling) can be undertaken sporadically at the time of each
occurring legal transaction or systematically for each object area by area. A
systematic approach is generally considered when existing documents or evidence
will be incorporated in the new land registration system. Although, the method of
systematic registration can be followed using an area-by-area approach, it is often
necessary to have also sporadic registration. Since it will take time to complete
systematic registration, a transaction of land can occur in an area where the
systematic registration is not yet finished. In that case sporadic registration can be
carried out for this specific transaction. Payment for sporadic registration is the
responsibility of the individual(s) requesting it, while systematic registration
initially is always a government-funded activity. For that reason it may be
necessary to spread the systematic registration over a longer period of time when
government funding is a problem. When considerable time is involved to complete
systematic registration, some landowners might apply for sporadic registration -
 Land Registration 137

paid for by them - because they want certainty about their claims on land, or
because they want to transfer the land. Eventually the funding for systematic
registration can be recovered by levying fees for supply of land data to agencies
and individuals. While the sporadic approach gives more immediate benefits to
individual landholders, the systematic approach provides a wider range of benefits
more quickly, especially if the land registry is part of a more comprehensive land
information system.

6.2.2 VARIOUS FUNCTIONS AND DIFFERENCES IN DATA ACCURACY

In a market economy there exists three distinctive functions of a land registration

activity, protection of the rights in land held by individuals, levying of land tax,
and govemmentally controlled use of resources. When the goal of a land
registration system is protection of rights, it is primarily seen as a tool to improve
the security of land tenure. Tenure security, the assurance of continuing access to
the resource of land is a characteristic of customary as well as formal tenure
systems. As mentioned before, land cannot be handed over and cannot be kept like
movable or personal property. It is important in a market economy that land and
real property can be sold and purchased with easy proof of ownership of rights to
the land and real property, and simple proof of the size and the location of the
immovable property. (The questions: What, who, how, where, and when?)
When aimed primarily for protection of rights, the function of the land
registration at its minimum is to give publicity to transfers of land, which might
otherwise only be known to the parties concerned. At its maximum, land
registration can provide a clear, unambiguous security of title to land. Such a land
registration can be the basis of loans and mortgages for land development, and
facilitate dealing in land, which can lead to its optimum use.
But it must be mentioned here that there is a fine line between full publicity and
privacy protection as indicated already in 6.1.1. Each government has to make a
trade-off between the requirement of publicity to enable the economic function of
property to work and the limitation that privacy protection of citizens dictates. In
modem computerized land registration systems several features exist to limit the
prying into someone’s privacy more than necessary. An often-used measure is to
have a computerized system protecting privacy in such a way that, for example, one
can inspect the data of a specific property (without any restrictions), but one cannot
inspect all the properties of a certain subject. So I can easily find in the registry all
the data of parcel X or house number 17 on Main Street, but I cannot walk in the
registry office and ask to provide me with all the data registered for Mr. Y or Mrs.
Z.
To be effective, a land registration must be accurate, complete, reliable, and
up-to-date. It should cover all land, urban and rural, agricultural and forest, state
owned and privately owned, without distinction between them in the way of
registering. Being up to date is a clear requirement for a land registration system
established for the protection of rights. Such up to datedness is not of similar
importance for a land registration system designed for levying land taxes. Since
138 The Invisible Line

taxes are generally levied en masse and at regular intervals, a basic requirement of
a land registration system for taxes is that it reflects the appropriate situation on the
moment the data of the system will be used for invoicing the tax subjects.
Depending on the system of taxation of land there also might not be a need for a
high accuracy in the data on size of the properties. Thus, a land registration
exclusively established for tax reasons does not have to be as accurate and up-to-
date as a system for the protection of rights to land.
The third function of governmental control over resource use is practiced
everywhere to some extent because of the social function of property. Frequently
in countries with a centrally planned economy (most former communist countries),
so-called cadastral systems have been in use that gave a detailed description of the
land in categories as used in the central planning. Specifically for agricultural
planning purposes, a land registration system has been developed containing all
kinds of data of the agricultural resources available for state controlled farming.
The data collection in this type of ‘cadastre’ encompassed data on soil quality, data
about the climate, topography of the terrain, average yearly precipitation, and
access. In some regions even a factor for the productivity of the agricultural
employees was included. In several of the former communist countries these
agricultural information systems were referred to as ‘the cadastre.’ There is a
tendency to maintain these databases on land after the political transition. Most of
the data in these land data banks will not be necessary for the new functions of the
government and so maintaining all the former data should be discouraged pointing
to the costs involved in the maintenance of those vast amounts of data.
The accuracy required of the data in such a ‘cadastre’ aimed at supplying data
for central planning, differs from that of a land registration for the protection of
rights to land, or for utility management. There will be data on rights to land in
land registration systems used for central planning but the description of the
parcels may be relatively general. In a cadastre used for agricultural planning, up to
datedness does not have a high priority since most of the data used have values that
are averaged over a number years, like precipitation, sun hours, and other data like
the soil quality and the accessibility of the land.

6.3 NON-DOCUMENTED RIGHTS TO LAND

6.3.1 CUSTOMARY RIGHTS TO LAND

It seems odd to pay attention to non-documented rights to land when focusing on

land registration systems. Non-documented rights to land can only constitute a
virtual land registration in the minds of people. But our ancestors started with this
type of land registration when they began settling down after having been nomads
for centuries. Originally land was seen as free accessible and free usable as a
common resource for hunting and for gathering fruits, plants, and firewood.
Everyone could roam the fields, woods and plains without limitation other than the
natural obstacles, and the physical and climatologically challenges of the various
 Land Registration 139

regions. Over time, the people of the earth became aware of the possibilities of
(primitive) agriculture and wanted to settle for some period of time at fertile land
areas. But as soon as more people wanted to gather around the same grounds, rules
had to be established. It was often the (religious) leader of the tribe or a council of
elders establishing rules for the proper use of the land, rules that originally will
have reflected a strong social function. Land, as the key for existence, has to be
treated carefully and according to the expected needs of the user. Family size and
(partly) social status were among the important keys for distribution of use rights
to land. In the development of tribes and small communities, the development of
those rules followed specific lines according to customs and the religious beliefs.
Still today a considerable number of people live in areas where land is
common property and where local customs govern the land tenure regime. These
local customs are generally not documented and are only known to inhabitants of a
certain region or village. There are many customs governing the use and the access
to land, western observers cannot easily understand many of these because they do
not translate into Western concepts of legislation or in the conceptual realities of
Western experts and advisors. Nevertheless, these rights are respected and are of
great importance for local communities and indigenous people.
One of the biggest challenges in setting up land registration programs in areas
where community based customary rules determine the land tenure situation is to
provide locals with sufficient incentives to really register their rights. It has been
proven useless to convince authorities of implementation of an expensive land
registration system when locals do not see the need for registration. If locals
continue to feel more tenure secure following traditional habits than registration of
rights, the newly implemented system will soon be out of date and thus rapidly
become unreliable and useless.

6.3.2 CONSIDERATIONS FOR DOCUMENTED LAND RIGHTS

In societies where customary tenure is the main land tenure regime, there is reason
for concern even when the non-documented traditional or customary tenure may
currently provide sufficient security for local people. In a world changing toward a
more capitalistic society, security of tenure depending upon registered titles backed
up by the legal system must be considered. Titling programs that provide proof of
ownership of rights to land at low cost to the beneficiaries can be used to increase
the access of all landholders to the potential benefits of land titles. They will
protect small owners when external factors change land values. Registration of
land or the establishment of a land registration system will contribute to investment
and productivity because it allows land to be used as collateral for credit. A land
registration system will reduce land disputes and prevent arising disputes. Land
registration facilitates the transfer of land by guaranteeing the right of die owner to
transfer the rights on land and by standardizing the information for buyers and
sellers. A distinction that should be mentioned here to avoid confusion is that land
in use under customary land tenure often is common land. It is land that can be
categorized as a common pool resource because the community as a whole uses the
140 The Invisible Line

land and divides its use among the members of the community according to
customary rules. This is exactly the reason that creates difficulty in bringing such
land under national law because of the many complex social relationships that
govern customary common land which are impossible to capture in detail in
‘Western’ style legislation and rules. So usually indigenous people tend to continue
using land according to customary rules regardless of what national rules may
impose on them. In Searching for Land Tenure Security in Africa edited by John
Bruce and Shem Migot-Adholla, one can read [14] (p.251): ‘The vast majority of
Africa’s farmers still hold their land under indigenous customary land tenure
regimes, whatever the formal legal position might be under national law.’ Hence in
several of these countries, newly introduced ‘western style’ laws are applicable but
many farmers still continue to hold land without written evidence and ‘western’
style documentation.

6.3.3 CAUSE OF DUAL LEGAL SYSTEMS

Many examples of informal dual legal systems (syncretism or legal pluralism) and
some examples of formal dual legal systems can be found around the world,
paying tribute to both customary tenure systems and statutory land tenure.
Especially in Africa numerous attempts were carried out to transform customary
tenure. Their success at best is a mixture of formal law and persistent adherence to
customary rules by indigenous people. Tenure transformations from local
customary tenure to tenure under formal (state) law were often based on the desire
to ‘free’ land for expatriate settlers, plantation owners and mercantile traders.
Culture and religion mainly determine the way people approach rights to
land; these important roots can explain some of the resilience of the population to
stick with traditional tenure. There is perceived insurance against poverty when
holding to traditional ways in which property provides a social function. Still today
local laws and customs concerning land tenure govern (or will be remembered) in
several countries. Undocumented land rights do exist in many cultural settings.
Reference was made earlier in this book to the words of Seattle [71]. The original
inhabitants of the Australian continent, the aborigines, have storytellers among
them who are able to give oral witness of the past of their early civilization. In the
Mythological cosmology of the aboriginal, the ‘dream time’ is the past era in
which the ancestors spread all over Australia. They were mainly hunters and
nomads who, forced by the natural conditions of the land, had to travel to the far
comers of the continent. As nomads, continuous extended ownership of parcels of
land was unknown and unnecessary among them. But their land tenure - perhaps
we should understand this rather as possibilities (of mapping and authorization) to
pass over specific land that was in use by an individual - were established by a
linked network of ‘lines,’ coinciding with the routes that they took on their
journeys. These routes or lines were embedded in inheritable songs. Bruce Chatwin
writes in ‘The Songlines’ - a book on central Australia (1987 [17]) - that before
the whites came, nobody in Australia was landless, since everyone inherited, as his
or her private property, a stretch of the Ancestor’s song and the stretch of country
 Land Registration 141

over which the song passed.’ Unfortunately, our language and our concepts are not
able to describe the song lines in a comprehensible way and our perception of the
world is far to simple to conceive the complexity of the land titles as perceived by
the aboriginal. Besides, the aborigines have suffered so much white exploitation
that they are very reluctant to share their cultural heritage with the whites anyway.

6.3.4 A DRIVE TO REGISTER NON-DOCUMENTED RIGHTS TO LAND

Transformation of rights from customary land tenure regimes into formal (state)
systems is difficult and sometimes nearly impossible. Generally their invisibility
for the non-trained Western senses, cause them to be overlooked in the process of
drawing new ‘Western style’ legislation, leaving the original inhabitants with
uncertainty about their rights and causing insecurity of land tenure for them. For
mapping purposes aerial photographs can help. In parts of Kenya, but also in
Indonesia, modem land surveyors have used elderly people from the tribe to
indicate the boundaries of tribal lands and the boundaries of tenure rights given by
the tribe to individuals on aerial photographs. A table is set up on the tribal
meeting ground and selected elderly people, or in some cases the chief of the tribe
are invited to point out the boundaries on the aerial photographs of the region.
Surveyors mark the boundaries in order to prepare cadastral maps by later surveys.
It is surprising that these elderly people seem to have no problem with indicating
those boundaries on aerial photographs, although, they might never have been in
an airplane and never have seen the land from the air themselves.
A land registration system deals with relations between people and land.
Tenure of land is the description of the social relations among men with regard to
the allocation and the enjoyment of the products of land use. Knowledge of the
existing land tenure structure in a country is a sine qua non for any intervention in
this area. How does one find out? Apart from the conceptual difficulties, generally
a considerable language barrier exists. The ‘modem’ languages are often not well
capable of capturing the meaning and the concept of religious, cultural and social
habits in use among indigenous people. Land tenure regimes are complex matters
and for Westerners hard-to-discover customary rites might govern the behavior of
tenants.
An interesting account of the complex problems one can run into by
transforming indigenous tenure in formal tenure systems can be found in literature
on dual tenure structures. Franz von Benda-Beckmann [4], Owen Lynch [54], and
John Bmce [14] are among the growing number of scholars paying attention to this
phenomenon. Customary land tenure regimes are dynamic and have historically
adapted to economic and technological changes. In particular it has been observed
that over time (see, for example, Bosemp (1981) [12] and Feder (1987) [36]),
customary tenure systems experienced simplification and individualization of
rights, almost spontaneously, to give indigenous households broader rights of
exclusion and transfer as population pressure and levels of commercialization
increased. Binswanger and Mclntire (1987) [8] have characterized the typical
stages in the process of transition from more diffuse and collective to more specific
142 The Invisible Line

and exclusionary individual rights (see also Platteau (1996) [66]). They conclude
that the trend toward increased privatization of rights over specific parcels provides
necessary incentives for investment in particular plots. From this and similar
observations it is evident that customary tenure systems may be open to capital-
intensive agriculture.
Customary systems often have much more flexibility than the formal rules
that exist under state tenure systems and in several cases the Western concept of
legalization simply cannot comprehend most of the customary tenure in a
descriptive way. Ways must be found to develop the understanding of customary
tenure in a society where one wants to have clear notions of whom is ‘holding’
certain rights to the land. Looking at agriculture as a source of prosperity, it is
important to know more about the rights to land of individuals, corporations and
the State. The way the ‘holding’ of the land is organized and recognized may have
widespread effects on agricultural production and the distribution of wealth and
income.
The general idea among practitioners of land registration systems is still that
to successfully claim rights to immovable or real property, the law in a modem
society should require written evidence. This written evidence shall be collected in
registers for which procedures and registration offices have been established
normally under government supervision. These offices record data on land and all
the (semi-) permanent attachments to it thus referred to as land records. (Semi
permanent attachments indicate that it is not always clear whether attachments are
regarded permanent or not. Every society has established different mles for this
distinction). And since land registrations are embedded in the historical
development of the institutions and cultures of specific societies these land
registration systems will differ from country to country. But the particular
idiosyncratic character of a land registration system leaves openings to study the
establishment of systems in which also customary ways of land tenure can have a
specific niche when legal pluralism is introduced.

6.4 EVOLUTION OF DOCUMENTED RIGHTS TO LAND

6.4.1 MONUMENTS AND CURSES

The first land records developed in the agricultural societies around the Nile, Tigris
and Euphrates. It is estimated that the art of writing probably dates back more than
40 centuries ago and was developed in Babylon and Mesopotamia. The writing
material was a flat stone and some sort of chisel, used to inscribe symbols
representing syllables. Although, not a land register in the sense of a concise
collection of records, the registration of rights to land started most likely with
inscriptions in monuments. Babylonian people erected stone pillars with the form
of fertility symbols in their fields to please the gods of fertility. Engraved in the
pillars were prayers and religious pictures but also words and sketches describing
the title-ship of the land. By honoring the god, by making the god part of the field
 Land Registration 143

and using the inviolability of the god, people expected that in turn the god would
make the field inviolable. The god was also involved in prosecuting a trespasser on
the land. To invigorate these phenomena, curses on the trespasser were engraved in
the pillar. In these texts not only divine wrath was expressed over the trespasser,
the civil authority’s prosecution was often involved as well.

Forever, for all the time, in far days! When the ruler receives complaint about the
boundaries of this field and finds they have been changed without authorization of the
rightful owner, then may the great gods whose holy names have been inscribed in this
pillar and whose weapons and thrones have been pictured, curse the violator and
exterminate his name.

Originally the name of the rightful owner was inscribed in the pillar, but this
implied that at every transaction the new titleholder would have to scrape out the
seller’s name and then engrave his own name. However, transactions of land did
not occur very often.

6.4.2 CLAY TABLES

Since the invention of clay tables as carriers of writing, transactions were recorded
on those tablets rather than on the pillars in the fields. The clay tables were easier
to write on than the pillars and another advantage was that from clay tables one
could make copies! It became practice to make a copy of the original clay table
recognizable on the ‘up-laying’ of the inscriptions. The copy was used for
everyday practice while the original clay table was stored in a safe place to be used
as proof when it came to a dispute regarding the land. Often the safe place was the
temple where the scholars (priests) were present who could read and write the
tables. They could even do justice as representatives of the gods in cases of
dispute.
A copy of the table was given to both parties, while the original was kept in a
safe place to be used as proof at a later time. Among the remains of the Chassidic
kingdom (1600 - 1200 BC) there are ‘hudurrus or hudurruhs.’ The hudurru is a
diorite stone with inscription and was in fact a boundary mark (hudurru is chassidic
for boundary). It is a benchmark on which the transaction from the king to favored
people is recorded. Not only the receiver of the gift was engraved, but also the
names of the gods under whose protection the gift was trusted, and the curses to be
thrown on anyone who violated the engraved agreement. In Mesopotamia, during
the kingdom of Hammurabi, clay tables were widely used to record important
matters like transfers of land. In the table, the names of buyer, seller and witnesses
were engraved as well as the court of justice and the name of the writer.
Organization wise, the people of the nations of Babylon, Egypt, Palestine,
and Israel were ahead of their time in various aspects. To build a great city like
Babel, to erect tombs of the magnitude of the pyramids and to guide a nation from
Egypt to a Promised Land require a high organizational potential. This far and
advanced organizational ability provided those nations with an advanced system of
144 The Invisible Line

registration of rights and duties. And although, the payment of duties can hardly be
seen as a documentation of rights, the inevitable fact is that rights to land need to
be available before land tax can be levied. So, many of the tax systems are based
on documented rights to land.

6.4.3 LEVYING LAND TAX

From many sources we know that land tax was quite common in certain areas of
the ‘Old World.’ In ancient Egypt and in Mesopotamia, land tax was even common
before the invention of money. It was collected as part of the harvest as we know
from the story of Joseph (in Genesis 41), the first one in power under the king of
Egypt. He was responsible for the collection and distribution of grain, an important
function in times of famine. In Egypt a land tax collectors’ office always
comprised of a big shed for the collection and storage of the ‘collected’ harvest
shares.
A famous ancient land register in book form is the Domesday Book [28],
which contains a record of lands in Britain and dates back from the end of the
eleventh century. The name of the book is a good illustration of the disliking of the
idea behind it. Domesday refers to the Day of Doom, the day on which final
judgment over the earth will take place. It was made by an order of William the
Conqueror and completed in 1085-1086, after he had slain the Saxons with his
Normans in 1066. The Domesday Book, also called Doomsday Book is a two-
volume census to assess the economic facts of the kingdom so that William was
able to levy a tax. It can be found in the Record Office in London (along Chancery
Lane). It contains records of the ownership and value of all lands at the time of the
survey and also at their bestowal. At the time of Edward the Confessor the value of
crops, cattle, etc, was included along with the social status of the owners. The
interesting fact about the Domesday Book is that it took only a few years to
prepare it. This was not only due to the skills of William, but also to the basic
material already available in Britain. The complete Domesday Book is in fact a
compilation of smaller books each made up on the bases of the so-called
‘hundred.’ A hundred is a settlement consisting of approximately a hundred
peasant households supporting the household of the lord of the manor. William did
not always trust the collected data and he could send a couple of collectors from
other regions, unfamiliar with the region, to double check the collected data in the
registration. Much of the data collected came from an already existing source, the
so-called ‘Danegeld’ books. They were kept in almost all of the British coastal
regions and formed a kind of collective protection against regular invasions of
Danish raiders on the coasts of Britain. Farmers in the coastal areas contributed a
part of their crop as a kind of insurance. Anytime a party of Danish raiders
appeared on the coast, the farmers paid them off from the ‘insurance’ supplies
resulting from their part in the harvests.
To ensure a fair contribution, each farmer was obliged to contribute ‘Dane­
geld’ in a measure corresponding with the size of his lands and thus with the
possible harvest. For this purpose the so-called Dane-geld books were established
 Land Registration 145

in which the property of the various farmers was written down. It will be clear that
this readily available data were a great help in setting up the registration of the
Domesday Book.
In the middle Ages it was a wide spread practice in Europe for owners of land
to register individually their parcels of land in order for the authorities to levy land
taxes. We know this because in many countries species of so-called tax books on
land have been preserved. The science and art of Cartography had not yet
developed into a useful tool for monitoring the land size as reported by landowners
and it was hard to control the given oral given facts. It was quite easy for dishonest
owners of land to diminish the size of the parcels to evade or at least lower the tax
to be paid. More honest people had trouble with such practices and at the end of
the eighteenth century the cry for a more equitable land tax system grew louder.
With the increasing technical knowledge of surveying and the improvement of
surveying instruments, methods became available to prepare sufficiently accurate
maps for land tax purposes. Although seen as a major and expensive effort, many
governments concluded that a complete Cadastre (a survey of all land and
registration of every owner of rights to land) had to be implemented to deal with
the levying fair taxes on rights to land.

6.4.4 DATA ON ‘LAND’

A land information system generally provides information based on all kinds of

land related data and a land registration system records all kinds of data about
property rights on land. Cadastral specialists use the word parcel to indicate the
basic unit of registration in a land registration system. Land information, land
information systems and land registration (systems) all refer to the term ‘land’
representing all real property objects. In most modem societies the owner of rights
to one apartment in an apartment building will find the recording of this right in a
land registration or cadastre, as will the owner of a right to a certain piece of
agricultural land. Apart from what has been said in 6.1.9 about the requirements
for a successful land registration system, there is a variety of terms in use that all
may encompass more or less the same thing; a land registration system. The terms
land registration systems and land information systems nowadays are widely used
to indicate systems containing data about real property and the same goes for terms
as land titling and land market. Land information as a term can in fact cause
confusion. Information is what the receiver of data adds to these data and it
becomes information only if that receiver understands and recognizes the data.
Land information, in this respect, might be defined as the information
acquired by a person consulting data on land. These systems are in fact not more
than systems providing us with data on land on which we ourselves build our land
information. But because of the widespread use of the term Land Information
Systems or LIS, we will conform to the term, using it as a collection of data on
land enabling the user of this data to create land information. The importance of
this remark is that each individual using a land information system may understand
the collected data differently, resulting in differences in what is called land
146 The Invisible Line

information. Frequently caused also by differences in interest and background

knowledge. The view of land data to an architect differs from that of a land
surveyor and that of a land tax collector, the result is that the same data will lead to
different information. Also, the sets of data on land used by those professionals
will vary widely. No serious problem so far, but differences in understanding can
also occur when two persons with the same interest inspect land data and come up
with a different interpretation of their findings.
Land registration is the official recording of legally recognized interests in
land. As well as facilitating dealings in land, supporting conveyances of land and
assisting with property taxation, land registration systems in themselves are often a
source of government revenue through the collection of fees for information and
transfer taxes. Most jurisdictions in developed countries have some form of
registration of legal documents, and other documents about ownership or use rights
of land.

6.4.5 TRANSFERS OF RIGHTS TO LAND

Most modem societies acknowledge in their legislation that any change in

registered rights to land should result in an entry into the registers to have validity
against third parties. An entry in the registers is commonly initiated by presenting
an official document, although other forms of evidence may also be legally
admitted for registration purposes. To be adequate, a land registration should
contain (abstracts) of evidence of changes in real rights to land in the registers. In
some land registrations this evidence is needed to form a chronological chain of
evidence of the real rights to each property in the registration. Almost everywhere
the documents presented at the land registration to make a change in the registered
land data are kept in vaults. In the land registration books or in the computerized
land registration databank, recording of a selection of the most relevant elements
out of the documents takes place.
In economically lesser-developed countries often government controlled land
registrations can be found that rely on all types of documents giving evidence of
the change of rights to land. Generally this will not be very satisfactory, although it
provides at least some protection of rights and it gives the government some idea,
albeit not always a complete one, of what is happening with the landed resources in
the country.
The actual moment of the change of the rights to land - the transfer of rights
(or conveyance) - can be of importance in case of misuse of the registers. Is it at
the moment that parties agree in principle, is it when parties involved in a dealing
of land sign the documents, or is it at the moment of entry into the (public)
registers? When title certificates are issued - documents showing the actual
ownership of the rights in a so-called positive land registration system - it is clear
that the title follows the document. The moment the new owner of the rights holds
the title certificate with his name as owner of the rights, the rights have changed in
ownership. With a negative registration - a registration system that does not
provide title but only a record of transactions of rights to land - there are different
 Land Registration 147

practices. (In 6.5.1 the difference between these two types of land registration will
be described in more detail) In some countries with a negative land registration
system like France, ownership changes as soon as parties agree about the transfer
but only between the parties involved or knowing about the transfer. (Other third
parties cannot possibly know about the change before publicity - an entrance in the
public registers) In general the moment that the documents of change have been
presented at the registration office is seen as the (legal) moment that the changes
have legal consequences and that protection against third parties enters into force.
In the Netherlands for example, changes in the rights to land take place only after
the deed has been presented for registration at the registrar’s office, not
withstanding the fact of earlier signing of the deed by the parties involved in the
transfer. (It only results in an obligation for the seller to convey the land and for the
purchaser the pay the contracted price) This difference is normally only of
theoretical significance, since intended misuse of the registers seldom occurs. An
advantage of this negative type of land registration is the speed because of the
quick transfer of real rights to land. As soon as the proper documents are presented
at the registration office, the transfer is presumed to be public and thus effective
against anyone.
An important, but reasonably well-known fact is that almost all registrations
for the protection of rights to land follow the priority principle. Any fact recorded
earlier in the registration than a similar fact related to the same property, but of
later time and/or date, has preference over the latter. A vendor can only sell a
certain right to the property once. If a new buyer shows up at the land registration
office that covers the area the object is located in, showing that it has been bought
from the same vendor, while the other transfer had been entered in the registration
already, that second buyer leaves the registry office empty handed. A transfer of
land has priority over a subsequent similar transfer of the same land by the same
vendor. A mortgage given on a parcel has higher priority than a subsequent
(second) mortgage on the same parcel.

6.4.6 MORTGAGES

In the days of maintaining the registers manually, mortgages were generally kept in
separate registers. In many vaults (also called ‘offices of the recorder,’ ‘land
records’ or ‘land offices’) in county courthouses in the USA one can easily find
this distinction between Deeds of Trust (for mortgages and loans) and the
Warranty Deeds (for transfer of rights to real property). Together with the index
registers containing the keys to access the data in the vault they form often an
impressive amount of heavy books sometimes still maintained manually. With the
ongoing computerization of land registration systems most of the actual
organization and retrieval of data in the registration is done in ‘black boxes.’ This
is of no importance to the user or the customer of the land registration system as
long as retrieval results in quick and unambiguous answers to the questions asked.
Sometimes there is a clear link between the land registration for protection of
rights and the system for land tax levying. This link is often the result of the high
148 The Invisible Line

accuracy and the extent of the data in the land tax system. Especially when land tax
is levied yearly there is a kind of natural control mechanism on the accuracy of the
land tax data. It makes these data a perfect means for cross checking with the data
in the land registration. In the Netherlands the land registration and cadastre are
part of one and the same organization called Agency of the Cadastre and Public
Registers. But this is not necessary; there may be concurrence between the legally
oriented land registration system and the fiscal cadastral system. They may be
managed by two different governmental organizations. Like in Germany with the
so-called Grundbuch and the Flurbuch systems of which the first is generally
managed by the Ministry of Justice and the latter because of its significance for
land taxes, by the Ministry of Finance of the respective states in the German
Federation. Theoretically, deficiencies of cross-referencing with the other real
rights registration system can enable applications for a mortgage to be successful.
(Even though the applicant has already sold or mortgaged the land or property on
which the new mortgage is being sought) It may, as a rare exception, be possible to
sell land, which, unknown to the purchaser, has been mortgaged. However, when
care is taken with rapid updating by computerized data-exchange between the
systems, such deficiencies seldom occur.

6.5 POSITIVE AND NEGATIVE LAND REGISTRATION SYSTEMS

6.5.1 A COMPARATIVE REVIEW

Land registration and titling can have a positive effect on the economical
development of a country. In general, three main functions are sought to be
achieved by registration and titling:

• Security to use, manage, and develop the land and transfer the rights by
inheritance, grant or sale and mortgage the land;
• Publicity of the legitimate situation; and
• Facilitating of easy transfers. By providing a clear identification of land and
its owner and by stating the owner’s rights as well as the encumbrances,
registration improves the process of transferring and marketing land.

Simplicity is the key, because legislative and administrative requirements should

be readily intelligible and preferably translated into the vernacular language.
Legalisms - including overzealous professionalism on the part of registry
employees - can be counterproductive. Registration should be inexpensive and
within easy reach. Another requirement is timeliness and finally registration should
also be used to extend the ‘lower-level’ rights like tenants (including the tenancy
boundaries!).
In most economically developed countries, one of two types of modem land
registrations for protection of rights will be operational, and there is a specific
distinction between the two types of land registration. When the most common
 Land Registration 149

type of document is a (notary) deed, the registration may be referred to as a

registration of deeds. As mentioned earlier, this is misleading because normally
several other forms of evidence are similarly admitted as proof of change in real
rights to land. Each registration is either a land registration with a negative effect
(referred to by several authors as a ‘deeds registration’), or a registration with
positive effect resulting in the issuing of title certificates. In 6.4.5 this distinction
between positive and negative land registration systems has already be briefly
mentioned.
The positive effect of the registration is commonly given by law, which in
that case explicitly states that the issuing authority certifies or guarantees the title
of the holder of the document. The holder of such a document is seen as the
possessor of the title, regardless of the way in which the document came into the
possession of that person. A negative effect exists when the document issued by
the registrar only gives an indication that the person holding the document might
be the legal possessor of the title. In a country with a negative regime of land
tenure documents, a ‘chain’ of documents must be kept, as evidence of legal
possession. It is also possible that the law assumes evidence of ownership when a
certain amount of time has elapsed in which the holder of the document has
executed the described land tenure rights undisturbed and unchallenged by others.
By generalizing the various systems of land registration in use in
economically developed countries, it is possible to categorize the land information
systems in a simple diagram. In this diagram, given in Table 6.5.1, A, B, C, and D
stand for a standardized type of land registration. The standard types represent a
generalization and do not necessarily exist as such. They only serve to ‘prototype’
a specific type of land registration. Registration of title documents refers to a
registration where originally any type of document can be filed for registration, and
where the subsequent registration (in case of a resale of real property) often uses
the originally issued title document.

Table 6.5.1 Diagram of land registration types

Registration of Registration of
deeds title documents

Positive effect of the registration A B

Negative effect of the registration C D

To illustrate this, the standard types can be more or less matched with existing
systems. Type A reflects rather well a type of land registration in use in South
Africa. The original introduction of a registration system by settlers in that country
in the 17th century resulted in a typical registration of deeds. Nowadays an
individual selling or buying real property in South Africa generally will have to use
150 The Invisible Line

deeds, but the effect of the legal function of the registrar in the registration process
leads to a positive effect of the registration. One can rely on the contents of the
registration that is backed up by a State guarantee (See 6.5.2).
Type B reflects the ideal of a Torrens type (See 6.6.1) of land registration as
introduced in Australia. The idea of Torrens was to implement a system of land
registration in which the State gave a guarantee that the registered facts reflected
the legally just situation. What one could read in the land registers was true and
fully reliable. The form of the documents to be registered is of less importance.
However, today, standardized - often-computerized - forms are in use. The power
of the registrar enables him to add to registered facts or to change data in the
registration during the registration process if the factual situation requires such
changes, even if the parties involved in the transaction of real property do not bring
these facts to his attention.
Type C is characteristic for several of the land registrations (cadastres) as
introduced by Napoleon. Many continental Westem-European land registration
systems are based on a registration of legally required documents (often legally
required to be prepared by a notary and then called notary deeds) with a negative
effect of registration. The negative effect means that the land registration only
provides the facts of the registration without any guarantee that the registered data
reflect the correct legal situation. And although this seems at first sight a little
unsettling, in reality these systems provide a high degree of land tenure security by
the accuracy exercised by notaries and the staff of the registration offices. It is
often prescribed for the notary to use a root of title before drawing a new deed of
transfer of real property.
Type D seems a little out of the ordinary at first sight. And, although this type
is not easy to match with an existing system, the land registration in use in
Germany sometimes is regarded as having resemblance with this type. In most
States of the Federal Republic of Germany, two distinct land registration systems
operate more or less independently from each other, the ‘Flurbuchamt’ and the
‘Grundbuchamt.’ (See 7.3.3). The Flurbuchamt is based on Napoleon’s principles
of land registration as described with type C; the Grundbuchamt follows more the
characteristics of the Torrens system of land registration. The general public in
Germany will in practice only use the Grundbuchamt, while the Flurbuchamt uses
a typical set of data for officials. This Flurbuch forms the basis of land tax levying.
To see the system of land registration in Germany as a type D stems from the fact
that data from Flurbuch and Grundbuch are synchronized at certain intervals on the
basis of the data in the Flurbuch. Theoretically, this opens the possibility that facts
registered under the rules of the Flurbuchamt - facts without any legal guarantee -
affect the data in the Grundbuchamt. And, although the Grundbuchamt gives a
State backed guarantee of the reliability of the data registered therein, after
‘synchronization’ this might not be fully possible. But, as stated before, this is a
rather theoretical discourse to complete the diagram.
Thus the primary difference between a positive land registration system and a
negative system is the constitutive effect of the record. In a positive registration, it
is the register that is the legal record of ownership. This is why a positive
 Land Registration 151

registration system also is often referred to as a title registration, because the

records in the registration constitute ownership and the documents issued by the
registrar proof title. In the same way a negative system of registration is often
referred to as a deeds registration. But this name can cause misunderstanding,
because registration - the recording of data in a register by or on behalf of a
registrar - can be initiated by various means. It most likely is a deed made up
between parties and presented for registration, but it can also be evidence of a fact
or any other type of document that is legally admitted for presentation at the
registrar’s office. Furthermore, there are registrations of deeds where the registrar
nonetheless issues title certificates.
Documents of transfer or changes in rights to land are merely the legally
valid application to change the register, but it is the law of the country that
determines the nature of the register and the legal value of the documents issued by
the registrar. In a positive system the recording of the documents constitute title, in
a negative system, though the computerized registers may in practice be perfectly
correct, registration is only an adjunct to the investigation of title by the
examination of the registered documents. That nobody can transfer more rights
than he or she has, is a rule of logic and law. The documents used in the
registration thus form a chain of evidence of the will of parties to convey land and
should be kept in the vaults of the registration, unless the applicable law confides
title to the registration making it a positive system of land registration. A positive
system of registration (a title registration) results in title certificates, a negative
system of registration does not. The positive effect of the registration is thus given
by law, which in that case explicitly states that the issuing authority certifies or
guarantees the title of the holder of the document - whether it is a deed or a title
certificate. The holder of the document is seen as the possessor of the title,
regardless of the way in which the document came into the possession. Also, the
entry in the register (the record) is full and sufficient proof of ownership of the
therein-stated rights to land.

6.5.2 THE POSITION OF THE REGISTRAR

The difference between positive and negative land registration systems is reflected
in the authority of the registrar. In a positive system or title registration, the
registrar generally has considerable judicial powers.
A good example of a description of the authority of the registrar can be found
in South Africa. Be aware that the law in South Africa requires that documents to
be registered are deeds. In Land Law and Registration, S. Rowton Simpson
describes the powers and duties of the Registrar as described in the South African
Deeds Registries Act (section 99) of 1937 ([68] 1976 p. 106) as:

Not only must he register such documents as are capable of registration, but he must,
in the exercise of his discretion, refuse to register deeds or documents tendered to him
for registration which either do not comply with law in respect of their form or
contents, or are incapable of registration at all, or to the registration whereof any valid
152 The Invisible Line

objection exists. The nature of his function indicates that he must exercise certain
discretion, and he is not merely a ministerial officer. He may reject deeds; he may
require proof in support of any matter required to be done; he may amend errors.

This interesting extended power of the registrar can be explained historically.

The South-African law land registration system is mainly based on the laws of the
Colony as imposed by Dutch settlers in 1652. They copied the system of
registration of immovable property as it was carried out in the province of Holland
and West Friesland where it was a general rule that no ownership or other right in
land could be transferred otherwise than by a transfer before a judge. This rule and
practice was introduced into the Colony and the power of the judge became vested
in the function of the Registrar. So he is seen as the successor of the judge in
whose presence in Holland originally land transactions had to be conducted. The
effect is that the powers and duties of the Registrar in South Africa equate those of
a registrar of titles. (See also Maasdorp 1976 [55] pp.70-71).
In a negative registration system, the role of the registrar is generally a
passive one. The registrar has to check the documents presented for registration on
completeness in the sense that all the required data for proper registration are in the
documents. He is not allowed to change the contents of the documents and there
are strict limitations for refusal of registration.
Only if data necessary for recording are missing or are clearly incorrect, the
registrar may refuse registration of the document. In that case the document is
often returned to the parties initiating the transfer or dealing of the land. However,
where the documents presented comply with the legal requirements, then the
registrar is obliged to accept them for registration.
Both negative and positive systems register data on land and can thus be
addressed as land registrations. In modem land registration systems the legal mles
require specific forms of documents that are capable of being presented for
registration. In some countries this should be generally a deed or an official
document drawn up by an official or notary. In, for example, England and
Australia specific forms are required depending on the nature of the transaction.,
for example, establishing a mortgage requires a different form than the transfer of
land. And the latter form can be different again when it concerns the transfer of a
piece of land that has been registered earlier (and thus exists already as separate
object in the registration) or when it is part of an existing registered parcel. By
filling out these forms an individual can, in fact, prepare the conveyance without
assistance of an expert. And although, many prefer to use the assistance of an
expert while performing transactions on land, in England and Australia the forms
can be filled out and brought to the attention of the registrar by any individual and
even by using the mail.
It should be mentioned here also that, although the person is referred to as
notary and the deeds prepared by him or her as notary deeds, the function of the
‘notary’ differs (considerable) from country to country.
 Land Registration 153

6.6 REGISTRATION RESULTING IN TITLE CERTIFICATES

6.6.1 THE ‘TORRENS’ SYSTEM

A title registration is often referred to as a Torrens system, Sir Robbert Torrens

being the inventor of the system of title registration. He initiated the registration
resulting in the issuing of title certificates in Australia. His interest in land
registration came from a negative personal experience at the Court of Chancery in
London where he felt deprived of a fair opportunity to receive justice in a matter of
property rights. It is interesting that Charles Dickens documents a similar feeling
about the judicial system for real property in ‘Bleak House’ (1852-1853 [27] p.3):

This is the Court of Chancery; which has its decaying houses and its blighted lands in
every shire; which has it worn-out lunatic in every mad house, and its dead in every
churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress,
borrowing and begging through the round of every man’s acquitance; which gives to
monied might the means abundantly of wearying out the rights; which so exhausts
finances, patience, courage, hope; so overthrows the brain and breaks the heart; that
there is not an honourable man among its practitioners who would not give - who
does not often give - the warning; Suffer any wrong that can be done to you, rather
than come here!

The original deeds registration in use in England and introduced in the

colony, Australia, was cumbersome and hard to understand for laypersons. It
caused long litigation and was experienced by the populace as incomprehensible
and difficult. As a customs officer in South-Australia, Torrens discovered the
convenience and legal force of the bill of loading and the consignment note as used
for transport of goods being shipped overseas. This document is proof of
ownership of cargo aboard a ship whatever its location. Physically the owner of the
cargo does not have possession after the ship has been loaded and is embarked on a
trip. Torrens wondered if it would not be possible to design a similar system for
parcels of land that are immovable and cannot be physically transferred. Why not
provide people with a document giving proof of ownership of rights to land, a land
title document or title certificate?
Almost immediately after his appointment as Prime Minister of South-
Australia in 1857, Torrens introduced his land title system (See Torrens, 1857
[78]). This registration system referred to as registration of Title or Torrens
(registration) system, was regulated by law in 1858 in South Australia, and spread
rapidly over that continent. It was introduced in Queensland in 1861, in Tasmania,
Victoria, and New South Wales in 1862, and finally in Western Australia in 1874.
New Zealand made the choice for the Torrens system in 1860.
154 The Invisible Line

6.6.2 INTRODUCTION OF TITLE REGISTRATION IN ENGLAND AND

WALES

At the same time, when Torrens introduced his system in Australia, England was
struggling with proposals to improve the complex deeds oriented system of land
registration. In England did not have a systematic land registration prior to 1862,
apart from a system of deeds registration in two counties - Yorkshire and
Middlesex. One of the main reasons for this was that only a small part of the
population (less than 15 per cent) owned property and characteristics of the feudal
systems of tenure prevailed. There was little personal wealth for the majority of the
population. The first Land Registry Act of 1862 was a failure. This was partly
because registration was voluntary but mainly because the law demanded a degree
of accuracy on boundaries and proven rights that were difficult to attain without
great cost. Successive attempts were undertaken to simplify registration. In 1875
die concept of registration with ‘general boundaries’ was established and in 1897
the Ordnance Survey Map - a topographic map - became the legal basis of
registered mapping. However, the system did not cover the whole nation. In parts
of the County of London, for example, compulsory registration of title on sale was
first introduced in 1899.
Under the provisions of the Land Registration Act in England and Wales,
titles are guaranteed by the State. If anyone suffers actual loss as a result of an
error or omission on the register, he or she is entitled to rectification of the title
and/or indemnity (viz. the insurance, curtain, and mirror criteria mentioned in
6.1.9). The Chief Land Registrar acts as a title insurer, and the protection goes far.
The Land Registry can effect rectification and/or indemnity even if the error or
omission has not arisen as a result of a mistake. If the Land Registry unwittingly
gives effect to a registration of an interest, and it then transpires that the transaction
or the documents were the subject of fraud, anyone who has suffered loss as a
result of registration can be indemnified. The Land Registry guarantee extends not
only to the land register but also to any search certificates or official copies of
registers and plans issued in response to properly lodged applications. In England
and Wales indemnity paid each year amounts to less than 0.8 per cent of total
annual income or expenditure of the land registration organization. The strength of
the system is that of State guarantee, backed by indemnity, providing the
confidence on which the property market depends. It should be bom in mind that in
England and Wales only a land registration for protection of rights exists without a
system for levying of land taxes. A typical cadastral system intended to levy taxes
on land, has never been established. However - and a little confusing - sometimes
the term ‘immovable property register’ of even ‘cadastre’ is used to describe the
land registry in England and Wales, while surveys for land registration purposes
are generally referred to as ‘cadastral surveys.’
In the Torrens system of land registration the holder of the right receives an
official document, ‘the title,’ and a copy of it is recorded in one of the branch
offices of the land registry. Title registration is invariably parcel based. By
definition, it provides positive, clear, unambiguous security of title to land.
 Land Registration 155

Because of its simplicity, it can speed up the process of transferring land (See
6.6.3) and reduce the costs of such transfers. It avoids the need to search through a
chain of historic documents to provide security of title. Because the record is the
definitive statement of ownership, and limitations of the ownership of a land
parcel, the record shows the current rights at any particular time. For each land
parcel, one document page, or computer record, filed by parcel identifier, identifies
the parcel, lists the current owner or co-owners, and the other interests affecting the
parcel, such as easements, mortgages and leases longer than a certain term. The
current legal status of any parcel of land can thus easily be found.
Changes of ownership by sales or other means, can be effected by the parties
signing a simple transfer form before the registrar, or prepared by a lawyer/notary,
and are registered by canceling the name(s) of the former owner(s) and entering the
name(s) of the new owner(s). A preliminary entry can be made to prevent double-
dealing. In the case of subdivision, the old document is removed, and the new
documents entered, with new parcel identifiers in accordance with the revised
parcel map. The redundant documents are filed in an archive away from the
records, which are still current.

6.6.3 SOME REMARKS ABOUT REGISTRATION OF TITLES

An often-cited disadvantage of registration of title is its vulnerability to fraud. The

record in the registers vests title to the holder of the document issued as a result of
registration. It gives legal effect to ownership, even if the register is wrong as a
result of mistake or fraud. But anyone checking the register can rely on it and will
know for sure the true state of the land. A wronged owner would be compensated
from an insurance fund. Conceptually, a positive or title registration is simpler and
more secure than a negative land registration system.
Another disadvantage of registration of title compared with other registration
systems is the uncertainty about the duration of the transfer period. For a modem
society and its (market) economy, it is essential that registrations of registered
rights to land can be effectively consulted, giving rapidly unambiguous
information. Depending on the research to be carried out by the registrar in
systems that result in title certificates, it can take some time before the new title is
actually issued. It will be clear that applications for a title on a not yet registered
parcel of land may require some investigation before the registrar will issue a title
certificate. If the parcel of land is already known and identified per se in the
registration system, the process of issuing a new title can be substantially shorter.
Well established systems and modem computer technology have overcome a lot of
the differences and the original shortcomings of the various systems in use for
registration of rights to land, resulting in a very high degree of land tenure security
for the user.
Because of the limited complexity of title registration, some countries have
changed, or are changing, from their original negative registration system to title
registration. This happened as seen already in Australia and England and more
recently in Scotland that in fact had a very effective system of land registration. In
156 The Invisible Line

less developed countries with a small legal profession, introduction of title

registration can be beneficial to land owners, notaries and the government
administration, by reducing costs in the long run for owners and government, and
easing the work load for the notaries whilst providing greater certainty of land
tenure.
Title certificates are provided to holders of rights to land and these certificates
show great factual similarities. Most have rather impressive covers to show that
this an official document.
All land title certificates contain the property data on the questions of What,
Who, How, Where, and When, and to facilitate the where component, most title
certificates have a sketch or map to show the outlines of the recorded property and
its location. A few examples of that ‘sketch’ part of title certificates are given in
Figure 6.6.3 (on the following three pages). Figure 6.6.3a contains the graphical
description of a parcel of land in the title document of England (Fictitious part of
title certificate as common in England). Figure 6.6.3b shows part of title certificate
as provided by the city authority of Orhei, Moldova and Figure 6.6.3c contains part
of a title certificate as issued by the land registry in Latvia - note the coordinates of
the benchmarks in the national grid system.
There is a great deal of similarity in the main contents of these examples. The
scaling of these examples has changed by reproduction and does not correspond
with the scaling stated in the original documents.
A system of registration of title can be expensive to introduce. It needs
additional capital investment for the process of adjudication if the transfer from
deeds to title registration is undertaken en block. If title registration is introduced
on a sporadic basis, say on sale or other conveyances, then the deeds registration, if
existing, will need to be maintained until the title registry is complete. In countries
where land reform programs are carried out, a copy of the original documents
about rights to land issued as a result of the land reform could relatively easily be
used as starting document for title registration. However, this requires the
establishment of a capable land registration organization at the time of the
completion of the first land reform results and the issuing of the first documents to
(new) owners. Commonly there is a misfit in synchronization between land reform
and land registration in this respect. Land reform is often politically motivated
because it appeals greatly to the population. Land registration is an expensive
administrative and technical activity bringing little or no political gain even forcing
upon the population to take the time and burden of registering. And although it
might stimulate the economic development of a country, few governments in lesser
developed countries - where land reform generally occurs - can afford to establish
a modern land registration system without foreign funding and assistance normally
causing it to start much later than at the time of issuance of most of the documents
as a result of land distribution.
 Land Registration 157

H. M. LAND REGISTRY

NATIONAL GRID PLAN SF5607 SECTION A

Scale 1/1250

MAIDENHEAD PARISH

T « l . No. 0 0 0 71

Figure 6.6.3a Part of title document used in England (fictitious sample)

 158 The Invisible Line

Raion/Municipiu: Orhei 64
Oras/Comuna: Orhei 03 Cod cadastral JVs 6401302045
Masiv: 3
Blocul: 02
Calitatca inasurarii: Hotare generale
Anul m£sur&rii: 13-01-19%
Planul

Scara 1:1000

Figure 6.6.3b Part of title document used in Moldova

 Land Registration

ROGEtaJMCTU KOOROIN&IES. ZOCS Gt&LA

V I E f £ j 4 'S I S l £ H A IZYlETOXKS'KWftr^
X Y

57 •1 4 6 2 .6 9 •4 0 5 2 .6 9
43 •1 4 6 6 ,7 7 -4 0 3 8 ,4 6
JIB * •4 5 0 •4016 .5 7
M -MSI
49 •1 4 6 3
.7 *
,2 4
,32
•4 0 0 6
•4 0 4 2
.9 5
.15

\6*-*£9■

'^V
cV

M «rogs 1 500

V A LS TS ZEM BS D fE N E S TS

JO rm o to s p ils C t a s n o d a ja

| priekSnieks Viinde
k<*3» 1300 | 07 4 f0 6 | u zm irTja M.RuOeft

Figure 6.6.3c Part of title document used in Latvia

160 The Invisible Line

In the Land Registry for England and Wales, the Registrar has some judicial
powers (although, not as far reaching as his colleague in South Africa). The
judicial powers of the Registrar in England and Wales are a result of the manner of
first registration requiring a thorough examination of title to be ensured before the
state can accept liability for registered interests. However, once all the immovable
properties are registered, the need for such judicial powers diminishes. In some
jurisdictions, in which title registration systems have been set up using a process of
systematic adjudication to bring all immovable property into the system in a
relatively short space of time, the powers of the Registrar can be kept rather
limited. In all situations, the applications for registration of dealings in a title
registration system, or the preparation of deeds for registration in a deeds system,
must be in accordance with the law.

6.7 NEGATIVE SYSTEMS OF LAND REGISTRATION

6.7.1 LAND REGISTRATIONS BASED ON DEEDS AS EVIDENCE

In several countries deeds are the most common documents for dealing with land.
Deeds are legal documentary evidence of a transaction between two parties. Deeds
may (also) deal with matters other than immovable or real property. Deeds only
provide evidence of a conveyance to the two parties concerned. Drawing of a deed
is an administrative activity generally carried out by an independent professional
according to the will of the parties involved in the transfer of rights. An advantage
of a deeds system is that a deed reflects the will of the parties without the
interference of a third authority. In Continental Europe the professional who
prepares the deed normally is a notary. In several countries the law requires the
assistance of a notary in drawing the deed in order to confirm the identity of the
parties, and to facilitate compliance with the law by including the minimum data in
the deed (object identifier, date of the transfer, the name(s) of the seller and the
name(s) of the buyer etc.) in order to be admitted for registration. But
fundamentally, the role of the notary is that of an advisor and assistant. Not the
notary, but the parties involved decide what the contents of the deed will be.
Generally the originals of the deeds prepared for conveyance of land are kept in
notary offices, with a copy sent to the parties involved and in most modem
societies a copy of the deed has to be recorded in a government controlled
organization as a land registry or cadastre office. This recording or registration
forms the protection against third parties and is commonly open to the public for
inspection of data in the registers. To enable easy access, branches of the offices -
each covering a specific area - are located at various cities in the country. But as
mentioned when there is no reliable or a non-existent national or municipal land
registration system, it is very well possible that the only registers kept of land
transfers in a nation are the registers in the various notary offices commonly
limited to the region covered by that office. It makes it harder for parties to be
 Land Registration 161

informed about the existing land tenure and this is a constraint for the development
of a land market.
These notary offices are not always open for the public and it is sometimes
difficult to get information on the status of rights to land without using the services
of the notary. Unless the notary has a clear territorial area to cover, it is easy to
imagine that, in some cases, another notary in the same area may prepare deeds.
When this happens without proper notice to the office where former dealings with
the same object(s) of land were recorded in the past this will result in
contradictions, overlaps and possible incompleteness in the notary registers. Most
of the time the government will monitor this type of notary activity (often the
justice department of the governmental organization).
The idea behind registration of deeds, which originated in the middle ages, is
that copies - authorized by the notary and/or the registrar - of the original deed can
be placed in registers that can be examined by anyone who wishes to do so. In
theory, this prevents double-dealing as a later prospective purchaser can verify that
a deed of transfer for the same land from the intending vendor has not already been
registered. To be effective, all dispositions of property need to be recorded in the
registers. Since originally notaries - as authorized experts - commonly drew up the
deeds, the notary office was the place to go for information about rights to land. In
several less developed countries, this still may be the case. In other countries,
governmental offices have been established where ‘public registers’ - registers
open to the public for examination of the recorded changes in real rights to land -
are kept. A number of these offices developed a close cooperation with the original
cadastre offices, where a registration of land was kept in order to levy taxes on
land. In some countries both registrations were brought together into one
organization. This happened, for example, in the Netherlands at the Agency of the
Cadastre and the Public Registers. This agency is privatized but operates under
close monitoring by the government, and the agency is fully self-supporting from
the fees collected for its services. It provides subscribed customers all over the
country with digital abstracts of the cadastral records and the cadastral maps
increasingly using the internet.

6.7.2 COMPLICATIONS IN THE REGISTRATION OF DEEDS

Before the widespread use of computers in land registration offices, the recording
of deeds would at times lead to complex situations. As the registers grew in size, it
became more and more difficult and time consuming to make conclusive searches
of the registers. In most cases, a new registry book was made each time an existing
book became full, and sometimes also at the beginning of each year. The registry
books or registers contained often only an inscription of an abstract of the contents
of the deed, but with clear reference to the original deed as stored in the archives.
As mentioned before, to be effectively operational, these original documents need
to be part of the registry that is open - sometimes under certain conditions or
limitations - for inspection by the public. Nowadays with computers, indexes are
used to facilitate searches of the registers. Normally, an index of vendors is kept,
162 The Invisible Line

sometimes completed by an index of buyers. In doing so, it establishes a

registration of deeds system based on persons names. If a proposed vendor’s name
does not exist in the index, then it is assumed that the vendor has not already sold
the land for which the intending vendor holds the deed. It should be noted here that
when a person sells land, in whole or in part, he/she might retain the old deed. The
system is complicated by duplication of names, the fact that a person may own
several pieces of land, and that it is still necessary to open the registers to read the
deed. As more and more transactions take place, more deeds in the registers
become redundant, no longer current, but are still kept in the registers.
There are further complications possible. In various countries, not all deeds
refer to land, or may do so indirectly; for example, deeds of transfer of personal
property and wills, and not all transfers of land are affected by deeds. Land may be
transferred by order of the court, and such transfers are not necessarily recorded in
the registers. This is particularly the case in countries where only notary deed
registers exist for dealings in land. Land may be transferred by contract or grant -
administrative acts - for state land; these can be recorded (as a cancellation of state
ownership) in different places and notaries sometimes do not have ready access to
state land records. Rights to land also can change by adverse possession. Adverse
possession is also called ‘prescription.’ This is a way to acquire land by possession
over a long period of time. The society is most at ‘rest’ when the legal situation is
in line with the supposed situation as experienced in practice on the ground by the
parties involved. The possession should be open and without permission of the
owner of the rights to the land. Furthermore, during that time the possessor must
have acted as if he/she were the owner. The principle of constructive adverse
possession or prescription varies from country to country. Each legal system
provides its own rules for constructive adverse possession, but generally spoken,
one who exercises dominion over land acquires the status of a possessor. Under the
doctrine of constructive adverse possession a claimant may acquire title by adverse
possession if it is claimed in good faith after the prescription period (the minimum
time that land must be held to acquire it by prescription).
In a comparison between registration of deeds (or related documents) and a
registration resulting in title certificates, Rowton Simpson states [68] (p. 19):

It is usual to think of registration of deeds and registration of title as two quite

separate and distinct systems which are mutually exclusive. This is misleading. Each
is not a single system, but rather is composed of different alternatives, and the
combined alternatives form a continuum. The major variable in this continuum is the
affirmation made by the State of the existence of ownership of interests. Other
differences among the different forms of systems, such as the arrangements for
indexing the records, and control of descriptions, plans and surveys not inherent, and
are often the results of change.

The introduction of registration of titles need not replace a system of

registration of notary deeds and other evidence if this registration of deeds is
already well established and accepted by the populace. The information in the deed
will be entered into the registry and the legal right conveyed on entry. In this case,
 Land Registration 163

registration of title and other registration come even closer together, though some
of the benefits in simplifying transactions is lost, particularly in transferring the
whole of a property, which, in title registration, can be effected by a simple
application form. An added feature of a registration of deeds is the fact that deeds
contain historical data and thus have a historical value for researching trends
(agricultural development, family trees, etc) and thus should be preserved where
currently deeds registers exist.
In fact, each system, whether of deeds or not, is made up of many elements
that vary from country to country, and some systems of registration of parcel based
deeds are almost indistinguishable from title systems and have similar
effectiveness. Computerization has led to the two systems being even more
comparable in cost effectiveness and efficiency. A computerized data base of
abstracts from the deeds in a deeds registration system such as that in the
Netherlands, may be indistinguishable from a computerized title system, say in
England and Wales, apart from the language of the text.

6.7.3 CONVERSION OF LAND REGISTRATIONS

The more appealing concept of a positive registration system has resulted in

conversion of existing negative registration systems into positive ones. However,
this cannot be done simply by straightforward use, or by transcribing or copying
old existing entries in an overnight - or more time consuming - activity. Because
of the new role of the registration in a positive system, all existing rights in a
particular real property element must be finally and authoritatively ascertained.
The term previously used for this ascertainment was ‘settlement’ but it has been
replaced since the 1950s by the term adjudication. It will be clear that adjudication
is a necessary element in case of registration of titles.
Rowton Simpson [68] (pp. 208 - 212) describes some examples in Singapore,
Malaysia, Kenya and Zambia of conversion of a negative land registration into a
positive one. In a number of European countries a positive land registration
system was compiled by converting the existing negative land registration system.
Often this was done in an incremental way giving ample opportunity for challenge
and judicial investigation. A well-known example of such a conversion is the
establishment of the Grundbuch (see also 7.3.3) with the existing data in the
Flurbuch (the deeds type of cadastral registration) in Germany at the end of the
nineteenth century. Sweden is another example of such a conversion. Here a
gradual conversion took place introducing progressively increased guarantees for
all rights recorded in the land registers.
The conversion of systems from negative to positive has lost most of its
usefulness with the introduction of computers in land registration offices and the
conversion of manual land registration systems to computerized ones. With
computerization, existing files can be copied and stored much more easily. Data
exchange between the registration and the users of the system is done in fractions
of seconds. Safe copies can be kept in secure vaults and can be updated overnight
to ensure continuous up to datedness of the shadow land registration systems.
164 The Invisible Line

Several countries have already made the step to a computerized land

registration system with electronic data processing. Most countries without such a
computerized system will have to consider such a step sooner or later. It is highly
recommended to consider requirements of computerization when establishing or
improving an existing system even if funds do not yet allow such a step, to avoid
unnecessary future cost by preparing the newly introduced system for
computerization. In 1985 an ad hoc group of experts on cadastral surveying and
land information systems of the UN stated that: ‘The most expensive and time
consuming part of a computerized land information system is often in the data
collection and its conversion into computer-readable form. The process of
transcribing all the manual records into a form in which they are error-free and can
be read by the computer may take at least a decade.’ By adaptation of manual
records for future computer use this transition time can be substantially reduced.
During a recent assignment our team developed a highly standardized manual
registration sheet to be used for all transactions. A specific entry in the form would
always appear in the same box. Once computerization is begun, it is relatively easy
to convert such a highly standardized form into a computer file without too many
errors and blanks.

6.7.4 THE SPECIFIC SITUATION IN FORMER COMMUNIST

COUNTRIES

In many former communist countries ‘new’ owners of rights to land are receiving
official documents from the government showing their new rights and the parcel(s)
concerned. Now that in several former communist countries urban property and
agricultural land are currently being restituted or (re) distributed into private hands
the method of registration should be seriously re-considered. The restitution
agency generally can issue a legal document of ownership of rights authorized by
the authorities. When there is not yet a proper registration in place, the documents
could be recorded at notary offices that are generally present in several Central and
Eastern European countries. In many of the former communist countries in Europe
notaries were involved in conveyances before the communists came to power and
the population is accustomed to notarial services when it comes to transfers of
rights. However, there are not always new and legally approved procedures for the
services of notaries yet. And although, some new legislation actually requires a
notary for assistance with conveyances and first registration of newly acquired
ownership documents, the restitution documents are not always recorded in the
notary deed registers. One of the reasons is the fee that is levied, but in former
communist countries there is also understandable fear for authorities and a
tendency to avoid official registration as much as possible. So, unless the owner
brings the documents to the notary for issuance of a notary deed, the new
ownership situation can go unrecorded for the time being. Thus it may only take
place when the owner wishes to carry out some transaction or activity, such as sale
or mortgage on the property or when the new right holder seeks a fact-finding deed
for added security. The result is that, as some governments are aware, there can be
 Land Registration 165

multiple sales of the same property by the same vendor. Cooperation between the
issuing office and the notary deed registers and eventually with a (new) land
registration agency is essential, but during my assignments I have encountered
several cases of missing links in this respect. Often new owners of rights to land
did obtain their proof of ownership documents without any information exchanged
between the issuing office and the other land registration agencies. Registration at
the notary was left to the initiative of the new owner of rights and the fees to be
paid made many owners abstain from of a trip to the notary office and only a few
new owners followed this procedure. Such a situation can cause expensive
corrections later when a new registration system is established and introduced.
Some time after the land reform and the distribution of land ownership
documents there can be confusion about the exact location of land or there are
differences between registered sizes and actual sizes. During the process of actual
distribution of land, many owners overlook the possible contradictions while in the
festive mood that new land ownership brings and some of the differences are not
revealed during the privatization process. A subsequent formal registration then
causes heavy burden both financially and time wise (not to mention the tenure
insecurity that this causes for the new right holders).
With international donor attention for land registration now often drawn to
former communist countries, the remarks about introduction of title registration are
of particular significance for Central and Eastern Europe. Here some countries
decided to restitute property - re-adjudicate the land - to the former owners
because ownership of rights to land still could be traced. In several of these
countries notary registers were kept for the purpose of registration of property
rights before the communists came to power. Since most documentation has been
destroyed or is hardly usable anymore, the introduction of registration of title
documents may well be considered. There is at present a considerable increase in
the level of interest and activity in land registration systems, as a result of the land
reform progress in former communist countries for several reasons. The farther
East the former communist countries are situated the less likely it is that there is
any trace of land ownership registration tradition. Thus the decision to create a
registration system is seldom guided by history for re-establishment of a former
registration process, as this may have hardly existed in the country’s history. The
urge to implement a registration system is mainly motivated by the wish to adapt
existing institutions to the new needs of the market economy.
The cost of maintaining several land registration bureaucracies is much
higher than combining registration functions into a single institution. In this
respect, it is important to note that in rural areas of several former communist
countries a specific twofold distinction of land was used. On the one hand, there is
land in use by state and collective farms such as that designated for agricultural
production, and land and real property in use for peasant housing, for farm
buildings, for the infrastructure of the farm and land on which agricultural
installations were built. On the other hand is the land and real property outside the
state and collective farms in urban areas and villages like dwelling houses,
166 The Invisible Line

apartment buildings, parks, house-plots, and all other land and real property as
roads, railways, canals, etc. (See also Dekker 2001 [22])
For arable land and also for land with typical agricultural buildings, a regime
of land tenure existed that was different from the tenure of the other land. Arable
land was governed by special regulations and managed by offices of Land
Engineering (also called Land Administration offices). As an important element in
the economic planning, vast amounts of data on this arable land were stored and
maintained in land data banks. Not at all surprising in mainly agricultural societies,
because the national economies in such countries, rich and poor, depend heavily on
the quality and quantity of available arable land. In most policy views, the function
of rights to land is approached as a possibility of optimization of the productive use
of resources.

6.8 CADASTRE

6.8.1 THE ORIGIN OF CADASTRES

Scholars are still debating the origin of the term ‘cadastre.’ Some argue that the
term comes from the Latin word ‘capitastrum’ (a combination of ‘capist’ - the tax
unit - and ‘registra’ - to register). Others say the origin is from the Greek word
‘katastikhon’ (notebook, ledger). However, both views agree on the theory that the
origin of the activity, which used the cadastre, had to do with levying of taxes. The
term cadastre nowadays is used more widely. The FIG statement on the Cadastre
(published in February 1995 [37]), describes a cadastre as a system that may record
different forms of land tenure such as ownership, leasehold, easements, mortgages
and different types of common, communal or customary land tenure. A more
elaborate definition of a cadastre can be found in Henssen, J.L.G., (p.5 1995 [44]):
‘A Cadastre is a methodically arranged public inventory of data concerning
properties within a certain county or district, based on a survey of their boundaries.
Such properties are systematically identified by means of some separate
designation. The outlines of the property and the parcel identifier normally are
shown on large scale maps which, together with registers, may show for each
separate property the nature, size, value and legal rights associated with the parcel.’
As a side remark I like to notice that Henssen uses ‘value.’ But this is rather
relative, because several cadastral systems record the selling price as stated by the
parties involved at the moment of transfer and do not provide for systematic
updates of the value of registered objects. A similar remark can be made for
‘nature.’ Updates of that feature are not always systematically pursued in cadastral
systems because of the (high) costs involved in such updates and their irrelevance
for the protection of rights to land. Only when the system is primarily (or similarly)
aimed at collection of land taxes updates of land values and nature will be done in
a systematic fashion. It is important to realize that both the features value and
nature do not undermine the validity of the recorded rights and one can wonder if
they belong in a system typically aiming at protection of rights. Especially when
 Land Registration 167

the costs of the cadastral system must be carried by income from conveyances and
providing information of transfers only, one could question if it is correct to charge
the public for extra features that will not benefit them in a system that is primarily
aimed at protecting their rights to land.
As mentioned earlier, at the end of the 18th century the cry for a fair levying
of taxes on land forced governments to consider the implementation of a cadastre.
A Cadastre meant an administrative and cartographic description of the objects of
property rights. However, such a cadastre is a very costly affair to establish. To
save money the government of France decided that the properties of individual
owners should not be measured and registered separately, but that 8 to 10 objects
should be taken together. Not surprisingly the results of the measurements showed
bigger areas than the registered facts. To eliminate the differences they were
simply equaled out among the participating owners in one measurement. This
however, caused a lot of trouble. Owners, who thought they had behaved faithfully
in registering the rightful amount of land, felt cheated now by their neighbors who
had under-declared the sizes of their property. Their truthfulness in rendering the
right areas in the past did cost them money now, while the ones cheating in the past
could at least still evade some taxes at the expense of their neighbors. The
government had to give in, and started a complete survey of the lands establishing
a Cadastre of all individual 100 million parcels of land in France object by object.
This Cadastre, as implemented by Napoleon, forms the basis of most of the
cadastral systems on the continent of Western Europe today. Since the cadastre
was used to levy taxes, the system grew in extent and completeness. And, although
land registration systems continued to exist parallel to it, use of the cadastral data
for all sorts of land information systems became tempting for governments.
Napoleon himself visualized this prospect by stating while detained at St. Helena
in 1816: ‘The Cadastre just by itself could have been regarded as the real
beginning of the Empire, for it meant a secure guarantee of land ownership,
providing for every citizen certainty of independence.’
Modem cadastral systems are often the main source of data for land
information. Cadastral systems are normally object based and up-to-date land
information systems containing records of interests in land (e.g. rights, restrictions
and responsibilities). The cadastre usually includes a geometric description of land
objects linked to other records describing the nature of the interests, and ownership
or control of those interests, and often the value of the object and its
improvements. Not all records of interests in land can qualify as cadastral systems.
A Cadastre has to contain records that can be inspected by people having an
interest in the recorded rights (this does not necessarily mean that cadastres should
be public). The cadastral records are a source of graphical and/or alphanumerical
data about the delimitation of the property, the nature of the tenure related to it, the
person to whom these interests belong, and any other possible information as may
be pertinent. A cadastral system must have the capability of detecting changes both
in object and in interests and of updating its records to accommodate these
changes.
168 The Invisible Line

6.8.2 USE OF THE TERM CADASTRE

The word ‘cadastre’ can cause misunderstanding because of the different meanings
of ‘cadastre’ in various countries. An example of this is what often occurred in
former communist countries particularly in Central and Eastern Europe where
locals and western experts had a totally different perception of the term ‘cadastre’
because of their different background experience and knowledge (see Dekker 1994
[23]). Cadastres are systems containing data about the land. In many former
communist countries a cadastre contains such data but especially suited to support
the centralized five-year economic planning system. In continental Western
Europe, cadastres were initially developed for taxation purposes (fiscal cadastre).
In Britain and in other parts of the world, the concept of land registration (legal
cadastre) is mainly used to cover records of ownership for legal protection of the
rights of ownership and thus the term, ‘legal cadastre’ is sometimes used for ‘land
registration.’ Multi-purpose cadastres refer to systems designed for several
purposes in one system: for protection of rights, for taxation and for planning and
development.
Legal ‘cadastres’ are developed to benefit the land owner by protecting the
legal interests and facilitating the raising of credit using the legal interests as
security, and this indirectly benefits society by leading to an improved land market.
Fiscal and multipurpose cadastres are largely orientated to the direct benefit of
government organizations for the raising of taxes and control of land use and
development. Such links may lead to distrust on the part of landowners and may
lead to the breakdown in registry systems.
As mentioned before, in Central and Eastern Europe, in Russia and Central
Asia during the communist regimes, cadastres have been used as information
systems intended as a tool for central planning. They tend to include a large range
of information without nowadays much consideration of user needs and of the cost
of collecting and maintaining such information bases. The focus is on data for
agricultural production planning, like soil quality, topography, climate,
accessibility, etc. In several former communist countries, much of the data on land
in the State controlled cadastre institutions is now rapidly becoming incomplete
when considered on a countrywide basis because the proper maintenance and
updating cannot be funded anymore. There is an unfortunate continuing tendency
to retain and computerize these centralized, complex land information bases even
though they are unlikely to be required in a society no longer centrally planned.
There is also the danger that the perpetuation of the old command economy
cadastres in a multipurpose cadastre will deflect the focus away from the legal
protection of rights in land. Much of the data for protection of ownership rights to
land may be relatively new and the data collection of the cadastre system most
likely has not been synchronized with the massive issuing of ownership documents
of rights to land after independence. This often happens in many former
communist countries. But then it is very likely that the data on land ownership are
incomplete and inaccurate. There is an understandable hesitancy to discard much
of the data collected over the years. It is strongly recommended that the
 Land Registration 169

information be broken down into distributed information systems so that each part
can be evaluated and managed separately by the relevant specialists providing that
there are sufficient safeguarded links between the various systems.
At the end of the 1960s several scholars have advocated the concept of so-
called ‘multi-purpose cadastre.’ It will be clear that, in fact, there is contradiction
in this concept because of the different requirements for each purpose that the
multi-purpose ‘cadastre’ should serve. Nevertheless, one might argue that since the
land data already available should be used as much as possible and, in this respect,
the concept can be attractive. The advantage is that land data are used in the same
way throughout an organization and that this will be highly beneficial for
compatibility and data exchange. The downside is that for most applications the
basic data might be too extended (and so carry too many digits taking up computer
space) because such a high level of accuracy is not required.
Another example of a collection of data on land is for the purpose of the
planning, location and maintenance of utilities. The term cadastre is sometimes
used in this respect, but this has not much in common with the various ‘cadastral’
systems mentioned before. Nevertheless, an information system on utilities can be
called a ‘utility cadastre’ and it might well be that such a ‘cadastre’ uses data
collected in other ‘cadastral’ systems. In fact, it is one of the recommendations
often made to synchronize the data exchange of multi-purpose data between the
various systems that use land data in a country in order to maintain the integrity of
the land data (see also 7.4)

6.9 CADASTRAL MAP AND CADASTRAL SURVEY

6.9.1 CADASTRAL MAPS AND TOPOGRAPHICAL MAPS

A compilation map showing all of the objects within a specific area may be known
as cadastral map or the registry map and is an essential component of title
registration and object-based registration of documents. The national territory will
be covered by a series of these maps, each map covering one area and showing all
object boundaries, all object identifiers, and all restrictions, easements on rights to
land such as rights of way. A cadastral map is not a topographic map but it shows
the ‘invisible lines’ representing the boundaries of rights to land as collected
during cadastral surveys.
The maps may or may not show buildings (this is often done and can come
very handy as a reference to legal boundaries), but when shown on the cadastral
maps they should be outlined and be kept as simple as possible. Figure 6.9.1a
shows a cadastral map in basic form and ‘island’ format produced and in use
before computerization.
Figure 6.9.1b shows a cadastral map from a central Asian country. This map
shows not only cadastral identifiers but also house numbers of the residences
adding to a quick reference on the ground. It is an example of contemporary
cadastral mapping generated by computerization.
 The Invisible Line

fig u re 6.9.1a

figure 6.9.ib Co„tem,

!P «rarv cadastral map
 Land Registration 171

In England and Wales topographical maps of the Ordnance Survey are used
by the land registration for protection of rights to land. When in 1875 the concept
of registration with ‘general boundaries’ was established, it created this possibility
to identify ‘cadastral’ boundaries by actual topographic features, because the
topographic features then represent the cadastral boundaries. In 1897 the Ordnance
Survey Map became the legal basis of registered mapping. The use of a
topographic map for a land registration recording rights to land is an exception and
can only be done in combination with the ‘general boundary’ principle. In most
other countries the difference between topographic features and the invisible lines
that compose boundaries of rights to land do require cadastral maps showing those
‘invisible’ lines. Cadastral maps may also be supported by survey data in particular
lists of coordinates for selected boundary points. There is a tendency in a number
of countries to consider these coordinates as definitive and conclusive of
boundaries.
When an existing cadastral parcel is partly transferred, qualified surveyors in
most continental European systems use the indication of the new boundaries by the
parties involved to prepare cadastral maps. The indicated boundaries are mapped
and can be re-established on request. The surveyor ‘polices’ the boundaries, and
the legal boundary may differ from a topographical feature obviously forming the
used boundary between two neighboring objects. Bear in mind however, that these
cadastral boundaries are ‘invisible’ lines representing the extent of the rights to
land, invisible boundary lines that can eventually lead to adverse possession and to
constructive adverse possession. (In some countries like Denmark and Sweden the
transfer of part of a parcel is legally impossible, the new parcels must be
established first by recording the parts after identification and surveys during a site
visit by surveyors.)

6.9.2 LINKING THE CADASTRAL MAPS AND THE REGISTERS

The actual delimitation of the cadastral object, together with its subsequent
demarcation on the ground - or in the case of an apartment building, the described
features of the individual apartment - is the function of the cadastral survey.
Countries preparing cadastral maps originally did so on the basis of land
surveys and parcel identification activities per municipality. First the boundaries of
the municipality were located and measured (in cooperation with all the
neighboring municipalities to avoid later conflicts), and then the municipality was
split up in sections of an easy manageable size that would fit on a map sheet
according to the prescribed scale. The border of a section would generally be a
natural feature in the field like a road, or river. The result of this was a number of
maps (and of course registers) for each section. Such maps have borderlines that do
not correspond with straight lines but rather follow irregular patterns. They are
commonly referred to as ‘island’ maps like the one that is partly shown here:
Since the parcels were identified per section, all parcels did fit perfectly within the
limits of the section map and appeared only once on one map sheet in the
geographical database.
172 The Invisible Line

The cadastral survey forms a subsystem in the cadastral registration.

Cadastral surveys may also be performed to re-establish the boundaries of the
object. The delimitation of a cadastral object consists of a description of the
geographic location of the object and its boundaries, the size of the object and the
shape of it. These data will form the object record. The object record thus will be
based upon the information gathered by a cadastral survey and may be kept in the
form of a written record and/or a cadastral map, or in terms of numerical
references, such as plane co-ordinates.
The maps in an object based registration system need to be kept accessible to
the registers so that changes to one (registers or maps) can be made in tandem with
the other. The demarcation and survey of changes to objects (e.g. subdivisions)
need to be controlled by a competent and accountable survey authority. Close
cooperation between the survey and legal professions is essential for object based
land registration systems.
A cadastral survey can be undertaken on individual objects (subdivisions and
other mutations, re-establishment and investigation of disputes) or as a
comprehensive process. The latter may be undertaken for systematic determination
of rights to land in order to set up a title registry either for land reform, or for land
consolidation.
 Chapter 7

Specific Aspects of Land Registration

7.1 TITLE INSURANCE

7.1.1 AN EXTRAORDINARY SYSTEM OF INSURANCE

Although hardly known and practiced elsewhere in the world, in the USA land title
companies offer title insurance to most owners of rights to land. Commonly,
owners of rights to land in the United States will insure their title to land by regular
payment of a premium like any other insurance they might have. The first title
insurance company in the world was formed in Philadelphia, Pennsylvania on
March 28, 1876.
Title insurance was ‘invented’ by a group of lawyers in that city as a result of
a decision by the Pennsylvania Supreme Court (Watson v. Muirhead 57 Pa. 161).
As Robert Haines (1980 [42]) explains: The founders of title insurance created a
vehicle which would indemnify the purchaser from losses on account of the defects
in liens or encumbrances upon a title or interest being acquired, without the
necessity of showing a fault or neglect whatsoever on the part of the indemnitor or
of those acting for such purchaser. Almost everywhere in the United States one
will find offices of title insurance companies (sometimes called ‘title-plants’)
specializing in tracking the chain of ownership of a parcel of land and insuring the
title. It is clear that once the ownership of a parcel of land known as 31 Eighth
Avenue has been traced back to the original owner of a larger parcel of land of
which 31 Eighth Avenue was part, it most likely tells also some of the history of 33
Eighth Avenue and 29 Eighth Avenue. In keeping records of searches, a data bank
can be developed making future searches simpler. By offering insurance of title for
one parcel like, for example, 31 Eighth Avenue, it is relatively easy to offer
insurance for all the neighboring land, in this case, for the parcels numbered 29 -
33 (or even 1 - 55) along Eighth Avenue. The combination of searches and keeping
records of searches in the past gave way to the development of title companies
where purchasers of land can insure their ‘title. ’
Title insurance has become a characteristic feature of real estate transactions
in the United States. In many parts of the country title insurance companies do own
and operate private sets of indexes to public records and even complete sets of the
copies of records. In the USA it is not uncommon, within the office of the recorder,
for several land title (insurance) companies to have their own cubicles for the
benefit of the searchers that the land title companies employ. In some courthouses
174 The Invisible Line

these cubicles are in the same room (commonly referred to as the vaults) where
also all the land records were kept.

7.1.2 TITLE COMPANIES

A private ‘Land Title Company’ uses the searches of the roots of title solely for its
own use. The records kept at the insurance companies are not open to the public.
Title insurance has developed and spread because of the benefits it offers, and not
through any legal fiat or market control. The feature of title insurance that it does
indemnify the insured for failure to receive a valid estate or interest is worthy of
emphasis. More than anything else, this distinguishes title insurance from other
methods of title protection. It is particularly significant in the insurance of
mortgages. Benefits of title insurance advocated by its users are the financially
responsible indemnification against loss that may arise from undiscovered liens or
encumbrances upon a title or deficiencies and defects within it. Encumbrances are
limitations on the full enjoyment of the property caused by rights of others for a
(partly) use and/or enjoyment of the property. Liens are legal instruments that can
be filed at the land registration office by anyone having a (financial) claim on the
owner of the property. It establishes ‘a cloud on the title.’ When not paid in time a
lien can be registered showing the amount still due. Popular liens are for unpaid
parking or speeding tickets and for unpaid bills related to the property - for
example an air condition repair, or for a construction job to benefit the property. It
generally can be removed by a verdict of a judge or by approval of the party who
registered the lien (with some variations among the different states).
A new owner of rights to the property remains responsible for paying off the
lien to get it removed. It should be mentioned that the coverage of title insurance
generally is not limited to matters that do, or should, appear in title deeds or should
be shown in the registration certificate. Indemnity may extend to loss caused by
rights of those actually in possession or using portions of the property or lack of
general access. Many title insurance companies extend the coverage of title
policies to insure against questions of surveys to give complete protection for the
full enjoyment and to the full quantity of one’s land. Another benefit of title
insurance is its effect in encouraging mortgage lending and, in particular, the
incentive for the secondary mortgage market.
It is a well-known fact that in the economic development of Puerto Rico in
the 1950s title insurance was of crucial importance to facilitate first and second
mortgages. Furthermore, title insurance bolsters the confidence of purchasers and it
provides extensive documentation because of the searches that are part of the
examination process before a title insurance contract is made up. Title insurance in
the USA has proven its usefulness with respect to the types of title systems that
were the result of a multi-ethnic society in which different systems could emerge in
the various states.
 Specific Aspects o f Land Registration 175

7.1.3 INDEMNIFICATION BY TITLE INSURANCE

Title insurance does indemnify the insured for failure to receive a valid estate or
interest. This, more than anything else makes title insurance different from other
methods of title protection. In this respect I advocated title insurance from the
beginning of the establishment of the European Union and, personally, I believe
that it is a system worthy of investigation with the coming together of many
different registration systems and varying legal systems of member states in the
Union. It can protect citizens of member states for unexpected surprises in
achieving title to land in other member states, such as states where the legal system
and the registration does not cover exactly the same indemnification and does not
follow the same procedures one may be used to in the country of residence.
Although title insurance is a dominant feature of land transactions in the
USA, it is important to mention that it is always possible to examine property right
establishing documents directly from the public records. Some states in the US
require title insurance as a legal imperative, but most of them do not. Examining of
the registers in the US is a surprisingly easy matter. The lowest level of
government in the country is the county. Each county has its own vaults in which
the registers on property - as well as the other registers - are kept. Although some
states still use a cumbersome old-fashioned system of storage and retrieval, it is not
hard to understand (albeit time consuming to use) and the registers are public in an
almost remarkable way. Every working day the registers are open for inspection by
everyone who wishes to do so. It is a real help yourself system with no hurdles or
even fees to pay. So it is very well possible to trust one’s own judgement by
examining the documentation available in the registration offices. In every county
seat (the administrative ‘capital’ of the county) in the US one will easily find the
office of the recorder or the land vault where public inspection of all the records on
land are available free of charge between 9.00 AM and 5.00 PM on working days.
It is my own experience that there is always someone around offering assistance in
those offices if one needs some help to get familiar with the system. (An extensive
description of the registration in the USA can be found in [24] (1987, pp.219-249)

7.2 MAIN CHARACTERISTICS OF LAND REGISTRATION

7.2.1 DOCUMENTS AND CUSTOMS

It may be desirable or necessary to detect the characteristics of a land registration

as currently operational in a specific country or area. Some relatively easy to
discover facts can quickly reveal the most important characteristics of the current
land registration system. The first question is to determine whether it is a non-
documented or documented land tenure regime. When not documented, it will
most probably be tribal law or local custom that governs land tenure and it might
be that the land is common land as well. If documents are involved, tribal law or
local custom can still play an important role, leading to the conclusion that legal
176 The Invisible Line

pluralism might determine land tenure. If, in general, documents are used to prove
ownership of rights to land and real property, it might be of interest to determine
what kind of documents are commonly used for the purpose. Apart from deeds or
title certificates, it is not uncommon that an array of documents can be presented
for registration, e.g., invoices and receipts for payment, written statements, and
more the like documents. It is not unusual that governmental offices accept all
these documents to register (assumed) ownership of rights to land. However,
researchers found a strong positive correlation. The more official and formal the
documents required to register, the more reliable and trustworthy the registration is
perceived in proving property rights, which results in a higher level of land tenure
security.
When there is a recently established or relatively changed land registration
system operational, it does not always mean that the non-documented customary or
traditional tenure systems are completely abolished. There is extensive evidence
that registration activities undertaken by governments are followed by widespread
failures to register subsequent transfers and successions. People tend to stick to
traditional and well-known practices.
Research on gender related problems with newly implemented land
registration systems have also shown that, although women may not be overtly
prohibited from registration, conventions may very well form barriers to
registration by women or registration in the name of a female.
A strong incentive, but also a frequently overlooked one, for indigenous
people to stick to old customary rules in matters of land tenure, is that such a
tradition will give them land tenure security. Tradition gives them not only a
perceived emotional security, but also as a real protection against loss of rights
and, what is even more important, of livelihood. In several countries in transition
from customary, or community based tenure toward ‘western’ style land tenure
regimes, there is often only a marginal social security system available. Being able
to claim land under customary rules as a result of kinship or of belonging to a
community is an extra guarantee for indigenous people to have at least some extra
endowments when it comes to difficult times in the future.

7.2.2 TITLES OR DEEDS

As seen in Chapter 6, from the legal perspective a distinction can be made between
a registration where the documents filed in the registry are the evidence of title,
and a system of registration of title in which the register itself serves as the primary
evidence. Registration of title is a further evolution of land registration.
Advocates of title registration claim that it results in lower transaction costs
than other registration systems, thereby promoting a more efficient land market.
However, I like to argue that a registration of deeds results in a more effective land
market because of the total freedom for the parties involved to make a contract of
their own will. A contract can be made between the two parties only, without
interference by a registrar or other official (the registrar in a negative registration
system generally has a passive role in the registration process). The whole transfer
 Specific Aspects o f Land Registration 111

might go faster because the parties can decide the time and place to have such
documents drawn by themselves - assisted by a notary, as their paid service
provider - independent from anyone else.
The authority exercised by the registrar is generally a good indication
whether the registration is a positive or negative registration system. In a
registration in which the recorded data have a constitutive effect, the registrar
almost certainly has judicial powers, while in a land registration, the recorded data
only give an indication of possible ownership of rights; the registrar normally has a
passive role. In a land registration where the data are an adjunct to the investigation
of the title, (also called a negative registration system), the registrar has the duty to
check whether the documents presented for registration are in compliance with the
law, both in form and in contents.

7.2.3 WHAT IS THE PURPOSE?

It is useful to detect the main purpose of the land registration system to avoid
misunderstanding. Most systems in less developed countries suffer from lack of
funding and staffing to maintain and update the system adequately. In these cases
there is a tendency to focus on the original purpose of the system, resulting in an
unavoidable neglect of other functions which were later added. The registration
may have been originally established for fiscal purposes (e.g., valuation and
equitable taxation) or for legal purposes (conveyances), or to assist in the
management of land and land use (e.g., planning and other administrative purpose),
or to enable sustainable development and environmental protection. The legal force
behind the updating is important. If the purpose of the system cannot be met by
sufficient methods of updating, the land registration system will lack in meeting
that particular purpose in the very near future. In some developing countries there
is often insufficiently educated staff to be capable of updating the system while
meeting the legal and social requirements of the society.
Cadastral systems use the property itself as object. That object can be a parcel
of land but also a part of an apartment building. It generally is individualized with
a unique identifier and, although buildings and the parcel on which the building is
erected might have more than one owner or user, the unique cadastral identifier
links the individual taxpayer/owner to the real property. So again, cadastral maps
thus show basically ‘invisible’ lines, invisible lines that represent the original
distribution of the land along the extent of the rights owned by separate individuals
or entities. A Land Registration system or Cadastre currently is often a
computerized, object based, and up-to-date land information system, containing a
record of interests in lands (e.g., rights, restrictions and responsibilities). It usually
includes a geometric description of objects linked to other records describing the
nature of the interests and ownership or control of those interests, and often the
purchase price (or in sophisticated cadastral systems the updated value) of the
object. Most modem systems have also a geographical component, enabling users
to view the object on a map and showing the relative location of it.
178 The Invisible Line

Being primarily a governmental responsibility, a land registration system

must fit in the institutional environment and that should thus be examined.
Questions should be answered as to which governmental body is responsible for
the execution of registration and surveying activities. Are there any compulsions in
the matter of surveying, and which body controls this? Who is responsible for
maintaining and updating the cadastral registration? Are any private institutions
involved, etc?
A land registration system will, in one way or another, be a tool for the
management of land resources. It can give direction and control to allocation,
development, use and conservation of natural resources. To develop a land
registration system for the society involved, it is essential to obtain a broad
understanding of the spatial organization, the methods used for land transactions
(conveyances and registration) and the role of the information in the management
process.

7.3 EVOLUTION IN LAND REGISTRATION AND CADASTRE

7.3.1 SOME EXAMPLES

In previous chapters several specifics of land registration systems and cadastre

institutions were described. It is almost impossible - and not very effective - to
describe all the systems for land registration and cadastre as they exist today in the
countries of the world. Land registration systems and cadastres are tools to assist a
government to protect ownership of rights to land, to stimulate the national
economy by facilitating transactions in land, and to fairly levying of land taxes.
The rights and duties connected with land are important in a society and the
systems to protect those rights and to impose the duties have evolved with the
society in which they function. It is hard to think of the Domesday Book as a
suitable instrument nowadays to levy taxes on land, nor will the voluntary
registration by landowners be seen as sufficiently reliable to facilitate transactions
in land in an effective way in a modem society. Changes in the society will to
some extent be reflected in the land registration and cadastre institutions. The
development of land registration and cadastre can best be illustrated by using some
examples.
A cadastre never evolved in England, mainly due to the feudal system that
made it possible for the state to deal only with a limited number of landlords of
large holdings (manors or estates) for land tax purposes. Originally the local
landlords acted as agents for the state by extracting rents form locals. There was no
urgent need for a cadastre since the local knowledge was sufficient to prevent large
scale cheating with taxes and the lord superior could relatively easily deal with the
relatively few landlords owning large holdings. Legal attempts to implement a
cadastre failed in the House of Lords because the (land) lords in the House, often
owning large holdings themselves, had nothing to gain by a cadastre. Only after the
successful implementation in Australia of a registration of title by Torrens, the
 Specific Aspects o f Land Registration 179

specially appointed Commission could propose an acceptable system of

registration of title in England in 1862.
The Cadastre in France was established after the revolution at the end of the
eighteenth century because of the change from an agrarian to an industrial society.
Land lost its primary importance as a source of livelihood and became rapidly a
transferable commodity, requiring easy proof of ownership of rights to land. With
great political insight Napoleon combined the question: ‘What, Who, How, Where,
and When?’ with his desire to reference fiscal data to individual properties. The
successful imperialistic endeavors of France forced many other Continental
European countries to implement similar cadastres. Austria, Belgium, Denmark,
Germany, Italy, Luxembourg, the Netherlands, all started with ‘Napoleontic’ type
cadastres in the first half of the nineteenth century.
Due to the high costs involved in surveys, the geodetic accuracy used to
prepare the original cadastral maps aimed rather at preparing fiscal maps, more
suited to detect missing parcels than supply accurate data of the size of the parcels.
However, over the years the accuracy of surveys of parcels improved dramatically,
providing excellent cadastral maps of the parcels.
Ownership of rights to land was made public in France by passing legislation
ordering all deeds of purchase and mortgage in a public register in the prior two
hundred years. Since a deed is only proof of transfer of rights between the two
parties involved, the contents of the deed must be made public to give protection
against third parties. This was done by inscription of an abstract of the contents of
the deed at the registration office. The offices recording the transfers also vaulted -
copies of - the deeds or any other documents of transfer. A chain of documents is
required to prove ownership since the inscription in the registration of an abstract
of the deed is only a reflection of the will as expressed by the parties involved. In
France, a notary must prepare deeds of transfers of land. The notary had among
other duties, the legal duty to check the identity of the parties and whether these
parties had the right to convey and he did so by checking the registers in the office.
When the cadastre was established, it was an obvious thing to make a link
between the cadastral registration and the registration offices of the transfers of the
land. In many countries the registration offices of real rights to land and the
cadastral offices are part of different governmental organizations. Linkages had to
be forged to guarantee an update of the cadastral records after a transfer or any
other change in the real rights to the land.
As mentioned before, the registration in South Africa established by the
Dutch, is mainly based on deeds as evidence of transfer. However, it has
eliminated the need to conduct a search of the chain of the title by empowering the
registrar to issue a title after successful registration. That is why the registrar in
South Africa is actively involved in the registration process. The registrar is
authorized to ask questions; to require further proof and to change the contents of
the documents rendered to the offices for registration. In France as well as in most
Western Continental European countries the cadastral registrar has a much more
passive role.
180 The Invisible Line

The cadastral record in Germany is called the ‘Flurbuch’ and it is established

very similar to the cadastral records in France. But at the end of the nineteenth
century, a separate organization was built up in the various States of federal
Germany around the ‘Grundbuch’ to change the German land registration form a
basically negative system into a positive system. In the Grundbuch, inscription of
an abstract of the documents of transfer is used to prepare together with cadastral
maps an accurate set of documents accepted as legal evidence of the rights as
described therein. This set is a title document. The Cadastral organization, with its
Flurbuch, is in most German states (‘Bundeslander’) part of the Ministry of
Finance while the institutional organization around the Grundbuch functions within
the legal domains of the government.
The multipurpose cadastre concept - mentioned already in an earlier chapter
- originated around 1975. Sweden was one of the first countries to pursue the
establishment of a multipurpose cadastre on a national scale. Actually the
multipurpose cadastre is more a multipurpose land registration system, because the
fiscal aim is just one of the purposes of such a ‘cadastre.’ The idea of a
multipurpose land information system has been lost in the rapid technological
developments of computerized land information systems. Nowadays emphasis is
given to smaller computerized systems of land information, linked by
unambiguous multi functional data on land with other land information systems.
Electronic data exchange and storage enables efficient management of data on one
hand and integration of data on request on the other hand.

7.3.2 VARIOUS CADASTRAL SYSTEMS AND THEIR LEGAL

DIFFERENCES

The start of the modem cadastral systems occurred in France where it originated
for the purpose of levying land taxes. It was undoubtedly an enormous task that
would cost both much time and money. For the latter the justification was that the
money spent would be recovered form the land taxes levied. The most time
consuming effort of the establishment of the cadastre was the survey. More than
100 million parcels had to be surveyed, classified by soil quality and production
potential, and a list of owners had to be put together in as short a period of time as
possible. In France it took almost half a century to fully complete this task. The
French example spread through Europe. But there were (and still are) significant
differences in development. In the low countries (Belgium, Luxembourg and the
Netherlands) as well as in Denmark and many of the States of Germany the
cadastre was completed almost at the same time as the French cadastre. In the
Balkans, Central and Eastern European and some Mediterranean countries the
cadastral process was completed later, and in some areas is not completed yet. A
typical problem is often not the establishment of the cadastre itself, but the
maintenance and updating of the registered data in the cadastral records. If records
and maps are not continually revised and accurately updated (including necessary
surveys), the cadastral system quickly becomes obsolete and unreliable.
Initially the cadastral system existed parallel to the land registration system
 Specific Aspects o f Land Registration 181

that supposedly provided for land tenure security. But because the cadastral system
was paid for by land tax income, it often extended smoothly and became
sometimes superior to the land registration in accuracy and reliability. The
property units as described in the cadastral system became more and more the basis
for the description of the property units in the land registration systems in use in
the same country. Over time the cadastral system enhanced the land registration
system in those countries where the cadastral system was successfully operational
and maintained nationwide. The development has been different from country to
country and this is reflected in contemporary cadastral and land registration
systems in Europe.
Western European cadastral systems, as well as the different English system
of land registration without a cadastre, have been exported all over the world
during the era of colonization, and again in the newly colonized countries these
systems took their own development, continuing after the colonies became
independent new nations.
Where close cooperation existed between cadastre and land registration
organizations the step from a negative to a positive system is not too hard to make.
By using the cadastral records system with its unique data collection on owners
and properties a title registration system can technically be established in a
relatively easy way.
In this respect it is important to bear in mind that not only the development of
cadastral systems has been different, but that also the process of registration and
protection of rights to land shows significant differences in the various countries.
In several countries there is a close cooperation between the cadastre and the land
registration like in Belgium, France, Germany, and the Netherlands. Be aware that
in these countries there is a possible difference between positive and negative
registration systems.
As mentioned already in 6.4.5 in a legal sense one of the interesting
differences between the various land registrations is the moment of the transfer of
rights. In some countries like France, Italy and Portugal the signing of the deed by
the parties is the moment of transfer of rights between the parties involved. In
Belgium any oral agreement is already sufficient for the transfer between parties,
although in all these countries ‘publication’ by presenting a notary deed to be
registered in the public registers is necessary to obtain protection against third
parties. With different types of registrations (positive or negative), in Denmark,
Germany, the Netherlands, Norway, Spain and Sweden the moment of
‘publication’ (presentation of the legally required documents for registration at the
public land registration office) is the legal moment of transfer of rights between the
parties involved. At the same moment protection against third parties is obtained. It
is not the intention to go in much detail here, but it is important to note that
publicity of the land data is also different in nature in the various countries.
Attention has been given to the importance of full publicity of land registers (6.1.1
and in 6.2.2). Looking for differences it can be mentioned that, for example,
Belgium and the Netherlands have a system of complete publicity (full and open
access for anyone to the recorded land data, albeit not free of charge), while, for
182 The Invisible Line

example, in Germany, France and Italy the register is only open for persons (and
legal representatives) that can show a serious interest in inspection of specific land
records. In Greece a cadastre did not materialize, although attempts have recently
been made to start with the ambitious project to establish such an institution.
The cadastre - established in Western Continental Europe in the nineteenth
century - is in some countries not (yet) complete. This has its effect, for example,
in most of the Latin American countries where cadastre and land registration are
still practically independent institutions because of the fact that in Spain and
Portugal the original cadastre never has been completed, thus not being able to
serve as a solid base for land registration records.
In many post communist countries, projects have been carried out to establish
land registration systems after the (re)-distribution of land as described in chapter
5. There is a variety of forms and institutional arrangements mostly as copies of
one or another ‘western’ land registration system. Land taxation is often still in a
development stage.

7.3.3 LAND REGISTRATION SYSTEMS IN THE USA

The prevailing rule in land tenure in the United States of America is that land is
held in socage tenure with the state as overlord. The most important incident of
land tenure is escheat. (The land becomes property of the state when a deceased
one does not have heirs or a will.)
The early settlers in the United States were mainly of European ancestry.
They brought with them the land registration system as operational in their original
homeland. In most of the US (and Canada) the various imported registration
systems have evolved in a system, which is unique in its own way, with typical
adaptations to the circumstances of the colonization of vast areas of land during the
‘Move to the West.’ In many states, deeds or related documents are being recorded
in land registration offices (of which the name varies i.e., office of the recorder,
county vault, recording office, land office). Here in these offices track of transfers
of property can be established by inspecting the land records. The offices are
governmental organizations at the lowest governmental level; the county. Almost
all US-counties have two main complementing registrations for property, the
warranty deeds (for conveyances) and the deeds of trust (for mortgages). Cadastral
mapping is carried out in a basic way or even not at all. Project developers
sometimes prepare maps of large tracts of land to be split up in parcels that are
individually sold and these maps can be used in the land offices as a kind of
geographical description of the newly formed individual plots.
The fact that the public in general has to present documents for registration is
one of the weak points in any land registration system. A land registration that is
not ‘fed’ by a constant flow of data to renew existing records will not be up to date.
To ensure that documents regarding conveyances are actually presented at the
offices to be recorded as soon as possible, recorded facts get priority over
unrecorded ones. This incentive to register is expressed in the recording statutes of
 Specific Aspects o f Land Registration 183

the various states in the US. There are three types of statutes: race, notice, and
race-notice statutes. (See Rowton Simpson p.96 [68] 1976). In race statutes priority
depends on the order in which documents and other instruments are registered. The
winner of the race to the registry gains priority even if he or she knew of a prior
unregistered conveyance. Knowing this could lead to fraudulent practices, some
states in the US adopted the notice statute. In a notice statute no premium is placed
on the race to the registration office. The focus here is on whether the purchaser
had notice of a prior conveyance or not. A bonafide purchaser will always win as
long as he or she is without notice. But, to prove that there has been ‘no-notice’
might be difficult, and so the next logical development is the race-notice statute. It
is composed of elements of the other two statutes. A purchaser must purchase
without actual or constructive notice of an earlier claim and he or she must register
first.
In the USA there is no nationwide unique parcel identification system in
place. For references to location of parcels the majority of states use the Federal
Rectangular System (FRS). After the declaration of independence the federal state
found itself with vast tracts of undeveloped and hardly inhabited land. There were
few monuments suitable for the usual surveys and it was determined to devise a
system that would facilitate location of land parcels. A commission headed by
Thomas Jefferson evolved a plan for dividing the land in a series of rectangles,
which Continental Congress approved in April 1785. In this system a chosen
baseline and a principal meridian form the basis of the reference system. The initial
point - varying form state to state to avoid too complicated referencing - is the
point where these lines cross. Along the baseline the reference is made to 6-mile
intervals known as ranges and along the meridian these 6-mile intervals are known
as townships. The way in which references are made to these various base lines
and meridians and the further division of the ‘squares’ in sections that are formed
on the bases of the baseline and meridians is similar and unique all over the US.
(‘Squares’ because meridians converge towards the North - and this is accounted
for by ‘jumps’ in meridians at intervals of 24 miles). Such jumps in East/West
direction can be found in all the 30 states using the FRS systems on the line
between Township 4 and Township 5, Township 8 and Township 9 ...Township
16 and Township 17.. .etc.
In Figure 7.3.3, the bold lines indicate the principle meridian and the baseline.
Townships are indicated with ‘T’ and Ranges with ‘R.’ The 6 x 6 mile squares are
indicated as in the figure. The initial point is where T1N/R1E, T1S/R1E meet with
T1N/R1W, T1S/R1W. (The North is at the upper side of the page as usual on
maps)
The FRS was a useful tool in granting land to settlers. Newly ‘discovered,’
conquered, or traded lands were divided in ranges and townships on the basis of
the initial point. After the size of a parcel of land, suitable to feed a family was
determined, each applicant could buy a ‘square’ parcel of land of that size, of
which the location would be uniquely identified in the FRS. Additional surveys
were not necessary. It is remarkable that even today the reference to the FRS is
often made in the registration, although, most of its initial usefulness is lost (see
184 The Invisible Line

also 7.5.1),. With the increasing urbanization the FRS system becomes often too
coarse to serve as a good indicator for the small parcels of land that are common in
urban areas. Nevertheless, references to the FRS system are maintained as much as
possible as reference to the location of the parcels.

T1N T1N T1N T1N

R3W R2W R1W R1E

T1S T1S T1S T1S

R3W R2W R1W R1E

T2S T2S T2S T2S

R3W R2W R1W R1E

T3S T3S
R1W R1E

Figure 7.3.3 FRS (Federal Rectangular System)

The FRS system is in use in 30 of the 50 states of the USA (and in provinces
in Canada). There are 32 base lines and 35 principle meridians in the USA. The
original colonial states (mainly on the East coast and New England), Hawaii,
Virginia, Kentucky and Texas do not use the FRS system (Florida is the only
Atlantic coast state using the FRS).
It is a little surprising that in the US several states, even today, use a ‘metes
and bounds’ system. This is - as the name implies - a system in which the
description of the location of the parcel is given in a complex sequence of
subsequent distances and their (compass) bearings. A typical metes and boundary
description (as could be found in a deed in 1969) reads in part as follows:

Begin at the middle of a large white pine stump standing in the north side line of
Joseph Willard’s land, run S 4° 01’ E 25 feet to a point; thence N 80° 18’ E 98 feet to
a point; thence N 9° 42’ W a distance of 8 feet more or less to the south margin of
East Pine Street near a white pine tree; thence Northwesterly along said street South
margin 115 feet more or less; thence S 00° 14’ East a distance of 64 feet, more or less
to the beginning point the white pine stump.
 Specific Aspects o f Land Registration 185

Such a description has the failing of a lack of permanency both as to the monument
that identifies the initial place of beginning and as to those that mark the various
courses. Destruction or removal of monuments will obviously make a re-survey of
the property difficult, if not impossible.
For an outsider the systems of registration of rights to land in the US appear
to be complex and little sophisticated, regarding the vast amount of technology
available for computerized registration and mapping on this continent. One can not
escape the impression that the system of title insurance as provided by private
insurance companies has diminished the urge to quickly modernize much of the
land registration system in the US.

7.3.4 PARCEL IDENTIFIERS

Many cadastral and land registration systems have developed a method to assign
nationally unique identifiers to the real property units registered. The simplest and
most likely oldest unique identifier is the one that reflects a sequential order of
registration in a country or area. It is often used during the process of granting
rights to land. The disadvantage of such a system is that it does not relate to the
location of the real property unit. Especially when each new subsequent
subdivision of an existing unit results in two or more new identifiers (which is
highly recommended to avoid misunderstanding and confusion), maps of the
registered units will show a random array of identifiers without a simple way of
retrieval on the map (but computerization of the geographical database solves most
of such constraints). A similar problem is encountered when units are referred to
by the system of a grantor/grantee index as is widely used in the USA and Canada.
In this alphanumeric system it is possible to get lost because of confusion with
names that are quite common.
Modem real property registration systems and, even more so, computerized
land registration systems benefit enormously from using the concept of object
orientation. This means that a unique identifier, as described in the previous
paragraph is used for all immovable property units - the parcels - in the country.
This identifier will provide access to all land data and other documentation
pertaining to the real property entity identified by that unique code. The parcel
identifier will form the one and most important key to the system. The archive
system will be set up using the immovable property unit identifier as the key as
well.
Over the years cadastral experts came up with various suggestions for unique
land identifiers. The main types of identification codes for real property units are:

• Sequential parcel identifiers:

Volume and folio numbers. Volume 385, folio 41 or even shorter 385/41
means that the data pertaining to that unit are described in the 41st page of
book 385. The books can be categorized in registers of transfers and registers
for mortgages in which case there might be an extra index added to the
186 The Invisible Line

Volume (e.g., a T for a transfer and a M for mortgages, like T385/41 and
M261/39). It could also be that the registers are kept in different vaults for
particular districts, counties or provinces. It is a simple system based on the
order of registration.
Another variation among this type of parcel identifier is to use a municipal
name or number, and a section or block number (when the municipality is
divided into sections or blocks), with consecutive numbers within the section
or block. Thus a parcel identifier can then be: Boistler, Section F, # 3456. Or
when number 215 represents Boistler and number 5 the section F, the
identifier will be: 215 - 5 - 3456, or even more simple: 21553456. The
advantage of such a system is that it gives clear reference to the municipality
for lay people - especially when names are used - but only as long as the
name of the municipality has not changed since the establishment of the
unique identifier system. Although, change of municipal boundaries and
combination of smaller municipalities into new bigger ones will distort the
location reference, the original municipal names or numbers can be used
continuously.

• Grid oriented parcel identifier systems. A grid is a set of perpendicular

invisible lines forming equal squares on a map like on a chessboard. The grid
can be related to in different ways, but commonly X and Y values are given
in the national coordinate grid system, like in the system of the USA and
Canada by Townships (along meridians) and Ranges along East-West lines
(see 7.5.2).

When national grid coordinates are widely used, any pair of coordinates
could locate a parcel in a unique way by choosing a suitable point in each parcel on
the map. Figure 7.3.4a shows two examples of the so-called geo-code. Generally
the point in the map is chosen close to the center of the parcel:

Figure 7.3.4a Center points

With a geo-code parcel identifier based on the national coordinate system, a

further location identification is not necessary. Each pair of coordinates will be
unique in the country as a whole. One only has to avoid that center points coincide
 Specific Aspects o f Land Registration 187

which is a possibility for parcels with a building in the center that has another
owner of real rights attached to it than the land it sits on.
Some land registration organizations mark the points used as geo-coding on
their cadastral maps as can be shown in the part of a cadastral map shown in Figure
7.3.4b.

Figure 7.3.4b Part of a cadastral map showing ‘center’ points

It must be noted here that in such cases the accuracy of the geo-coding used should
not exceed the average accuracy of pinpointing the geo-coding points in the maps.
188 The Invisible Line

If the latter can be done in 0.1 of a meter, the geo-coding should not be given in
units of 0.01 of a meter.
Most contemporary land registration maps are prepared as square framed
maps rather than island maps. The advantage is that maps can be combined with
other maps to form new maps of larger areas fairly easily. In the example of geo­
coding, the location of the parcel is completely derived from the geographical
position of the parcel. It makes retrieval of the parcel on a map relatively easy.
This is even more so when the identifier of the map sheet on which the parcel is
located is contained in the parcel identifier. Each parcel on that map sheet will
have the same map sheet number with a consecutive number added.
Transfers of part of original units will cause the sequence to change unless
the old number of the unit is maintained for the new parts and another consecutive
number is added. The map sheet can have a local name or random name, but in
computerized systems using the national grid its location in the national grid can be
the X, Y coordinate of one of the map corners. In the following illustration of part
of a cadastral map, this type of identifier is easily noticeable. When the left hand
top corner of the sheet is used the sheet will be referred to as 4856/ 2518. Parcel
4856/2518 # 37 has been split in 4856/2518 # 37/1 and 4856/2518 # 37/2 and the
same goes for unit 4856/2518 # 51 .
The original sequence of numbers is not broken, but it gets a little more
complicated when the new unit 4856/2518 # 51/2 is subject to transfer of a part of
it. (It may become 4856/2518 # 51/3 and 4856/2518 # 51/4 making the # 51/2
disappear from the registration, or 4856/2518 # 51/2A and 4856/2518 # 51/2B).

4856 4856,2

Figure 7.3.4c Cadastral map with a national grid

 Specific Aspects o f Land Registration 189

The problem remaining in this type of parcel identification is what to do with

parcels being cut in parts by map borders and thus appearing in more than one
sheet, losing some of the uniqueness of the parcel identifier? Usually the solution
is to use the map sheet containing the largest part of the parcel as part of the parcel
identifier. (In case of doubt the registrar can decide which map sheet will be used,
for example, that containing a building or other important feature.) To indicate
such a solution the parcel is indicated with its number only in the map sheet
containing the largest part. On all other map sheets the parcel number is noted in
the margin of the map sheet close to the parcel as done with units 35 and 36 in the
map example in Figure 7.3.4c.
A rather drastic solution for this problem would be to accept only parcels for
registration that would fit within the borders of a map, making the invisible lines of
the map frames a line to be used by land surveyors as boundary of parcels that
would otherwise be on more than one map. Apart from the fact that this could
considerably increase the number of parcels, it also would be a strange rigidity of
humankind imposed over nature.

7.3.5 PARCEL BASED REGISTRATION OF DEEDS

Some of the deficiencies of systems of registration of deeds can be improved by

referencing the deeds by land parcel identifiers. Each continuous piece of land with
the same property rights attached to it and the same property right(s) holder
throughout that piece of land - the land parcel - is given a unique identifier within
the country. Supposedly there is a land register together with a series of maps. The
compilation of maps covering the whole country shows all parcels and ensures that
there are no gaps or overlaps (a jigsaw puzzle of land parcels). The parcel identifier
is then used to index the registry so that for each unique parcel identifier, there can
be only one valid deed of transfer of ownership (of whole, or a particular part or
share). In most registrations the valid deed of transfer is the last one recorded in the
system. When duly linked to the identifiers used for previous parcels of land from
which eventually the current parcel is a part, the parcel identifiers can be used to
track the chain of title.
The unique identifier can also be used to reference all deeds of mortgage,
lease, and easements (such as right of way) that affect that parcel. An abstract of
the plan can be attached to the deed as added identification of the parcel at a future
date. Once a national unique parcel referencing has been introduced, simple
procedures can be developed for subdivision of parcels to allow transfer of part of
a parcel or division between heirs or other co-owners.
Core of the registration system for rights to immovable property is the right
establishing document. For easy exchange of data between offices and users of the
nationwide system, this document should be transferred into a set of data that can
be exchanged using modem computer equipment. It is not too difficult to imagine
how this can be done with a positive system of registration of rights to real
property. Most of the rights-establishing documents are in a standardized form
making it relatively easy to convert them in computerized data sets. Sometimes the
190 The Invisible Line

manual right-establishing documents use boxes to be filled in or left blank

depending on the nature of the rights. This seems more complicated when a
country uses deeds with an almost unlimited array of rights and restrictions that
can be incorporated in the content of a manually produced deed. However, recent
experiences in several countries using deeds as right establishing documents, has
shown that it is possible to make an abstract of data out of the contents of such
deed documents. The average abstract covers all the main elements of the right
established by the parties involved in transfers of rights to property. Only certain
very specific rights or restrictions are marked and noted as extras. Using the
original archived documents every one can then check these. This practice will not
limit the possibilities of the data exchange in a computerized way.
In general, preparation of indices to the various registers (parcel identifiers,
applications, vendors, purchasers, mortgagees, lessees etc) leads to a system which
prevents, in large measure, the possibility of duplicate sales and mortgages (e.g. in
The Netherlands or the Registers of Scotland (deeds section)). Such indices, if
computerized, can provide the basis for additional information. However, if the
system is used to store many other categories of information about the land, this
requires heavier investment in hardware and software and leads to difficulties in
ensuring that all the data is kept up to date. In the Registers of Scotland, the
‘Search Sheet’ was introduced in 1871 which, for each separate property, notes in
chronological order successive deeds affecting the property. The search sheets
were introduced administratively without amendment of the law.
Such systems might retain certain disadvantages. The registers contain an
overgrowing amount of material and an expanding storage space is needed; though
this can be overcome by the use of microfilming or computerized CD or digital
tape storage. Deeds are historical documents; they record a transfer that occurred in
the past, and the registers can never fully guarantee ownership. The chain of title
may need to be examined each time a new transaction occurs. A deed might be
discovered, for one reason or another, which overturns the ownership. For each
transaction, deeds need legal drafting, often repeat much information out of the
preceding deeds on which they are based, and can be expensive for the applicant.
In Eastern European countries, where land transactions have been severely limited
during the communist times, the legal profession will be greatly stretched to keep
up with the work load generated by the change to a market economy.
Because deeds are (partly) historical documents, they can be used for
historical surveys. In cadastral systems where the land use was recorded in order to
levy land taxes, the registers have proven to be valuable sources of historical
evidence they bear witness of the history of the land use and provide interesting
data for research. In the Netherlands for example, the registers reflect clearly the
changes in agriculture use of land over time by the introduction of chemically
produced fertilizers on lands that were once deemed unsuitable for agriculture
because of their high sand contents.
 Specific Aspects o f Land Registration 191

7.4 INTEGRITY OF LAND DATA

7.4.1 COMPUTERIZATION

Computerization of cadastral systems has greatly improved the effectiveness and

efficiency of cadastral systems. Together with the increasing number of
computerized cadastral systems there is an increasing trend toward integration of
the computerized cadastral and land information systems. The idea is to develop a
system of interconnected databases including a network of smaller (personal)
computers and terminals. This does not have to be a centralized system and the
various databases can be developed in stages.
The UN ad hoc group of Experts on Cadastral Surveying and Land
Information Systems remarked in this respect:

The development of computer and information technology is taking over many manual
tasks and in spite of the high capital outlay, can offer significant reductions in cost.
The most expensive and time-consuming part of a computerized land information
system is the collection and conversion of data. A trend towards decentralization and
de-concentration, with smaller dedicated systems linked together to form a larger
overall system, is seen. To provide that linkage, standards for the interchange of data
must be established and a common spatial referencing system enforced. Effective co­
operation and co-ordination among agencies is essential.

In chapter 7.3.2 attention has been drawn to unique identifiers for land
parcels. This improves unambiguous updating and retrieval of property related data
on land. But it does not always ensure easy exchange of all kinds of data on land in
computerized systems. Neither does a system of unique identifiers guarantee easy
retrieval of land parcels on maps unless these are computerized as well.
If a unique sequential type of identifier is used, it is only systematically
adjudged in sequential order of location on the map at one point in time. This will
be the case during systematic recording of cadastral parcels, but its sequence will
soon be distorted by subsequent dealings with land. At a dealing of a partial
original parcel the original adjudged identifiers are replaced by newer ones to
uniquely identify newly formed parcels. Any new parcel identifier will distort the
original sequence of parcel numbers in their location on the map. Quite a number of
unique identifier systems use location data that are generic for a region or area like
a county or municipal name. But after some time the additional data of the
identifier generally appear randomly on the map as far as the location within the
area or the county is concerned. (In the Netherlands the municipality and a
‘cadastral section’ are examples of such a partly location indicator and this limits
the location of the parcel on the map to that particular section without further
indication of its exact position.) More ‘location-elaborate’ or grid based unique
parcel numbers carry coordinates (as part of the identification) or strict
standardized location data as sometimes used in the FRS system of the USA. Such
systems assist greatly in ensuring some integrity of land related data, but it is not
sufficient.
192 The Invisible Line

Data on land are a necessity to govern properly. In modem societies various,

sometimes complex, computerized land data systems supply information for
consideration on accountable use of natural resources, for decision making on land
distribution, for decentralizing the governing in matters of economic regulation, for
zoning, and for physical planning. There is an active exchange of data between all
levels and disciplines in government. Due to the fact that computerized systems can
exchange data easily, strict definitions and a couple of rules have to be followed to
make that data exchange happen efficiently and reliably. The registered data on real
estate must have integrity, or in other words must be compatible and convertible to
a commonly used (and preferably centrally dictated) data exchange format.
Different government agencies use real estate related data for their own
purposes first and will initially build up real estate data systems without bothering
too much about exchange of data and information. The result is often that in many
societies a mixture of different systems does exist, with different formats and
definitions causing problems or impossibilities when it comes to data exchange.
These various systems reflect the specific needs of each organization and its
perceived responsibilities and duties in society. It should form the basis of any
investigation into streamlining the data flows and handling of data on real estate by
each institution. It also must be the starting point for any considered adaptation of
proposed measures for improvement of efficiency and effectiveness of real estate
data management.

7.4.2 LAND DATA EXCHANGE

Easily exchangeable data on real estate does provide governments with important
tools for exercising fair, reliable, accountable and flexible governing. When land
data are compatible in the various governmental agencies and systems, data
obtained by citizens from government agencies will be in compliance with each
other, and will provide citizens with a high level of reliability of the land related
data. This will result in positive effects on the level of tenure security as
experienced by the population. In the ideal situation all real estate related data
stored at all government levels should be fully exchangeable and compatible. Data
on the ‘What, Who, How, Where, and When’ should translate into unambiguous
and clear (real estate) information. Furthermore such a data structure will provide
for an effective and efficient data exchange limiting costs of updating and
maintaining and thus lower the level of revenue necessary to obtain a situation of
full cost-recovery and self-sufficiency of the real estate data systems.
Experiences out of the vast array of projects show that, for example, a real
estate registration system showing the property rights of the population should be
easily comparable with the real estate tax system showing at least the same subjects
and objects without confusion. In this respect, it is interesting that in the US some
states use this analyzing of land data to carry out ‘tax-sales’ by the government to
clean their real estate-related data banks, because of land parcels that cannot be
identified anymore. Objects in systems in their alphanumeric form should be
comparable with objects shown on maps in geographical form. Subjects related to
 Specific Aspects o f Land Registration 193

real property objects should be the same in the real estate tax system as in the real
estate zoning system independently of any specific goal oriented additions added to
the data by each different institution.
The described approach can be visualized in Figure 7.4.2 by using the
‘apartment-building.’ Each floor of the apartment building contains real estate-
related data for a specific government function or task. Apart from specific real
estate related data to perform that task; government agencies will also store multi­
functional data in their systems.
For example, a typical specific data set might be the permit to have a fuel
filling station on a piece of land. This is of importance for zoning and
environmental agencies of government. A multifunctional data element is the name
of the owner(s) of the property right(s) on the fuel distribution station because that
element might be stored in a multitude of real estate related data systems at all
levels of government.

Municipalities and lower level governmental agencies

Land and Building Cadastre

Agricultural Land Use Monitoring

‘Centralized’ Land Register

stairways
connecting the Real Estate Tax and Valuation System
for data exchange
Surveying and Mapping Authority

Utilities

Government Center for Information Technology

(Private) Business Users of Real Estate Data

Lawyers, Property agents, Lenders and Developers

Others (Universities, Law enforcement agencies etc.)

Etc.

Figure 7.4.2 Apartment building approach

194 The Invisible Line

Great care should thus be taken to construct ‘a stairway’ between each floor that
enables data exchange between the floors of the most relevant multi-functional
data, in order to prevent confusion about the owner of property rights between the
systems.
(In the example of the apartment building an arbitrary selection and division
o f land data users has been made. It is important to note that o f course each
jurisdiction will have its own distribution o f systems over the various governmental
departments and agencies and its own interest groups outside the government.)
Multifunctional data must be created or at least designed by one central
authority and must have a (and preferably the same) central updating authority
recognized and respected by each user of real estate related data. Experience in
several countries shows that it is beneficial to the exchange of real estate related
data in a country when multi-functional data are managed in a centralized way. It is
an important imperative for every government to investigate and discuss the most
appropriate position for such a central authority with the various governmental
institutions and agencies using data on land in the country.

7.4.3 A MULTI-LAYER APPROACH

Basic land related data

Utility data

Housing data

Parks and Sports facilities

Road data

And so on

Figure 7.4.3 Multi-layer structure of property data

 Specific Aspects o f Land Registration 195

With digitization of maps and other land data, map data can easily be combined
with other spatial related information to change the appearance of maps. This has
lead to the development of the so-called multi-layer approach, illustrated in Figure
7.4.3.
Similar to the apartment building approach, a multi-layer approach has been
developed to illustrate the use and possibilities of a multi purpose cadastral
information system. Each organization has several departments, agencies or offices
using various data on real property. These different users can be visualized as
separate layers. To acquire land data for a specific purpose, the different layers of
real property data can be approached and the data from different sources can be
selected and combined in the most suitable way for the purpose in question. This
enables a user to select different layers of data and map them, as depicted in Figure
7.4.3.
Imagine five different departments or users of computerized data on land.
The highest level is represented in the figure by the multi functional data level. All
other users can use these data in order for their data to match with the basic data set
and hence with all land data collected and stored.
The top level represents the basic data in the land information system. As an
example the second level could represent additional data of the utility department,
the third level the data of the housing department, the fourth layer contains data of
the parks and sports facilities department and the fifth layer the data of the roads
department, and so on.
In 6.8.2 the idea of a multi-purpose cadastre has been mentioned. Multi­
purpose cadastres refer to systems designed for several purposes in one system,
i.e., for protection of rights, for taxation and for planning and development. In a
multi-purpose cadastre or multi-purpose land information system, the data could
similarly be stored in layers (and thus in specific maps adhering to the various
purposes of data in the cadastral data bank). Here again, one could make the
remark that such an approach might result in storing too extensive data (with
consequently a considerable impact on the storage capacity of the computers used)
for some of the purposes.
Modem technology makes it easier and relatively cheap to store enormous
amounts of data and besides that also allows making selections out of data
elements in an efficient way for all kinds of for a specific purposes, for example,
an appraiser for real property generally does not need land surveys of the property
in cm’s but that is the way it is stored and available at the surveyors office (shown
in the figure in a different layer). Thus, as an example, survey data could be
rounded to meters during the data exchange between the survey ‘layer’ and the
appraiser’s ‘layer’ saving in the latter layer space and retrieval time.
196 The Invisible Line

7.5 BOUNDARIES

7.5.1 CADASTRAL BOUNDARIES AND TOPOGRAPHICAL FEATURES

This is a book about invisible lines. In the context of this book most invisible lines
are the result of boundaries. It is only appropriate to conclude this book with giving
special attention to boundaries between real properties. The concept of boundaries
between real properties can only be properly understood with background
knowledge about Land Information Systems and Land Registration Systems. The
latter are the institutions and the materialization of the political decisions on the
very existence of the invisible lines that form a boundary of land ownership
between two or more owners. Land Information Systems have to be set up to
provide public access to invisible lines, to mark them on maps and to describe the
rights that go with them in registers. Delimitation (re-indication of boundaries)
involves surveys. The description of boundaries in the registration in maps often
includes some topographical features to give reference to otherwise just lines on
the maps. Some examples of cadastral map fragments are given below (note that
both contain also the house numbers). It is easy to note the benefit of using
topographical features in these examples of cadastral maps to give some
orientation.But it has to bom in mind that the boundary lines as depicted on these
maps do not necessarily correspond with topographic features.
Denman and Prodano (1972 [25] p.27) say about this: ‘The abstract attributes
of the proprietary land unit are those characteristics of the general form which are
conceptual and can not be discerned without some form of descriptive
explanation.. .Frequently, what the uninformed eye would take to be the boundary
of a proprietary land unit is not the boundary at all. A hedge, a ditch, a roadside,
and a riverbank are examples of physical features commonly mistaken as boundary
markers. The boundaries of any property are set by the reach of the property rights
over the land...The size and shape of a proprietary land unit, although, fully
apparent to the eye, cannot be known unless and until the reach of the property
rights of which the unit is in part composed is explained and pointed out with
reference to physical conformity of the land. ’
Most boundaries will be the result of measurements and they can be marked
on the ground by physical features. But this is not always done. Boundaries can be
measured and maintained in an invisible mathematical form as coordinates which
can easily be shown on the ground by surveyors. It is no coincidence that several
of the physical markings between parcels of land are generally seen as the
boundary between property rights. However, the legal boundary remains in
principle invisible and can only be determined by following specific procedures. If
there is a dispute over a boundary the recorded data in the land registration system
may give a solution, but there are circumstances in which the originally recorded
facts are no longer the determining factors for the existence of a boundary. In the
case of adverse possession the original legitimate boundary between two properties
may have changed.
 Specific Aspects o f Land Registration 197

In 7.3.4 reference has been made to the ‘metes and bounds’ system in the
USA. In many counties the metes and bounds system is combined with the FRS
system making it a mixed description in which topographical features can appear.
Some of these boundaries are hard to re-establish. A typical example (based on an
existing description):

Commencing at the Northeast comer of Oakleigh Manor Subdivision, Unit Two (2),
First Extension, thence run S 89°44’ W 29 feet to a point, thence S 80° 18’ E a
distance of 1208.3 feet to an iron pipe; thence run S 00° 8’ W a distance of 323.3 feet
to a point; thence N 88° 30’ W a distance of 16.2 feet to a point, thence S 00° 14’E a
distance of 197 feet to an iron pipe, said point being the beginning of the land to be
conveyed herein; from said point of the beginning, run S 4°01’E 25 feet to a point;
thence N 80° 18’E 98 feet to a point; thence N 9° 42’ W a distance of 8 feet, more or
less, to the South margin of South Pine Drive; thence Northwesterly along said South
margin of said drive chord distance 115 feet more or less; thence South 00° 14’ E a
distance of 64 feet, more or less, to the beginning point and all of said property to be
conveyed being located in Section 7, Township 7 South, Range 10 West, Franklin
County, Tennessee.

The FRS-system made official in the USA in 1785, and referred to in 7.3.4, is
an example of a unique location system. Congress passed an act in 1796 to divide
the 6 x 6 mile squares referred to as Township and Range (as above in Franklin
county) further into 36 Sections of 1 x 1 mile each (640 acres ~ 260 ha) numbered
in a unique and uniform way. Section number 1 is always in the Northeast comer
of the Township/Range square, section 6 is always in the Northwest comer and 36
is always in the South East comer. Thus section 7 (mentioned in the above
example from Tennessee) is the second square mile area from the Southwestern tip
of Township 6 South Range 10 West and bordering Township 7, Range 11 West. It
shares its western border with section 12 of Township 7 South, Range 11 West and
the eastern border with section 8 of Township 7 South, Range 10 West.
The unique section numbering system is given in Figure 7.5.1b, which also
shows the section numbers in one Township/Range square with the sections of
bordering Township/Ranges. (The 6 x 6 mile Township/Range square is indicated
by the dotted line.)
In the year 1800 Congress provided for the subdivision of sections into
smaller units of half sections by East-West lines dividing the sections in units of
320 acres and five years later by Act of February 11, 1805 Congress provided for
the division of sections into quarter sections in square units of 160 acres each
referred to as the NW V4, NE lA, SW V4, and SE lA. Such a quarter section could
thus uniquely be described as the NW lA of section 17 of Township 3 North, Range
7 East in the State of Indiana. The 160-acre squares were originally seen as the
minimum size of sustainable farms in the western frontier states (however, later
farms further to the West - in particular in the more mountainous areas - were
larger). The identifiers for the Township, Range, Section and the lA comer of a
Section uniquely describe the location of the new farms in the western USA
(mostly called homesteads because they were acquired under the Homestead Act).
198 The Invisible Line

36 31 32 33 34 35 36 31
.
I I '. i r. . . n r . .
1 6 5 4 3 2 1

12 7 8 9 10 11 12

13 18 17 16 15 14 13 18

24 19 20 21 22 23 24 19

25 30 29 28 27 26 25 30

36 31 32 33 34 35 36 31
■

1 6 5 4 3 2 1 6

Figure 7.5.1b Sections in the FRS

Later in time and particularly in areas where farmland became part of

growing villages and towns, the Va sections were further divided (USA Congress
acts of 1820 and 1832). The result is that one can encounter locations of property
like NE Va of SW Va of Section 23 of Township 3 N, Range 6 West (40 acres). And
again further divided as, for example, W V i of SW Va, SE Va of SW Va, of Section 12
of Township 1 S, Range 6 East, a property of 5 acres (~ 2 ha) and more elaborate
descriptions for properly units that are even smaller.

7.5.2 REGISTERED, GUARANTEED, FIXED, AND GENERAL

BOUNDARIES

Most societies that have established an operational land registration system also
have the boundaries registered in one way or another. The data about the boundary
are generally recorded and the boundary itself can be re-established on request by a
surveyor. Sometimes the accuracy for surveying and the recording of a boundary
are prescribed in statutory law. Nevertheless, it will be clear that the value of
property and the scarcity of land influence the accuracy of boundary surveys and
boundary determination.
In some areas where land is abundant, boundary descriptions can be rather
vague, like the distance that can be covered in a day by foot, the size that can be
plowed in a day with a span of oxen or the middle of the two rows of trees in
plantations. But as land is scarce, for example, in Singapore, no landowner will
accept an approximate dimension for the extent of highly valuable land parcels.
In English literature sometimes the term ‘guaranteed’ boundary is used.
However, the guaranteeing of boundaries in the legal sense is obviously quite a
 Specific Aspects o f Land Registration 199

different matter from guaranteeing that a boundary mark can be (re-) located to a
degree of precision that is sufficient to satisfy the accuracy as perceived necessary
under the circumstances. The fact that a trained surveyor can use the cadastral
maps or the coordinates to re-establish boundary marks is certainly a positive
contribution to security of tenure. Such a service - although not always cheap -
can of course only be provided in respect to parcels that have been properly
surveyed and recorded at the time of the establishment of the parcel.
A pragmatic approach is the concept of ‘best evidence’ which would be
physical boundaries unless proved wrong. It is also possible to use coordinates
instead of boundary marks or descriptions. A specific feature of the English land
tenure regime is the ‘general boundary’ rule. The English ‘general boundaries’
concept could develop because the landscape was settled. Many legal boundaries
had not changed in a long time and were marked by stable physical features (often
fences of rocks or stones). The precise location of the actual boundary line within
the feature (middle of the fence, inside or outside) was no longer known. The idea
behind general boundaries is this: ‘What has been used to keep intruders out and
cattle in for many years will suffice!’ The physical feature would be accurately
shown on the map as a topographic element. The cartographic element of the
English registration system is the ordnance survey map, which is a topographical
map. By using general boundaries, physical (topographic) features represent
boundaries of the rights to land and thus topographic maps can be used for
registration purposes. Rowton Simpson (p 140) argues: ‘It is easy enough to
understand die reason for the adoption of the general boundary rule in England,
where parcels are effectively demarcated on the ground by physical features and
where the attempt to determine the exact boundary has caused so much trouble to
no useful purpose.’ It is much harder to understand that countries have adapted the
feature of general boundaries in a situation where physical features delimiting
parcels were frequently anything but permanent.
In some countries, such an approach of best evidence may reduce the
potential costs of survey, legal fees and litigation but only if there is sufficient
reason to accept the physical features of boundaries as sufficiently permanent and
long lasting. In general there is a tendency to follow the approach of many of the
European continental systems where transfer from a parcel as a whole is the
general rule. This implies that once the boundary is indicated by parties and has
been recorded, it is legally binding unless proof of the opposite or adverse
possession can be established. If in this case the boundary is surveyed and recorded
at the time of indication or demarcation, there is no reason to presume that it
cannot be re-established by a surveyor. The only disadvantage being that this
implies official intervention by a publicly overseen agency.
An ‘in between’ approach is the combination of both systems like in England
and Wales where it is legally possible to order a survey of the exact location of the
boundaries and to make them ‘fixed.’ Fixed boundaries are documented in the
registration with their exact location. They are generally ‘fixed’ by reference to
points in a geodetic network and can be made visible in the field by a survey. They
again may be costly to obtain because the surveyor would have to investigate the
200 The Invisible Line

location and to convince neighbors about the location of the boundaries. The costs
will have to be bom by the one who requests fixed boundaries. But generally
transfers of parcels as a whole form the bulk of the transfer workload in many land
registries.
Some jurisdictions require the marking of boundaries of properties by
monuments of a permanent character. The monuments will be surveyed and are
mathematically coordinated in a recording and a plan that must be authenticated by
a survey authority. However, no feature is permanently stable and the boundary
monuments can be disturbed and re-establishment may be necessary in which case
the boundary has been actually falsely visible for some time.
The choice for a specific type of boundary is as much a result of historical
and cultural heritage as the choice for a system of land registration. The main goal
remains land tenure security, which in itself is only a perceived phenomenon, or to
say it differently, it is invisible and not easy to determine. In this book the
invisibility of lines and concepts has been a re-occurring theme. As a surveyor I
like to stress that invisibility of registered lines seldom means that the lines cannot
be made visible again. Most invisible lines can be re-established on the ground by
trained surveyors adding to the level of security of tenure that is necessary to allow
landowners to enjoy as much of the many benefits of property with others, without
fear for loss of ownership rights.
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All Biblical quotes are taken from the ‘New Revised Standard Version Bible
USA,’ 1989
 Glossary
(Partly taken from John Bruce’s ‘Review of Tenure Terminology’ [13])

Access: Ability to use land or another resource.

Adverse possession: See ‘prescription’.
Cadastral map: A map showing the results of a cadastral survey.
Cadastral survey: A survey that determines the boundaries of real rights to
land that belong to a person, a legitimate body, or a
group of persons.
Cadastre: A land registration originally intended for the levying of
land taxes. Nowadays the term is also used for land
registration systems intended to protect real rights to
land.
Commodified property: Property that is ‘stripped’ from all communal
constraints and obligations in order to be easily
exchangeable and contributing to efficient and optimal
allocation.
Common-pool resource: A valued natural or man-made resource available to the
people - not necessarily providing everyone with equal
rights1- of a specific community or clan and subject to
degradation as a result of the common use.
Communal tenure: A tenure regime that unlike individual tenure provides
rights of use to everyone belonging to a clan, to a local
community, or to a specific tribe.
Conveyance: Term used for the transfer of real rights to land (in
England and Wales this term is used for transferring
unregistered freehold land).
Customary tenure: Rules governing land tenure, which a local community
defines and changes ‘without help from the formal
legislator’ (It comprises of privileges, duties, and
mutual obligations toward the common land and
between the people belonging to a specific community.)
Dealing: A transfer of land (in England and Wales used for an
application to the Registry affecting registered land, eg,
an application to register a change of ownership).

1 For example; it is not uncommon that someone has an exclusive use right on a (small) part
of the common-pool resource for a specific period of time and a specific purpose.
208 The Invisible Line

Deed: (Official) document prepared to state the will of parties

involved in a conveyance (a transfer of rights of land).
(Often a deed is prepared by a notary and than called a
notary deed.)
Deeds registration: A misleading term! It generally indicates a land
registration in which deeds are used as the most
common documents to initiate changes in the ownership
of real rights to land (but other documents or evidence
of changes are accepted as well).
Domesday book: The record of the Great Inquisition or Survey of the
lands of England, their extent, value, ownership, and
liabilities made by order of William the Conqueror in
1086.
Dual legal system: Exists in a country where formal law and local
customary rules or law both can determine protection of
(property) rights.
Dualism: See Pluralism.
Feudalism: A relation based out of the holding of land in feud
between a superior lord and a vassal (feudary).
Fixed boundaries: Boundaries fixed by reference points in a geodetic
network.
Free-rider: Someone who intentionally benefits from a common
pool resource but one who did not - and has no
intention - to contribute to the sustainable carrying
capacity of the resource.
FRS: Federal Rectangular System (used for location
referencing of parcels in the USA).
General boundaries: Boundaries established by reference to physical
features.
Geodetic network: A network of fixed points established in a geodetic
survey.
Grant: A general word signifying the transfer of property; the
grantor is he who transfers to the grantee) from a
government to private persons (in which the
government or the monarch is the grantor).
Holding (verb): Having control of land or another resource.
Holding (noun): All the land held by a household or person in whatever
tenure.
Immovable Property: Legal term for land and all (semi-)permanent attach­
ments to it.
Institutions: Humanly devised structures that regulate social inter­
actions.
Land certificate: A term avoided because of possible misunderstanding,
but officially used in England and Wales for a title
certificate.
 Glossary 209

Land information system: A generally computerized system containing both

administrative and geographical, data on land (and real
property). Also abbreviated to LIS
Land reform: The attempt to change the tenure of land, generally in
combination with redistribution of land.
Land registration: Recording in a register of the ownership of real rights to
land. Currently modem land registration systems are
computerized, parcel based, and up-to-date, land data
banks, containing a record of all interests in land (e.g.
rights, restrictions and responsibilities). They usually
include a geometric description of land parcels linked to
other records describing the nature of the interests, and
ownership or control of those interests, and often the
value of the parcel and its improvements.
Land tenure: The perceived right to hold land rather than the simple
fact of holding land. Land tenure is concerned with the
rights, restrictions, and responsibilities people have with
respect to the land (FIG). More formal: Land tenure is
the perceived institutional arrangement of rules,
principles, procedures, and practices, whereby a society
or community defines control over, access to,
management of, exploitation of, and use of means of
existence and production.
Land tenure system: The perception of all the types of real property tenure
recognized by a national and/or local system of
established rules and customary relationships in a social
organization.
Legal pluralism: The simultaneous existence of multiple normative
constructions of property rights in a social organization.
Local tenure system: Tenure system of local origin.
Movable Property: All not immovable property.
Negative effect: (Of the registration) exists when the document issued by
the registrar only gives an indication that the person
holding the document might be the legal possessor of
the title.
Notary deed: Deed prepared by a notary (an official with legal
authority).
Notary: An independent legally educated official, commonly
appointed by the government to prepare deeds in
accordance with the will of parties involved in transfers
of rights (in Continental Europe). Outside Europe - and
in Britain - the notary can have a different position and
often is less a public servant, but a recognized specialist
to confirm, for example, the identity of a person or to
make up certain documents fit for recording.
210 The Invisible Line

Parcel: Land over which the same subject exercises the same
real rights. Generally the parcel is also acquired as a
unit under one title or in one transfer (depending on the
land registration system).
Parcel identifier: (Unique) combination of characters and/or numbers to
identify a parcel.
Personal property: Property other than land (Anglo-American usage).
Plot: A part of a parcel used for a specific purpose.
Pluralism: (Pluralistic legality) A set of values of political
morality, discernible in (parts of) the national legal
order and the main social institutions of a country. In it
the presence of distinct social entities within the
national boundaries is recognized, and for that reason
the right to wield public authority and to entertain a
proper legal order is given to these entities. (Also called
Dualism).
Positive effect: (of the registration) commonly given by law, which in
that case explicitly states that the issuing authority
certifies or guarantees the title of the holder of the
document issued by the registrar (the governmental
officer involved in the registration).
Prescription: Acquiring ownership of rights to land by possession of
the land over a long period of time, which is open, in
good faith, and without permission.
Property: A set of rights and responsibilities concerning a thing,
often stated as rights in a thing, to show they are rights
against everyone.
Property regime: A complex of rules, principles, and procedures that in a
specific community or society regulate legitimate
control over, access to, and conditions of use of the
means of existence and of production (resources), as
well as the acquisition and transfer of such resources.
Public register: A registration of (abstracts) of documents used for
evidence of change of ownership of rights to land open
for examination of the legal status of land.
Re-adjudication: To come to a judicial decision about restitution by study
and investigation.
Real rights: Rights that ‘follow’ the object.
Real Property: Immovable property (in Anglo-American law).
Register: The official record(s) maintained by the governmental
agency responsible for the registration of matters
relating to the ownership of rights to land.
Registrar: The officer authorized by law to accept documents for
registration. Under a positive system of registration this
person is authorized to issue title certificates.
 Glossary 211

Rent: Payment by a tenant to a landlord for temporary use of

land.
Restitution: The act of restoring to the rightful owner something that
has been taken away, lost, or surrendered.
Security of tenure : Tenure held without risk of loss; in fact a complex
matter to measure because it is the perception of the
holder that determines the level of security.
Systematic registration: Registration of all parcels in a area at the same time,
usually compulsory and therefore without charge to the
owner of rights.
Title insurance: Institutionalized system to insure a right to land against
loss or defect.
Title registration: A land registration that confers a guarantee of the title
by the issuing authority (generally the government).
Tenure reform: The attempt to alter and so improve the rule of tenure.
Title certificate: A document giving the holder title to land. See example
in Annex B.
Transfer: A change of ownership of rights in land (see also
Conveyance).
 Index
access to property (land) 1.2.2;
1.3.2; 1.4.1; 1.4.2; 1.4.3; 1.4.4;
2.2.1; 3.1.2; 3.2.2; 3.4.1; 4.1.1;
4.1.2; 4.2.1; 4.5.2; 5.1.1; 5.1.2;
5.1.3; 5.2.1; 5.2.2; 5.3.1; 5.3.3;
5.3.4; 5.4.3; 5.5.2; 5.5.3; 6.2.2;
6.3.1; 6.3.2; 6.7.2
adverse possession 1.4.2; 6.7.2;
6.9.1; 7.5.1; 7.5.2
AID 5.1.2; 5.3.1; 5.4.3; 5.5.1
Aiken, William 1.2.2
Barraclough, Solon 1.2.3; 1.3.1
Benda-Beckmann von Franz 3.1.2;
3.2.1; 4.7.1; 6.3.4
Benda-Beckmann von Kebeth 3.1.2;
3.2.1
Bible 1.1.2; 2.2.2; 4.3.1
Binswanger, Hans 5.1.3; 6.3.4
Bishop, Raul 4.4.1
Bledsoe, D.J. 5.3.5
Boserup, Ester 6.3.4
Brace, John 3.1.1; 3.2.2; 4.1.1; 4.2.3;
4.7.1; 6.3.3; 6.3.4
cadastral map 4.3.2; 6.3.4; 6.7.3;
6.9.1; 6.9.2; 7.2.1; 7.3.2; 7.3.2;
7.3.4; 7.5.2
cadastral survey 1.2.1; 4.6.2; 6.2.2;
6.3.4; 6.6.2; 6.9.1; 6.9.2
cadastral system 2.3.2; 4.3.2; 6.1.9;
6.2.2; 6.4.6; 6.6.2; 6.8.1; 6.8.2;
7.2.3; 7.3.1; 7.3.2; 7.3.4
cadastre 1.4.5; 2.1.3; 2.3.1; 4.3.2;
6.1.9; 6.2.2; 6.4.3; 6.4.4; 6.6.2;
6.7.1; 6.8.1; 6.8.2; 7.2.3; 7.3.1;
7.4.2
Chambers, Robert 1.1.3
Chatwin, Brace 6.3.3
Cohen, Joel 1.2.5
conveyance 1.4.1; 1.4.2; 6.1.3; 6.1.6;
6.1.7; 6.4.4; 6.7.1
Crook, Frederick E. 5.3.5
customary law/rules/tenure/system
1.1.1; 1.1.2; 1.1.3; 1.4.2; 1.4.5;
1.5.1; 1.5.2; 2.2.1; 2.3.2; 3.1.1;
3.4.2; 4.1.1; 4.1.2; 4.1.3; 4.1.4;
4.1.6; 4.2.1; 4.2.3; 4.3.2; 4.4.1;
4.4.3; 4.5.1; 4.5.2; 4.6.1; 4.6.2;
4.7.1; 6.1.2; 6.1.5; 6.1.8; 6.2.1;
6.2.2; 6.3.1; 6.3.2; 6.3.3; 6.3.4;
6.8.1; 7.2.1
Davis, Kenneth P. 1.2.1; 2.1.2; 5.2.4
dealing (with land/property) 1.4.3;
4.3.3; 6.2.2; 6.4.4; 6.4.5; 6.5.2;
6.6.3; 6.7.1; 6.7.2
deed 4.3.2; 6.5.1; 6.6.1; 6.6.3; 6.7.2;
6.4.5; 6.5.2; 6.6.2; 6.7.1; 6.7.3;
7.2.1; 7.2.2; 7.3.1; 7.3.2; 7.3.3;
7.3.4
deeds registration 6.4.1; 6.6.1; 6.6.2;
6.6.3
Deininger, Klaus et al 1.2.2
Dekker, Henri 6.4.1; 6.7.3; 6.8.2
Denman, D.R 2.2.1; 3.2.1; 4.5.2;
7.5.1
DeSoto, Hernando 3.4.2; 6.2.1
Dickens, Charles 6.6.1
domesdaybook 6.3.3; 7.3.1
Doolittle, Amity 4.6.1
Domer, Peter 1.4.4; 5.2.3; 5.3.1
dual legal system 4.6.1; 6.3.3
214 The Invisible Line

Ekelund, Robert et al. 3.3.2 land information system (LIS) 1.2.3;

El-Ghonemy, Riad M 3.3.1 2.3.2; 4.3.2; 6.1.2; 6.2.1; 6.2.2;
6.4.4; 6.8.1; 7.2.3; 7.3.1; 7.5.1
FAO 1.2.5; 1.4.4 land reform 1.2.3; 1.2.4; 1.2.5; 1.3.1
Feder, Gershon 4.3.1; 5.5.1; 6.3.4 1.3.2; 1.4.2; 1.4.3; 1,4,4,; 1,4,5
feudalism 3.3.1; 3.3.3; 5.2.3; 6.1.6; 3.3.4; 4.1.7; 4.2.2; 4.3.1; 4.3.2
6.1.7 4.3.3; 5.1.1; 5.1.2; 5.1.3; 5.2.1
FIG 1.4.5; 6.1.9; 6.8.1 5.2.2; 5.2.3; 5.2.4; 5.3.1; 5.3.2
fixed boundaries 7.5.2 5.3.3; 5.3.4; 5.3.5; 5.4.1; 5.4.2
FRS 7.3.4; 7.5.1 5.4.3; 5.4.4; 5.5.1; 5.5.5; 5.5.6
Fuentes, Carlos 1.2.4 5.5.7; 6.2.1; 6.7.3; 6.9.2
land registration 1.2.3; 1.2.5; 1.4.1;
Galbraith, John K 3.2.1; 3.3.1; 3.3.3; 2.3.1; 3.1.1; 4.1.5; 4.2.2; 4.2.3
4.1.4; 5.3.4 4.3.1; 4.3.2; 4.3.3; 4.6.2; 5.4.1
general boundaries 6.6.3; 6.9.1; 5.5.6; 5.5.7; 6.1.1; 6.1.2; 6.1.4
7.5.1; 7.5.2 6.1.5; 6.1.7; 6.1.9; 6.2.1; 6.2.2
geodetic (network) 7.3.1; 7.5.2 6.3.2; 6.3.4; 6.4.4; 6.4.5; 6.4.6
geodesist/geodesy 2.3.1 6.5.1; 6.5.2; 6.6.1; 6.6.2; 6.6.3
Gowdy, John M, 5.5.4 6.7.1; 6.7.2; 6.7.3; 6.8.2; 6.9.1
grant (ing) 2.1.2; 4.1.1; 4.1.4; 4.1.8; 7.1.2; 7.2.2; 7.2.3; 7.3.2; 7.5.1
4.2.2; 4.3.3; 4.6.2; 5.1.1; 5.3.4; 7.5.2
6.5.1; 6.7.2; 7.3.2 land survey(or) 2.3.1; 3.1.2; 6.3.4;
6.4.4
Haines, Robert 7.1.1 land tenure 1.1.3; 1.2.3; 1.2.4; 1.2.5
Hardin, Garrett 4.4.1 1.4.2; 1.4.4; 1.4.4; 1.4.5; 1.5.1
Hazell, Peter 4.2.3; 4.3.2 1.5.2; 2.2.1; 3.1.1; 3.1.2; 3.2.2
Henssen, Johan L.G 6.1.9; 6.8.1 4.1.1; 4.1.2; 4.1.5; 4.1.6; .4.1.7
Hoekema, Andre J 2.3.2; 3.1.2; 4.1.8; 4.2.1; 4.2.2; 4.2.3; 4.3.1
4.4.2; 4.5.1; 4.6.1 4.3.2; 4.3.3; 4.4.2; 4.5.1; 4.5.2
holding 1.2.4; 2.1.3; 2.3.1; 4.1.1; 4.6.1; 4.6.2; 4.7.2; 5.1.1; 5.1.2
4.1.2; 4.1.6; 4.2.3; 5.1.2 ; 5.4.3; 5.2.1; 5.3.1; 5.3.2; 5.3.4; 5.3.5
5.5.3; 5.5.4; 5.5.5; 6.3.4; 7.3.1 5.4.1; 5.4.3; 5.5.1; 5.5.2; 5.5.3
Hongyu, Zhang 5.3.5 5.5.5; 5.5.6; 5.5.7; 6.1.2; 6.1.3
6.1.4; 6.1.5; 6.1.6; 6.1.7; 6.1.8
immovable Property 2.1.1; 4.7.1; 6.2.1; 6.2.2; 6.3.2; 6.3.3; 624
6.2.2; 6.5.2; 6.6.2; 6.6.3; 7.3.3 641; 6.6.3; 6.7.3; 6.8.1; 7.2.1
7.5.2
Janvry de, Alain 5.1.2; 5.5.2; 5.5.5 land tenure system/regime 1.4.5;
Jianwen, Liu 5.3.5 3.1.1; 3.2.2; 4.1.1; 4.1.2; 4.1.6
4.1.7; 4.2.1; 4.3.2; 4.3.3; 4.5.1
Kanel, Don 1.4.4; 5.2.3 4.7.2; 5.2.1; 5.3.2; 5.3.4; 5.3.5
5.5.1; 5.5.5; 5.5.6; 6.1.6; 6.2.2;
Lambert, Virginia 1.4.4; 5.5.4 6.3.2; 6.3.4; 6.7.3; 7.2.1; 7.5.2
land certificate 4.1.8 Lappe, Frances Moore 1.2.2
 Index
legal pluralism 4.6.1; 4.6.2; 6.3.3;
6.4.4
Lin, Justin Y 5.3.5
Lynch, Owen 6.2.4
Maasdorp, Sir A.F.S 6.4.2
Mao Tse-Tung (Mao-Zedong) 5.3.5
Malthus, Thomas 1.2.5; 1.3.2
Maslow, Abraham, Harold 5.2.4
metes and bounds 7.3.4; 7.5.1
Migot-Adholla, Shem E. 6.2.2
Moore, Barrington Jr. 4.4.2
movable Property 3.1.1
Native American (Books) 1.2.1;
2.1.2; 2.2.2; 4.5.1; 4.6.1
negative effect 6.4.1
notary deed 6.4.1; 6.5.2; 6.6.3; 6.7.2;
6.7.3
notary 6.4.2; 6.6.2; 6.7.1; 6.7.3;
7.2.2; 7.3.1
Okoth-Ogendo H.W.O 4.4.3; 5.3.2
Paarlberg, Robert L 5.3.2
parcel 2.3.1; 4.7.2; 5.1.1; 5.1.2;
5.2.3; 5.3.2; 5.3.3; 5.3.4; 5.5.6;
5.5.7; 6.1.9; 6.2.2; 6.3.3; 6.3.4;
6.4.3; 6.4.4; 6.4.5; 6.6.2; 6.6.3;
6.7.3; 6.8.1; 7.3.1; 7.3.2; 7.3.3;
7.3.4; 7.4.2; 7.4.3; 7.5.1; 7.5.2
parcel identifier/identification 6.1.9;
6.6.2; 6.8.1; 7.3.3; 7.3.4
personal property 6.1.2; 6.7.2
Peters, Pauline 4.4.1
Petit, Michel 1.2.2
Pitlo, A 6.1.4
Place, Frank 4.2.3; 4.3.1
Platteau, Jean-Phillippe 4.4.2; 5.1.2;
5.3.5; 6.3.4
plot (of land) 1.1.2; 1.2.4; 1.4.1;
1.4.3; 1.4.4; 2.1.3; 3.1.2; 3.3.2;
3.4.2; 4.1.7; 4.1.8; 4.2.1; 4.3.1;
5.1.1; 5.3.3; 6.3.4; 6.6.1; 6.6.3;
6.7.3; 7.1.1; 7.2.3
215
pluralism (legal) 4.6.1; 4.6.2; 6.3.3;
6.4.4
positive effect (of registration) 1.2.2;
4.3.1; 6.5.1; 7.4.2;
property 1.1.3; 1.2.2; 1.4.2; 1.4.5;
1.2.1 2.2.1; 2.3.1; 2.3.2; 3.1.1
3.1.2 3.2.1; 3.2.2; 3.3.1; 3.3.4
3.4.2 4.1.1; 4.1.2; 4.1.3; 4.1.4
4.1.5 4.1.7; 4.1.8; 4.2.1; 4.2.2
4.2.3 4.3.1; 4.3.3; 4.4.1; 4.4.2
4.5.2 4.6.1; 4.7.1; 4.7.2; 5.1.1
5.1.2 5.1.3; 5.2.2.; 5.2.3; 5.3.3
5.3.4 5.3.5; 5.4.4; 5.5.1; 5.5.7
6.1.9 6.2.1; 6.2.2; 6.3.3; 6.3.4
6.4.3 6.4.4; 6.4.5; 6.4.6; 6.5.2
6.6.1 6.6.2; 6.6.3; 6.7.1; 6.7.2
6.7.3 6.8.1;. 7.1.2; 7.1.3; 7.2.1
7.2.3 7.3.1; 7.3.2; 7.3.3; 7.3.4
7.4.2 7.4.2; 7.5.1; 7.5.2
Prosterman 5.3.5
public register 6.1.9; 6.3.5; 6.7.1;
7.3.1
re-adjudication 4.1.7; 4.1.8; 5.1.2;
5.3.3; 5.3.4; 5.5.7; 6.1.8
real rights 6.3.5; 6.4.6; 6.5.1; 6.7.1;
7.3.1
real property 1.4.2; 2.3.1; 3.1.1;
3.1.2; 4.1.2; 4.1.8; 4.5.2; 4.7.2;
5.1.1; 5.1.2; 5.3.3; 6.1.9; 6.2.2;
6.3.4; 6.4.4; 6.5.1; 6.6.1; 6.7.1;
6.7.3; 7.2.1; 7.3.3; 7.4.2
register 2.1.3; 3.4.2; 4.2.2; 5.5.6;
6.1.9; 6.3.1; 6.3.4; 6.4.1; 6.4.3;
6.4.5; 6.4.6; 6.5.1; 6.5.2; 6.6.2;
6.6.3; 6.7.1; 6.7.2; 6.7.3; 6.8.1;
6.9.2; 7.1.3; 7.2.1; 7.2.2; 7.3.2;
7.3.3; 7.4.1; 7.4.2; 7.5.1
registrar 6.3.5; 6.5.1; 6.5.2; 6.6.2;
6.6.3; 6.7.1; 7.2.2; 7.3.1
rent/rental 4.1.1; 4.6.1; 5.1.1; 5.5.6
restitution 4.1.7; 5.3.4; 6.7.4
Roth, Michael 4.2.3; 4.3.1
Rowton Simpson, 1.4.1; 4.1.1; 4.2.3;
5.5.6; 6.1.9; 6.5.2; 6.7.2; 7.5.2
216 The Invisible Line
Salas, O.A 5.3.1
Sagoff, M 5.4.4
Seattle; Chief of the Puget Sound
2.2.2; 4.7.2; 6.3.3
security of tenure 1.2.3; 1.4.5; 2.2.1;
2.3.2; 3.2.2; 4.1.5; 4.1.6; 4.2.1;
4.2.2; 4.2.3; 4.3.1; 4.3.2; 4.3.3;
5.5.5; 6.2.1; 6.2.2; 6.3.2; 6.3.4;
6.6.2; 6.6.3; 6.7.3; 7.2.1; 7.2.2;
7.4.2; 7.5.2
Shearer, 5.1.3; 5.4.3; 5.5.4
Smith, Adam 3.2.1; 3.4.2; 6.1.4
sporadic registration 6.1.1; 6.6.3
Stanfield, David 2.3.2; 4.2.1; 4.3.2
systematic registration 6.2.1; 6.6.2;
6.6.3; 6.9.2
Talbot, Kirk 6.2.4
tenure reform 3.2.2
Thiesenhusen, William 1.2.4; 5.1.3;
5.3.1; 5.4.2; 5.5.1; 5.5.5
title certificate 6.3.5; 6.5.1; 6.6.1;
6.6.3; 7.2.1
title insurance 7.1.1; 7.1.2; 7.1.3
title registration 6.4.1; 6.5.2; 6.6.1;
6.6.2; 6.6.3; 6.7.3; 6.9.1; 7.2.2
Torrens, Robert 6.1.9; 6.4.1; 6.6.1;
6.6.2; 7.3.1
transfer (of property) 1.1.2; 1.4.1;
1.4.2; 2.2.2; 3.1.2; 3.2.2; 3.4.2;
4.1.1; 4.1.3; 4.1.8; 4.2.2; 4.2.3;
4.3.1; 4.3.3; 4.6.1; 5.1.3; 5.3.1;
5.4.3; 5.5.5; 5.5.7; 6.1.9; 6.2.1;
6.2.2; 6.3.1; 6.3.4; 6.4.2; 6.4.4;
6.4.5; 6.5.1; 6.5.2; 6.6.1; 6.6.2;
6.6.3; 6.7.1; 6.7.3; 6.8.1; 7.2.1;
7.2.2; 7.3.1; 7.3.2; 7.3.3; 7.3.4;
7.5.2;
Tuan, Francis 5.3.5
Tweeten, Luther 1.2.5; 1.4.4; 1.4.5; 3.4.1
United Nations report 1.2.1; 2.2.1
Verdery, Katherine 2.1.3
Warriner, Doreen 5.4.1
 Annex A

THE STANDARD MODEL

The broad framework for economic development requires a policy blueprint by
which culture, natural resources and institutions create capital and economic
progress to alleviate (rural) poverty and food insecurity. Research at the Ohio State
University in Columbus has led to a standard model that relates on markets to
allocate goods and services being rival and exclusionary.
When goods are non-rival, consumption by one consumer does not compete
with consumption by another, hence, a supplier can charge a high price which will
limit consumption and economic progress. Where goods are non-exclusionary,
markets under-produce because a supplier will not be able to capture enough of the
monetary benefits to cover his costs.

STANDARD MODEL

Honesty + competence in public administration

Macro environment Security, stability and order
Property rights (reap what is sown)
Competition (limited parastatals, encourage foreign trade)

Sound macro economic Fiscal responsibility (avoid persisting deficits)

policy Monetary restraint (money supply in line with GDP growth
rate)
Appropriate taxation (preferably VAT, sales tax etc.)

Use foreign markets Proper foreign exchange rate

Openness to trade

Proper infrastructure All weather “roads”

Bridges, airports, seaports, utilities

Agricultural research
High returns public services Human resource investment
Sanitation for food security
Health services

Environmental sound Attention for environmental effects

Food + Income Minimum level guaranteed by safety net

218 The Invisible Line

It is assumed that the standard model provides a blueprint outlining the basic
elements of a political framework. When implemented as such it is expected to
boost economic development.
The functions of the ‘Standard model’ (as described by Tweeten [81]) can
be elaborated in brief as follows:

The macro environment

There must be honesty and competence in public administration. Corruption in
government undermines economic progress. The same goes for matters such as
security, stability, and order. The rule of law and order needs a judicial system to
administer justice and interpret laws. The government needs to strive for an
environment where business plans can be made and carried out with minimal
transaction costs. To encourage investment and improvements in property,
investors must be able to “reap what is sown”. Property rights allow property to be
used as collateral for loans. A favorable investment climate avoids capital flight
and attracts foreign direct investment. Governments need to avoid giving
protection to firms exercising monopoly power. Open foreign trade to countervail
the economic power of domestic firms is often the most effective option. State-
owned enterprises need to be avoided where possible. The government role should
be inducing the private sector to produce public goods.

Sound macroeconomic policies include:

Countries need to avoid persistent deficits in their operating account. A deficit is
justified in the capital account only for investments with the strong chance of a
return that will pay the principal and interest, plus leave a social dividend. As far as
monetary restraint is concerned a useful rule of thumb is to increase money supply
at the real GDP growth rate, with appropriate adjustments for foreign exchange and
direct investment. A central bank at “arms length” from political pressure, and with
the sole objective of price stability has proven successful in several countries.
There must be appropriate taxation. Charge user fees for utilities and try to
tax bad things (over-consumption, tobacco, alcohol, emissions) not the good ones
(investment savings, export). Sales tax, value-added tax and property tax distort the
economy less than taxes on corporate profits and exports.

A successful developing economy utilizes foreign markets.

The conditions are: a proper foreign exchange rate achieved by the market and a
sound monetary-fiscal policy, openness to trade in investment, goods and services
with allowances for infant industry, national security and sanitary protections.

A proper infrastructure
This requires investment in all-weather roads to allocate commodities for food
security and to encourage commercial activity consistent with comparative
advantage. (Bridges, seaports, airports, reliable utilities and the like).
 Annex A 219

Public services that offer high returns

Some public services offer higher returns than others do, like agricultural research,
and human resources investments. Universal elementary schooling is a priority for
food security and development and positive externalities of broad-based
development for men, women and minorities are essential. There must be a regime
of minimum standards of sanitation for food security and health services.

Environment
Sustainable development requires attention to the environment. Do not consume
and exploit now the needs of future generations. Integrated crop management,
conservation tillage, integrated pest management, pest resistant crops and livestock
and the like.

Food and income safety net

A social safety net for those unable to depend on themselves, the market, family, or
other private sources of sustenance is essential. The height and breadth of social
services are political decisions.