Cadastral Systems in Developing Countries- Legal Options

By Tommy ãsterberg

Chairperson Working Group 7.2 Cadastral Systems in Developing Countries

FIG Commission 7

Introduction

The Working Group on Cadastral Systems in Developing Countries has identified a number of options for cadastral development. The questions have been discussed at a seminar in Gävle, Sweden, 1995 and in Bogor, Indonesia 1996. United Nations Economic Commission for Europe has also issued Land Administration Guidelines 1996. One of them is the legal option, which deal with the demands on legislation in connection with cadastral reforms.

The aim of the discussion today is to develop the questions a little bit further and try to identify questions of common interest and advantages and disadvantages with different solutions. Is there a general concept of what land legislation should regulate? Is there a common concept of the merits of specific solutions? Are there models available, which are suitable for transfer to other countries? Or are legal questions too connected to national traditions and politics, which make them less interesting for discussions at international meetings?

The final result of the activities of the Working Group will be presented at the FIG Brighton Congress 1998.

Definitions

Land management is the process of putting land resources into efficient and sustainable use.

Land tenure is the mode in which rights to land are hold.

Land administration is the process of managing the cadastre and other legal instruments for management of the land tenure systems and land market policies.

Cadastre is a land information system, usually based on a division of land into parcels, which gives information on rights, use and value of land.

Real property formation is the process to create a suitable division of the land into parcels and to encourage structural changes.

Land legislation

Land legislation is a cornerstone of the land institution. Land legislation can be concerned with many different questions such as:

• definitions and rules regarding land tenure and connected property rights
• rules and regulations for an efficient land market and credit systems with land as collateral
• rules and regulation for the management of land motivated by public interests
• rules and regulations regarding definitions of real property units, structural changes of real property units and the provision of information on the division of land into real property units
• rules and regulation for land registration
• land market rules for intervention in the land market motivated by different public interests
• regulations regarding intellectual property such as ownership of information and ideas, protection of data and personal integrity.

Basic land law

The basic land law in regards to land ownership typically should fulfil the following functions:

• Clarify different forms of land tenure
• Create suitable division of land into parcels
• Stipulate conditions for transfer of land
• Stipulate rules for use of land as collateral for credit
• Stipulate conditions for rent, lease and other limited rights to land
• Stipulate rules for land registration

Land ownership

Land is owned individually by different physical or juridical persons with ownership. The state can also own land with ownership as well as other groups, for instance ethnic groups. The ownership right can be more or less strong in different jurisdictions. The right of an owner to use his land as he wants is usually limited by statutory legislation. It can also be limited by customary rules. The most important components of ownership include:

• Right to exclusive use of the land
• Right of management of the land
• Right of income
• Right to the capital value
• Right of transfer and grant of enjoyments
• Right to mortgage
• Unlimited in time

Ownership of land is the most far-reaching right to land. Sometimes other rights like leasehold; rent and servitude are called limited rights, meaning that they are not so far-reaching as ownership and can be granted by the owner. However in practice, for instance leasehold can be defined in such a way that the differences for the possessor between ownership and leasehold are very limited.

Leasehold

Leasehold is a limited right to use land for a specific period of time and usually for a specific purpose. To what extent leasehold can be transferred and mortgaged is usually depending on the time span for the lease together with conditions, stipulated in the contract or given by the legislation. Legislation regarding leasehold can often include measures to protect the right of the tenant against the landlord, for instance protected tenure with right of prolongation when the term expires, pre-emption rights to the land in case the landlord will sell the property, compulsory purchase rights to the land after long occupation, special mechanisms for the decision of the amount of the rent etc.

The most important components of a leasehold include:

• limited in time
• for a defined purpose
• for the whole or part of a real property
• right of prolongation
• right of transfer (depending on purpose and length)
• right of mortgaging (depending on purpose and length)

Rent

Rent is a limited real property right to use a construction, a house or an apartment for a specific purpose. Renting is usually for much shorter periods than leasing. A rent can usually not be transferred or mortgaged. On the other hand the right of prolongation can be quite strong, especially in regards to rent for residential purposes. Also the procedure to determine the amount of the rent can be regulated in the interest of protecting the weaker party. The tenant can also have specific rights and obligations as to the repair and maintenance of the apartment and influence on management decisions on the real property.

The most important components in a rent are:

• limited in time
• for a construction, house or apartment
• prolongation rights
• tenant’s influence on management decisions

Servitude

A servitude is a limited real property right, which gives the owner of one property the right to use land on another property for a specific purpose, connected with the proper use of the first property. Servitude can also include that a specific use of one property is prohibited in relation to another property.

• limited to a specific purpose
• unlimited in time
• impossible to transfer separately

Customary and other informal tenure

Customary tenure will here be used to characterise tenure forms that are not formalised in a written law system. These forms are usually not connected with the idea of a defined ownership right to land and the individual rights to dispose of a real property on the market. Access to land in customary tenure systems is usually connected with some kind of community control and approval. The right to use land is usually connected to the right to use the land for a specific purpose and the right will exist as long as the use of the land for that purpose exists. Different rights often overlap each other. Customary tenure is also often a part of a different administrative system, which can be obsolete or not acceptable from democratic point of views in a modern society. It is also connected to traditional and cultural values, which also deserve to be respected. Formalisation of customary tenure system and of other informal land tenure systems is therefore usually desirable, but must be done in a sensitive manner, starting with areas where a true demand on formal land titles exist.

Customary tenure can be characterised as follows:

• Right to use land for specific purpose
• Right to management with community approval
• Access and transfer need approval of community
• Unlimited in time as long as it is utilised

Land transactions

Regulations about land transactions usually include formal demands on the transfer deed. Usually the deed should be in written form, sometimes on a pre-printed form. The persons signing the contract can be identified in different ways. One possibility is that the parties in person turn up in front of a notary or similar authority (notary system). Witnesses are often used to verify that a legal document has been signed by the legally authorised person. Conditions that are of importance for the validity of the transfer, and other conditions to be valid in future, should usually be stipulated in the contract. Purchase sum, time for transfer of ownership rights and obligations, need of spouse consent are other conditions to be regulated in a legislation.

In connection with a mortgage system, there is a need for legislation for realisation of the lien, if the debt for which the mortgage is a collateral is not correctly paid. Such legislation need to clarify when and by whom a compulsory auction can be initialised, how it will be performed and how the payment should be divided between the interested parties.

Land registration legislation

Land registration systems can be arranged in different ways. More simple are deed registration systems, where evidence of a legal transaction is registered in a public registry for the future. This is in principle done, without any control of the legacy of the action to be registered. More sophisticated are title registration systems, where the registration includes a control of the legacy of the action and establish a legal preference for the titled owner. Title registration systems usually include some kind of state guarantee of the content of the register.

Land registers also include information on encumbrances on real properties from contractual arrangements and from decisions by different authorities, regarding for instance land use planning and zoning, environmental and cultural prescriptions, decisions regarding obligations, compulsory purchase etc.

The registration process usually includes collection of information of public interests, for instance of purchase prices, and dissemination of information to concerned administrative bodies, responsible for different form of land management, in order to enable them to fulfil their obligations, in regards to for instance acquisition control, pre-emption rights.

Another legal question concerns copyright and data security. The main aim of a cadastral system is to give publicity to the real property rights and obligations. Information should therefore in principle be open for the general public. Especially when the private sector is involved in data collection, it is important to safeguard that data collected for the cadastre can be used for its purpose without restrictions. Cadastral organisations are increasingly financing the activities on fees for the usage of the information. From this point of view it is important that the cadastral organisation can secure some copyright, especially on graphical information.

Computer technology opens new possibilities to compile data from different sources in a way that can threaten the personal integrity. Special regulations might be needed to avoid such threats.

Real property and its boundaries

A real property need to be defined on the ground and in a written documentation, which can serve as evidence of the extent of the real property. The description can be done verbally, but more reliable by help of maps.

The definition on the ground can be made in reference to natural features, such as stones, streams etc., to constructions such as fences, walls, roads, and houses. Most common, at least when new boundaries are created is that they are marked with some kind of visible mark on the ground, a peg, a stone, a wooden pole etc. Boundaries may be surveyed and described on maps with distances, bearings and with coordinates in reference to a co-ordinate system. The legislation should express some demands on the legal boundary and how evidence for replacement of a destroyed or disputed boundary should be considered.

Space in buildings, apartments or office areas, can also be delimited into real property units and registered in the land registry. Boundaries of such units need also to be defined in an appropriate manner.

The legislation should also clarify what actually defines the real property unit. Is it the document like the purchase contract or is it the survey, which was carried out on the base of the contract? Is the parcel defined through the registration of the parcel based on the survey? Is the registration identifying the parcel with a specific identification? Is cadastral surveying and registration a prerequisite for legal transactions of land?

The concept of a real property as compared to personal property is essential in the legislation. The concept defines the content of ownership of a real property as distinguished from personal property. In most cases land is real property, together with what has been attached to the ground, like fences, walls, ditches, constructions. Also for constructions and buildings, installations that are permanently fixed to the building are usually considered to be part of the real property. Servitude and constructions erased to utilise a servitude are also part of the real property. The concept of the real property and its belongings is essential for easy transactions and for the mortgage system.

Create suitable division of land into parcels

The structure for land control or land administration is given by some kind of division of the territory of a country in administrative areas, where traditional or formal governments exercise control of the land use. The smallest administrative area under the control of a family or an individual is called a parcel. Social and economic development put strong demands on change of the shape and area of the parcels over time, so called structural changes. Population growth and lack of neighbouring vacant land often lead to fragmentation through splitting of existing parcels between heirs. The economy of scale and technological development on the other hand put pressure on consolidation of parcels into bigger and more accessible units. Urbanisation and industrialisation put demands on making land available for new purposes with a totally different structure.

The land market is one important power for structural changes but have some limitations. The market has in principle three ways of handling conflicting interests, which occur when a seller and buyer cannot agree on a transaction. One is to wait until the preconditions are changing. The second is to higher the price offered, sometimes above the limit which, from other points of views, can be accepted. The third alternative is to skip the whole idea and find another spot, where a solution can be found. All of these alternatives can be acceptable in many occasions, but in connection with fast growing economies with increasing demands on land for e.g. urban development, there are at least three contradictory reasons why the market solution not always is effective. One is the concern of a suitable solution from a physical planning and environmental control point of view, which includes that land is put into best possible use due to its characteristics and location. The second is the desire to prevent land speculation, which redistribute wealth from many to a few landowners. The third is the speed factor and the need to solve urgent development problems without too long delays. Therefore, the land market need to be complemented with other legal tools to promote and facilitate structural changes of the land distribution pattern.

For this is needed legislation which include the right for land owners or land users to, under certain circumstances, improve their parcels to fit better with changing social and economic circumstances. Such legislation should preferably be able to handle all kind of structural changes and rights that are connected to and can be a hindrance to changes (leasehold, servitude, mortgages etc.). The procedure need to include some kind of land use control, where different public interests can be safeguarded. The legislation can also be a tool for public authorities, responsible for agriculture, forestry, construction and infrastructure investments etc. to initiate structural changes. The structural changes are called Real Property Formation.

Adjudication and allocation

Adjudication is the process normally applied to record existing rights to land into a formal registration system, usually connected to the issuance of a formal land title. In principle adjudication is a registration of existing rights to land , without changing the nature of the right. However, usually registration in a formal system is connected with more detailed defined rights and obligations , which will influence the content of the right as such, although the extension on the ground of the land registered will not change.

Since adjudication is a recording of already existing rights, which are known on the ground, the cadastral survey procedure can often be simplified compared to ordinary updating of the information with newly established parcels. Also the question related to suitable parcel structure can be disregarded for the same reasons. Cadastral surveying and mapping can be simplified and emphasise instead be laid on participation procedures and verification of evidence of land occupancy.

Allocation is the process where a land owner, usually the state, allocates land for long term and stable use to individuals and organisations. The allocation need to be based on more thorough investigations on suitable land use and planning of the parcels and also on a more precise marking and survey of the new established boundaries, especially if the question is to create new land for new settlers. If the allocation is more of a process of allocation of land rights to those, already occupying the land, the process can be more simplified and similar to the adjudication.

Allocation and adjudication can also in fact include a change from traditional land tenure to a more formal land tenure. In these cases, it is important with a gradual change of regime, in line with the expressed need by the concerned people and by involving local chiefs and headmen in the allocation procedure. Another important role of these procedures is to protect and promote the interest of people in need of protection from land grabbing or in need of stronger protection from society (women, ethnic minority groups, poor people).

Management of joint facilities

Many facilities in connection with modern development, such as roads, water and sewerage, areas for parking, recreation, playgrounds etc. need to be provided through common solutions for bigger areas. This can be solved through local governments and public utility companies. But sometimes solutions based on co-operation between land users in the area can be a more appropriate solution, cheaper and more acceptable for the local population. Such co-operation can be arranged informally or voluntarily, but in connection with formalisation of land tenure, also co-operation between land users might need support through legislation in regards to management of common land or facilities.

Land Management Legislation

Land management legislation is usually created from the public interest of promoting an efficient land management for different purposes. The legislation is of mainly five different kinds:

1. Comprehensive land use control legislation for the physical environment (physical planning) or for housekeeping with the natural resources
2. Legislation for protection of specific interests such as nature conservation, environment protection, water protection and cultural conservation
3. Legislation to promote the efficient use of land for specific use like agriculture, forestry, fishery, exploitation of oil, minerals and gravel.
4. Legislation to promote and control construction of houses, industry and infrastructure (development planning, planning and construction of roads, water and sewerage, pipelines etc., including access to land and possible obligations to pay for services.
5. Legislation for access to land for public purposes, to prevent land speculation and to control the access to the land market, land acquisition control.

This legislation is of interest for the cadastral system in different ways. It establish regulations for land use, which is necessary to give publicity in an information system. It establish administrative regulations and obligations on seeking permissions or provide information about activities on land beforehand. The legislation includes procedures for planning, consultations, participation, decision-making, appeal etc. The rules often include compulsory means for acquisition of land or rights to land for different public interests.

Importing land legislation

The land legislation system should be a comprehensive and coherent system, covering a number of possible events. The system usually includes different laws, sometimes with different administrative bodies responsible for the application. It comprise a system, which can be very cumbersome to work out from scratch. Often, it can therefore be useful to import an already functioning legal system and adopt it to the circumstances in the country in question. In several cases legislation has been borrowed from one country and introduced in another country with success.

Before choosing a system for introduction in a new country, it is essential to look into certain aspects, as for instance if the administrative systems between the two countries are rather similar and if the legal traditions are of the same character. Different solutions can for instance exist between civil and public (administrative) law regulations. Legal system should not be copied uncritically, but should be adopted to the situation in the new country, due to political, cultural and organisational aspects. The advantage of borrowing an existing system is the system as such, not how different questions in detail are solved.

A warning should be issued for borrowing of piecemeal legislation originating from different law families and try to put them together into one system. For instance are common law concepts difficult to combine with approaches based on civil law concepts.

International co-operation in land legislation

International advice and assistance in the field of land legislation is difficult and not very effective. This is because of lack of international studies comparing and analysing differences between different legal systems and their efficiency. There is also a lack of internationally knowledgeable advisers, who have an overview of different legal systems and can understand the merits of differences between different systems and what different options are open for a country seeking advice. Different donor organisations are supporting legal advice in the same country with advisers advocating different legal system, without seeing the need for co-ordination within a suitable legal framework. The international co-operation and exchange of information is not very active in the field of land legislation. FIG is actively involved in international co-operation in the field of land administration and cadastre, but very few lawyers participate. What can be done to increase the international co-operation between the legal and technical sides of land administration?

References:

FIG 1995, Statement on the Cadastre. International federation of Surveyors. FIG-Bureau (1992-95), Canberra, Australia, 22p.

United Nations, 1996a, The Bogor Declaration. United Nations Interregional Meeting of Experts on Cadastre, Bogor, Indonesia, 16p. Printed by Land Information Centre, New South Wales, Australia

United Nations 1996b, Report of United Nations Interegional Meeting of Experts on the Cadastre, Bogor Indonesia, 36p. Printed by the Land Information Centre, New South Wales, Australia.

United Nations 1996c, Land Administration Guidelines. United Nations Economic Commission for Europe, Geneva, 94p.