Will conclusive titling contribute to legal empowerment?

(Diya Uday) #1

For some time now, there has been a movement towards conclusive titling in developing countries. I have helped a draft legislation in this area. Three of the four pillars of conclusive titling are (i) the mirror principle i.e that the land records must reflect the facts on-ground and (ii) the curtain principle i.e. that the facts in the record are final and no reference requires to be made to past transactions and (iii) titling indemnity i.e. compensation for incorrect information in the records. I am interested in understanding the impact of conclusive titling and its implementation on-ground, in the context of the three principles listed above. Has anyone worked in this area?

(David Arach) #2

This is a very interesting topic. I would love to hear what experience members have to share.

David Arach

(Andrew Smith) #3

Hi Diya

A lot of work has indeed been done on land titling in developing countries and a lot of the focus of the outcomes has been on numbers of plots recorded and certificates delivered rather than on the true impact on participants. Personally I have a few concerns.

From my perspective a bone of contention remains the ‘title’ that has arisen from these exercises. A lot of focus has been placed on ‘fit for purpose’ land titling systems to support individual ownership but significant questions remain on just how fit for purpose the implementation has been in practice.

Many projects have purported to generate a land title based on a verbal claim to a property supported by a sketch plan overlaid on satellite imagery. That information is then ‘tested’ and ‘proven’ by peer review by neighbouring owners. If a law has been passed to justify that mechanism as sufficient to prove title then fine. Unfortunately such a law has typically not been passed and thus the resulting ‘title’ is a snap shot of neighbours agreeing boundaries etc. but it does not allow sufficient recording of third party interests like equitable loans, licences, easements etc. which are a very significant factor of a ‘title’ that participants may not understand or may wish to hide.

It may well also be the case that national laws incorporate specific evidence in support of claims through possession which the review process does not generate. So the resulting ‘title’ may in fact be a piece of paper easily defeated in any court of law because it fails to comply with basic legal requirements on proof of occupation and, ultimately, ownership.

Imagine also the case whereby individual titles are created for significant numbers of dwellings. These titles are unlikely to protect or secure the shared spaces, licences and usufructory rights that communities depend upon. Having lost control of those by accepting the individual title for the household communities become vulnerable to the elite selling off the common spaces – with the apparent consent of the communities that have not protected their interest in them for whatever reason. So individual titling can actually facilitate elite capture.

Or we have options of collective registration for entire communities and their common rights through participative mapping processes. I am a big fan of the idea but questions remain over the validity of the outcome. If a true, defensible ‘title’ is created for a whole community who serves as legal trustee? That approach may again support elite capture on an even grander scale.

So we come back to the vocabulary being used. Are we seeking to create a land ‘title’ by registration or are we actually better off recording land rights and occupation on a collective basis? The ‘title’ becomes redundant because the record of land rights is what facilitates better dialogue toward consensus throughout stakeholder groups because the broader record of rights allows all interested parties to lay claim to a valid place at the bargaining table. IF THE INVESTOR AND THE STATE WANT TO DO THE RIGHT THING!

To really draw a conclusion on the value of titling you need to take a much longer view. In, say, Rwanda there were no immediate gains to the grass roots participants, especially in poorer areas, through gaining title. Insufficient investment took place in the broader land administration system to allow land to be traded in the formal marketplace and so the majority of the titles created in Rwanda may be redundant now. But, and it is an important but, it is now looking as though the investment in land and passage toward a formal mortgage market is taking place in urban areas. That may drive the administrative reforms required to really justify individual titling. But does the initial, and perhaps wasted, investment in mass titling offset the relatively minor gains later down the line – especially when you have to disregard 90% of the original record? Better to phase approaches in key areas that have the potential to be developed and benefit from formalisation as, say, a precursor to investment. And, of course, it is easier to implement ‘total registration’ in small country like Rwanda than, say, Nigeria.

Similar parallels exist in Kenya. Mass registration in Kenya in the late sixties resulted in people generally putting the title documentation ‘under the bed’ for safekeeping. But forty years later those areas that were titled are at the forefront of growth.

So is titling a good thing? Yes. Provided (a) we understand what the word means, (b) that capacity is built to enforce the intended formalisation process subsequent to title, © that it does not disregard the importance of common areas, (d) that it is supported by credible laws to support indemnity or a state guarantee and (e) that it is affordable. So as part of a regional development or master plan do it. Otherwise leave well alone until demand for land starts outstripping supply in rural areas and market forces have developed to give everyone an equitable result.

(Diya Uday) #4

Hi Andrew

Thank you for your reply. I particularly appreciate the fact that you have laced it with examples.

I agree that there is much ambiguity in the what “titling” constitutes. I can tell you that in India, efforts are being driven towards moving away from a system of “presumptive” titling. The existing legal framework on proof of ownership today is such that even if my name is on a record, it is a rebuttable presumption in a court of law. The fact that my name is recorded as the owner of a land parcel could be disputed (and successfully so) by someone who, say for example, produces an ownership document with more evidentiary value.

The result is that a huge amount of resources are spent by buyers in conducting a “due diligence” on the parcel of land they intend to buy. The process involved pulling records from three different land administration offices (the department that undertakes land surveys and settles boundaries, the department that registers new transactions and the department that maintains land records). In addition to this, public notices are issued in local newspapers inviting objections (for good measure).

All of this is attributable to the fact that you cannot really rely on land records and you need more information to make a good buy decision. In urban areas, resources in terms of money and access to lawyers (who undertake the diligence process) are not really a problem. However, in rural areas, where resources are scarce, it often happens that “bad” title is passed down from vendor to vendor until it gets to a point where someone challenges the existing owner’s right to the land on account of something that happened many years ago. For instance, the original owner had a legal heir that somehow resurfaced after all these years. Conclusive titling, therefore seems to be the need of the hour.

However, I do agree with you when you say “But does the initial, and perhaps wasted, investment in mass titling offset the relatively minor gains later down the line – especially when you have to disregard 90% of the original record? Better to phase approaches in key areas that have the potential to be developed and benefit from formalisation as, say, a precursor to investment. And, of course, it is easier to implement ‘total registration’ in small country like Rwanda than, say, Nigeria.” Often the work it takes to implement these policies in say a country like India, which historically has had different land tenure systems and the like, far exceeds state capacity. This a huge problem. The debate therefore, seems to be on whether this exercise should be a voluntary or a compulsory one. The former will be more cost effective, certainly.

Again in India, the lack of a private title insurance market and the fact that governments are not really open to granting an indemnity or guarantee of title, to my mind, defeat the entire exercise of conclusive titling.

The issue of commons in this area, is another one entirely. While issues of rural commons are vaguely address by policy thinkers. Urban commons have been quite ignored. In fact it is only recently, that independent planners and economists have begun mapping commons in states. The idea of commons is complicated in urban areas, where there are large slums; the dwellers of which have no formal title to their property. As a first step to any sort of conclusive titling exercise, thought needs to be put into whether or not formalisation of these dwellings must be done. The arguments for formalisation essentially cite reasons such as access to credit, access to the land market (to be able to sell their property) and the prevention of ad hoc displacement.

There are a few states in India that are in the process of drafting conclusive titling laws (I have been advising on the content and drafting of these laws). It will be interesting to see how things turn out.

(Andrew Smith) #5

Thank you Diya

Your explanation of the situation in India highlights the almost inevitable outcome of mass titling in Africa. Too many ‘barrack room lawyers’ have been employed to implement land registration projects resulting in simplistic interpretations of the law. The laws in place were typically implemented during a previous colonial period and anticipate the sort of problems that poorly applied presumptive titling systems generate.

I am, however, increasingly convinced that mass recordation of land rights is essential in areas likely to be impacted by investment leading to displacement or shifts in the land market. Such development usually takes many years to come to fruition and so better system may be a system of possessory titling as applied by the UK many years ago.

The initial recording process identifies claims of ownership and a statute of limitations is defined whereby, if no counter claims are made, absolute ownership is defined based on the evidence that occupation has been uncontested throughout the period of occupation. I appreciate that that is a simplistic description!

At least the initial recordation of an area can identify all claimed interests in the public record in a way that can be incorporated in to any secondary contract to lease or purchase land. Those contracts are the root of the ‘improved legal protection’ occupants must hold and can be framed in a way that adds more value than a piece of paper that fails to prove absolute title.

That agreed record also takes the relevant institutions along a journey that can mitigate risk for purposes of reducing mortgage interest rates or the creation of indemnity mechanisms.

The mass recordation of land, and I stress again that I do not mean titling, by states is essential if better land governance is to be achieved. The returns that can accrue from mass land recordation processes in development zones can also generate regular income for land agencies to reinvest in improving the voluntary or sporadic systems.

Ultimately we register land to deliver better investment and create wealth. Land and social data is the crux of that and land titling is something that can come later.

Good luck in India. Fix that and you’ll really transform some lives!

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