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.