Michael Kirk (1996):
The Role of Land Tenure and Property Rights in Sustainable Resource Use: The Case of Benin

4.5. Property rights and resource protection in an urban context

4.5.1. On the situation in cities

The Benin cities have developed extensively up until today without a legal framework or clear regulations concerning soil utilization or urban planning. The guide-line was the provision of plots of land for the rapidly growing population.

The spontaneous, illegal occupation of land and its utilization as residential property in the most diverse quarters is characteristic for the cities. In retrospective these settlements were frequently legalised through the land zoning program. Accordingly, this was often undertaken without long-term planning and a clear understanding of procedures and without regard to the site of the identified quarters, e.g. in flood areas.

The main problems for resource utilization or rather the upkeep of the urban environment caused as a result of the rapid and uncontrolled growth of towns are (Okou et al. 1992, Rép. du Bénin/MEHU 1993b):

• a lack of, or no disposal of household waste, dirty water and faeces, soil pollution through illegal waste dumps and seepage as well as hygiene problems;

• an inadequate basic infrastructure, meaning electricity, drinking water, a road network with the resulting illegal emergency solutions;

• uncontrolled settlement on ecologically fragile locations in particular in the catchment areas of lagoons and on slopes in the face of inadequate enforcement of land tenure norms and lacking urban planning. The results are water pollution, erosion and also increased health dangers and regular flooding.

Practices relevant to land tenure influence resource utilization in urban areas directly. They also offer a potential starting point for measures for the preservation of the natural environment:

• The acquisition of private property by land register occurs parallel to the transfer of rights of utilization through the 'permis d'habiter' following the zoning of State land.

• The setting up of an urban land register ('Registre Foncier Urbain/RFU') in cities.

• The availability and quality of urban development plans.

• The allocation of property rights through concessions.

• (Informal) sale of landed property by persons who only have a right of utilization, a residential permit.

• Recognition of illegal settlements ex post through the plotting of land.

The following is true for towns as well as for rural areas: only a land registry entry guarantees exclusive property rights and security for planning. In the middle of 1991, 4808 titles were registered in Cotonou. Only very few owners carried out this procedure in the period 1982-1992 when a mere 79 properties were registered. Whoever was well informed and could afford to, had already registered years ago. The cost of registration is bound up with the current commercial value. There was a lack of liquid assets especially in times of economic crisis in the 1980s for the registration of properties worth many millions of FCFA in central positions, in particular also for the entry of larger properties (only 7 plots of more than 1 ha were registered in the named period) (Adokpo-Migan 1990/91, Bio/Houngbo 1993, Okou et al. 1992).

The outstanding majority of house owners had built on properties which according to the 'permis d'habiter' were merely allocated utilization rights by the State. There are enough examples in the history of this country of properties which have to give way to roads, market places or representative governmental buildings, or residential sections which had to be turned into industrial or commercial ones. The younger generation in the towns with good school education is well aware of the state of legal uncertainty, but the precarious legal situation is completely suppressed thanks to a lack of alternatives.

In rural areas, unwillingness to invest in the preservation of environmental resources is also accounted for with uncertain property rights, accordingly the following considerations should also be made in an urban context:

• Since almost all private houses have been built on State-owned land and there exists the latent danger of their being taken away, it is also expected from the state that it provides a necessary infrastructure. The idea of active participation in road construction, water supply and above all waste disposal is (still) not widespread in view of the existing legal conditions.

• On the other hand, towns are taking increased efforts to use land as a secure base for the raising of communal taxes and levies other than taxes. In order to be able to deliver a high tax-payer honesty and plausible reasons for environment expenses, long-term secure property-like titles are indispensable.

• Sales of developed and undeveloped properties which were allotted according to the 'permis d'habiter' lead again and again in large numbers to appeals, conflicts and trials at court. In this regard the situation is comparable to that in rural areas.

Transfer through sale without permission of the provincial administration (préfecture) is not legal. Since nothing like the land registry exists, land is sold to several parties at once. In view of the uncertain legal position, the willingness to invest is slight, and State offices have problems in identifying the current owner unequivocally. The number of disputes before the land registry and the lower jurisdiction has increased. Only few of the cases are concluded with a settlement of some sort (Bio/Houngbo 1992).

Just as in individual cases the transfer of resources is a pretty transparent matter, an extensive legal leeway makes it possible to start spontaneous settlements in new districts in a big way without the State taking sufficient urban-planning influence or preventing the settlements. In the case of Cotonou, this takes in swamp and flood areas which are in no way suitable as settlement land. Involved are 18% of the town area, 42% of which are zoned (Adokpo-Migan 1990/91). These stretches of land are of great significance for the hydrological balance of the location. In 1988 already 50% of these swamp areas had been settled: unplanned, tolerated by the City and later even officially acknowledged.

As for Cotonou, it applies to most urban centres that the Administration is also not able to realise an urban plan basically and can hardly make proper application of the existing regulations:

• unplanned issuing of residential permits and land registry entries in ecologically endangered zones without estimation of possible consequences for people or the environment,

• issuing of allotments in the immediate vicinity of factories with toxic emissions,

• toleration of masses of illegal land sales,

• problems of competence and agreement between authorities with the inability to function properly as a consequence,

• opening of the market for private entrepreneurs and the creation of competition in the area of urban planning like the 'lotissement' without there being any legal framework for their activities.

All factors together create a situation of uncertainty and caution so that by the slightest rumour of planning of new allotments panic sales sky-rocket from which speculators profit who hardly want to use the land themselves.

An urban land register (Registre Foncier Urbain), not to be confused with the land register of the Central State should offer all participants more planning security. Its build-up, step for step, beginning in Cotonou and Parakou, should in the course of decentralisation be spread out over more and more towns. (A Benin-German collaboration is also planned in this context for the double town of Abomey-Bohicon (Rép. du Bénin/MEHU 1993a)). The objectives of the RFU are (SERHAU 1993):

1. Increasing the tax revenue of the regional administrative bodies (collectivités territoriales) as well as the preparation of reforms of local taxation and finance administration.

2. Preparation of a reform of the land legislation and its Administration, and of the Management of the State owned land (domaines).

3. The setting-up of a geographical information system for urban management.

The prerequisite for the raising of taxes and the allocation of ownership titles is a clear identification of the position of the owners of plots. This occurs through the step-by-step establishing of residential sections, blocks and individually marked plots. Empirical research is required about individual land ownership and along with the principles for its taxation. By 1992 in Cotonou, only 73% of the estimated developed and 17% of the undeveloped plots were clearly assigned to the current owners or occupants and prepared for entry in the land register.

Even if the reform of land legislation is one of three given objectives of the urban land register, the raising of taxes takes without doubt first of all the centre stage in order to be able to broaden the financial basis of towns so that they can look after their municipal responsibilities. For at present, urban budget is financed up to 75% from four types of taxes which the municipalities alone are entitled to: land tax for developed and undeveloped properties, trade tax and trade licences. The further the discussions in the relevant ministries, above all the Ministry of the Interior and the National Assembly, continue about the precise forming of decentralisation of policy and administration, the more urgent the security of the financial basis of the municipalities becomes. The introduction of a register of real properties is along with that a complementary secondary effect which creates legal security and helps to improve planning and investment opportunities.

4.5.2. Effects of urbanisation on the village environs

Living in villages in the immediate settlement around a city is acquiring a growing significance: plots of land are also affordable here for middle income families. Indebtedness, fear of State expropriation of land in times of growing economic significance of the suburbs and the incentive of larger sums of cash encourage (informal) land sales. High rises in value will be a possibility if the State recognises the created facts and begins with the zoning program (Okou et al. 1992). While with the 'permis d'habiter' the State has the right to retain or to demand back a part of the land without compensation for infrastructure measures, this can only happen in the case of private property where compensation is paid. Accordingly, 47% alone of land registry entries between 1982 and 1992 in were made in Abomey-Calavi, a rapidly growing town only 12 km away from Cotonou.

Plantations are only seldom layed out; urban vendors often cut down the trees, clear the land, enclose it with fences and document their ownership with name plates which accumulate along the roadside as one approaches the cities. This land tenure change is stretching out to places in a surrounding area of 30 km away from growing towns.

Urban land tenure is spreading out into the rural sections of settlement areas not only near cities like Cotonou, Parakou and Porto Novo, but also in smaller towns, the district centres, where the consequences for land tenure regulations and resource management can be proved.

With the privatisation of land allotment ('lotissement') and urban planning, more and more middle-sized and small towns are being subjected to the zoning process, including villages near cities, which are only partially incorporated, and likewise many of these towns still display a dominantly rural and agricultural character. Examples from Savalou or Bassila have shown that through the already carried out or awaited parcelling of land generations-old owner-user relations have dissolved; owners have demanded back their land and have tried to accumulate tracts of land. Land speculation is spreading accordingly quickly and raises the uncertainty of non-owners considerably. This is also the case in regions like the Atakora Province which has statistically a small population density and scarcely has problems with urbanisation. In the most favourable cases within aspects of resource protection, owners' land is not or only extensively used; in the least favourable cases it is leased under restrictive conditions so that long-term plans for the tenant is scarcely possible.