Susana Lastarria-Cornhiel, Grenville Barnes (1995):
Assessment of the Praedial Property Registration System in Peru

C. Registration Issues

There are several issues related to property registration that need to be considered in property formalization designs. One of them is the issue of maintaining the currency of the information in the registration system. Another is the issue of gender and property rights, more specifically, the protection of women's rights to property within the registration system and process.

1. Sustainability of Registration System

A registration system is really effective only if it reflects the current land tenure status and provides a complete record of all formalized parcels of land. In most Latin American countries, a large proportion of the population has chosen not to register their rights through the formal process described by law. It is important to understand why they have not pursued this option so that these factors can be considered in the redesign of registration systems.

There are generally several factors associated with traditional land registration systems which act as disincentives to register land. Historically, the land titling and the registration processes in Latin America have been lengthy and overly bureaucratic. It is not uncommon for title applications to take 10 years to process. In many instances the process is much more complex than those found in the more wealthy, developed countries. The cost of titling and registration is often prohibitively high, especially for the poorer, small-farmer sector. In addition, registration offices may only be located in the country's capital city or in the departmental capitals. Access to the system is therefore difficult, especially for those poorer people who do not live in principal cities. As a result of these and other disincentives, the demand for registration by small farmers is low.

The factors that tend to counter the disincentives mentioned above are consequently regarded as incentives. The primary incentive or benefit from registration is commonly regarded as improving access to credit. Even in cases where credit can be obtained without using land as collateral, property with a registered title will facilitate better loan conditions (e.g., lower interest rates, longer terms). Since registration provides greater tenure security, it is assumed that landholders will choose to register their property rights to acquire such security. Where land rights are being challenged by neighbors or by the central government, this will generally be true. However, where no such challenges exist, there may not be any need to improve tenure security through registration, especially when the disincentives are perceived to outweigh the benefits, and particularly if registration of property transfers is not obligatory.

In Peru, the Registro Predial has removed much of the bureaucratic baggage that was typically attached to the registration process. Registration in most cases is simple and quick. In theory, the Registro Predial is designed to be a decentralized system which would be accessible to the public through local offices. In reality, however, it has not achieved this decentralization even within the Region of Lima (see Section IX, E). The Registro Predial has also addressed the cost disincentive, and registration is now available at a significantly lower price; however, this low price is based on budget subsidies (see Section VIII, B). On the incentive side of the registration equation, the Registro Predial has provided greater security to registered landholders, particularly in urban areas. However, this security has not been converted into the widespread use and availability of credit (see Section VII).

It is imperative that registered landholders perceive that registration delivers more benefits than the costs associated with going through the process. If they perceive that the cost/benefit ratio is not in their favor, they may choose once more not to maintain current registration records. This emphasizes the need for real benefits to be associated with registration, even to the extent of including credit access as part of the design of the registration system. In Peru, the Registro Predial certainly pursued this approach early on with the popular mortgage concept and credit insurance proposal, but there is still no convincing evidence that all the registration activity has delivered the benefits associated with registration.

2. Impact of Titling and Registration on Woman’s Property Rights

There has been much justified criticism of titling and/or registration programs because of the overwhelming tendency to title and register family property in the name of one person, usually the male head of household. Apparently, there are several reasons for this. First of all, it is simply technically easier to deal with one person and one name when determining ownership rights, filling out titling documents, and recording property owners. What really needs to be explored is how to incorporate other family members in the titling and the registration processes.

Secondly, most government and development agency staff assume that within a household, all members are treated equally and that the household head is concerned with everyone's welfare. Three pervasive problems with this assumption make it untenable. All persons in a household do not have equal status or rights; in fact, wives and children, particularly daughters, often find themselves working for the other members of the family without much control over how resources or income are allocated. Another problem concerns the myth that all household members work and produce together for the greater benefit of all. In many societies, husbands and wives have different production spaces, junior males work separately from their parents, and women are expected to serve the family.

It is not unusual that household heads do not necessarily act with the household's welfare in mind; rather they often allocate resources, family labor, and income to maximize their own production and status. If the household head holds all legal rights to property, the family runs the risk of suffering from the household head's irresponsible acts. The situation of separated and divorced women can be particularly acute since they often have no legal recourse to claim the land they have been working with their husbands.

Legislation on property rights, inheritance, marriage and divorce, and marital property often fails to explicitly recognize women's rights to family property. Where traditional values and practices dictate that men own property and women are dependent on men, very few women are able to exercise their basic right to own property in their own name and use it as they wish.

Registration programs do not generally concern themselves with protecting women's rights to land—they are often relegated to simply recording in the property registry what is on the property title. However, registration systems, based on inheritance and marital property laws, can initiate procedures that protect some women's rights. The challenge is to devise procedures that are vigilant with regard to wives' rights to property acquired during marriage (either customary or legal marriage) and that protect daughters' rights to their birth families' property at the time of recording property transfers resulting from inheritance and sales.

In Peru, fortunately, community property legislation does recognize wives' and daughters' rights to family property. Thus, all children, both sons and daughters, have equal rights to their parents' property. In general, these rights are respected by family members. Marital property legislation also recognizes a wife's right to half of the property and income acquired during marriage. The law also recognizes common-law marriage. In the registration of property, the procedure observed in the Registro Predial (and in the Registro de Propiedad Inmueble) is that married persons, when registering property, are obliged to identify and include their spouses. While certainly not all women are protected, this procedure does reduce the probability that one spouse can dispose of property rightfully belonging to both.