Guiding Principles:
Land Tenure in Development Cooperation

Orientierungsrahmen:
Bodenrecht und Bodenordnung

Deutsche Gesellschaft
für Technische Zusammenarbeit
Abt. 45 / Div. 45

Societies have developed a large repertoire of legitimate and illegitimate forms of access to land which ranges from land cultivation to formalized rules of purchase. Independent of whether individuals, family groups, communities or the state is the landowner, some fundamental institutional regulations for access to land can be identified worldwide. Most societies differentiate between access possibilities for different groups of people. For example, the purchase of land by foreigners can be subject to special laws. Women often only gain access to land through their social relationships with their husbands.

The first cultivation of fields in agricultural societies and the digging of a well by those involved in animal husbandry are reasons for long-term rights to resources (in Africa, mostly as common property and in Latin America almost exclusively as private property), as long as no competing person or group makes a claim. These rights are created, for example, when immigration to a previously unsettled area occurs. In Africa, as a result, most permanent rights can be bequeathed only within a founding lineage, but they are also transferable to non-members (outsiders) temporarily (Kirk 1998a). However, they cannot be sold. Compared to immigrants, the founding group always has priority. The claim of ownership is manifested in the apparent results of the labor input, i.e. the cultivated fields, but also in the planting of trees or simple demarcation of the boundaries.

The illegal seizure, clearing and use of state or private land by spontaneous colonists in Latin America constitute an important problem, as they contribute to the destruction of the tropical rain forests. In the Brazilian Amazon and in the Amazon areas of the Andes, the percentage of illegal use is 53% and 77% respectively of all cleared forest area (Mertins 1996). As compensation for the agrarian reforms that did not take place, the spontaneous colonization was tolerated and even supported by the subsequent legalization of the farmer’s activities and awarding of a title of ownership. However, in the colonized areas of the Amazon, the farmers were often followed by forced sale of their land to financially sound groups as a result of indebtedness or due to violent conflicts (see below).

Land is allocated by local land tenure authorities. In the course of the life cycle of a family, household heads in Africa receive additional land from a commonly owned reserve. This also applies if married sons separate from their families and establish their own household. Once such land, inclusive of fallows, is thus allocated, it remains their property. In most cases such land may be devised. Arable land no longer needed, e.g. in old age, will again be included in a commonly owned reserve.

Allocation of land to non-members of the group owning the land is of a provisional nature. They are not allowed to transfer the land once it has been awarded without permission to a third party, nor are they allowed to bequeath it. They are often able to use the land for an indefinite period of time. Symbolic gifts in return for the land tenure authorities were not of substantial value, so as not to be confused with lease payment (compare with the lending of land). However, a smooth transfer to a lease situation may occur if the value of this "gift" is high enough.

Families allow individuals or groups to use the land they own for a period of time without expecting a fixed or quantitatively significant return. The borrower usually has total freedom in deciding how to use the land. However, two limitations exist. Investments that would change the character of the land such that the borrower could claim ownership are not allowed (Kirk & Adokpo 1994). This especially includes the prohibition of planting trees, building houses or digging wells. With the resulting ban on tree planting, autochthonous land tenure often fails to protect natural resources sufficiently. As a result, the lender of the land often reserves the right to spontaneously take it back without announcing it before-hand. Thus, a lack of certainty of the law can present a problem.

The lease duration is set in advance only in the best situations; it is only then that the tenant has a clear long-term view for making investment decisions. The degree of autonomy with respect to the structure of cultivation, land use and management practices is dependent upon the type of lease and the agreed-upon arrangements.

Complicated tenancy and sub-tenancy systems have developed in Asia and Latin America that could only partly be simplified or limited through agrarian reform measures (Kuhnen 1982, Mertins 1996). Occupational tenancy and sharecropping arrangements, for example, are used for the supply of haciendas with cheap labor in Latin American countries. If the tenant is lacking alternative forms of income, then the lease conditions are dictated by the owner. The lease relationships are, on the one hand, cemented in lifelong, semi-feudal dependency structures as a result of a high degree of indebtedness; and on the other hand often characterized by legal insecurity due to verbal, ambiguous and ad hoc amendable contracts.

In recent times, lease relationships in the densely populated coastal areas of African countries are gaining importance (Kirk 1998a). Sharecropping is becoming established here as well. It is linked with a high degree of legal insecurity and the threat that the owners will take back the land any time without letting the tenant know in advance.

Lease is illegal in some countries, or its duration and amount are regulated. However, since freely agreed contracts upon lease rules enable the parties to come to a consensus on the amount of other inputs, such as draft animals and the calculation of local natural risks, labor input, uniform regulations for the entire country may not always be to the benefit of the tenant. In Indonesia, for example, informally arranged rent arrangements are dependent on the region and may lie above or below the legal guideline (Löffler 1996).

Inheritance is the most common form of land transfer not only in the case of private land property, but also in autochthonous land tenure systems where land (and trees or wells) is passed on within a lineage or extended family. The majority of the inheritance is patrilinear in African and in many Asian countries.

Inheritance rules have an influence on the distribution of land, especially on the farm size structure. As a rule, the land is distributed amongst all of the sons/children. In addition, rules for the distribution according to the number of wives and their sons exist. According to Islamic laws, the wives are entitled, at least theoretically, to a clearly defined percentage, however, in reality, they usually (must) pass it on to their brothers.

The divided inheritance of land as it is practiced worldwide has many socioeconomic and ecological effects, especially for smallholders. By continuously dividing up the land for inheritance purposes, the micro-landholders are no longer in a position to survive economically. This is particularly the case in Asia and Latin America ("minifundio" in Latin America). Legalistic administrative attempts to halt the fragmentation by setting minimum limits for land size according to farm management criteria (3-10 ha in Latin America, often less than one hectare in Asia or Rwanda) are disputed since they are circumvented and difficult to verify. A lack of off-farm employment opportunities and unsuccessful migration with uncertain living conditions in the cities make the cautious implementation of these alternative rules of inheritance more difficult (such as compensation for those renouncing their rights to their inheritance) to secure undivided inheritance of land.

Giving land as a donation while the testator is still living occurs, for example, when a son marries and starts his own family and thus requires land. In Africa, the oldest sons are sometimes compensated (with the donation) as they have had to work harder than the younger sons to support the older generation. Gifts are often given as a gesture to poor relatives or to those dependants for whom one feels responsible. This leads to development or to reinforcement of patron-client relationship in Asia or Latin America. Very often, however, intangible services in return are hidden in these land transfer transactions, such as unconditional political loyalty, permanent availability for help in a crisis situation, etc.

Free land markets are, therefore, controversial also in international development cooperation and are often the subject of state restrictions. However, imposed social restrictions are problematic with respect to the efficiency of allocation. They usually cannot prevent "informal grey" markets from being created if great interest in selling exists, for example, to finance a wedding, burial or in the case of illness. The lacking legal foundation implies insecurity, and it can be exploited to the benefit of a corrupt bureaucracy. Though land markets may be legal, they are not necessarily legitimate on the local level. The sale of land within a village may cause considerable conflicts.

Since the 1980’s, high expectations for a more dynamic land market have come from an increased demand of market economy principles. The intent is to achieve a more equal distribution of ownership through "market-led land reforms" and to avoid expropriation from land through land reform (Binswanger 1996, Vogelgesang 1998). Incentives for selling parts of large landholdings to small and mid-sized farmers do not make nearly sufficient land available for all those desiring it (Latin America, Southern Africa).

Violence can secure access to land de facto, although it is not considered legitimate in any legal system. With the loss of the state monopoly on violence, the danger exists that local conflicts about the interpretation of generally accepted access regulations are solved with violence. In this manner smallholders, "squatters," in the Brazilian Amazon region are driven away by the landowners who are usually large extensive cattle farmers. Pistoleros are hired to carry out their interests. The new owners can thus be "spared" the difficult development phase of land clearing and construction of the technical and social infrastructure.

• Public (state) property (baldio)
• Common property

- indigenous communities (ejido, comunidad indigena)

- cooperatives

• Private (individual) property

- large landholdings (latifundium)

- small landholdings (minifundium)

Share tenancy usually small farms in connection with medium to large farms

Codified i.e. indigenous groups and/or families in Mexican ejidos or Peruvian com-unidades; often a combination of community (pasture) and family (arable lands) user rights

• Private lands