Discussion Points For Chapter

• Historically, concerns for both fairness (equity) and economic efficiency have motivated land tenure policies. The equity concern is basically about alleviating rural poverty. It has been found that both the initial distribution of land and the nature of land tenure regimes and policies have a direct bearing on the extent of rural poverty.

• Access to land is the most fundamental determinant of income-earning potential in rural areas in developing and transitional countries, but security of land rights is as important as access.

• Rights to land take many forms, and unrestricted private ownership is only one of them. In almost all customary systems of land man agement, rights of usufruct are defined but not ownership rights that would permit the owners to transfer the land.

• All over the world, the rights to individual parcels have been found to undergo an evolution as population pressure on the land increases. When the land is in abundance, the rights are general in that a family does not necessarily have access to the same plot year after year, but rather it is only guaranteed access to land somewhere in the village's domain. As population pressure increases, families become motivated to hold onto the land they have been working, out of uncertainty about the prospects of obtaining another piece of land which is equivalent in quantity and quality. Hence, over time rights to use the land tend to become specific to particular plots.

• Similarly, individual land rights tend to replace communal systems over time. Today in Africa, for example, individual rights are more prevalent than communal rights for most cropland.

• Traditional land rights can display great complexity and imagination in providing resource access to satisfy basic needs. Traditional systems have shown considerable flexibility in defining bundles of land rights, for example, allowing for grazing access at specified times of the year and under specified conditions.

• Private landownership also is rarely absolute but is subject to various conditions representing the rights of society or other individuals. Private ownership also can be considered to constitute a bundle of different kinds of rights over the land, including the right to use the land, the right to prevent others from using it, the right to derive income from it, the right to transmit it to heirs, etc.

• The great variety of forms in which land is held in the world today can be simplified into the following six basic types:

— Open access lands. In this kind of tenure no one can claim ownership to the land or resource and no one can be excluded from

260. Land Tenure Service, FAO, 2001, pp. 53-55.

access to it. It sometimes applies to forest lands or range lands. Marine resources usually are of the open-access type.

— Communal lands in customary land regimes. They are open to all members of the community, but there are community restrictions on their use and on access to them. Frequently, they are grazing lands.

— Collective lands are used for joint production by a group of farm families and are defined by a decision of central authorities. They can include individual plots and jointly worked plots. In most cases, the members of a collective farm have had no voice in deciding the form in which the land is to be held and exploited but rather the decision was made centrally.

— Individual land rights under associative tenure. These rights embrace individual plots in customary and collective tenure regimes.

— Private land rights. These rights include ownership (with varying degrees of restrictions), and other usufructuary rights in a market context such as rental, leasing and sharecropping. They may also be subordinated, temporarily and partially, to group decisions through voluntary co-operation in selected farming tasks or in the procurement of farm services. Ownership brings with it the right to dispose of the land according to the owner's wishes: in sale, leasing, rental, inheritance, and to encumber it with contingent claims such as a mortgage.

— State lands. In this case, property rights are assigned to an authority in the public sector, local or national.

• Tenure security requires clarity in defining a user's right to the land, and stability of that right over time. One kind of security guarantees the right to use a given plot of land and another, stronger kind, guarantees the right to transact the land, whether it be in rental, sale or another form of transaction.

• Tenure security can refer to protection of one's right to use the land, and can also mean the right of usufruct for a long period of time, long enough to stimulate investments in the land.

• Customary tenure systems vary widely. They usually supply tenure security in the sense of certainty of being able to use the land, and to some extent they occasionally guarantee rights to transfer the land, albeit usually with limitations. However, they normally cannot provide enough tenure security to permit the land to be used as collateral.

• Empirical research suggests a positive relation between land tenure security and farm performance. Studies have found that farms with full title to the land obtain more credit and invest more, and also that land values increase under titling.

• Research in several countries on the effect of farm size on productivity per hectare suggests a 'U-shaped' relationship, with the declining part of the 'U-curve' covering most of the relevant range of farm sizes. In other words, small farms produce more value per hectare than larger ones do for almost the entire range of relevant farm sizes.

• As noted, most traditional land tenure regimes do not permit a transfer of land right, although an increasing number do. As population pressure on the land increases, so does the pressure to permit transfers and also the tendency to formalize individualized land rights.

• A major concern in the transition from customary to formal systems of land rights is that those who are in command of better information about the new system can dispossess farmers who have held traditional rights of usufruct. Another hazard is that, when title to customary lands is vested in the State, farmers effectively can remain dispossessed from lands they traditionally had rights to use.

• Many land tenure systems include areas of common use. These 'commons' often are subject to over-grazing, as a result of the corresponding institutional incentives.

• This 'tragedy of the commons' tends to occur in open-access lands. Common property regimes with appropriate management controls, even if the system is customary, can diminish the possibility of over-exploitation. In addition, commons can be important resources for generating income for the poorer families in a community. However, the historical trend is clearly for common-property regimes to be converted into open-access regimes as population pressures increase, and therefore the trend toward environmental degradation of such lands increases over time in most cases.

• Providing community titles to common property lands and providing assistance in their management can help avoid land degradation. Group titles function best in small communities but still they may not constitute sufficient safeguards when new agricultural production or market opportunities open up.

• When group titles are issued, options that may be considered include providing to the community a 'first right of refusal' on the purchase of the land rights of an outgoing member of the community and, especially for former collective farms, issuing a form of shareholding in the community's assets, to encourage more entrepreneurial management of the lands.

• Collective and State farms have been created out of agrarian reform processes in many countries, except in East Asia where the trend was to provide land in individual, owner-operated plots. El Salvador has provided land to beneficiaries in both forms.

• As economic enterprises, most collective farms were born with a number of handicaps. Usually, their members were denied the right to mortgage their assets or to sell or rent out part of them. They also were legally denied the option of obtaining production finance from private banks, and all of their agricultural advisory services had to be supplied by the government. To offset these disadvantages, they usually have been heavily subsidized.

• From Latin America to Ethiopia to China, collective farms have largely failed everywhere, often with results far inferior to those on private landholdings. As a result, in many countries they are being transformed into private property of various forms.

• The State is a major or dominant landowner in many countries of Africa and the former Soviet

Union and in some cases in South East Asia. The reasons for this development are many, including historical, ideological and concerns for avoiding concentrations of landholding or speculation in land. However, as a practical matter the State has not generally proven to be a capable manager of land.

• To overcome the problems that typify State ownership of agricultural land, some countries have instituted a policy of providing land use rights through long-term, freely tradeable leases. The initial allocation of such leases merits careful study in order to ensure a transparent and equitable process.

• Land reform began in parts of Europe in the 18th century, based on willing sales of land to poor farmers, and in the 20th century it was transformed into a process based on coercion by the State. In general, coercive land reform has yielded disappointing results and has failed to reduce rural poverty. Exceptions include the East Asian land reforms of the 1950s, the first phase of land reform in Zimbabwe, and some aspects of the Philippine land reform of recent decades.

• The reasons for the disappointing record of coercive land reform include governments' inability or unwillingness to compensate former owners (thereby closing off the option of providing full title to the new beneficiaries), political motivations of land reform, the forms in which land has been adjudicated, failure to provide sufficient education and training to land reform beneficiaries, and failure to provide them with access to investment capital.

• Coercive land reform is inherently a disruptive process and can inflict long-term damage on the credibility of a country's institutions. It normally occurs in contexts of political upheaval or violent conflict. To lessen the disruptions and make land reform more effective in reducing poverty, new approaches are being tried out that introduce market elements in the land reform process, although early results suggest the process is a slow one owing to its demands on local administrative structures.

• Improving the functioning of land markets requires answering fundamental questions about what the nature of land rights should be, including whether customary land regimes should be protected and, if so, how, and what options should be provided to former members of collective farms.

Experience has shown, especially in Africa, that customary systems can provide security of land tenure. Modern land registration systems are expensive and the requirements for introducing them are demanding, and so they are not always economically justified. However, as land values and population pressures increase, the need for even more secure land rights also increases. Some of the criteria for evaluating the effectiveness of traditional land tenure systems include whether women can hold land in their own right, the extent to which rental and share-cropping arrangements are permitted, the scope for inheriting land rights, and the degree to which traditional authorities are accountable to local people in their decisions about the allocation and protection of land rights. Thus, the question of whether to formalize land rights is a practical matter. One principal option is to give legal backing to customary systems of land rights as has been done, for example, in the new Rural Code of Niger. In all land tenure systems, strengthening local administrative capacities is a key to their effectiveness and durability.

When a decision to shift to a modern land titling system is made, it should be borne in mind that the process is slow and it is important to provide protection in the process for renters and other holders of secondary rights. Equally, it is vital to carry out carefully local consultations on existing land rights before awarding the new titles. There is an a priori case for subsidizing part of the cost of registering new land titles. Strengthening institutions of dispute resolution at the local level often is a central element of any kind of program to improve a land tenure system. Prohibiting land ownership of small parcels, below a specified threshold in size, has proven to be counterproductive for reducing rural poverty.

Land rental, in its various forms, is an important mechanism for helping reduce rural poverty through providing an affordable avenue of access to land for people on low incomes. It tends to make operated farm sizes more nearly equal and it leads to improvements in land productivity, because it transfers the use of the plot from a party who is less interested in or capable of working it to one who is more interested or capable. Finally, it reduces income risk for larger landholders by offering the renting-out option in periods when they are unable to work the land directly.

For these reasons, prohibitions of land rental have proven counterproductive and have led to widespread evasion and to under-utilization of land. Equally, attempts to control the level of rents generally have failed. Sharecropping theoretically produces less efficient use of land than pure rental contracts do, but in light of the difficult access to credit that tenants frequently experience, in some circumstances it becomes the preferred mode of land utilization.

Concerns have been raised that sales of farmland may lead to greater concentrations of landholdings over time. However, attempts to prohibit land sales usually have not worked well and some cases have increased inequality of landholdings, since those who are better connected may be better able to circumvent a ban. A more productive policy may be to provide greater access to credit for small farmers, and/or provide safety nets for them, so that they are not forced to sell land during periods of economic distress.

For conversion of former collective farms into private property, there appear to be three principal options: private collective holding in the form of a joint-stock company or other corporate form, purely individual holdings, and a mixture of the two in which land is privately held and other assets are held jointly in corporate form. The corporate option, in which members possess shareholdings, offers stronger economic incentives for production than private co-operatives, although the latter have proven useful in the processing and marketing of some agricultural products.

• This process of conversion may take a long time because it requires training and other forms of support to former collective farms, in addition to passage of new laws and promulgation of new regulations.

• Access to land for the rural poor may be promoted in a market context through several mechanisms that may be instituted individually or jointly:

— A land fund that finances the sub-division and sale of large properties and subsidizes their purchase by poor families.

- Market-assisted land reform in which communities participate in the process and beneficiaries are given financial support for investments in newly acquired properties.

— Improvements in land rental markets.

— Institution of long-term leases and lease-purchase contracts for farmers on State lands and for beneficiaries of market-assisted land reform.

— Institution of a progressive, area-based land tax.

— Titling small farms.

— Introducing alternative financial mechanisms such as antichresis or pledging of usufruct rights for limited periods.

— Elimination of the many subsidies in agriculture whose incidence is skewed toward the non-poor.

— Distributing State-owned lands to poor rural families.

• Women's access to land is more limited than that of men throughout the developing world, even under many traditional systems of land tenure. Frequently, laws discriminate explicitly against women in rights to hold and inherit land.

• To overcome the legal, institutional and attitu-dinal barriers faced by women in trying to gain more access to land, five kinds of approaches are needed: reforms in legal codes and regulations, targeted financial assistance for women, gender analysis in the design stage of projects and programs for rural development, training and awareness-raising among public officials, especially in land registries and land reform programs (market-assisted or otherwise), and campaigns of public education. A single approach will not suffice, but rather all five kinds of programs need to be implemented together.

• Specific measures that can materially assist in promoting access to land for women include: carrying out publicity and legal literacy programs to make women aware of what is available to them and what safeguards they have for their rights; making the registration facilities available as close to the land in question as possible; reducing the up-front cash costs; undertaking participatory processes for surveying the land so that local people are aware of the proposed boundaries and can stake their claims; allowing provision for group titling; and making provision to recognize overlapping bundles of rights, e.g. for grazing on fallow agricultural fields, collecting tree products, etc., which often play a key role in the livelihoods of the poor.

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