Forms of Property Rights

The great variety of forms in which land is held in the world today can be simplified into the following six basic types:29

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

• Communal lands. These refer to the jointly held community 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 through land reform. Their use is not controlled by traditional authorities but rather through newly created management structures. 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.30 Individual land rights under associative tenure.

These rights embrace individual plots in customary and collective tenure regimes. In the former Soviet Union, collective farms usually contained 'household plots' of around 1-5 hectares each, on which families were entitled to grow food crops of their choice. 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 cooperation 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.

29. This list is an amplification of the discussion of the topic found in Land Tenure Service, FAO, 'Land tenure, natural resource management and sustainable livelihoods', report prepared for the World Food Program. Food and Agriculture Organization of the United Nations, Rome, 2001, p. 6.

30. State farms are distinguished from collective farms by the State ownership of the land. In these cases, cultivators are employees of the State. However, in practice the cultivators of collective farms usually do not enjoy the typical rights of ownership, and the State tightly regulates the operations, and so the operational distinctions between the two forms are relatively narrow. Unless otherwise stated, the term 'collective farms' will be understood to apply to both forms. In Latin America, collective farms often have the juridical status of production co-operatives, as defined by agrarian reform legislation, but the members of the co-operatives are not vested with full property rights in the farm's assets. Therefore, this class of co-operative must be distinguished from private co-operatives (mostly for services) that are constituted under a country's commercial code.

Forms of tenure may overlap. For example, State lands may be given out to farm families in long-term, tradeable leases, which are a form of private land rights.

Ownership of land is rarely absolute. Property rights in land have developed that usually are not as absolute as rights in other commodities. Laws that allocate property rights can be complicated and involve a number of jurisdictional authorities. Land ownership may be viewed as a bundle of rights, rather than absolute control over the land.31

.. . when one party holds a property right in a resource, the party does not necessarily hold all the rights. The existence of a property right that does not contain some restrictions, which imply that some other entity also holds rights in the resource, seems rare. While restrictions are often placed on certain behavior by the State, restrictions also arise from other quarters (family, kinship group, religion). . .. even the concept of 'ownership' in western societies, where the full rights in a resource belong to an individual after certain governmental reservations are taken into account.. . recognizes that at least two parties have rights in the

resource.32

The fact that rental and ownership rights may exist on the same piece of land illustrates the pervasiveness of multiple kinds of rights or 'sticks in the bundle of rights'. Herders, for example, may have rights to drive cattle across certain private lands; and the State may reserve the right to build roads or place power lines in an easement on private property. A community may reserve the right to define the kinds of activities that may take place on private lands, expressed through zoning restrictions or other regulations.

Banks may hold contingent rights to claim ownership of a plot in the event of default. In some traditional societies, persons may purchase or rent trees on a piece of land without having rights to the land itself. In Haiti, for example, it still is common for a farm family to rent a breadfruit tree for a season, thereby obtaining rights to its harvest.

Property rights display great diversity. The fundamental point is that property rights are rarely absolute. Therefore, the conditions imposed on their use may be more important than who or what institution has ownership rights.

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