Legitimate Land Tenure and Property Rights: Fostering Compliance and Development Outcomes
At the request of the U.K. Department for International Development, DAI recently undertook structured research into the following question: What policies and interventions or approaches have been successful in fostering compliance with legitimate land tenure rights and what impact have these strategies had on development outcomes? The research team was led by Geoffrey Payne and included James Mitchell, Luke Kozumbo, Clive English, and Richard Baldwin, using Rapid Evidence Assessment (REA), a methodology that uses a structured approach to identify relevant literature and then assess the robustness of the evidence presented.
While there is a wealth of literature on property rights, much of it focuses on formal land tenure rights or customary rights as a separate (and often less secure) form of tenure. Our research assignment was premised on a broader view, requiring us to explore the underpinnings of legitimate land tenure rights, where legitimacy can derive from conformity to the law but may also be conferred by ongoing social acceptance. As such, legitimate rights may, or may not, be fully consistent with statutory law, especially in contexts where customary law co-exists with statutory legal systems under conditions of legal plurality.
Land tenure is a historically and culturally complex concept. Consequently, the right to tenure can be established through a range of processes: statutory, customary, religious, and informal. These processes all influence attitudes toward the use, development, transfer, and inheritance of land and property. The variety in process also means that some forms of land tenure do not provide tenure holders with formal documentation of their legal status; they may comply only partially with legally stated norms (as when land is legally held, but developed for uses that are not officially sanctioned), or may be subject to dispute.
A further consideration in many countries is that more than one legal tenure regime may exist in the same country at the same time, and policies for reform may be in varying stages of development, creating further uncertainty. For example, in many countries, statutory law may apply in urban areas and customary law in rural areas, making land tenure status ambiguous in peri-urban locations. Different forms of tenure may exist within a given locality and even on the same plot of land, posing considerable challenges for land administrators.
Against this background, and with ever-growing pressures on land, recent years have seen a burgeoning interest in land tenure policies, approaches, and interventions designed to improve tenure security and conformity with legal norms. The growing pressures on land are mainly a result of population growth, especially in rapidly urbanising countries. Other pressures on land include greater mobility nationally and internationally due to evolving economic opportunities, climate change, and increased external investment.
Over the past two decades, the scale and complexity of the issues has generated a considerable body of literature assessing the varied objectives of tenure policies, approaches, and interventions, including their impact on access to formal credit, access to public services, levels of domestic investment, gender equity, and both de jure and de facto tenure security.
Our REA involved: 1) a structured literature search, 2) a description and summary of the studies, and 3) a quality appraisal and synthesis of the evidence. We developed inclusion and exclusion criteria and applied them to literature searches on key databases, resulting in 113 research papers, of which 74 were primary research and 30 secondary; we assessed 61 of the 113 papers as “high quality.” The evidence base was variable, reflecting the diverse nature of land tenure categories under different legal systems and varying degrees of social and economic change (a full list of the search results and review of content is available here).
The evidence shows that various strategies employed by government, civil society, and local communities have improved tenure security and property rights. There is also some evidence that these strategies have resulted in positive outcomes, such as improved living conditions for vulnerable groups, including more empowerment of women. However, there is limited and mixed evidence to suggest that these strategies have had an impact on development outcomes. Many of the examples that fostered compliance with legitimate land tenure norms, for example, have not been in place long enough to generate sufficient evidence of positive outcomes related to poverty reduction, gender equity, or access to formal credit or public services. The main findings can be summarised as follows:
Six policies, approaches, and interventions were successful in fostering compliance with legitimate tenure systems and achieved positive development outcomes in particular contexts. These include freehold ownership through land titling, leasehold, land registration and land use certification, community land trusts, common or communal ownership, and private land rental.
Freehold ownership through land titling was the dominant example of compliance with statutory tenure and property rights in the literature search, accounting for 62 of the 113 publications revealed by the search strings. This reflects, in large part, multiple claims that land titling leads to positive development outcomes. There is, however, some evidence showing these claims are contested.
Twenty-five high- or medium-quality studies described seven policies or interventions—including temporary occupation licenses, certificates of rights, and land use rights certificates, among others—that fostered partial compliance with legitimate land tenure norms. They achieved increases in tenure security and positive development outcomes but have received less attention than land titling. These strategies may deserve more consideration by both researchers and policymakers as they are less costly and more easily implemented than land titling, while achieving levels of tenure security sufficient to encourage investment and land property improvements.
There is a medium body of evidence (11 studies of moderate and high quality) highlighting that land titling can have a positive development outcome in terms of gender equity.
There is a small body of evidence (less than 10 studies) showing that successful tenure policies, approaches, and interventions build incrementally on what has proved to work at local or regional level and enjoy social legitimacy.
Overall, the literature reviewed for this REA provided mixed evidence of a link between tenure strategies and positive development outcomes. Because of these limitations, we should exercise caution when using the conclusions from those studies as a basis for policy formulation and implementation, especially in the absence of additional research. The REA clearly shows that the diversity of needs, and the rate at which these needs are changing for land users at different levels and stages of social and economic development, requires an equally diverse range of tenure and rights options. No single policy, approach, or intervention can, alone, meet the diversity of current and projected needs for tenure and property rights within any given country.
However, the literature review also reveals that while land tenure rights are essential, other complementary factors, such as access to finance, are necessary to bring about positive development outcomes. Growing populations and economic change resulting from globalisation and climate change are increasing pressure on land, particularly in urbanising countries. This pressure exposes many of those occupying and using land, particularly the poor and women, to risks resulting from tenure insecurity. Customary practices in land management are giving way to market-based statutory systems of land tenure. This development has been accompanied by a significant increase in demand for land for investment; in some countries, this dynamic has caused land users to lose rights and access to their land and other natural resources. Altogether, these trends present governments with significant challenges to effectively govern land tenure and property rights in a way that is socially acceptable and legitimate, and at the same time delivers inclusive economic development.
A key overall finding is the need for more high-quality primary research to develop the evidence base further and allow greater analysis, especially related to impact and development outcomes. There has been little long-term longitudinal follow-up on land interventions and this is an area where DAI would welcome collaboration and further work by development professionals.