LAND TENURE SYSTEMS

Introduction
Land tenure plays a vital role in achieving sustainable urban and rural development. Land
tenure provides the legal and normative framework within which all agricultural as well as
other economics activities are conducted.

Definition:
The term land tenure is derived from the Latin word tenere which means “to hold.” Tenure
defines the social relations between people in respect of the object of the tenure, in this case
land. Tenure also defines the methods by which individuals or groups acquire hold transfer or
transmit property rights in land Land tenure is the relationship, whether legally or customarily
defined, among people, as individuals or groups, with respect to land. These relationships are
dynamic and change with cultural and societal developments.

Figure 1: A Western view of the changing humankind to land relationship

(Feudalism was associated with the fiscal cadastre and the development of the individual tenure. The
industrial revolution of the 17th Century precipitated the on-set of land markets and Torrens system; while
the information revolution of 1980s created the subdivision of land, the concept of Agenda 21 and
sustainable development, and the multipurpose cadastre.)

Land tenure systems according to UN-HABITAT are considered as the ‘sets of formal or
informal rules and institutions which determines access to, and control over land and natural
resources’. The rules of tenure reflect the power structure of society and describe how access
is granted through the rights to use, control and transfer of land, as well as associated
responsibilities and restraints.

Rights in land are defined and regulated within these prevailing tenure systems. Land rights
could involve combinations of different elements such as these might include among others,
the right: to occupy, enjoy and use; restrict or exclude others; transfer, sell, purchase, grant or
loan; inherit or bequeath; develop or improve; rent and sublet. Land may at times have some
restrictions that might preclude the users to transfer the rights to another person. While these

1|Page Land tenure notes

restrictions might not necessarily obstruct the tenure security of the land holder, it has the
potential to undermine it.

Land Tenure embraces institutional arrangements pertaining to property rights, which may be
legally established, customary, or enforced by a combination of both.

Tenure practices are based on two broad classifications of formal and informal land tenure.
Recent developments emphasise that the distinctions are blurred between the different
practices, hence the new concept of land tenure continuum. It recognizes that a continuum of
tenure exists in terms of social tenure relationships, such as occupancy, usufruct, informal
rights, customary rights, indigenous right and nomadic rights. In the same way, parties holding
the rights may not only be natural or legal persons, but could be a family, tribe, community,
village, or a farmers´ cooperative.

Figure 2: Continuum of land rights (UN-Habitat, 2008).

The prevailing legislative framework in each national jurisdiction determines, in varying

degrees, the legality of these different tenural practices. The developed countries sit at the high
end of the continuum with majorities of the citizen holding freehold titles. However, in
developing countries, lands right derived from the custom is dominant. They are considered
secured in some instances, especially where there are less interference of urbanisation, ribbon
development and the predominance of cash crops

TYPES OF LAND TENURE

Land tenure is often categorised as:

Private land
The assignment of rights to a private party who may be an individual, a married couple, a
group of people, or a corporate body such as a commercial entity or non-profit organization.
For example, within a community, individual families may have exclusive rights to residential
parcels, agricultural parcels and certain trees. Other members of the community can be
excluded from using these resources without the consent of those who hold the rights.
Freehold: This tenure confers the greatest interest in land called absolute right of ownership
or possession of land for an indefinite period of time, or in perpetuity.

2|Page Land tenure notes

Freehold land was governed by the Registered Land Act (RLA) Cap 300 of the Laws of Kenya
this laws has been repealed and now governed by Land Act 2012 and land registration Act,
2012. The Act provided that the registration of a person as the proprietor of the land vested in
that person the absolute ownership of that land together with all rights, privileges relating
thereto. A freehold title generally has no restriction as to the use and occupation but in practice
there are conditional freeholds, which restrict the use for say agricultural or ranching purposes
only.

Land individualization was demanded by the colonial settlers who required legal guarantee for
the private ownership of land without which they were reluctant to invest. The principle for
privatisation was hence laid down and implemented as from 1956 mainly in central province.
To date most of the agricultural regimes with high potential such as western province, Kericho,
Uasin Gishu, Embu, Meru, Machakos and Kisii districts have been completely adjudicated and
registered.

With regard to the areas with lower agricultural potential, mostly arid and semi-arid parts of
the country where the dominant land use as pastoralism, a different registration system was
instituted in 1968. This is the regime of land (group representatives) Act, since this has been
repealed and now will be governed under Community Land Act. Here the registration of group
ranches was viewed as a compromise between individual ownership and the need for access to
wider resources in dry lands. Under this system ‘communal lands’ was divided into smaller
units ‘ranches,’ which are then registered in the names of group representatives (three to ten
members) elected by the members of the group.
Every member of the group has rights in the ownership for the group land in undivided shares.
The members are entitled to reside therein free of charge with their family and dependants and
make exclusive use for the grouped ranches resources. This appears to a marriage between the
need to have exclusive use of an area of land and the communal ownership and use of land in
these areas.

Leasehold is an interest in land for a definite term of years and may be granted by a freeholder
usually subject to the payment of a fee or rent and is subject also to certain conditions which
must be observed. e.g. relating to developments and usage.
Leases are also granted by the government for government land, the local authorities for trust
land and by individuals or organisations owning freehold land. The maximum term of
government leases granted in Kenya was 999 years for agricultural land and 99 years for urban
plots though this has reduced to a maximum of 99 years for both areas. Most cases now are of
33 years leases granted by government in respect of urban public lands. The local authorities
have granted leases for 50 and 30 years and even less.

Communal/ Community land:

It is a right of commons, may exist within a community where each member has a right to use
independently the holdings of the community. This refers to unwritten land ownership practices
by certain communities under customary law. Kenya being a diverse country in terms of its
ethnic composition has multiple customary tenure systems, which vary mainly due to different
agricultural practices, climatic conditions and cultural practices. However most customary
tenure systems exhibit a number of similar characteristics as follows:
First, individuals or groups by virtue of their membership in some social unit of production or
political community have guaranteed rights of access to land and other natural resources.
Individuals or families thus claim property rights by virtue of their affiliation to the group.

3|Page Land tenure notes

Secondly, rights of control are rested in the political authority of the unit or community. This
control is derived from sovereignty over the area in which the relevant resources are located.
Control is for the purpose of guaranteeing access to the resources and is redistributive both
spartially and intergenerationally. Its administrative component entails the power to allocate
land and other resources within the group, regulate their use and defend them against outsiders.

Thirdly, rights analogous to private property accrue to individuals out of their investment of
labour in harnessing, utilizing and maintaining the resource. Thus the present cultivator of some
piece of land has the greatest rights to it. These rights transcend mere usufruct and encompass
transmission and in some communities transfer.

Lastly, resources that do not require extensive investment of labour or which by their nature
had to be shared, for example, common pasturage are controlled and managed by the relevant
political authority. Every individual member of the political community has guaranteed equal
rights of access thereto.

The regulatory mechanisms imposed by the political units such as exclusion of outsiders,
seasonal variations in land use and social pressure ensured sustainable resource utilization. This
mode of ownership in Kenya was formerly governed by the Trust Land Act but currently it is
under Community Land Act by which all land in the rural areas which is neither government
land nor individually owned was vested in the county council but currently vested in County
Land Board vest in trust for the residents living there.

Open access:
Specific rights are not assigned to anyone and no-one can be excluded. This typically includes
marine tenure where access to the high seas is generally open to anyone; it may include
rangelands, forests, etc, where there may be free access to the resources for all. (An important
difference between open access and communal systems is that under a communal system non-
members of the community are excluded from using the common areas.)
State/public land:

Property rights are assigned to some authority in the public sector. For example, in some
countries, forest lands may fall under the mandate of the state, whether at a central or
decentralised level of government. This is where land owned by the Government for her own
purpose and which includes unutilised or unalienated government land reserved for future use
by the Government itself or may be available to the general public for various uses. The land
was administered under the Government lands Act Cap 280 whereas now repealed and replaced
by Land Act 2012.These lands were vested in the president and who had, normally through the
Commissioner of Lands, powers to allocate or make grants of any estates, interests or rights in
or over unalienated government land. Categories of government land include forest reserves,
other government reserves, alienated and unalienated government land, national parks,
townships and other urban centres and open water bodies.
The Government Lands Act did not contain any notion of trusteeship by government of the
land to her people. Indeed the government at times used to act as a private owner and allocated
parcels to those in its favour.
With the Constitution 2010 and Land Act 2012 this has changed, where the land is no longer
vested in the president but to the people of Kenya and managed on behalf of Kenya by National

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Land Commission who draws there mandate from NLC Act, 2012. This has created a
trusteeship that was formerly not there almost guaranteeing good governance of public land.

Other rights include

 Minor interest such as easements (An easement is a right that someone holds over land
owned by somebody else. Easements are attached to the land and are normally created
by deed. They may also be registered on the title as held by the Land Registry. They
are often considered to last in perpetuity but can be extinguished and some may also be
time limited. Examples of easements include the right of access and the right for
services to pass beneath neighbouring property.), wayleaves (A wayleave is an
agreement between a land owner or occupier and a third party, permitting that third
party to do something for example to access the land to carry out works in return for
compensation. Typically, they could be used to allow utility companies to install cables
or pipework under, on or over the land, with the right of access for maintenance and
repair. The compensatory payment can take the form of a lump sum but is usually an
annual payment.) or temporary occupation licences (temporary worksite).
 Non formalised defacto tenure by which people, individually or in groups invade and
occupy other people or government land particularly in major urban centres of Nairobi,
Mombasa and Kisumu.

Different kinds of rights can be found within a land tenure system, such as:
 Right to ownership: the owner is entitled to use, control and dispose of the property.
 Right to use:
- Right to access: for example, an easement confers the right to use the real property of
another for a specific purpose (for example, access to another property)
- Usufructuary right: Refers to the right of one individual to use and enjoy the property
of another, provided its substance is neither impaired nor altered (for example, rights to
use water from a stream for household use).
- Right to exploit: For example, a profit a prendre is the right of persons to share in the
land owned by another, enabling a person to take part of the soil or produce of land that
someone else owns (for example, a logging concession).
 Right to control, ie. Entitled to make decisions about how land should be used.
 Right to transfer, ie. Entitled to sell, inherit and/or reallocate property rights.
A duty not to use the land in a way that is harmful to other members of society, (i.e., the right
is held by those who do not hold the right to use the land).
A duty to surrender the rights to the land when they are taken away through a lawful action,
(e.g., in a case of insolvency where the right is held by the creditors, or in the case of default
on tax payments where the right is held by the state).

5|Page Land tenure notes

Table 1: Rights in land are defined and regulated within these prevailing tenure systems.

System Characteristics Advantages Limitations

Freehold Ownership in High degree of Costs of access
perpetuity security. generally high.
Registered Leasehold Ownership for a As secure as freehold, Requires legal
specified period from but only for the period framework. Costs of
a few months to 999 specified in the lease. access generally high.
years.
Public rental Rental occupation of Provides a high Limited supply may
state-owned land or degree of security, restrict access. Often
house providing terms and badly located for
conditions ofaccess to livelihoods.
occupation are met. Terms often
restrictive.
Deterioration may
result if maintenance
costs not met.
Private rental Rental of privately Good security if Open to abuse by
owned land or protected by legally disreputable owners.
property. enforceable contract.
Co-operative tenure Ownership is vested Good security. Requires a proper
in the cooperative or Maintains social legal framework.
group of which cohesion.
residents are co-
owners
Customary Ownership is vested Widely accepted. May lose its legal
ownership in the tribe, group, Simple to administer. status in urban areas.
community or family. Maintains social Vulnerable to abuse
cohesion. under pressure of
urban and market
development
Religious tenure Islamic tenure has Facilitates Because they are
systems four main categories. family/group tenures outside the
(e.g. Islamic) and accessible and commercial land
affordable land market lands are often
management inefficiently
procedures managed. Inheritance
may cause conflict
Intermediate, or There are many Reasonable security Costs may be incurred
temporary, tenure pragmatic for households to by authorities or
systems Arrangements: land invest, whilst residents if relocation
certification, protecting long term is required. If these
‘Certificates of public interest options prove excessive,
Comfort’, Temporary for change. redevelopment
Occupation Licenses, can be inhibited.
etc.
Non-formal tenure These include many Some of these non- As demand has
systems categories with formal categories, intensified, even these
varying degrees of such as squatting, informal tenure
legality or illegality. started as a response categories have
They include become

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 regularised and un- to the inability of commercialised, so
regularised squatting, public allocation. that access by lower
unauthorised income groups is
increasingly
constrained.

Religious land tenure systems

In some societies, land is owned and managed by religious authorities, as in many Islamic
countries. There are four main categories of land tenure within Islamic societies. ‘Waqf’ land
is land ‗held for God‘, whilst `mulk', or private lands, are also protected in law; `miri', or state
controlled land which carries `tassruf' or usufruct rights, is increasingly common, whilst
`musha', or communal lands, are gradually ceasing to be a major factor under the requirement
by land registries that ownership of land parcels has to be proven. The religious foundations of
the Waqf hold substantial areas of land in some cities, notably Baghdad and Beirut, which are
protected from legislative encroachment. Because they cannot be repossessed, waqf lands
become an impediment to urban renewal and efficient land management.

DE JURE AND DEFACTO TENURE SYSTEMS

According to van Gelder, (2010) tenure security can be based on one’s perception; allocation
of property rights (de jure) and/or the actual circumstances of a tenure situation (de facto). In
the de jure approach the property rights of the owner are in a title and in case of any breach,
the government can step in to solve. De facto is defined by the intrinsic characteristics based
on the length of time in a settlement, the size of the settlement and the community solidarity.
On the other hand, the extrinsic characteristics would be the support by the media, political
acceptance or organisational practises that eventually lead to it’s recognition although without
provision of rights. Perceived tenure insecurity is when an individual lives with the riskiness
of probable eviction by state, land owner or conflicts with family, neighbours or gangs.

SECURITY OF LAND TENURE

Secure tenure is the right of all individuals and groups to effective protection by the state
against forced evictions, i.e. under international law, ―the permanent or temporary removal
against their will of individuals, families and/communities from the home and/or the land they
occupy, without the provision of, and access to, appropriate form of legal or other protection.
Security of tenure derives from the fact that the right of access to and use of the land and
property is underwritten by a known set of rules, and that this right is justiciable. The tenure
can be affected in a variety of ways, depending on constitutional and legal framework, social
norms, cultural values and, to some extent, individual preference. In summary, a person or
household can be said to have secure tenure when they are protected from involuntary removal
from their land or residence by the State, except in exceptional circumstances, and then only

7|Page Land tenure notes

by means of a known and agreed legal procedure, which must itself be objective, equally
applicable, contestable and independent‖. In order to take into account the perception of tenure
security by people and communities, the definition of tenure security has been expanded by
incorporating in the definition the degree of confidence that land users will not be arbitrarily
deprived of the rights they enjoy over land and the economic benefits that flow from it.

Why tenure and tenure security are important

Empirical studies carried out in low- and middle-income cities over the last decade indicate
that security of tenure is also one of the most effective tools for alleviating poverty.

 People living in fear of eviction are less likely to realize their full potential as workers
or as citizens are unlikely to invest in improving their homes and neighbourhoods;
 External investment and improvement of other services such as water and sanitation is
likely to be reduced; and
 Excluding a significant portion of urban households from legal shelter reduces the
prospects of a city‘s economic development

Land Registration

- process of recording legally recognised interests (ownership and/or use) in land

- (who and how)

OWNER Who ?

RIGHT
(TITLE) How ?

Where ?
PARCEL How much ?

Land registration provides the framework and means for recognising formalised land
ownership rights and for regulating the transfer of land rights. The processes of land registration
have become an integral part of land tenure as ownership issues became more apparent.
Most often, documents on interests in land as well as information about the nature, the
geographic description and the personal information about individuals to whom the interests
relates, is kept in the land register. The prospects as well as the constraints of achieving this
‘reflect the history, culture, level of development, legal tradition and politics’ and the prevailing
land tenure arrangement.

However, irrespective of the level of development, land tenure and the registration systems are
considered to impact the land delivery processes for different purposes, especially the process

8|Page Land tenure notes

of obtaining development right. The efficiency and effectiveness of managing these, as it would
appear, have significant implications for land value.

TYPES OF TENURE REGISTRATION

Registration of deeds
A copy of all agreements that affect the ownership and possession of the land must be registered
at the registry offices and one copy of all documents is retained. Each document will normally
have been checked by a notary or authorized lawyer and its validity ascertained. As a result, by
searching the registry for the most recent document of transfer, any would-be purchaser should
feel confident that the vendor has the right to sell. Inspection of the register will show how the
vendor obtained the property and the conditions under which it was acquired. This of course
provides no proof that the previous transaction was legitimate, hence the transaction before that
should be inspected, and so on through a sequence of inspections until the purchaser is
confident that there is a clear chain of title.

An ideal system would reflect perfectly the legal position on the ground (the mirror principle),
draw a curtain over all previous dealings so that only the present entries on the register need be
consulted (the curtain principle), and guarantee the accuracy of what is shown on the registers
(the insurance principle). It is difficult for a deeds registration system to conform with all these
principles.

On its own, the system gives no guarantee of title; it merely provides access to the history of
transfers, some of which may in practice be missing depending on the history of the system;
possible disasters may have occurred, for instance, during the Second World War when many
records were destroyed.

A further objection to deeds registration is that it leads to the storage of vast quantities of
ancient documents, creating what has been referred to as a “mausoleum of parchment”. Not
only is this costly but the retrieval of data can also be difficult and time-consuming, depending
on the volumes of documents stored. With computers it is of course possible to store and
retrieve rapidly large amounts of data and although the conversion of old documents into digital
form is potentially expensive, the costs are much less than in the past. By applying modern
technology, such as the scanning and micro-filming of documents, and by adopting appropriate
administrative routines, deeds registry systems can now offer an efficient and reliable service.

Registration of title
An alternative to the registration of documents is the registration -of title to land. In this system
each land parcel is identified on a map and the rights associated with it are recorded on the
register. In addition, the name of the owner is recorded. When the whole of the land is subject
to transfer, only the name of the owner need be changed. When part of the land is transferred,
the plans must be amended and new documents issued. Although ; 1 copy of the certificate of
title for each land parcel is held by the landowner or by the mortgagee in the case of’ land that
has been used as collateral, the definitive record is that held by the titles registry.
Under such a system the ownership of land can be guaranteed. Anyone who is dispossessed of
land through the functioning of the registers will be compensated even though the mistake was
not made by the registry but rather was a case of fraud.

9|Page Land tenure notes

The Torrens system is essentially simple and relatively cheap to operate. Transfers of whole
land parcels can take place without any lawyers being involved, although in practice many
people choose to take professional advice when dealing in land.
Both systems of registration of title and registration of deeds evolved to meet the needs for
improved conveyancing. Both were devised to provide greater security to the land market and
both grew from a legal rather than a land management perspective.
A compromise between the two systems is possible, drawing on the strengths of each approach.
A number of countries, for example Kenya, combine land ownership and mortgage data in one
register, while other information such as that relating to property boundaries is recorded in
separate documents. In some countries the data on mortgages or hypothecs are maintained in
separate registers that have to be checked independently when transactions are taking place.

Characteristics of a good land registration system

A system for recording land ownership should:
 Contain a legal definition of real property units that accurately reflects conditions on
the ground;
 Facilitate land transfer through a system that is simple, secure, and cheap to operate;
 Eliminate the need for extensive searching for a chain of titles;
 Be supported by legislation that requires it to be kept up to date at all times, for example
when mutations occur;
 Meet local needs;
 Record specific real property rights, ownership and restrictions on ownership that are
not otherwise transparent;
 Cover all land, including that held by the State as well as by individual private citizens
or institutions.

Neither deeds registration nor title registration systems are concerned directly with land use,
though some indication of this may appear in the property description. Furthermore, neither
system addresses all of the land rights. Rights restricted by municipalities under development
control regulations are rarely incorporated. Similarly, the systems do not necessarily provide
information about land values. In many cases, the price paid for properties as declared in
transfer documents is used as a basis for charging for the service, and for government-imposed
levies such as a land transfer tax or capital gains tax. The declared price may differ from the
real price so that the vendors or purchasers can reduce or evade paying what may be seen as
too high a tax.

In order to begin the compilation of a land register, whether it is under a deeds registration or
a titles registration system, there needs to be some mechanism to bring land onto the registers.
In both systems one trigger mechanism is a dealing in the land, for instance a sale or when a
mortgage is taken out. For deeds registration that is all that is technically required, since the
system merely records documents.

It is a prerequisite in either system that landowners and the general public understand the
process sufficiently to have confidence in it. There is often a fear that a Government introducing
a system may seek to take land away from people rather than confirm the rights that they have.
Once data are on the registers, the records must at all times be kept up to date. In some countries
the system of inheritance makes this difficult, especially where ownership is shared between
heirs. The relatives of a deceased landowner may also not record their inheritance, either
through ignorance, a misunderstanding of the procedures, or a wish to avoid payment of death
duties or taxes.

10 | P a g e Land tenure notes

Procedure for Acquisition of Private Land in Kenya
In practice, the procedure for acquiring an interest in private land is to enter into a contract for
the sale and purchase of the land with a defined completion period. The process is subject to
freedom of contract but there are also guidelines from the Law Society of Kenya (LSK), set
out in the Law Society of Kenya Conditions of Sale, to guide the legal practitioners facilitating
land transactions. The key stages are as follows:
(i) Payment of the deposit and signing of the sale agreement;
(ii) Preparation to complete;
(iii) Completion; and
(iv) Registration.

(i) Deposit
A deposit is usually ten per cent (10%) of the purchase price, and is paid by the purchaser as a
commitment to the transaction.
Before paying the deposit, it is imperative to carry out a search of the Register and obtain a
Certificate of Official Search, to ascertain the true owner of the land, Section 29 of the Land
Registration Act provides that every proprietor at the time of acquiring a land, lease, or charge
shall be deemed to have had notice of every entry in the register relating to the land, lease, or
charge.
The deposit will often be held by the vendor’s lawyer prior to completion of the transaction.
Although the vendor may want the money released to them, this is not considered good
practice: in the event that the transaction fails, the purchaser would be left only with the option
of suing for the return of the deposit. However, if the deposit is held by a lawyer, it will be
available for return to the purchaser.
Once the deposit is paid, both parties sign the sale agreement. A period of time is also allowed
for the transaction to complete.
(ii) Preparation to Complete
The sale agreement will provide for a completion period, usually of 90 days. The agreement
should specify how completion will take place - whether by:
exchange of title, the instrument of transfer and completion documents with the funds in
respect of the balance of purchase price; or
by exchange of the documents with an undertaking.
In the period between signing of the agreement and the completion date, the Vendor pays the
outgoings on the property, such as land rent for leaseholds and rates for properties in

11 | P a g e Land tenure notes

municipalities. The Vendor also procures the clearances and consents necessary to register the
title in favour of the purchaser.
(iii) Completion
On or before the date set for completion, the Vendor’s lawyer procures the transfer executed
by the Vendor in favour of the Purchaser, and sends a copy of this to the Purchaser’s lawyer as
an indication of the Vendor’s readiness to complete. The Purchaser will then pay the balance
of purchase price to the Vendor’s lawyers. In exchange, the Vendor’s lawyer sends to the
Purchaser’s lawyers all the documents that are necessary for the Purchaser to register the title
in the Purchaser’s name. In the event that completion is by undertaking, the documents will be
sent in exchange of the undertaking. Ideally, the Vendor’s lawyer should hold the balance of
the purchase price and the balance until the Title is in the name of the Purchaser and then
thereafter release it to the Vendor.
(iv) Registration
Upon receipt of the documents from the Vendor’s lawyers. The Purchaser’s lawyer then
proceeds to pay stamp duty on the transaction. This is usually assessed at 4% of the purchase
price for land in municipalities and towns, and 2% for land in rural areas. Before the transfer
is registered, a government valuer will assess the property to confirm that sufficient stamp duty
was paid against the value of the property. After valuation, the Purchaser’s lawyer goes ahead
to present all the documents to the Registrar of Lands, then the transfer is registered and the
title issued, reflecting the changed ownership of the land.
The Certificate of Title issued by the Registrar upon registration or issued to a purchaser of
land upon a transfer or transmission by the proprietor is prima facie evidence that the proprietor
is the absolute indefeasible owner of the land subject to any encumbrances noted on the register.
7Under Section 81 of the Land Registration Act, any person suffering damage by reason of an
error in a copy of or extract from the register is entitled to indemnity from the Government.
LAND SUBDIVISION
- Get map
- Subdivide
- Land control board ( owner, family witness, plus other officials)
- Mutation form, document filled
- Land registry
- Cost depends on size, township fixed survey or general boundary

CHANGES IN CUSTOMARY LAND TENURE SYSTEMS IN AFRICA

Customary “law” is a body of (usually unwritten) rules founding its legitimacy in “tradition”,
i.e. in its claim to have been applied for time immemorial. The content of customary law is
extremely diverse, possibly changing from village to village. Also, customary rules are not
static, but continually evolving as a result of diverse factors like cultural interactions,
population pressures, socio-economic change and political processes.

12 | P a g e Land tenure notes

The African continent is experiencing major processes of social transformation. Population
pressure is increasing in many parts of Africa, and competition over land is rising as a result.
Urban settlements are growing fast, encroaching on agricultural land and attracting youths from
rural areas. In many places, livelihoods are changing, including towards greater diversification
– with many rural households increasingly relying on a range of off-farm activities in rural
areas, as well as on income from urban areas.

THE DRIVERS OF CHANGE

1. DEMOGRAPHIC CHANGE
Over the past decades, many parts of Africa have experienced strong demographic growth.
Population growth rates seem in line with continent-wide average rates in countries like Kenya,
Mozambique, Rwanda and Tanzania; but are consistently above average in Mali, Niger and
Uganda, and substantially below in countries worst affected by HIV/AIDS (e.g. Botswana,
Lesotho).
Demographic growth may have profound implications for land tenure arrangements. By
changing the ratio between labour and land, it can lead to increased competition over more
scarce land resources. According to the so-called “evolutionary theory of land rights”,
demographic growth and agricultural intensification increase the value of land and lead to a
progressive transition from communal tenure toward greater individualisation of land rights.
This entails the concentration of the bundle of rights in the hands of a single right holder, and
translates into increasingly monetarised access to land through sales and rental.
2. URBANISATION
Across Africa, urban centres are growing fast. While in 1950 only 14.9% of the continent’s
population lived in urban settlements, 39.7% did so in 2005 and 53.5% are expected to do so
by 2030. Population growth is stronger in towns (3.56%) than in rural areas (1.34%). While
South Africa was substantially urbanised in 1950 already, other countries have witnessed major
change (the urban population jumped from 2.5 to 52.5% in Botswana). Current levels of
urbanisation also vary (from Uganda’s 12.4% to South Africa’s 57.9%). Such increasing
urbanisation has important implications for land use and tenure. Unregulated urban expansion
entails the conversion of land from agricultural to residential use. These processes are usually
accompanied by the erosion of customary tenure systems and the emergence or consolidation
of more individualised forms of tenure. Urbanisation also fosters demand for food products in
towns, which in turn boosts processes of agricultural intensification and commercialisation in
peri-urban areas (Cotula et al., 2004). Many field studies from peri-urban areas have shown
that subsistence food crops, largely cultivated by women, are being replaced by male
dominated food production which is oriented towards marketing produce in neighbouring
towns. In these areas, customary land tenure is becoming increasingly individualised, informal
land markets are growing, land values soaring and disputes increasing (see for instance
Mengho, 1999 on Brazzaville; Fodouop, 1999, on Cameroon; N’Bessa, 1999, on Cotonou).
These processes of change in land relations in peri-urban areas can be accelerated by urban
elites (public officials, businessmen, politicians, etc.) seeking to buy land, either for personal
use (residential or commercial agriculture) or, often, for speculation purposes. As land values
rise, farmers may be forced or tempted to sell their land.

13 | P a g e Land tenure notes

Where land is still under customary chiefs, these may be tempted to sell off lands for housing
and other developments, regardless of the views of those actually farming this land (Cotula et
al., 2004). Further from urban centres, small farmers are facing increased pressures from agri-
business interests, that seek land to satisfy urban demand for food or to produce cash crops (see
e.g. the spread of commercial flower farming around Addis Adaba) (Cotula et al., 2004).
Finally, in much of sub-Saharan Africa, this process of rapid urbanisation is affecting land
relations in rural areas. Many rural households crucially depend on urban incomes for their
livelihoods, as a result of the substantial migration from rural to urban areas. In countries as
diverse as Nigeria, Mali and Tanzania, remittances from rural-urban migration have helped
diversify livelihoods in rural areas

3. INTEGRATION IN THE WORLD ECONOMY

Trade between Africa and other parts of the world is not a new phenomenon. For many
centuries, traders exchanged goods by sea and across the Sahara. Such exchanges increased
with colonialism, and many newly independent states were highly dependent on the exportation
of a limited number of commodities and on preferential access to European markets. In recent
years, many African countries have eased restrictions on international trade and intensified
efforts to attract foreign investment. Since the 1980s, most countries underwent structural
adjustment programmes that entailed, among other things, trade liberalisation. Many countries
have joined the WTO, which entails not only access to international markets but also
liberalisation of imports (albeit under the “special and differentiated treatment” for “least
developed countries”). Longstanding trade preferences with Europe are also being renegotiated
as reciprocal free trade agreements, while the privileged market access provided by those
arrangements is being eroded as a result of multilateral liberalisation under the WTO. At a
global level, Africa’s share of world trade remains very small. In 1999, Africa generated 2%
of world exports (Toulmin and Wisner, 2005, using UN data). However, for many African
countries, the relative importance of international trade has grown over the past decade, and
the level of integration in the world economy is increasing (see Table 2.4).
In valuable lands, crops are being replaced by cash crops (e.g. cocoa in Ghana since the
1940s and mangos and pineapples more recently; flower farming in parts of Kenya and
Ethiopia over the past ten years). These processes may have important implications for land
tenure arrangements at the local level. Export crops may increase the value of the land and
trigger processes of individualisation of tenure, reinterpretation of the land tenure
prerogatives of the customary chiefs (from custodianship to ownership), and land disputes (e.g.
on Ghana, see Mortimore, 1997, and Amanor, 1999).
These international financial flows may affect local land relations. The linkages between
remittances and access to land are extremely complex and likely to vary considerably from
place to place, depending on the nature of migration, on the local economic, socio cultural and
ecological context, and so on. These linkages can take many different forms, such as:
enabling remittance recipients to purchase land, either formally or informally, especially
in high-value lands (peri-urban areas, irrigated plots);
• enabling remittance recipients to secure their land rights, including by paying for titling

14 | P a g e Land tenure notes

processes, by releasing land through paying out mortgages and, more generally, by
making more productive use of land through hired labour and agricultural inputs (e.g.,
in many francophone West African countries, land rights are conditional upon
productive land use – “mise en valeur”);
• enabling to pay for leases and rentals, particularly where land sales are prohibited, or
where individuals or groups are not prepared to sell family land (e.g., most commonly
for agricultural lands in the Eastern Region of Ghana);
• affecting land loan dynamics, with migrant households temporarily increasing their land
for cultivation by borrowing plots, and with migrant land-owning households who had
lent to others and who are now able to cultivate more land through hired labour and
agricultural inputs claiming back their lands;
• affecting inheritance practices, as grateful testators may favour remittance senders to
other family members (Cotula and Toulmin, 2004).

4. SOCIO-ECONOMIC AND CULTURAL CHANGE

5. HIV/AIDS
6. CONFLICT
7. PUBLIC POLICY AND LEGISLATION

De facto

in fact, whether by right or not.

"the country was de facto divided between two states"
Synonyms:
in practice, in effect, in fact, in reality, really, actually, in actuality
"the republic has been de facto divided into two states

De jure

according to rightful entitlement or claim; by right.

"the resolution declared that the independent Republic of Latvia proclaimed on November
18, 1918 was still in existence de jure"

15 | P a g e Land tenure notes

 SECURE LAND TENURE
ADJUDICATION
Definition : Is the process of ascertaining and determining all rights and liabilities in a parcel
conclusively

 whole country at once impossible

 depending on quality of data
 conversion of existing records
 adjudication (collecting new information)
 what rights exist on the ground?
 not change but confirm existing rights (?)
 procedure of due process of law
 if not totally certain use ‘qualified’ or ‘provisional’ titles
 Information sometimes already available in deeds registries or other archives
 use this as base, but also investigate on the ground
 even start with unregistered deeds/doc’s
 re-activate ‘old’ records (restitute)
 OR start from scratch

Different adjudication methods available

 systematic (whole area at once)
 sporadic (parcel here, parcel there)

SYSTEMATIC SPORADIC

Government initiative Client driven

Good publicity Problem; esp. absentee
High initial investment Low initial investment
Cheaper per parcel Expensive per parcel
Index map Risk of ‘floating parcels’
Creates geo-data set Long wait for integral geo-data set

Experiences with these methods are different for every country and usually a mix of the
strategies would be best
Also a better approach would be

16 | P a g e Land tenure notes

 - for high economic value areas – systematic
- middle value areas – sporadic (voluntary)
- low areas – improve existing system

Provisional title may be issued

- with regard to boundaries
- with regard to the right
- be completed when necessary through a final survey
- grow into full title over time when not contested

LAND REGISTRATION

Definition:
- process of recording legally recognised interests (ownership and/or use) in land
- (who and how)

OWNER Who ?

RIGHT
(TITLE) How ?

Where ?
PARCEL How much ?

Cadastre:

- methodically arranged public inventory of data concerning properties based on a survey

of boundaries (parcel based)
- (where and how much)

System of land registration

17 | P a g e Land tenure notes

 static ‘data’ model

Data collections, with entities

- Person
- Right
- Parcel

Each of which has to be clearly identified

Dynamic ‘process’ model

Adjudication (first registration)

- Project to be undertaken once

Updating

- Continuous process

Transfer (of whole parcel)

Subdivision (property formation)

18 | P a g e Land tenure notes