On the Level
Security of tenure and the land surveyor.The United States land surveyor has the peculiar task of making a definition of an abstraction. A land title is an abstraction. To define the title to a specific parcel of land we must reconcile what we find for evidence against what the record says about the title, quantify the result, and memorialize our definition by map or plan and by placing markers as a witness to our definition of the abstraction. By the alchemy of the surveyor’s skill we take an abstraction and make it finite.
In all this we recognize that our duty is to define the location and extent of title; determining the quality of title is the lawyer’s duty. We pay close attention to the line between location and quality of title, and sometimes it is a very fine line.
Tenure is another abstraction. According to Black’s Law Dictionary tenure, generally, “is a right, term or mode of holding or occupying...” whereas Black’s defines title, in real property law, as “the means whereby the owner of lands has the just possession of his property. The union of all the elements which constitute ownership.” Land tenure has been explained to be the way in which the rights, restrictions and responsibilities that people have with respect to land are held. The concept of land tenure, then, is not limited to exclusive land ownership, as is implied by the term land title. This distinction, in a practical sense, became apparent in a discussion held recently at a United Nations conference in New York.
A “Discussion of the Global Campaign for Secure Tenure” was organized by the Habitat Professionals’ Forum* in New York in June 2001. More than 40 participants from Uganda, China, Sweden, Lebanon, South Africa, Austria, the United Kingdom and the United States, India, Yemen and Namibia took part in the discussion.
We in the surveying profession in the United States know that security of land tenure is variable depending on a number of elements including record conditions like mortgages, tax liens and eminent domain and off-record conditions like trespass, encroachment, adverse possession and lost or unknown property lines. We have institutions in this country to deal with these issues: title insurance, the real estate bar, the courts and the surveying profession are the warp and woof of the fabric of land tenure security in the States. In other parts of the world it is not so simple. Peoples’ access to land in many countries is limited by conditions of race, gender or national origin—limitations that may be historical/cultural, but may also be imposed by law.
The phenomenon of the “informal settlements” has arisen in several countries, in which large populations of “squatters” settle on land and build shelters out of whatever material is available creating problems of water supply, sanitation, transportation and education. These settlers sometimes find themselves paying rent to “slumlords” who themselves have no secure title to the land. As a result, rents are high even in the informal settlements, the implication being that the slumlords must collect what rent they can while they still control the land for which they have no secure title. The slumlords have no secure title; the settlers have no secure tenure.
During the discussion at the UN the question of the necessity of secure title was raised. A study of 15 nations was cited from which conclusions have been drawn that ownership of land is not a top priority of the poor. Property is important, but title to property is not necessarily important according to this reasoning. Several people spoke to the issue, one suggesting that there are alternative mechanisms, the critical issue being not ownership, but access to land and its usage. Such controls as zoning and regulation, it was argued, may be greater obstacles than lack of secure title. In response, speakers from South Africa made the point that people must own land to be secure, that in their country there is a history of blacks being evicted from land because of a lack of secure title. Furthermore, they said, where people have no secure title in agricultural areas, there is no encouragement to improve the land. And where there is no secure title there is no access to credit and no right of inheritance. All incentive to use the land well and all opportunity to build wealth are obviated by a lack of secure title.
In all this discussion many participants missed the distinction between “ownership” and security of tenure. Secure tenure does not require outright ownership of land. The important issue is access to land; people may have access and rights to the use of land without direct and exclusive ownership. Cooperative and condominium forms can give people marketable and inheritable rights to the use of land without the need for exclusive or separable ownership.
Today in the United States there is no legal bar to access land because of race, gender or national origin. By the same token we have legal provisions for security of tenure in this country. But as surveyors we know that the greatest threat to tenure security is not in the courtroom or the state house but on the land itself. Evidence of trespass, encroachment, adverse possession and property lines is not an abstraction. Of all the characters engaged in real estate transactions the surveying professional is best equipped to identify, measure and quantify those off-record site conditions that may affect the tenure security related to any specific parcel of land. c
*The Habitat Professionals Forum was established in 1999 at the initiative of the International Federation of Housing and Planning (IFHP), the International Society of City and Regional Planners (IsoCaRP), the International Union of Architects (UIA), the International Federation of Surveyors (FIG), the Centre for African Settlement Studies and Development (CASSAD) and the Arab Urban Development Institute (AUDI). The forum was organized under the auspices of the United Nations Commission on Human Settlements (UNCHS-HABITAT).