Before assessing and evaluating different policies and practices
on land, an analysis is required of the basis of all discussions
on land; namely its tenure. Everywhere, land tenure issues
touch deep human feelings of dependency and inter-dependency
because the supply of land is limited. Land can not be reproduced
except marginally. Each country has its own set of tenurial
rights and practices derived from the cultural, social, political
and ethnical context of the country. An analysis of land
tenure systems has to recognize that there is no "correct"
system and also that some systems may have their origin in
cultural and historical situations that are no longer relevant.
The land tenure systems of many developing countries, for
example, do not facilitate efficient land use, but reinforce
prevailing inequalities of wealth and unequal opportunities.
In many developing countries there is a confusing mixture
of overlapping land laws. Modern legal systems based on non-Asian
concepts, such as the British common law, have to co-exist
with legally adopted customary land laws which are still very
influential in many countries, for example, Indonesia. This
co-existence can make it difficult to determine which system
is applicable for a certain piece of land and sometimes there
are conflicting interests. The integration of modern and customary
systems can only be successful if the fundamentally different
conceptions between the systems as regards the role of
land and land tenure in society is recognized. This tenurial
confusion is further aggrevated by the fact that considerable
amounts of land is encumbered with informal arrangements of
land rights. These informal systems are discussed in the next
sub-chapter.
Doebele (1983) has defined four policy objectives by which
land tenure systems may be judged. These are:
Land tenure systems can be divided into two major categories
on one essential criterion, whether or not anyone other than
the central government (or the Crown) can possess land. Countries
influenced by the Roman law or the Napoleonic Code view land
as a commodity which can be owned while most customary
land laws and countries influenced by the British common law
regard land as something to which one can have rights. Most
land tenure systems in Asia have been strongly influenced
by the concepts of the British common law. However, all countries,
regardless of their tenure system, have restrictions on land
use in the interests of society.
The basic concept of the land tenure system of the British
common law is often described as each land parcel having a
so-called bundle of rights. These rights could include, for
example, a right to build one or many houses, to live on the
land, to farm or to mine on the land as well as a right to
a certain portion of a building (condominium). It is also
possible in many countries to trade in air space where
you, for example, can buy or lease the right to use the air
between 10 and 20 meters above the ground level on a certain
parcel. The right(s) can be either owned indefinitely, freehold,
or leased for a limited period of time, leasehold. Leasehold
can be granted for any number of years and sometimes they
resemble freehold, as for example the 999-year-long leaseholds
granted in Britain after the Battle of Hastings
in 1066. All these rights can be further sub-leased and sub-sub-leased
etc. The bundle of rights concept is an extremely flexible
system and this can sometimes create complications where
colliding or non-compatible rights exist.
The advantages and disadvantages of granting freehold or
leasehold have been discussed at length by academics. It has,
for example, been argued that freehold is more popular among
land developers and bankers because of its unlimited duration.
However, land is a unique type of commodity with very limited
supply in the short run and leaseholds are normally granted
for a considerable amount of time. It is more likely that,
rather than the type of tenure, it is government attitudes
towards the private sector that causes market insecurity.
It has also been argued that the leasehold system requires
valuable educated staff in the management of the system.
However, it is likely that there will be instalments as a
payment for freeholds which will also necessitate staff,
and the same number of officials may be required for registering
both leaseholds and freeholds. Furthermore, leasehold could
be used to a greater degree in solving problems of squatter
settlements on public and private land. Informal settlements could
be provided the security of at least a short-term leasehold.
It can not be denied that freehold does evoke strong cultural
and social support whether it is rational or not. A final
observation would be that land use generally can be controlled
more efficiently and less expensively through conditional
titling (conditional leaseholds and freeholds) than through
legislated planning instruments and development procedures
(Willcox, 1978). Table 4.1 summarizes some of the
advantages of freeholds and leaseholds.
| Advantages with freehold |
Advantages with leasehold |
| Freeholds are perceived as more secure |
Reduction of increase in land prices |
| Less risk for the inefficient and slow processes of
bureaucracies |
Planned and controlled land development is easier
if the government can act as the ultimate owner rather
than a statutory regulator |
| Decreasing readiness to invest towards the end
of a leasehold |
Regular rent review can ensure that capital appreciation
is shared between the public sector and the developer
or tenant |
| Problems related to landlord-tenant disagreements |
Monitoring land transactions is easier with leasehold
clauses (e.g. speculation in sites-and-services schemes) |
| |
Offers possibilities for providing more equity to
disadvantaged groups |
In every city in developing countries, there is typically
a large population of less affluent people residing in squatter
settlements and their numbers are growing. In fact poverty
is increasingly becoming an urban (rather than rural) problem.
A study from the United Nations predicted that 60 per cent
of the urban population of Asia would be living in slums and
squatter settlements by the year 2000 unless drastic reforms
were undertaken (ESCAP, 1994). Whereas squatters illegally
reside on land, slum residents have legal access to the land
through, for example, ownership or lease. A slum is broadly
defined as dilapidated shelter. Furthermore, an informal settlement
can, for example, be an illegal subdivision or squatter
settlement. This chapter will discuss the extent and the main
characteristics of the squatter settlement problem including
the issue of eviction as well as the main policies to remedy
the situation. Specific solutions proposed will be discussed
in the chapter on innovative solutions.
During the 1970s and 1980s low-income groups in the region
faced increasing difficulties in gaining access to affordable
land as land prices increased faster than the average income
and in many cities the prices have sky-rocketed. There were
previously many small actors who provided legal low-income
housing but recently stronger "specialists", land developers,
who are more aware of administrative mechanisms and have
access to more capital, have dominated the market. The commercialization
of land and institutionalization of the housing provision
sector have left squatters with even fewer opportunities to
improve their situation.
Many governments have a tendency not to realize the role
of squatters in, for example, the construction, industrial
and service sector. Economically and politically weak, squatters
provide crucial inexpensive labour for the development
of the booming Asian economies. Instead governments emphasize
the fact that a sizeable land area is occupied by the settlements
as well as the problems related to health, economic and
social issues. However, in terms of micro-economics, squatters
are actually the most intensive users of land both in terms
of population density and economic productivity.
It is important to recognize, however, that there are a number
of informal settlements which are accepted by officials with
varying degree of tolerance. In addition to the classical
squatter settlement with people residing illegally on land,
there are also cases where the owner may have failed to comply
with all the subdivision standards or when the subdivider
may have purchased a plot without being provided
correct information on the tenure from the original landowner.
Usually, a squatter settlement is highly organized despite
being illegal. The occupants have clearly defined behavioral
rules, spatial boundaries and methods of solving tenurial
disagreements. Illegal housing is sold, land is subdivided
and leased, and other transactions are possible as if the
land or housing was legal. The settlement is also typically
recognized by the public or private landowner, and, if
the landowner is private, rents are often transferred. Squatter
settlements have gradually become an integral part of the
urban fabric.
The proximity to income-earning opportunities in the city
centre is normally a crucial issue for the urban poor and,
to gain access to inexpensive centrally-located land for housing,
the urban poor normally have to sacrifice tenure security.
They are forced to encroach on any type of vacant land
illegally (often ill-suited for housing) and to ignore building
and development regulations. Many housing programmes implemented
by governments have failed because they have been located
in the urban fringe where income-earning opportunities normally
are scarce.
Although most Asian countries have signed several international
agreements (please refer to chapter 4.2.3) to discontinue
the practice of eviction and the practice has become less
common since the mass evictions of the 1970s, it is unfortunately
still a reality in most Asian cities. Myanmar, the Philippines
and the Republic of Korea are examples of countries which,
at least until recently, still evicted people on a large scale.
Seoul, in the Republic of Korea, evicted 750,000 during the
period 1985-1988. The Philippines evicted on average 100,000
people each year in 1986-1992 (Murphy, 1993). The present
Government of the Philippines has introduced a new law with
the objective of limiting evictions. In Yangon, Myanmar, 260,000
residents in squatter settlements were subject to forced
resettlement during approximately twelve months in 1988-1989.
They were provided plots and some urban services at their
new locations in the urban periphery (UNCHS, 1990b).
Eviction has three basic impacts on those affected: physical,
economic and psychological. Eviction reduces the housing stock
of the city and ruins the economic value of the housing
which may be small in real terms but big for the individual.
It detaches the squatter from employment opportunities which
are usually nearby or even in the settlement itself. It also
uproots them from the community which functions as an economic
and psychological safety net. The home is the centre of
everybody's lives and eviction, often forceful, is a very traumatic
experience, especially for the children. While the eviction
is a traumatic experience in itself, the most harmful
impact of eviction may actually be the fear of being
evicted. The fear makes people fatalistic, lose confidence
in themselves and discourages them from improving their housing
(Murphy, 1993).
It can not be denied that there are occasions such as
major infrastructure projects where eviction cannot be avoided
and to generally deny landowners the right to evict would
be to, in actual fact, acquire land compulsorily without compensation.
However, evictions should never take place without a dialogue
and solutions which are acceptable to both parties can in
most cases be found. Squatters have often lived on the land
for a very long time, maybe 15-20 years, and they have thereby
acquired an informal right to the land.
There may be many reasons why most governments have become
involved in low-income housing. The reasons may be humanitarian,
functional (a healthy workforce is more productive),
political (less social upheaval) or because governments are
increasingly considering adequate shelter as a basic human
right. Ninety-two nations in the world have signed the International
Covenant on Economic, Social and Cultural Rights and among
these nations were India, the Philippines and Viet Nam (note
that a covenant is the most powerful legal instrument in international
law). The covenant, which acquired legal status in 1976, provides
a legal obligation for these countries to, among other
things, provide adequate shelter (Leckie, 1989).
Governments will be most efficient if they act as facilitators.
The problem of shelter provision is actually more political
and institutional rather than technical. Most observers of
squatter settlements have realized that people will gradually
upgrade their housing over time if they are provided the opportunity.
They will invest capital and labour as well as mobilize their
social network. However, these gradual improvements will only
take place if their housing is considered legitimate.
Provision of land is a key issue to alleviate the shortfall
of housing for the urban poor. In most cities there are
considerable land areas which are suited for housing but not
used intensively. The challenge would be to find and
implement effective strategies for helping the urban poor.
There are already several solutions to the problem of
access to land, ranging from provision of the most basic element,
tenure security (normally the major component of slum upgrading
programmes) to sophisticated sites-and-services programmes
and land readjustment schemes. The urban poor are capable
of improving their housing conditions by themselves if they
are provided some type of security, or at least perceived
security, of tenure. In actual fact, governments wishing to
remedy the housing conditions of the urban poor are left
with only two major - more or less costly - options to provide
more land: (1) legalizing the tenure of illegal settlers
where they are and allowing them to pay below market
prices for the land; and (2) allocating public land to low-income
households at subsidized rates (Douglass and Lee, 1993).
The governments would have to provide land which is reasonably
close to income opportunities and basic amenities in
order to make it a real alternative to squatting.
There are also studies in Bombay and Karachi, for example,
which show that it may not even be necessary to provide tenure.
It was found that when the Government provided services (water,
electricity and sewage) to an area of 250 squatter settlements
in Karachi, and conducted surveys and collected taxes, the
people responded by investing in their houses (van der Linden,
1977).
In the survey, the term freehold has been used as synonomous
to land ownership although this is not true in a strict sense.
However, a freehold does provide the right to use a land parcel
for an indefinite time period and should therefore be fully
comparable with land ownership. It should also be noted that,
according to the replies, data on this issue was rarely available
at the municipalities and the reliability of the figures varies
substantially with some municipalities providing only limited
data or none at all.
The data show that freehold is the most common form of tenure
on residential, commercial and industrial land. The figures
provided by Hué indicate that freehold was the only
type of tenure for these types of land, while it was
about 75 per cent of the land tenure in Dhaka, roughly 63
per cent in Bandung and 56 per cent in Kandy. However, the
level of security provided by a freehold varies substantially
between the municipalities. For example, Hué and Kandy
have expropriated sizable land areas during recent years
for different purposes.
Figure 4.1. Percentage of total
residential, commercial and industrial land with freehold
In 1990, in Bandung, 63 per cent of the land allocated for
residential, commercial and industrial land was freehold.
Bandung also had a system of granting temporary, conditional
and permanent permits for buildings on government land. These
permits were all of relatively short duration (1-10 years).
Dhaka City Corporation estimated that as much as about 75
per cent of land planned for residential, commercial
and industrial use had freehold tenure and a further 15 per
cent had leaseholds with a duration longer than 50 years (some
of the figures were from 1981). Regarding Dhaka, it should
also be noted that the tenure of about 3,000 hectares (13
per cent of the total land area) was disputed.
All residential, commercial and industrial land in Hué
was freehold, while agricultural land was leasehold with typically
a duration of 20 years. The latter constituted a comparatively
large share of Hué's land amounting to almost
60 per cent of the total land area.
About 56 per cent of Kandy's residential, commercial and
industrial land was freehold in 1994. Furthermore regarding
this land use, 18 per cent had a leasehold with a longer duration
than 50 years and only 9 per cent had a leasehold with
a duration of 20 years or shorter. More than one third of
the land in Kandy was a forest sanctuary.
Makati did not provide data on the type of tenure of the
land. However, based on the 1990 census, it is possible to
estimate that about 47 per cent of households occupied land
with freehold and 41 per cent land with leasehold. The remaining
12 per cent occupied the land for free either with or without
the consent of the owner.
The squatter settlements situation in the case-study municipalities
is depicted in figure 4.2. Dhaka had the largest number of
squatters - about 1.1 million people - as well as the highest
proportion of its people living in squatter settlements -
28 per cent. It is probable that some of this sizable
population may actually be residing in slums or informal settlements
rather than in squatter settlements. The proportion of people
living in squatter settlements, based on figures provided
by the municipalities, is very low in Bandung, Kandy,
Makati and Penang - less than three per cent. A general
observation among the case-studies and other cities in the
region, would be that it appears that the number of squatters
to some extent decreases with a higher degree of national
economic affluence.
Figure 4.2. Percentage of the
total population residing in squatter settlements on public
as well as private land 1.
-
- 1 Please note that data
for Makti are estimates.
* Statistics on squatter population living on private land
were not available.
** Statistics on the type of landowner were not available.
Concerning the number of evictions during the latest three-year-period,
evictions were most common in Dhaka, which is both the largest
city and the one with the highest proportion of squatters.
In Dhaka, 65,000 people were evicted from private land and
33,000 from public land during the period 1990-1992. Nine
hundred people were evicted in Bandung (1991-1993), 300 people
were evicted in Kandy (time period not available) and 46 in
Penang (1992-1994). Statistics were only available on evictions
from public land in Kandy and Penang. Two hundred and sixty
families were evicted in Makati (time period not available).
In Makati there is a moratorium (temporary stop) on eviction
except under special circumstances. The moratorium will expire
in March 1995.
A comparison between the total number of squatters and evicted
persons indicates that squatters in Bandung are most likely
to face eviction. The number of evicted persons is almost
three times higher than the total number of squatters. In
Kandy, the ratio is one fifth, while it is about one tenth
in Dhaka and Makati.
All the municipalities including Hué had various policies
in order to alleviate the squatter settlements situation.
The specific programmes of the municipalities are discussed
later in the study. However, none of the cities have adopted
a policy to eradicate the squatter settlement problem or to
abolish evictions despite national governments signing international
agreements.
In Bandung, there was a regulation which required that any
development had to adhere to a 1:3:6-ratio between luxury,
middle (-income) and "simple" housing (low-income). Bandung
municipality also coordinated the building of rental apartments,
"Perumnas" flats, and implemented an extensive Kampung Improvement
Programme. Dhaka City Corporation had two relatively small
sites-and-services schemes as well as a slum upgrading programme
which had benefitted about 5,000 households. Those programmes
were clearly not very extensive when compared with the scale
of the problem in Dhaka.
Hué had several sites-and-services schemes. Recently
the city had implemented a programme to provide land and basic
infrastructure for people living on boats (sampans). Kandy
seemed not to have a serious squatter problem because of the
number of housing schemes which had been introduced.
However, there was a problem of shortage of land within the
city limit and it was extremely difficult to provide
the few existing squatters with a better living environment.
Makati had a housing programme, a slum upgrading programme
as well as other programmes to provide better housing
for low-income people.
Malaysia had a regulation which forced developers to set
aside 25 per cent of the land for low-income housing.
However, the success of this regulation was questioned at
the ESCAP/ACHR/CITYNET Symposium on A Place to Live: Solutions
to Eviction (17 January 1994). Municipal Council of Penang
Island granted increased densities to private developers so
as to facilitate the purchase of housing units by squatters
at a low price. The powerful state government at Penang
also had a policy to provide alternative accommodation to
squatters on state land before they were evicted. The state
provided priority access to low-cost housing for squatters
affected by land development. There were also some housing
resettlements schemes in Penang.
Go to Chapter 5: Land
use and methods to control its use
