Land & Property Governance
In many countries, tenure arrangements and land/property administration operate within governance systems that sometimes co-exist or overlap. Due diligence processes must identify the decision-making entities that define rights, resolve disputes, have the authority to allocate land, and understand how different governance systems interact.
These systems include statutory, customary, religious, or a combination (Hybrid).
Statutory
State legislations and institutions, typically through written or codified law.
Customary
Local communities and community leaders through customary practices.
Religious
Religious institutions/religious leaders, sometimes through religious legal structures.
Hybrid
Combination of two or more tenure systems, usually state and non-state tenure systems.
WHAT IS IT?
Ownership Types
Within the governance systems, there are different types of ownership that can be determined by various factors, such as who is allowed own or has access to land/property or who has the authority to allocate land/property, amongst others. In some cases, shelter project recipients are the land/property owners, or the land is communal and the government negotiates directly with the community to allocate land for a project.
In any case, HLP rights will be determined by the kind of tenure arrangement that exists or can be established with the land/property owner(s) or land authority. A key task of HLP due diligence is identifying and verifying who the rightful land/property owner(s) are and determining what kinds of tenure can be secured and are most suitable for the shelter intervention. The common ownership types are outlined below.
Private
Private parties (individual, groups, companies)
State/Private
Governments, ministries
State/Public
Rights not assigned to particular group (roads, forests, marine areas)
Communal/Collective
Shared ownership under joint governance structures.
Tenure Arrangements in Practice
Shelter actors often face complex tenure arrangements and occupancy types under different types of ownership. The following are common tenure arrangements seen in practice.
Land Tenancy
Ownership or rights to a house/shelter on state, private or communally owned land.
Rental
Occupants rent apartment.house from private owner for specified time periods at a given price, typically based on a written or verbal contract.
Use Rights
Persons with permission to use or occupy state, private or communal land/property for housing or use of natural resources under certain conditions.
Occupancy with no legal status
Occupants on state, private or communally owned land/property without explicit permission to be there.
Apartment-owner Occupancy
Occupants own their apartment in a building that is publicly privately or communally owned.
State/Public Land and Property
In some cases, governments or municipalities will allocate land or public buildings to accommodate IDPs, or support regularizing existing settlements so they can receive shelter support. In others, land/property that is owned by the state is identified as a potential site for shelter activities, in which case permission must be obtained.
Due diligence processes must determine the level of engagement that is required (local, municipal, national), who the key stakeholders are and how best to secure HLP rights based on the types of tenure arrangements on state/public land and duration that tenure is required for the shelter project.
Private Land and Property
Tenure arrangements on privately-owned land/property can take many different forms. In some cases, especially urban and peri-urban contexts, host communities are the primary providers of accommodation. This can be characterized by private landowners allotting plots of their land for short-term accommodation or landlords formally or informally granting use rights or renting their properties or apartments/rooms in properties they own.
In other cases, especially returnee situations, IDPs are the land/property owners. In each case, ownership documentation is not always available. Even when land records are available, due diligence efforts must triangulate information with multiple sources and stakeholder groups to verify ownership and obtain permissions.
Communal/Collective Land and Property
Communal or collective rights mean that rights are held jointly by a community typically based on customary practices. Tenure on collectively owned land can sometimes involve individual home ownership on land governed by the community and with communal rights to surrounding resources. Collective ownership is often governed by customary land tenure systems where statutory land tenure systems also govern land administration.
Conducting due diligence in contexts with communal land rights must aim to understand how customary and statutory laws and policies interact and impact collective HLP rights, how ownership or rights are verified and what kinds of land documentation or agreements are recognized.
