TYPOLOGIES OF LAND TENURE AND THEIR IMPACT ON URBAN FORM AND DENSITY IN AFRICA: THE CASE OF ELDORET CITY, KENYA A PAPER FOR THE WORLD BANK LAND CONFERENCE HELD ON 23 – 27 MARCH, 2015 IN WASHINGTON DC. By Rose Musyoka and Herbert Musoga National Land Commission

Organisation of Presentation Introduction Typologies of land tenure Case study Conclusion

Introduction Urban land tenure systems influence land markets and the subsequent development of urban land. Information about land tenure systems is important. Why? – land tenure determines the kind of property rights one may have with respect to land. – it determines the level of supply of urban land, the management of that land and access to it. Consequently, land tenure has a bearing on security of tenure.

Introduction Cont’d All these factors are supposed to operate within an urban land management system that provides a regulatory framework that should guide urban development and, therefore, the form. However, in many African countries there lacks systematic coordination of these factors to achieve positive interaction. This paper discusses the influence of land tenure on supply of urban land, its development with respect to density and urban form.

Understanding Land Tenure It is the mode by which land is held or owned; the set of relationships among people concerning the use of land and its product (Payne, 2002:5). It is the laws, customs and practices governing the rights, duties and relationships of people to land (McAuslan, 1985:19). Land tenure plays a critical role in the investment of labour and capital likely to be made in any land parcel.

Cont’d Closely linked to land tenure are property rights that are recogd interests in land or property vested in an individual or group, which may apply separately to land and to development on it (Payne, 1997:3). In any system of land tenure and property rights, a key factor is the r’ship of an individual to the group, and of different groups to each other and the state, which influences their collective impact on land.

Cont’d Many former British colonies have a dual land tenure system that was est’d during the colonial era, in which Crown lands were governed by English law, while reserves (areas occupied by indigenous people) were under customary law (Doebele, 1983; Wanjala, 1990). Although customary law was initially in rural areas, over time the same was imported to urban centres where now it influences urbanisation.

Cont’d But does the co-existence of indigenous and imported/foreign land tenure systems adversely affect urban management in African Cities? A look at the various types of land tenure could explain this: – Customary land tenure – Private land tenure Freehold & Leasehold – Public land ownership – Non-formal/ De facto tenure

Customary land tenure UN defines customary land tenure as: ‘rights to use or to dispose of use-rights over land, which rest neither on the exercise of brute force nor on the evidence of rights guaranteed by government statute but on the fact that those rights are recognised as legitimate by the community, the rules governing the acquisition and transmission of these rights being usually explicit and generally known though not normally recorded in writing’ (Fisher, 1993 cf. Payne, 1997:3).

CLT Cont’d Characterised by: – Communal ownership, – Members enjoy use rights, – Transmission from one generation to the next, – Access through membership of the community (Mabogunje, 1992), – Ownership is a constraint on those desiring social mobility (UN 1973 Vol. VII), as individuals cannot obtain loans for economic development, since they are unable to use land as collateral, for it belongs to the group.

CLT Cont’d Its effect on urban land management: Urban authorities in some cases prefer areas of customary tenure not to be incorporated within their boundaries. Why? Land may not generate revenue, since it may not be taxed. Not easy for urban authorities to manage the planning and development of this category of land.

CLT Cont’d Tenure may make it difficult to acquire land for public purposes. Why? – There are multiple interests in any piece of land. Perhaps the only advantage for urban authorities: – Is that it eases pressure for land, particularly for residential development. How? By supplying land to group members and others, legally or otherwise.

Private Land Tenure Private tenure is largely an imported concept in African countries and was designed to serve the interests of colonial settlers (Payne, 2001). Ownership is usually either in perpetuity (freehold) or for a specified period (leasehold). Theoretically, it ensures the most efficient and flexible use of land and normally facilitates easy transformation of rural land into urban use, subject to statutory controls and their enforcement.

PLT Cont’d Private tenure is efficient in releasing energies for urban and economic development, because title can be used as collateral for obtaining credit from formal financial institutions (Doebele, 1987; De Soto, 2000). However, it has limitations: – It does not achieve equitable access to land, especially by the lower income groups (Rakodi,1997; Musyoka, 2006).

PLT Cont’d In addition, although private land ownership is intended to achieve the most efficient use of land, it is not always the case. – Many studies on urban land markets in cities in developing countries show that much land is held for speculative purposes instead of being developed (see e.g. Angel et al. 1983; Rakodi, C. and Leduka, C. 2004; Musyoka, 2004).

Freehold Tenure Ownership is outright/absolute so that the right to sell and/or transfer the land is exercised by the owner. Land also transferable through inheritance. Ideally freehold ownership of urban land should lead to optimum use (Doebele,1983), BUT this does not always happen. Why?

FHT Cont’d Inadequate supply of infrastructure. Landowners with large holdings located next to town boundaries enjoy semi-monopolistic location advantages, because of the desirability of such areas for urban expansion. Due to lack of alternative investments, land prices in many developing countries tend to increase more rapidly than other prices.

FH T Cont’d Absolute ownership makes it is more difficult for urban authorities to regulate development on freehold land than in forms of tenure where the public retains a residual interest (McAuslan, 1985). Land owners do not appreciate that their land is subject to planning & development control. Land potentially earns urban authorities some revenue in the form of land rates.

FHT Cont’d However, if land is required for public use, in many instances, public authorities have to buy it from the owners. Thus absolute ownership (freehold rights) tends to impact negatively on urban land management. Absolute ownership rights impede implementation of planning and development control. BUT although FHT cannot guarantee equity in access to land, informal subdivisions on such land may allow low- income households to access plots (Musyoka, 2010).

FHT Cont’d It is these informal subdivisions that impact negatively on the urban form. Why? – They ignore any planning of the area. Often the subdivisions follow roads with the resultant urban form being: – Long stretches that make installation of infrastructure too expensive. Also the subdivisions tend to defy land management regulatory framework. Result? – Very high densities as demand for land determines intensity of subdivision.

Leasehold Tenure Created when a public agency owning land leases or rents it to a private individual or corporate entity for a specified period of time. Terms and conditions usually determine the use of the land and length of the lease. Lessee enjoys certain rights, particularly the right of use, which is supposed to be according to development conditions attached to the lease by the ultimate landlord, usually government.

LHT Cont’d Rights are inheritable but only for the period during which the lease is in force. They are disposable and may be sub-leased. Also, transfer of rights by way of sale, inheritance or use as collateral has to be consented to by the ultimate landlord.

LHT Cont’d Leaseholds use, it is argued, places a public authority in a good position to adapt to changes in urban form and land use patterns. Leaseholds give a government additional leverage, which improves its position in ensuring development conditions are adhered to. Thus as leases expire, the property can simply be released to a lessee who agrees to convert to the most appropriate use.

LHT Cont’d For this reason, leaseholds are considered better for urban land management than freehold tenure as the regulatory framework gets implemented with the lease conditions. Are the conditions always followed? Some, some not: – Speculation – Leapfrog development Leaseholds generate revenue to public authorities in the form of annual land rent paid to the ultimate landlord.

Public Land Ownership State commonly owns all or part of land within its boundaries. In many former British colonies, all the land that was vested in the Crown and had not been privatised during the colonial era was vested in newly formed governments at independence. Such land became public land in the sense that it was held by the government in trust for its citizens.

PLO Cont’d It is this land that, once privatised, becomes leasehold. The concept of public land ownership was partly a reaction to the perceived limitations of private ownership in enabling all sections of society to achieve access to land (Payne, 1997). It was envisaged that, by allocating resources according to perceived need, greater equity would be achieved.

PLO Cont’d The state allocates such land to individuals, corporations and groups of people, following a formal legal framework. BUT system has many limitations. Why? – Because of the demands it places on the capability and integrity of administrative systems. – And their ability to respond efficiently to changes in demand.

PL O Cont’d PLO has generally succeeded in making land available for public purposes such as infrastructure and services, schools, health facilities and open spaces. However, in some countries such as Kenya, public land earmarked for public purposes has been diverted to other uses to benefit private interests (see Republic of Kenya, 2004). Aside from formal categories of land tenure, non- formal categories/de facto tenure also influences urban density and form.

Non-Formal Categories/ De Facto Tenure There is in practice a wide range of categories with varying degrees of legality and security of tenure (Farvacque and McAuslan, 1992:39; Payne, 2001). Non-formal categories include, among others: – unregularised squatting, – unauthorised subdivision on legally or illegally owned land, – non-conformity with planning and building regulations during construction of houses on legally or illegally acquired plots, – various forms of unofficial rental arrangements.

Non- formal Categories Cont’d Non-formal land tenure systems are: – the most common urban tenure category, – accommodate the majority of lower income households in African urban centres, – are expanding more rapidly than any other category. The result is in most cases uncontrolled urban form and densities.

Kenya’s Experience Land can be held under any of the following land tenure systems as enshrined in the Kenya Constitution, 2010: – Public land, – Community land, – Private land Freehold & leasehold Customary- unadjudicated These influence access to land, development and regulation and the subsequent densities and form of the resultant settlements. To illustrate the influence of land tenure on urban form and density, Eldoret is selected as a case study city.

Eldoret Located 312 km North-West of Nairobi in the high- agricultural potential highlands of Uasin Gishu on the main Kenya-Uganda highway. A regional growth centre & commercial hub of Western Kenya. Exhibits varied densities – owe their existence more to land tenure systems than to the town’s regulatory framework.

Location of Eldoret

Eldoret Municipal boundary extensions

Cont’d Inner areas within the 1959 and 1974 municipal boundaries are under leasehold and well planned and better managed. Outer areas municipal boundary incorporated massive agricultural land into the municipality and its management is a challenge Has resulted in linear urban form and high densities not well planned for (see next slide).

Munyaka subdivision scheme plan

Conclusion Land tenure systems have immense influence on urban form and density. Freehold areas tend to lead to linear urban form owing to the ease with which they convert to urban use. Leasehold land tenure facilitates urban land management. However, in some cases the land is held for speculation encouraging leapfrog development.

Conclusion Cont’d Unplanned high densities and urban form compromise safety, present challenges in installation of infrastructure particularly where institutional framework is weak. In Kenya, 2010 Constitution has addressed this weakness by establishing NLC to manage land.

Conclusion Cont’d Encourage leasehold land tenure in urban centres by making it a requirement that any freehold land being converted to urban use effectively loses the freehold interest and automatically acquires leasehold tenure may help to cure some of the problems. This would not only strengthen management of the land being converted, but also regulate urban form and density.

Thank you Karibuni Kenya