1. Property Rights and Land Regularization Edesio Fernandes

2. Law and informality Together with macroeconomic, political and public policy reasons, informal development results from the legal conditions determining the recognition of land rights and the possibilities of legal access to urban land and housing Informal development involves violations of private, public and communal land ownership rights; of urban, environmental and building regulations; of registration requirements; and of taxation provisions Exclusionary land tenure regimes, elitist land development regulations and bureaucratic urban-environmental planning/management systems

3. Land governance A great deal can be done to prevent informal development at the national and at local level through the formulation of an inclusive legal-spatial order Land, urban and housing policies that intervene in the land structure can widen legal access to serviced urban land and housing, breaking the vicious circle producing informal development This requires a land governance process to democratize access to land and housing

4. Regularization policies It is in this broad and integrated context that regularization policies should be discussed They are an important component of the social right to adequate housing and an expression of the legal notion of the social function of private and public property They cannot be the housing policy par excellence

5. What regularization means In principle, residents of consolidated informal settlements should not be evicted or relocated, and should remain on the occupied land, but under more adequate living and housing conditions The relocation of entire consolidated settlements should not be considered by policymakers as a general principle If partial relocation is necessary, housing alternatives must be offered by the authorities and private landowners, and properly negotiated with the residents

6. Permanence in consolidated settlements There is not enough serviced land to make adequate large scale relocation possible; there are not sufficient financial resources for that purpose; the environmental footprint would be enormous; consolidated communities often do not want to be relocated, especially given the rich social and capital networks they have formed over the years; the public authorities have a legal obligation to enable the urban poor to have access to adequate housing; and in many cases, communities already have a legal right to stay where they live, which should be taken into account by policymakers

7. Ways to materialize land regularization Land regularization policies have varied in technical and legal terms in several countries, and the format of regularization policies has reflected the different objectives declared by policymakers Two main legal paradigms that have determined the objectives of most land regularization policies

8. The broad approach 1 An integrated approach has aimed to promote legal security of tenure to the residents together with the sociospatial integration of the areas and communities into the urban structure and society This means not only recognizing legal titles, but also the creation of legal, urban, environmental and social conditions to improve living and housing conditions, as well as the physical and administrative insertion of the settlements within the city and its urban management system

9. The broad approach 2 Legalization policies have been articulated with other inclusive public policies such as upgrading, urban planning regulations, and supporting socioeconomic programs This approach has required a greater qualification of legalization policies to guarantee the permanence of the communities on the regularized land It has been mainly justified by the public authorities’ legal obligation to enable the urban poor to have access to adequate housing

10. The narrow approach Although more dominant, a narrow legalization approach has largely favored the recognition of land tenure to the residents through a more straightforward attribution of individual freehold titles, aiming to enable them to have access to official credit and markets so as to invest in housing consolidation Large scale titling has been justified within the context of poverty alleviation strategies

11. Problems of narrow legalization programs 1 Empirical research has indicated that the expected outcomes of large scale titling policies – access to formal credit, housing improvement, and poverty eradication - have not fully materialized Other serious unanticipated consequences have been identified, namely the impact of titling on growing informal land markets, leading in cases towards gentrification, “eviction by the market”, and further sociospatial segregation; the widespread legalization of unsustainable settlements; the lack of financial sustainability of titling policies; frequent political manipulation of such policies; unnecessary privatization of public land; and serious problems with the registration of the new land titles

12. Problems of narrow legalization programs 2 Positive outcomes have been the promotion of security of tenure to residents and the growing value of titled properties The mere attribution of individual freehold is an important legal option to be considered, but it is not sufficient per se to achieve both security of tenure and sociospatial integration in a combined manner, and it may fail to guarantee the permanence of the communities on the legalized land How to achieve positive outcomes while avoiding negative ones?

13. Reasons to promote legalization Promote full security of tenure and protection against forced eviction; help governments to fulfill obligation to ensure the social right to housing; ensure that proper compensation is paid in cases of relocation; minimize future marital, family, and neighborhood legal conflicts, once existing legal problems have been sorted out; clarify land and property regimes and facilitate future investments by residents and others, within the conditions imposed by regularization policies; facilitate to some extent the materialization of the economic contents of the residents’ rights and assets, if not by easily offering their properties as collateral, by improving access to other types of formal credit, in shops and suchlike; strengthen communities, recognize basic citizenship rights, and promote sociopolitical stability; redress gender imbalance; promote a more coherent inscription of land plots and constructions into the local property tax system; etc.

14. Set of legalization options 1 Individual freehold; full individual and/or collective freehold, which can be obtained mainly through sale or donation of the land by the public authorities, and/or through adverse possession; individual and/or collective leasehold over public land (including variations of emphyteusis such as the Concession of Real Right to Use and Concession of Special Use for Housing Purposes widely used in Brazil); community land trusts (used in Kenya, for example); co-operatives (still influential in Uruguay; land readjustment or land re-plotting schemes aimed at land consolidation;

15. Set of legalization options 2 surface rights; the demarcation of Special Zones of Social Interest the anticretico rights used in Bolivia and in Ecuador, titulos supletorios (supplementary titles) that acknowledge possession, as used, for example, in Nicaragua; temporary permits and/or occupation authorizations (used in Kenya); social rental contracts, etc..

16. Lessons and recommendations 1 Consider land regularization as a component of the land and urban policy, and not as an isolated/sectoral policy in a single branch of administration, articulating remedial regularization policies with preventive land, urban, housing and fiscal policies so as to democratize the legal access to serviced land and housing; Consider regularization programs as part of a broader policy aimed at promoting sociospatial integration, articulating upgrading and legalization programs and socioeconomic programs and other necessary supporting mechanisms; Involve all stakeholders in deciding where/how to formulate regularization programs, as well as considering the payment capacity of occupants, the need for public-private partnerships and other sources of resources such as transfers of development rights and capture of surplus values to fund regularization programs on a larger scale; Contemplate the existence of more than one mode of land tenure legalization, including collective legal solutions; Aim to guarantee the permanence of the communities, without restricting mobility, using urban planning mechanisms

17. Lessons and recommendations 2 Disseminate from the outset the objectives and goals of the program and interventions so as not to create false expectations in the context of unavailable funds and resources; Define specific regulations and proposals for specific areas, particularly by taking into account their different legal problems; Be sensitive to issues of gender; Maintain unity across projects, programs, and strategies; Intervene with the support of geo-referenced information monitoring systems; Maintain the presence of the public authorities after the regularization program is concluded, including by incorporating the regularized areas into the city’s cadastres and taxation system.

18. The ultimate lesson The formation of solid sociopolitical pacts is necessary to guarantee successful regularization policies. Governments and society must overcome prejudices and ensure legal access to serviced land and adequate housing to the poor Given the scope/gravity of the phenomenon, solutions can be left neither to the market forces alone, nor to the public authorities alone either Proper responses will require national/public regularization policies, involving all stakeholders, with support from international development agencies and financial institutions. Intergovernmental articulation, partnership between the private, community, and voluntary sectors are fundamental This should be promoted within the context of a clearly defined, comprehensive and articulated land governance framework – and strong leadership is always of utmost importance Progress in the field of land regularization will depend on the social mobilization of the communities involved, especially by articulating a solid discourse of land rights