CADASTRE AS A TOOL FOR IMPLEMENTING LAND POLICY
Prof. Tommy ÖSTERBERG, Sweden
Key words: Cadastre, land policy, land reform, land
consolidation, land acquisition.
Abstract
Starting from the FIG Statement on the Cadastre which defines the
cadastre as an information system for rights, use and values of real
properties, the paper will highlight the importance the cadastre has
as a tool for land reforms in the Scandinavian countries. Based on
that, the paper will also comment on which role the cadastre is
playing for land reforms in South East Asia, e.g. Vietnam and the
Philippines and in Southern Africa, e.g. Zambia and Mozambique.
One conclusion will be that the cadastre in the Scandinavian
countries not only has been an information system, but also a tool to
promote economic and social development through land reforms. Similar
development can be seen in other countries. The cadastre can be an
active tool to support land reforms in many other countries in the
world in order to promote social and economic development in a
sustainable manner.
CADASTRAL STATEMENT
FIG has issued a cadastral statement, which was adopted 1995.
Besides questions related to the cadastre as a land information system
about rights, use and values of land, the statement identifies a
number of cadastral issues. Among these issues are "The role of
cadastral systems in formulating, implementing and monitoring land
policy", which includes the following:
A cadastral system is an information system on land holdings
and use. Therefore it provides excellent opportunities for
identifying problems associated with the development and
implementation of land policies. The Cadastre can monitor and
control matters regarding:
- control of size of parcels both maximum and minimum, for
instance to prevent fragmentation
- control of shape of parcels, to avoid uneconomical design
of parcel layout, road and water systems etc.
- redistribution of land rights to improve social and
economic policies through mutations, land consolidation, land
redistribution etc.
- control of that person with enough skill or training are
allowed access to parcels for a specific purpose, for instance
agriculture, or that for instance low-cost-buildings are
allocated to the right group of people.
- control and measures taken to implement political
programmes to improve women's access to land
- valuation and collection of contribution to improve common
facilities such as roads, water systems etc and for the
collection of ground rents and taxes for local or central
governments.
- influence of development of prices on land through legal
and economical measures
- acquisition of land for public or common purposes.
LAND REFORMS IN RURAL AREAS OF SWEDEN
The interest for land reforms and other types of political
influence on the use of land has varied over time. In the old days,
the government has always shown a keen interest in land use and how
land use rights have been distributed. Agriculture was the far most
important land use and how land were cultivated was of extreme
importance for the social and economic development of the country. The
government had also a more pecuniary interest since the land and
especially the agriculture production was an important base for land
taxes. The government policy tried to counteract fragmentation of land
and instead encourage young people to seek new land for new
development. This was the main land policy for many years and the tool
to implement the policy was mainly the cadastre. The cadastre provided
information on land use and values, which was the base for the
taxation. The cadastre also provided information on how land use
rights were distributed and thus allowing the government to influence
how the land rights were divided through administrative regulations. A
typical regulation could be that a cadastral unit was not allowed to
be split up in parts, whose value was under a certain limit.
However, these types of regulations were not very effective. The
old type of parcelling included a split of every field among the
owners in a village. This type of parcelling together with increasing
populations lead to a more and more fragmented situation in rural
areas. The government then formulated a policy to actively counteract
the situation through comprehensive land consolidation procedures that
in a systematic way was carried out throughout Sweden. Not less than
three consecutive reforms were carried out during the period from 1750
to 1900, the latter more radical than the previous. The tool to carry
out these reforms was a cadastral procedure, which was based on the
skill of the land surveyor to measure the size of the field and to
carry out the valuation. Based on this information it was possible to
document the value of each property and elaborate a new plan where the
value of each property increased, due to a better parcelling
structure. From beginning more technical, the procedure developed also
into a legal procedure, which gave the land surveyor the authority to
decide, under certain conditions, when the land owners could not agree
on certain matters regarding the consolidation. The decision of the
land surveyor had the same authority as a court ruling. In fact the
cadastral procedure became the first instance in the court system
regarding land.
During the 19th century, liberal ideas spread in society and
influenced among others the land policy to large extent. Restrictions
on land use, ownership, subdivision or amalgamation where more and
more abolished and the land market become more and more a free and
open market. The peak of this development occurred around 1900. The
free market on land contributed in many ways to the industrialisation
and the early urbanisation of the country at the same time that the
ongoing land consolidations greatly improved not only the productivity
in agriculture, but also considerably extended the area of cultivated
land. This area was three-doubled during the period of land
consolidation.
The policy started to change towards more regulations in beginning
of the 20th century. The reaction started in the forestry and was
caused by big forest companies buying large tracts of land for
cutting, thus depriving the rural land owners of their long term mean
of survival. A prohibition of companies buying forest land was
established. Instead the companies had to buy the wood from the
farmers.
The industrialisation lead to urbanisation and demand on new land
for urban development. On the other hand, the rural population,
although rapidly decreasing in number, needed to have similar
possibilities to improve its economic situation as the urban
population had. It was therefore necessary to continue a rural land
policy, which facilitated continued consolidation processes of farm
and forestry land. Another reason was that the two World Wars in the
20th century have shown that it was not possible for a country to
trust the world market for food supply. During the wars, the market
was cut off and the country had to rely on domestic food production.
The land policy for rural areas was now formulated to support
increased improvements of the size and shape of farms that could
support one family and give them equal income opportunities as
industrial workers. This was implemented with a land distribution
control through the cadastral legislation, which included regulations
both on size of suitable farms and of who were allowed to buy farms or
buy additional land to increase the size of a particular farm.
Farmland could only be bought by persons, who were occupied or had a
suitable training and knowledge, and who in principle were family
based farmers. The legislation excluded for instance companies or big
investors from buying land as well as non-active interests, for
instance personal recreation. In order to facilitate land
consolidations and extension of existing farms, the government
established itself as a land buyer and created land banks, which were
distributed to interested farmers. In this way, the government,
through the acquisition control, and through active buying, could
greatly influence the development of prices on land. Low prices of
land was desirable to keep the prices of food down and also the
governmental subsidies on food as low as possible.
This policy was successful, since it contributed to increased size
of the farms and allowed a reasonable income development for farmers,
in comparison with other groups in society. Today Sweden has joined
the European Union and its outdated agriculture policy. There is no
more any governmental interest to uphold the rural land policy except
for in some remote areas with very thin population. The free market
has once again been established for rural land and it is open for
everyone, whether Swedish citizen or not.
LAND REFORMS IN URBAN AREAS
Urbanisation was rapid in Sweden for a period of about 100 years
from 1870 to 1970. Since then the speed in urbanisation has decreased,
although the tendency towards more and more concentration of the
population to bigger and bigger urban conglomerate is continuing. In
the beginning, urban development was mainly carried out by private
investors, buying land and constructing real properties for
residential, industrial or service purposes. After the Second World
War, there was a considerable neglected demand for housing together
with an economic boom. The democratic systems had been strengthened by
the victory in the wars and the interest to promote political
ambitions through urban development, like to prevent segregation in
housing, promote equal access to public and private services, to
provide good housing standards at low costs etc. The policy gave the
local governments, the municipalities the responsibility to actively
provide good urban planning and good housing for the increasing urban
population. The central government supported the municipalities with
legislation and financial means through subsidised state credits. The
legislation was mainly cadastral and urban planning legislation.
The urban planning legislation established that the municipality
had the exclusive monopoly to decide where, when and by whom an urban
development project should be carried out. The municipality should
acquire enough land for urban development. Controlling the major part
of the land market for urban development gave the municipality a
dominating influence of the development of the land prices and
speculations in development. Urban planning could be carried out with
less attention to landowner interests and more in creating good living
conditions from social and environmental point of view. Land thus
found suitable for urban development was allocated to private
developers or to public housing companies. The competition on land was
replaced by a competition among developers of different kind on land
provided through the municipality.
In order to facilitate for the municipality to acquire land for
urban development a number of legal tools were introduced in the
cadastral legislation:
- Control that subdivisions, amalgamations, reallotments etc are
in accordance with municipal planning
- Pre-emption rights for municipalities to acquire land for urban
development
- Expropriation rights for municipalities to acquire land for
urban development
- Compensation regulations that compensated values connected to
on-going land use or permitted land use but not values created by
expectations of possibilities to change the land use in future.
For instance a farm will be compensated to its value as farmland
irrespective of that it in future might be developed for some
urban purpose.
- Possibilities for both municipality and private landowners to
initiate land mutations or consolidations in order to facilitate
urban development. Through this procedure also a private landowner
can under certain conditions acquire land compulsory.
- For residential houses intended for rental purposes, a
acquisition control has also been established in order to protect
the tenants from unsuitable property owners who cannot manage the
houses or only have a speculative interest.
CO-OPERATION BETWEEN REAL PROPERTY OWNERS, -JOINTLY OWNED
FACILITIES
The modern society demands more and more complicated forms of
interaction between its members at different levels. Central and local
governments are there to solve a lot of the interactions, but cannot
solve all types of problem. The old village structure in rural areas
has lost in importance and new demands on co-operation occur.
The Swedish cadastral legislation provides a modern form for the
establishment of co-operation between land users for a specific
purpose, which in some way should be of stable need for the use of the
individual real property (Act on jointly owned facilities). The
co-operation can typically include roads, parking lots, playgrounds,
swimming and recreational facilities, heating, water and sewerage,
etc. The rights and obligations in the co-operation is organised as
co-operation between the real properties. The co-operation is thus a
real fixture to each of the member properties and thus independent of
the owners personal rights.
A jointly owned facility is established through a cadastral
procedure, when it is decided who will participate, how the cost for
construction and maintenance will be divided and how the facility
should be designed. An association for the management of the facility
will also be established.
In similar ways, co-operation between land owners can be
established through cadastral procedures to manage real property
rights like fishing rights or hunting rights for bigger areas than the
individual property.
ACQUISITION OF RIGHTS FOR SPECIFIC PURPOSES
New development demands new rights to land use. Pipelines, power
lines, roads, railways, cables and masts for tele communication,
demands limited rights to land use. These kind of limited rights,
similar to easements, are established in Sweden through a cadastral
procedure. The procedure will define the right, if it is permissible
and decide the compensation to the land owner.
CADASTRAL PROCEDURE
The cadastral legislation, regulating the different forms of
procedures is mainly the following:
- Real Property Formation Act (Subdivision, consolidation,
mutations, amalgamations), similar for both rural and urban areas
- Joint Facilities Act
- Utility Easements Act
- Adjudication and Legalisation Act
- Joint Property Units Management Act
The procedures in these acts are almost the same. The application
is sent to the cadastral authority. The cadastral authority consists
of one land surveyor and if needed two trustees. The authority will
investigate the case. The investigation will include technical,
economical and legal preconditions. The conditions that must be
fulfilled protect both private interests and public interests. Any
compensation to be paid among the participants in the procedure must
be estimated and decided by the authority. Any participant in the
procedure, who is not satisfied with the decisions, can claim the
decisions to a special land court.
The main difference between a cadastral procedure and a court
procedure is that the cadastral surveyor in the cadastral procedure
has the responsibility to carry out all necessary technical,
economical and legal investigations. In a court, the parties have to
make their own investigations and put forward to the judge for
decision. The cadastral procedure is thus much faster, more
participatory and less costly than court procedures.
Besides Sweden similar cadastral procedures can be found in Finland
and partly in Norway.
CADASTRE AS A TOOL FOR IMPLEMENTATION OF LAND POLICY IN VIETNAM
The Vietnamese land management system is based on State ownership
to land. The policy since independence has to great extent included
the creation of co-operatives for land management. This policy started
to change in beginning of 1980ies when the co-operatives started to
lease land to its members on a contract basis. In 1987 a land act was
approved, in which the State started to allocate land for long-term
and stable use by households, individuals and organisations.
The right allocated is connected to purpose for which the land
parcels is to be used, for instance agriculture, forestry, residential
or different kinds of special use. The length of the allocation is
different for different purposes, from 20 years to infinity. The land
users enjoys the five rights, which are, right of transfer, inherit,
lease, exchange, mortgage,
The land allocation and registration is a cadastral procedure for
which the land administration branch on different levels, from central
to communal level is responsible. The process includes technical
issues, to demarcate, survey and classify the land, legal, to check
legal conditions and to check that taxes and fees are paid. The actual
valuation and calculation of fees and taxes is done outside the
process. The land use planning, which in principle is a prerequisite
for the land allocation is also carried out by the cadastral
organisation.
The land reform has been very successful in agriculture and
contributed to much increased agriculture production-It has also
contributed to secure wood supply to the paper mill in Bai Bang and to
several plantationsh and protection of forest needed for environmental
protection. There are still some demanding problems that need to be
addressed by the reform, some of them have to do with the conflict
between traditional rights to extensive use of land compared with more
intensive (shifting cultivation towards cash crop farms).
In urban areas the land registration process has not really started
to influence the reality. This means that the urban land market is in
principle informal, although mostly within the control of local
authorities.
Proposed new procedures for land administration in
Vietnam
THE LAND REFORM IN THE PHILIPPINES
The Comprehensive agrarian reform on the Philippines is mainly the
responsibility of the Department of the Agrarian Reform (DAR), but
include also a number of other agencies. The land tenure should be
improved through better access and more equitable distribution of land
and the fruits thereof. The welfare will be enhanced and delivery of
support services to farmers co-ordinated
The land tenure system is improved through programmes such as
Operation Land Transfer (OLT), which is a programme for compulsory
acquisition of land for redistribution to tenants, and voluntary offer
to sell and transfer programmes.
The functions of DAR includes identification of beneficiaries of
the programme, acquisition of land for redistribution, preparation of
compensation, fixing lease rental contracts, survey of resettlement
areas and provision of a number of support services including legal
assistance, information and education, land consolidation etc.
The background for land reform in the Philippines is the very
uneven distribution of land rights where most farmers are tenants on
big estates. The reform has gone on for long time during different
governments with different success. However, during recent years it
seems to have gained new momentum.
In the Philippines the cadastral system is equal to cadastral
surveys, which are only partly being carried out by DAR in
resettlement areas. But the whole concept of DAR and its involvement
in the land reform represents, besides the extension services to
farmers, what could be considered as a cadastral issue according to
the FIG definition.
CADASTRAL SYSTEM IN MOZAMBIQUE
Mozambique has recently applied a new land policy based on the land
law from 1997. Dinageca with provincial offices are primarily
responsible for the implementation of the new land law.
Many wars and other disturbances have forced people in Mozambique
to move a lot. Both traditional land tenure systems as well as formal
systems are under stress and in disorder. People are moving back to
original places or founding new unoccupied land to cultivate. Since
there are a lot of abundant fertile land in Mozambique, there is also
an interest from investors to invest in farm development at rather
large scales. These demands on investment opportunities are of great
importance for the economic development in the country. The Mozambique
government had the challenge to define a system, which could balance
the demand for investment opportunities against traditional rights and
the need for small scale farmers to get access to land. The cadastral
system has been designed to give the framework for solving these
conflicts of interests, if any.
An investor has to apply for land rights at the provincial
cadastral office. This office will investigate and among others
organise community consultations with the local community and any
other persons, who might claim interests in the land in question. If
there are doubts to which local community the land belongs, a
community determination procedure can be started. In this procedure,
the boundaries between neighbouring communities are determined.
The community consultations will end up in a negotiation process,
under which the conditions for the investment will be determined. This
will in principle mean that the investor will be given a certain
amount of land with agreed boundaries. In compensation the investor
will have to give back some kind of compensation to the community, for
instance in the form of improvements of schools, roads, power supply
etc.
The procedure is handled by the cadastral organisation and will end
up in a land allocation, which include a title to the right to the
land use.
ZAMBIA
The new land law of Zambia (1995) defines among others a feature of
the cadastral system, which probably will be important for the
continued development of the country. To a land title, there is an
obligation to pay a ground rent. This ground rent has been diversified
to its amount and adopted to the paying capacity of different land
users. In this way the ground rent is affordable for all land users
with a title and can also be collected without to much difficulties.
Part of the collected ground rents is put in a land fund. This fund is
used to support improvement projects both in rural and urban areas. In
this sense, the cadastral system in Zambia is in a constructive way
contributing to the social and economic development of the country.
BIOGRAPHICAL NOTE
The author, Professor Tommy Österberg, is the Swedish
delegate to Commission 7. He is also the chairman of the Swedish
Association for Surveyors, Sveriges lantmätareförening. He has a
position as Technical Director at Swedesurvey and has acquired a
considerable experience from cadastral development projects in the
world.
CONTACT
Tommy Österberg
Technical Director
Swedesurvey AB
SE-801 82 Gävle
SWEDEN
Tel. + 46 26 633 850
Fax + 46 26 613 277
E-mail: tommy.osterberg@swedesurvey.se
15 April 2001
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