DRAFT MEMORANDUM REDACTED Not for further publication or quotation

Due Diligence Memorandum To: From: Bill Valletta Date: January 2008 Subject: Insuring an Effective Response to the Problems of Urban Landholding in Benin

Introduction

In preparing the urban components of the Access to Land project, we have sought to better understand the troubled history of Benin’s peripheral urban zones and the system of practical land relations, which now functions in these areas. Under this practical system, which has evolved in the absence of effective civil law and custom, thousands of urban settlers have acquired small land plots at affordable cost, but they have taken these parcels with “precarious” rights of tenure and without urban services. To address the problems, local administrations have devised methods of retroactive urban planning, installation of infrastructure, and issuance of documents [“irregular permis d’habiter”], which offer citizens partial security. Thus, settlers, who purchase lots, have been able to foresee their gradual “regularization,” linkage to utilities and strengthed security of occupation. In recent years, however, these practical mechanisms have weakened and the system is increasingly prone to abuse, corrupt practices and speculation. Public dissatisfaction is rising. There have been street protests and political disputes and there is wide-spread discussion of the “land mafia” in the press.

The MCA Access to Land project intends to assist the government in formulating an effective response in policy and legislation; in carrying out field work that will demonstrate improved procedures and legal forms; and in building the capacity of administrative and professional cadres. The project intends to replace the precarious rights of the “permis d’habiter” with land titles and to address abuses in the administration of land tenure and urban planning and will introduce more efficient and transparent methods of property transactions.

In designing the elements … . This memorandum, therefore, looks at the current structure of urban land relations, the potential problems and recommended solutions. It outlines, in detail, the elements of the existing practical system in order to identify each point of weakness and potential abuse. It discusses the proposals for removal, reinforcement or reform, which have been made in the government policy documents, draft legislation, studies and commentary. Finally, it considers the [international] project elements, to determine how they can best provide effective remedies and support. …

Part 1. Urbanization and the practical mechanisms of land relations

1.1 The stages of urbanization in law and in practice

1 Under any circumstances and in any part of the world, the process of urbanization is complex and stretches over time. In Benin, the process has been especially complicated because large numbers of migrants have come to the cities during a short period of years, when the nation and the society have been in transition from colonial rule. Law, administration, political institutions, social relations and the economy have been unable to keep pace.

The laws of Benin and its French-style planning envision urbanization as a rational series of stages in which the state (i) identifies new land for development; (ii) supervises its legal transformation from rural customary status to urban civil and administrative status; (iii) oversees the planning procedures of land arrangement [“amenagement”] and parcel subdivision [“lotissement”]; (iv) installs utilities and public services; and finally (v) authorizes the settlement of new families on the land by sale or lease of the serviced land plots.

In reality, urbanization in Benin follows a sequence of disorganized stages, each of which is incompletely realized.1 The process is initiated by a customary proprietor, who (i) subvides the land into parcels and then (ii) sells the parcels to individual buyers. When the area reaches a level of settlement, sufficient to generate political pressure, the communal administration authorizes (iii) a process of retroactive planning [“lotissement- remembrement”], (iv) sets aside the rights of way for installation of services and, in rare cases, (v) accomplishes the final regularization of legal landholding. In more detail, the typical process of development in a peripheral urban zone takes place as follows:

The transformation of previously rural land is initiated by a customary proprietor (head of household, family or clan), who controls an ancestral holding. (i) This customary proprietor gains the tacit authorization of the village and communal officers to subdivide the tract into housing plots. A surveyor or topographers are hired to draw up a plan, which is not subjected to review or approval.2 (ii) The lots are offered to settlers, who take rights under a purchase/sale contract [“convention de vente”] that carries the certifying signature of the mayor or other local officer. Each settler/purchaser establishes occupancy by investing in materials and beginning to construct. When the level of construction is sufficient to give tangible proof of occupancy and use, the communal officers issue a “permis d’habiter.”

Under civil law and the land legislation, neither the purchase/sale contract nor the “permis” are valid to transfer real property rights. The contract creates a personal right in the purchaser, enforceable against the customary proprietor, as seller. The right is precarious because under civil law, the seller (the customary proprietor as head of household) may not act without agreement of the adult family members. Under custom, he may have no power to alienate the rights of family members, living and yet to be born. Under administrative law, the purchaser/settler has no right to receive a permis d’habiter 1 This process is described in detail in several recent works: Lassissi (2007) at pages 276-291 and in Langley, Mondjanagni et al (2005). 2 This is in violation of law no. 45-1423 of 28 June 1945 “On Urban Planning,” which requires the person, undertaking a subdivision, to first obtain a permit to subdivide from the state department of urbanism.

2 because this form is defined as the grant of a right to occupy land in state ownership – it has no validity when resting on land, originating from customary proprietorship. Thus the irregular permis d’habiter confers on the settler family only a status of occupancy, recognized by the communal administration. It implies that the settler family has rights to share in communal services and civic activities. It confers a certain level of security against third party claims based on contractual or administrative violations, because the commmunal administration maintains copies of sale contract and the permis in the archives, from which the settler can obtain a document of proof [“certificat de constatation”]. However, the irregular permisd’habiter does not protect the settler/purchaser from removal of occupancy by the state, without compensation; and it does not protect against a third party that would claim a violation of the underlying rights of custom.

Despite the precarious rights, as time passes, most settlers continue investing in their dwellings and other buildings. The neighborhood secures infrastructure by irregular means and at some point the municipal administration decides to undertake retroactive planning.3 (iii) This process of re-subdivision [“lotissement/remembrement”] seeks to replace the irregular pattern of land arrangement with a new pattern of straight streets, rectangular lots with street frontage and spaces for infrastructure and public facilities. To oversee the planning, the commune administration creates a “commission,” with representatives of the pertinent agencies, and contracts with a professional survey/planning firm. The landholders usually organize themselves into an Association of Landholders (AIF), whose leaders act as interlocutors with the municipal and state agencies.

The work begins with a census of the existing landholders and parcels [“etat des lieux”] which is intended to insure that each landholder retains its rights at the end or gains equivalent rights of resettlement. Technical analysis and surveying are done to create the new pattern of parcels, streets and infrastructure rights of way. A “coefficient of reduction” is applied, which takes away from each parcel a percentage of land to gain space for the streets, utility rights of way and public facility sites. On this basis, a new subdivision plan is prepared, reviewed and given a sign off by both by the commission and by the landholders [‘commodo et incommodo”].4 Each landholder receives a “certificat de recasement” – a provisional document stating his/her right to occupy a specific land parcel (cross referenced to the plan) or stating his/her right to a resettlement parcel. There is then (iv) physical activity to remove buildings or parts of buildings and re-construct to match the new street and parcel boundaries. A family that loses its entire lot in the re-design is entitled to resettlement on “reserve” lands assembled under the coefficient of reduction or on some other communal reserves. If there are extra parcels created, using the coefficient of reduction, the municipal administration can allocate these to displaced families [called victims -- “sinistres”] from other areas.

3 The decision is politically motivated. In most neighbrohoods the settlers cluster by ethnic or clan affiliation or region of origin and, as their numbers grow, they exercise pressure through the leadership of these social/political structures. 4 The landholders give their assent either by vote in a full membership meeting of the Association or by each signing a “proces verbale” with their neighbors, agreeing to the boundary lines as set in the plan.

3 At the end, (v) the settlers, who now gain the status of “presumed proprietors,” are able to return to the municipal administration the certificat de recasement and claim a new permis d’habiter. It must be noted that this permis still retains only the precarious right of recognition by the mulicipal authority. It does not bind the state or third parties, who may claim deficiencies in the original sales contract or in the chain of transactions from it. Any such dispute must be worked out by the citizen and claimant within the customary or civil judicial process.

1.2 Problems of corruption and speculation in the urbanization process

In the process of creating irregular urban zones and retroactively regularizing them, abuses can occur at a number of strategic points.5 In popular debate, these abuses are said to be the work of the “land mafia” a network of land claimants, brokers or agents, lawyers, judges, court administrators, municipal officers and state agency personnel, who exploit the weaknesses of the land tenure laws and practice for personal gain.6

First, in the initial irregular subdivision, the customary proprietor usually tries to achieve a maximum number of lots for sale by instructing the surveyors and topographers to cut the land with minimal space for streets and no reserve for infrastructure or public facilities. The hired consultants are willing to violate their professional standards because their work is not subject to official review.7 The resulting land parcels are of minimum size and irregular in shape.8 An alternative abuse (where there is an honest surveyor) is to include proper streets on the plan, but the customary proprietor then registers [“immatriculates”] the streets under its ownership, so that later the lot owners (or municipal government) must buy back this land to create the street, in fact.

When the sales take place, the contracts describe the parcels in imprecise terms, making reference to survey points that are not calibrated to a fixed position on the ground and are not referenced to an approved subdivision plan. The municipal archives of the sales contracts and permis d’habiter are chronological and their indices work with varying degrees of precision; thus, there is no way to verify the exact location of a parcel and there are frequent cases of sale of one lot to two or more purchasers and of borderline disputes.9 The municipal archives, holding documents and listing the names of “presumed proprietors” of the lots, deteriorate over time with errors, fraudulent entries and the failure of families to update changes (death, inheritance, marriage). There is no

5 The weaknesses and abuses are described in detail by Lassissi (2006) at pages 276-285, and Adjaho (2005) at pages 76-77. 6 See, for example, the news article “Lotissement de la tranche C du Godomey: Les populations crient au scandale,” in La Nouvelle Tribune (Cotonou) of 20 December 2007, www.sonangnon.net. See also the editorial, “Benin: La justice conteste la decision du gouvernement,” in Fraternite (Cotonou) of 18 October 2007, www.fr.allafrica.com. 7 By law, there should be an application made to the commune or regional administration for a permit to plan, but this is not done in practice and the communal and state officers do not enfore the rule. 8 Typically each land parcel has 500 square meters and is somewhat wedge shaped (to minimize frontage and thereby minimize the area set aside for streets); see Constantin Bah (2003) and Lassissi (2006). 9 The structural and functional problems of the archives, documentation and municipal management are detailed by Comby, Joseph (1999).

4 limitation on the number of lots that may be acquired by a single purchaser and the archives often reveal a speculative pattern of “turn over” sales at rising prices as the area moves forward toward retroactive regularization.10

The retroactive “lotissement/remembrement” offers opportunities for the manipulation of documentation, adding or subtracting names of landholders and victims, eligible for resettlement. Abuses occur in the letting of the contracts for professional services and in the oversight work of the commission. Preparation of the “etat de lieu” gives rise to disputes and is prone to interference by commission members.11 There are no clear rules or procedures for keeping and protecting the documentation of the “etat des lieux” during the period of years that the process remains open. The procedure of publicity or citizen review of the “etat des lieux” and the draft land arrangement is controlled by the commission and the AIF – their strictness and transparency thus depend on the leadership of these groups. Fraudulent claims and claims, based on ancient customary rights, arise; meanwhile, the citizen landholders bring in cousins from the village to pad the rolls of eligibility.

Application of the “coefficient of reduction” is widely abused. In Abomey- Calavi, for example, the coefficient of reduction is as high as 35% and the municipal administration has been accused of creating new parcels for cronies and unknown “victims.”12 Irregularities can occur in the land exchanges, reformation of legal documentation and the physical readjustment of land occupancy.

At the end of the retroactive subdivision, disputes often ensue over the quality of the technical work and cost accounting. Monies, allocated for the contract, are missing. The municipality does not pay the survey firm and it, in turn, does not deliver the documentation for placement in the archives. This makes it impossible to take the administrative law action of “closure” and leaves the landholders without the ability to gain their new permis or certificates of proof.

Even when all the earlier steps fall successfully into place, there still remains the fundamental problem of the precarious original rights of the purchase/sale contract. Agents of the “land mafia” seek out the descendents of the former rural landholding families and name them as plaintiffs in court cases or customary proceedings, which allege that the original seller acted in violation of custom. They demand compensation for their lost rights in the land.13 Benin law has no rules, which recognize property rights, gained by notorious and undisturbed possession of land over time or by a “bona fide purchaser,” outweighing ancient family rights. Even after twenty or thirty years, the

10 This is another violation of the strict definition of the permis d’habiter, which is supposed to be issued only one to a citzen or family. 11 See Lassissi (2006) at pages 233-235. 12 Several cases, in which the “reserves” have been reallocated to unknown persons, classified as “victims” of other land displacement, are detailed in Djankaki, Claude C. (2007) at pages 114-126. 13 See the report of a case, initiated by a settler family to stop the heirs of a customary proprietor from reclaiming their plot. Cour d’Appel du Benin, Arret no. 35 de 6 octobre 1988. The court rejected jurisdiction of the civil law judges below to decide the rights of the family because their sales contract and permis d’habiter were documents of custom and administrative law, not civil property law.

5 “presumed proprietors” can be forced to pay off the plaintiffs or face eviction under court order or by action of hired thugs. Additional injury can occur because a court ruling for one plaintiff does not bind his brothers and cousins, who can come forward later, demanding another payoff.

Part 2. The approaches to systemic reform

Most commentators attribute the weakness and abuses of urbanization to the fundamental “dual” structure of Benin’s land tenure laws.14 Custom operates side by side with “modern” civil and administrative law, having the following consequences: There are multiple principles and procedures, oral forms and ceremonies, legal and administrative documentation, and it is difficult for any public officer, expert, practictioner, citizen or entrepreneur to find and comprehend the law. Efforts to reform the dual system have been erratic and inconsistent, creating more confusion.

2.1 The evolution of urban land policy

In the final years of colonial rule and the first years of independence, many people advocated the abrupt abolition of custom in favor of the socialist/nationalist concept of the state domain. But unlike Senegal, Mali and other neighbors, Benin did not take decisive action and left in place both its urban civil law titles and rural custom, while creating the new domain administration. It was expected that the state domain would accumulate holdings as traditional rural activities grew obsolete and colonial institutions changed into state enterprises and organizations. The permis d’habiter (administrative right of a family to occupy state domain land) was a product of this independence era.15

With the Constitution of 1992 and the OHADA treaty of 1995, emphasis shifted from the state domain toward civil law and private property as the bases of development. Government policy now favored the gradual and voluntary transition of land out of custom into civil law (land titles). This policy underlay the Proposal of the Access to Land project in 2005 and the 2006 Compact with MCC.16 The adoption of the law On Rural Landholding in January 2007, shifted the fundamental approach by anticipating that custom will be given modern tools and a status of equivalency with civil law. Rather than the gradual transfer of land units from customary status to title, the whole system of custom would gradually transform to reach full parity with civil law at some future time.

On the urban side, there is not yet a clear approach by the government or the commentators. The program of transformation of PH to TF embodies the policy of civil law title as the end status, although the earlier pilot project has resulted in very few individual citizen titles.17 For urban commercial and industrial development, most

14 Lassissi (2006) at pages 39 and 373; UN Developpement Programme (2006); Foreign Invetsment Advisory Service (2005) at page 7. 15 Certain commentators still offer the state domain concept as the best solution to the problems of landholding in Benin, see Lassissi (2006) at pages 372-383. 16 See the Proposal of Benin to the MCC (August 2005) Annex 1at pages 18-22. 17 The outcome of the pilot project created, in total, 1,483 titled land parcels of which 292 were state ownership, and 1,191 were registered in the ownership of Associations of Interested Landholders. See the

6 commentators appear to favor expansion of state-ownership with land parcels made available to investors by concession and lease.18 For peri-urban lands, now under the regime of quasi-custom and irregular permis d’habiter, there is no adopted policy. An interministerial committee on land reform, which met in fall and winter of 2006, recommended the abolition of the permis d’habiter and urged communal administrations to adhere to the proper methods of urban planning.19 However, it offered no alternatives to the flawed instruments of irregular permis d’habiter and unauthorized subdivision.

The government now looks to the land studies and “white paper” of the Access to Land project to give coherence to urban land policy and offer realistic and cost effective methods. To demonstrate effectiveness, the project will support a selected group of communes, villages and neighborhoods, which will put into place the new methods. Training for a cadre of public officers, administrators, professionals and technicians will be provided so that they can carry forward the demonstrated reforms in future years.

2.2 Analysis of the problem of systematic reform of urbanization

Within the context of policy as described above, the problem of urbanization involves several unresolved issues. First, although it tolerates the actions of a customary proprietor to initiate urbanization and alienate land rights by contract, the law does not define or regulate the content and limits of the customary proprietor’s actions. Neither does it clarify the content of the precarious rights, which the new landholder – the presumed proprietor – acquires. Second, although it has tolerated the actions of municipal administrations in certifying the contracts of sale and issuing irregular permis d’habiter, the law gives no civil or administrative law status to these actions. Third, although the state allows and provides standards for the process of retroactive subdivision, the law does not define the outcome of the process or provide any instrument that clarifies a right of tenure as a result.

As an alternative to the precarious rights, the law does offer two methods for the transition of land from rural custom to “modern” legal status: (i) for a single parcel, the procedure of immatriculation; (ii) for a multi-parcel zone, acquisition by the state and imposition of the regime of private domain. As a practical matter, however, the first alternative is available only at a cost beyond the means of most citizens and the second has been available only at a cost beyond the resources of the state itself.

… a third alternative [would be]… whether Benin could amend its legislation to accept the realities of contemporary urban practice and undertake specific reforms to repair its weaknesses and points of abuse. This would require a confrontation of the fundamental problem of the law – that is, how to allow the customary rights to be clearly

Final Report on the Closure of Work for the Pilot Project on Transforming Permis d’Habiter to Land Titles, Interministerial file no. 187/01, 14 April 2004. By July 2006, only 110 people have claimed their titles; Lassissi (2007) at page 170. 18 The Access to Land program contains no component of support for commercial or industrial landholding. 19 The inter-ministerial committee was created by Letter of the Firector of the Presidential Civil Cabinet, no. 242 of 7 August 2006, to the Delegate of Territorial Arrangement (DAT).

7 defined at the outset, decisively alienated, and finally and fully cleared in the process of transition to civil and administrative law.

So far, the government of Benin has not made the choice of this third alternative. The DAT report of December 2006, which presumably represents the consensus of the state agencies, calls for the abolition of all permis d’habiter (both legal and irregular). Citizens with legal permis will have them transformed in the process of titling multi- parcel zones (alternative two) under the program of PH to TF. Citizens holding irregular permis will be required to undertake immatriculation within five years. In light of the economic problem of how thousands of poor people will pay for this and the practical problem of how DDET and other agencies will do the work, … .20

Part 3. Addressing specific points of weakness and abuse in the procedures and practice

The specific points of procedure at which weakness, corrupt practices and speculation occur may be impacted not only by the two main urban components of Access to Land – transformation of PH to TF and support for communal social programs and planning – but also by the other technical components of the project … the following paragraphs revisit in more detail the five stages of urbanization, as outlined above.

3.1 Irregular subdivision by the customary proprietor

When a customary proprietor takes action to subdivide a formerly rural tract, weakness and abuses arise in two categories:

. The process usually is not regulated by urban planning standards, which can assure that its streets, infrastructure and public services are of proper size and appropriately linked to the city-wide networks; and . The land parcels are usually of minimum size, irregular shape and substandard forntage but are marked to hide these deficiencies from the settler/buyers.

To remedy these problems, there are proposals to re-invigorate the processes of regional and communal urban planning and to enforce the administrative law requirement of a subdivision permit.

3.1.a. Invigorating urban planning by cities and regions

In the traditional model of French-style urban planning, state or municipal administrations are expected to draft and adopt comprehensive development plans and land arrangement plans at regional and city-wide scale prior to the preparation of plans of neighborhood land arrangement [“amenagement”] and parcel subdivision [“lotissement”]. The large scale plans show the networks of streets, infrastructure lines and public facility locations and thus provide the organizational framework for the smaller scale plans. The

20 Similarly, … .

8 existing legislation of Benin on Urban Planning, which dates from 1945, describes this traditional, hierarchical approach.21 In recent years, it has been followed sporadically with a few projects, assisted by international donors. These efforts have had weak results and have not been sustained with routine planning activity by communes.22 They fail for two reaons: First, the migration of settlers into the urban areas out-paces the slow and sequential methodology. Second, the model assumes that, upon adoption of a plan, the state or commune will acquire ownership (by donation or purchase) of the land, identified for streets, infrastructure, public facilities and reserves. However, the state has lacked the money and credit for land acquisition, as well as tools to take control and effectively manage and protect these lands as settlers arrive.

Alternative approaches to planning have been introduced in some of the international assistance projects, which recognize the reality of irregular settlements and seek to enlist broad public participation in their regularization.23 In most cases, these projects have sought to create a capacity for planning at the communal level – in support of decentralization. They have introduced new planning instruments – such as directive scheme plans, strategic plans, diagnostic plans – which start from analyses of economic, social, demographic and environmental problems rather than territorial and spatial analyses and which attempt to gain a consensus vision of development among all “stakeholders.”24 Again, however, there is no evidence that these methods of planning have been accepted by local officials, practitioners and the public and are becoming part of routine of city administration.25

Despite the examples of contemporary, participatory planning, the government of Benin and most urban planning professionals appear to favor a revival of traditional French-style spatial planning. This is evident in the draft Code of Land Arrangement and Urban Planning, prepared by units of the former Ministry of Environment, Housing and Urbanism.26 The re-organized Ministry of Urban Development, Housing, Land Reform and Coastal Erosion Protection has the mandate to finish this draft, carry it forward to adoption, and develop the regulatory standards, rules of proces and methodologies to put it into effect.27 The draft code will place under communal jurisdiction the defined instruments of planning – city-wide development plans, spatial arrangement plans and regulatory land use plans [“plans d’occupation des sols”]. These will be subordinate to regional land arrangement plans, drafted and adopted by state agencies. In turn, the city- wide plans will fix the framework for subordinate neighborhood land arrangement and

21 Ordinance no. 45-1423 of 28 June 1945 and the decree of application no. 46-1496 of 18 June 1946. 22 For example, Agence France de Developpement assisted the creation of urban development plans (PUD) with the Beninese planning entity SERHAU in 1985; see Oloude (1990) at pg 481-487. 23 See World Bank (2005), Decentralized City Management Program (PGUD) 24 See the Programme d’Appui au Demarrage des Municiplaities (PRODECOM) (2005), plans of strategic development for the communes of Abomey-Calavi, Ouidah, Parakou and Porto-Novo. See Benin Ministry of Interior, Security and Decentralization (2003); and Langley et al. (2003) at page 43. 25 See Langley et al. *2003) at pages 43-53. 26 See the “Avant-projet de loi portant Code del’amenagement et de l’urbanisme en Republique du Benin’ (2004), prepared by the predecessor Ministry of Environment, Housing and Urbanism [MEHU]. See also the National Housing Policy of Benin, adopted by Decree no 549 of 31 August 2005, MEHU, Part 6.1. 27 See the decree no. … of … April 2007, “On the Authority, Organization and Functions of the Ministry of Urbanism, Housing, Land Reform and Coastal Erosion Protection.”

9 subdivision plans.28 If a commune does not adopt the city-wide framework plans, persons or entities proposing new subdivision plans will be required to apply for a permit to undertake planning from the regional administrative department of urbanism, which will issue the standards for its streets, blocks, infrastructure and public facilities.

It is unclear why, after decades of inability to carry out land arrangement and regulatory land use planning, the Code drafters believe that a re-statement of this traditional structure in the new law will make it effective. …

3.1.b. Subdivision permits

The existing laws and decrees on urban planning require any person, who undertakes the subdivision of land to first make a request and submit a preliminary file to the communal or regional urban planning agency. After review, a permit to subdivide is to be issued, with appropriate standards and conditions. This process is almost always ignored; however, the draft Code of Land Arrangement and Urban Planning will try to make it effective by clarifying the authority of the commune administrations to apply and enforce the rule. The requirement of a permit appears to be necessary and proper, however, it is likely to be effective only if the process is made simple and if the standards are realistic and easily self-applicable by the customary proprietors and their surveyors and topographers.

The reason that the requirement of a permit to subdivide has failed appears to be the ad hoc, case by case, process of review and issuance of standards and conditions by the regional directions of urbanism. An attempt was made in 1996 to set out criteria to guide the determination that subdivision can or cannot take place in an area – for example, one criteria is whether the area is prone to seasonal flooding.29 However, without a clear description of the procedure and substance of review of the permit application and without any limit on its timing, the process has been open ended, uncertain, and prone to political interference and inter-agency bickering.30

The draft Code provides some remedies. It specifies that the application is to be made to the commune level department of urbanism. If there is an adopted communal regulatory land use plan, this municipal agency itself takes action. If there is no communal plan, then the file is sent to the regional department.31 The code streamlines the timing by setting a 30 day limit for agency review. The permit issues automatically if the agencies fail to act within the deadline, but the time period can be extended and a

28 Draft Code of Land Arrangement and Urban Planning (2005), Book I, title II: Chapter 1,2 and 3. 29 The criteria appear in the Order no. 023/1996 of the Ministry of Environment, Housing and Urbanism [MEHU], of 22 October 1996 and in the earlier Decree no. 69-154 MF/MTPTPT of 19 June 1969. The text of the decree appears in Government of Benin, MEHU, (undated) “Quinze questions-reponses pour comprendre le lotissement au Benin.” 30 Among other onerous requirements of the 1996 Order of MEHU, all lotissement plans must be reviewed and approved by both the regional Department and by the National Commission on Urbanism, before their final closure. See Lassissi (2006) at pages 249-250. 31 Draft Code of Urbanism, Book IV, Title 4 (Articles 208-218).

10 public hearing required if the ppoposed subdivision is over a certain size or in an area without a framework plan. … .32

3.2 Transfer of parcels by purchase/sale to migrants

3.2.a. The purchase/sale contract [“convention de vente”]

The purchase/sale contract that is used for the initial transfer from the customary proprietor to an urban settler is based on a form, created by the colonial regime in 1906 to give proof of land-related agreements between native peoples. The historic form was a simple document that noted the names of the persons giving and taking the rights, the village, in which the land was located, and the value given. After 1925, this simple document was accompanied by official documents of verification – inscription or “constatation” – which were prepared by local administrators and recited in more specific terms the location and size of the land parcel and a description of the landholder.33 These verifying documents and copies of the contracts have been kept in the registry of inscription of indigenous land rights.

Today the purchase/sale agreements contain both the recitation of the transfer from seller to buyer and the clauses of verification. The parties identify themselves, assert that they have power to give and take rights, and state that they intend the transfer. The parties sign in a “ceremony” in front of four or six witnesses and in front of the Mayor or other local notable, whose signature is affixed to an attestation clause at the end.34 The witnesses assert that they recognize the parties, have observed their actions and thus can attest to the intent and correctness of the proceeding. These formalities are enough to give the contract status under the civil law as proof of the “personal” rights and obligations created between the buyer and seller. They allow the document to be added to the communal-level registry of purchase/sales contracts.

Several weakness in this contractual document are the reasons for its lack of recognition as a civil law transfer of real property rights and its vulnerability to abuse.35 Since the status of the seller arises only out of custom, there is no document of verification of his status, no “chain” of documentation that can be consulted in a registry, no process of “constatation” in which neighboring owners and villages notables are asked to certify his status, and no official notice, alerting rival claimants to come forward.36 The witnesses and the mayor’s signature give a certain level of proof that the seller is recognized in the community and his actions are in accordance with local practice, but this only is implied and not stated in the document. Additional weakness lies in the fact that the description of the land parcel has no cross-reference to a lot number on a

32 Constantin Bah (2003) discusses the problem of financing of lotissement 33 Samples of these documents are reproduced in Lassissi (2006) at pages 59-64. 34 A sample of a modern sales contract [“convention sous seing prive”] is reproduced in Lassissi (2006) at pages 139 to 141. 35 See Comby, Joseph (1998), 36 These methods of constatation are used in the process of immatriculation to substantiate the proprietorship and, thereby, cut off the rights of any claimants who fail to respond in a timely way.

11 subdivision plan or to any list or index within the custody of the village, neighborhood or communal administration.

Two steps should be taken …

3.2.b. Verification of the seller’s rights

The ability of a seller to supply verification of his/her identity and rights will depend on the location of the particular land. If the land is in a village that completes a rural landholding plan (PFR), the plan map and inventory will identify the tracts of land and the identity and status of their customary proprietors; the lexicon will define the scope and content of the rights and the methods required to effectuate a transfer; and the certificate of customary proprietorship will be given as the document of legal proof. This new rural system will be years in the making, however, … Therefore, for the peripheral urban zones, it will be necessary to find alternative methods by which the original customary land rights and the identity of their holders can be verified prior to land parcel sales. Similarly, for land parcels already sold, a method of retroactive verification of the rights of the original seller and validation of the purchase/sale agreements is needed. There are two possible approaches:

First, there could be created an urban zone lexicon, based on a careful analysis of the historic local custom and contemporary practice, census of the customary proprietors, diagnosis of contemporary conditions of landholding, and interview oif notables and other citizens. This would need to record not only the understanding of ancient rural custom but alos the ways in which recent practice has evolved in response to urbanization and modern “business” dealings. This document would undergo “validation” by a regional conference of state and communal officers, customary leaders, judicial officers, experts and citizens. Its findings and definitions would then become the basis for interpretations of the law by judges and mediators, acting to resolve land disputes.

Second, some new laws may be needed to bring into the juridical system the principle of land proprietorship, based on notorious, peaceful occupancy over time under a purchase/sale agreement and permis d’habiter, which can take precedence over claims based on ancient family rights or other custom. An alternative concept might be a “bona fide purchaser” rule – protecting a buyer, who had no knowledge of the infirmity of the seller to give full rights. …

3.2.c. The irregular permis d’habiter

Although the “permis d’habiter” is defined clearly in the existing law as the form of subordinate residential occupancy on state-owned land, an instrument of identical form is used in practice in the irregular urban zones.37 These commune-issued permis d’habiter, which number in the tens of thousands, provide the basis for a relationship

37 Law no. 60-20 of 13 July 1960, “concernant le regime du Permis d’Habiter.”

12 between the urban settlers and the municipal administrations and they provide a rudimentary system of registration of rights.38

The content of the rights, embodied in the irregular permis d’habiter are difficult to define because they are an amalgam of the character of a regular permis d’habiter and the practical social and economic linkages that are fixed in the absence of an alternative legal form. The comune officers issue the permis d’habiter to any settler, who has acquired a parcel under a purchase/sale agreement and who has established occupancy by fencing the parcel, keeping it clean and commencing construction. The irregular permis d’habiter, therefore, implies that the occupancy of the settler family will be undisturbed by the municipality for so long as their peaceable and safe use of the land continues. It also serves as a substitute for a construction permit and a certificate of occupancy [recognition that the building is safely constructed for use].

The municipal administration keeps a copy of the permis d’habiter in an archive – thus a search of this archive along with a search of the archive of purchase/sale contracts offers a substitute system of registration, and a way to obtain a certificate of proof prior to a subsequent transaction or judicial hearing.39

The Access to Land project intends to remedy the weakness of the irregular permis d’habiter by devising a means for its transformation into a land title. The project also expects to organize the decentralized, regional and communal land registries, which can then “absorb” the existing archives of purchase/sale agreements and permis d’habiter, into a properly indexed and map-referenced information system. … Yet even with these efforts, thousands of permis will continue to exist and consideration must be given to their treatment in the interim years. The DAT Report of December 2006, calls for the abolition of all permis d’habiter, …

3.3 Retroactive land arrangement and subdivision [« lotissement »]

Given the thousands of existing irregular land parcels, the process of retroactive subdivision will have to continue with oversight by communal administrations and with application of the coefficient of reduction. However, changes must be made that will make this process faster, more transparent, and free from abuse. Each of the following sub-elements must be considered: (a) the organization and function of the Subdivision Commissions; (b) the method of assuring representation of the land occupants; (c) the initial census of landholding [“etat des lieux”]; (d) the contracts for professional services and municipal management; (e) technical standards of lotissement and the coefficient of reduction; (f) and state oversight of the municipal officers [“tutelle”].

3.3.a. the local Subdivision Commissions

38 A compilation of documents, done in the mid-1990’s to create the first fiscal registries [Registres Fonciers Urbains], found 55,000 in Cotonou, 30,000 in Porto Novo and 20,000 in Parakou, see Oloude (1999) at page 30. 39 See Comby (1998), which describes the permis d’habiter as a discount-price land title [“titre foncier au rabais”] and the municipal archive as an accidental land registry. See also the case study report on Benin by Bashir Oloude (1999) at page 30, which calls the permis d’habiter a “pseudo-title.”

13 In practice in most cities, retroactive subdivision is begun when the mayor reesponds to pressure from neighborhood citizens by appointing a Subdivision Commission, composed of representatives of the local state and municipal agencies. Although in theory the commission provides protection for the citizens, who are the presumed landholders; in fact, these committees are alleged to be the primary agents of abuse and corrupt practices.40 They do not effectively manage the tasks of subdivision and allocation of permis d’habiter; they tolerate sub-standard technical and survey work; they collude in the manipulation of lists of presumed proprietors and “victims” entitled to resettlement and compensation; and they misappropriate monies, meant to pay the technical consultants. Most of the commentators have recommended abolition of the Subdivision Commissions.

The legal origin of the commission traces back to Article 2 of the law no. 60-20 of 13 July 1960, which called for a commission to assist the chief of circonspection in allocating permis d’habiter in a valid subdivision.41 The implementing decree of the Ministry of Urbanism, applying the law, fixed the composition of the commission with municipal and state agency representatives.42 After independence, there was a period in which the supervision of land arrangement and subdivision plans was under a centralized state service called the National Society for Real Property Management (SONAGIM), but after 1990, local control was authorized and the regional prefects, then the Mayors, gained the authority to appoint the commssions.43 A Decree of the Ministry of Urbanism [MEHU] of 26 October 1992, modified the composition of the commission and the conditions for its approval of subdivision plans.44 From this date the commentators agree that supervision of the process of land subdivision has deteriorated as the result of a lack of resources to pay for proper technical work, absence of standards to guide the work, and the infiltration of the commissions by persons, who are self-interested or are representative of the interests of heirs of the customary proprietors.

The draft Code of Land Arrangement and Urbanism does not make reference to local commissions, but it provides for the creation of a Departmental Commission on Environment, Land Arrangement and Urbanism, appointed by the prefect. This body is to be composed of the regional directors of eight pertinent agencies, three mayors and four representatives of non-governmental orgainzations.45 This commission is to give advice on any land arrangement plan, regulatory land use plan or lotissement directly, in the case of plans being prepared for areas not under urban communal control, and indirectly, for plans being prepared by communes that have urban land management departments and regulatory plans in place.

40 See Bah, Constantin (undated); Djankaki (2007) at pages 111-126, and Lassissi (2006) at pages 232-233. 41 See Lassissi (2006) at page 261. 42 Decree no. 276/PC/MFAEP of 2 December 1964; see Lassissi (2006) at pages 261-262. 43 Djankaki (2007) at page 115, describes the decree of the Prefect of Abomey-Calavi region of 19 December 1990, which creates a commisison of inquest, charged with verifying the regularity of operations of subdivision and resettlement. 44 Lassissi *2006) at page 271. 45 Draft Code of Land Arrangement and Urbanism, Book V. Title 1, Chapter 1 (Articles 231-233.

14 The law or a Ministerial decree should clarify the scope and content of the responsibilities of this Departmental Commission, in particular, to spell out its role of oversight when the communal administrations initiate retroactive lotissement. In particular, the ministry should define and the Departmental Commission have the responsibility to apply and enforce standards for the procurement of technical services by the communes, for contract management, and for the technical work landholder inventory, subdivision survey and cartography. The Departmental Commission also should provide a service for citizens to direct their complaints and make appeals of adverse decisions made by the communal agencies as a subdivision project is underway.

3.3.b. the census of landholding [“etat des lieux”]

Although the process of retroactive subdivision begins with a census of the existing landholdings and landhoders – the “etat des lieux” – this document is not given protection in the municipal archives and it does not carry any legal status to guarantee the rights of the persons listed on it. There is no registration of the document and there is no fixed procedure for publicity [“commodo et incommodo”] by which the citizens can scrutinize the maps and lists of landholders to identify errors and raise conflicting claims.46 Preparation of the document is done by the team of technicians, under contract to the municipality and under supervision of the local commission. This consultant staff is supposed to keep a notebook in which to record all complaints, errors and disputes and, before the final act, approving and closing the subdivision, the commission is supposed to insure that each problem is resolved in a satisfactory way.47 These procuedures are defiined in an ad hoc way for each subdivision and they are not followed in most cases.

The standards, legal status and procedures to create and care for the “etat des lieux” must be defined in a clear set of rules, either by Ministerial decree or by action of the Departmental Commission (if this agency is authorized under the new law). The same standards and procedures should appear in the act of the mayor, who initiates a specific retroactive lotissement. The responsibilities of the technical team must also be detailed in the contract for professional services.

3.3.c. Association of Landholders

Unlike the procedure for transformation of PH to TF, the process of retroactive lotissement does not now provide for an association of landholders to protect the interests of the presumed proprietors, although in practice this is often done. The draft Code of Land Arrangement and Urban Planning does include this organization.48 It states that an Association of Urban Landholding [“association fonciere urbaine”] can be established either by request of a group of the landholders or upon the initiative of the mayor or the city council. An application to form the association is to be made to the regional prefect, who insures that there is agreement of at least two-thirds of all landholders in the zone. The draft law outlines the structure and function of the association, which takes action on

46 Lassissi (2006) at page 278; Comby (1998). 47 Bah (undated) report on Lotissement. 48 Draft Code de l’amenagement et de l’urbanisme, Book III, Title 3, Chapter 1, Articles 155 to 162.

15 constitutive issues by vote of its general assembly (all members) and on routine issues by a standing committee of elected officers. The precise powers and functions are defined in the association Charter and by-laws, and the organization is subject to oversight by the prefecture, the Departmental Commission and under the general system of state supervision of non-governmental organizations.

Standards and rules for the precise role of the association in the process of retroactive lotissement must be defined, most appropriately by Ministerial order. It should have a role in the review and finalization of the “etat des lieux,” in the oversight of technical work and management of the technical consultant contract, and in the procedure of recording and insuring the resolution of citizen complaints and claims.

3.3.d. professional service contracts and municipal management

The methods of procurement for professional services to carry out retroactive lotissement, the forms and content of the service contracts and the methods of communal contract management must be reviewed to insure proper procedures, standards and transparency. Model forms and rules of process, which incorporate modern techniques of municipal management, should be issued by order of one of the ministries (Urbanism, Interior and Decentralization, or Justice) and training for the communal and departmental staff should be conducted. Also, it will be important to clarify the methods of finance and accounting, which can be used by the communes to fund these contracts.49 The details of the mechanisms of state oversight [“tutelle”] should also be spelled out.50

3.3.e. technical standards for retroactive subdivision and the coefficient of reduction

Because the retroactive subdivision requires the application of new measurements on land already settled in irregular patterns, the experts and technicians often cannot follow the usual standards of professional practice. For example, in many irregular subdivisions, the original land parcels have been measured at a standard of 500 square meters.51 This is a small though not unreasonable size, although the odd angles and shapes of many parcels means that some of the space is unusable. When, in the retroactive subdivision, a coefficient of 35% is applied, the resulting land parcel of 325 square meters is sub-standard.52 Larger parcels would result if the commune could adjust

49 See Constantin Bah (undated) for discussion of the methods of finance, used by communes, and the problems inherent in them. See Djankaki (2007) at pages 124-125 for discussion of the problems of procurement and contracting disputes in Abomey Calavi. 50 Under Title V of the law no. 97-029 of 15 January 1999, On the Organization of Communes, the regional Prefect has the responsibility of oversight and control of the legality of communal budgeting, procurement and contracting. 51 Comby (1998) 52 Djankaki (2007) reports that in Abomey-Calavi, coefficients of reduction from 32 to 38 percent have been applied in the lotissements of recent years. The problem is compounded by the perception that the municipalities are taking land in excess of that needed for the streets, rights of way and public facilities. In Abomey-Calavi, lands accumulated by application of the coefficient have been used to create additional reserve land parcels, which have then been allocated to unknown people, alleged to be “victims” of other displacement.

16 the standards of street width, space for rights of way and public facilities, and thereby require a less onerous coefficient.

A significant problem of the process of retroactive subdivision lies in the fact that it is treated in the regulatory standards and methodological documents as a series of technical tasks, controlled by the experts and technicians. Under the contracts, a surveyor is given the responsibility of creating the “etat des lieux” and an altimetric plan; these draft documents are sent on to the urban planner, who creates a concept of re-subdivision with the streets, rights of way and public facility sites included. This is returned to the surveyor who puts the concept into effect by measuring the boundary lines and fixing them on a map. This is delivered to the local subdivision commission, which then oversees the process of citizen review (in conjunction with the AIF). Citizens reach agreement on the plan, which is then adopted by the commisison and each prospective proprietor receives the “attestation de recasement” identifying his/her new land parcel. This document, in turn becomes the basis for issuance of the new permis d’habiter, after physical relocation and adjustment of structures and occupancy.53

Missing in the regulatory and methodological material is clarification of the status of the citizens, the ways in which they exercise their review and come to agreement on the new land parcel plan. Because almost all presumed proprietors will end the process with a much reduced land plot, and some presumed proprietors will lose their plot altogether and will end up on a list of “victims” for resettlement or compensation, this part of the process appears the most contentious and difficult to manage. Yet the law, the regulations and the methodologies leave this part of the process opaque. It is obvious, of course, from the record of subdivisions that remain open for ten or more years and from the public discontent, expressed in the press and in street demonstrations, that a high level of irregularity occurs. Thus, this part of the process must be defined with more clear procedures, criteria for decision-making and a streamlined and accessible process of complaint and appeal by citizens.

3.3.f. state oversight of communal procurement and planning [“tutelle”]

Under the laws On Decentralization, the regional prefect is charged with the responsibility of reviewing the legality of actions taken by the mayors and communal councils with respect to procurement, contracting, planning and the management of communal monies and property assets, including land.54 The office of the prefect exercises this power of review [“tutelle”] by receiving each pertinent municipal act after it is adopted at the communal level. Within time periods fixed by the law, the prefect can object to the act, if it appears to be contrary to the substance of the law or has been adopted in an improper procedure. A non-complying action is returned to the communal officers with instructions on how to amend the action to render it lawful. The commune is given a period of time in which to amend or reverse its earlier action.

53 The stages of technical preparation are described by Bashir Oloude in the case study report of Benin in UN Habitat (1999) at page 32. See also Constantin Bah (undated), who explains the same stages of technical process in terms of their definition in the MEHU Order of 1996. 54 Law no. 97-029 of 15 January 1999, On the Organization of Communes, Title V, Article 144.

17 The prefect’s offices have not been able to exercise these powers effectively because of lack of capacity, administrative organization and efficient communications with the communal administrations.55 …

3.4 Installation of urban services

Although the retroactive subdivision sets aside the lands of public use, it appears that in almost all zones, the installation of uban services does not subsequently follow in a coordinated manner with a complete program of construction of service lines and facilities. Instead the elements of infrastructure – water supply pipes, sewage pipes, drainage pipes, electric lines, street paving, establishment of garbage collection, social service facility construciton – are each put into place at different times, depending on the availability of funds in state budgets, loans or donor grants. In the interim period of years, the zone residents make do with sub-standard services or illegal connections.

Under decentralization, the communes should begin to direct and fund the programs of building and maintaining urban infrastructure. However, there are numerous questions of finance that have yet to be resolved – effective methods of taxation, formula allocations of state budget funds, the building of communal capacity to manage procurement, contracting and accounting, etc. There have been several donor assisted projects addressing these problems with technical assistance, training and capacity building. Some of these projects have accomplished the construction of sewer, water supply and drainage works, and street paving in peripheral urban neghborhoods.56

The Access to Land project … The protection of these public rights of way and reserve lands from encroachment requires two types of actions:

. Creating and registering the documents that define state or communal ownership of these spaces and that decisively remove all prior customary and citizen-occupancy claims; . Assignment of responsibilities for management and protection of these lands to specific agencies or to a communal land management service with training for the responsible staff.

3.5 Final regularization and registration of landholding rights

Under the existing process, when the communal administration has been satisfied that a proper subdivision is accomplished, it takes actions to accept the work as complete and to “close” the administrative file of the project. Subsequently, each presumed proprietor can come in to the office, bringing the certificate of resettlement and claim a new permis d’habiter, which incorporates all changes that have occurred in the boundary lines, size, character and location of the landholding. A copy of the new permis d’habiter is filed in the municipal archive and indexed. The information from the permis is also 55 See Adjaho 2005, Chapter 5, at pages 99-107. 56 See World Bank (March 2005 and August 2006), Projet de Gestion Urbain Decentralisee; also see Djankaki (2007) at pg. 106-107 on the influence of PGUD in creating a structure for oversight of public spending in Abomey-Calaci

18 entered into the urban land registry [“RFU” – registre foncier urbain] in the cities with this data system.57 If the individual landholder then deems it necessary and desirable, he/she can initiate the process of immatriculation to gain the full right of ownership.

3.5.a. problems in the process of finalizing landholder rights

There are several problems inherent in the process of finalizing the landholder rights. First, in many cases, the municipal actions to “close” the subdivision files have been stalled as a result of the discovery of errors, irregularities and contract disputes. The consultant survey firms refuse to turn over the plans and documents because they have not been paid.58 Second, the issuance of the new permis d’habiter is not done as a “mass” action. Instead, each landholder must come forward, fill out an administrative application form, submit documentation for review (which duplicates the documentation previously reviewed) and pay a fee and a tax. Third, the registration of the rights, embodied in the permis d’habiter are recorded in the chronological archive and the registre foncier urbain (RFU), neither of which meet the full standards of a modern land registry. The new permis d’habiter is superior to the earlier version, in that it now makes reference to the subdivision map in order to identify the land parcel, its survey points and boundary lines. Finally, if the citizen landholder decides that it is necessary or desirable to transform his/her permis d’habiter into a land title, he/she must initiate the lengthy procedure of immatriculation, which is not adjusted in any way to recognize that most of the issues of verification of the land rights have already been settled in the recently completed processes. Each element of land survey, proof of acquisition and occupancy, satisfaction of cahiers de charges, verification by customary land officials, constatation, and boundary survey, must be gone through a second time. There is no cost saving to the citizen.

3.5.b. Potential for mass immatriculation following subdivision

It is the intent of the Access to Land program to encourage the landholders to claim ownership titles by providing a simple and inexpensive method. There may be two ways to accomplish this outcome: (i) by directing the landholders into a streamlined process of transformation of their new PH into titles; or (ii) building into the process of retroactive subdivision the necessary steps of verification and constatation, which will justify the issuance of a title instead of a new permis d’habiter at the point of closure.

The process of transformation of PH to TF, which was worked out in the “pilot” zones and … , could be transformed into the mechanism of “mass” titling to run simultaneously with the retroactive subdivision. … amendment to the basic legislation in order to allow titles to arise directly from the transformation of the customary proprietorship, rather than indirectly as a right subordinate to a state or AIF title. It would also need a practical methodology for verification of the underlying customary rights and presumed proprietorship rights, … 57 Several cities, including Cotonou, Porto Novo and Parakou have organized RFU in pilot projects, assisted by Agence France Developpement. The register is primarily concerned with the identification of landholders as taxpayers. 58 See Langley et al. (2003) at pages 66-68.

19 In the pilot zones, where PH were transformed to TF, the local commission of agency representatives [“CLI”] had the responsibility of overseeing the census and inventory [“etat des lieux”] and certifying the rights of each landholder, based on his/her documentation.59 The actual work was done by the contracted survey/planning firms. The Association of Interested Landholders (AIF) bore a parallel authority and in the context of its general assembly meetings, secured the agreement of the citizen-members to the inventory lists of landholders and maps of parcel boundary lines. In effect, the CLI and AIF together substituted for the process of circonscription and “constatation” to verify each land parcel and its presumed proprietor.

In a future revised procedure, …

The sufficiency of the work of the CLI will need to be judged by (i) the quality of the rules and documentation that it puts into place at the start – a Manual of Procedure, standard procurement and contract forms; (ii) the management structure, personnel descriptions and technical competence of the Commission staff that will inter-act with the mayors, AIF and CLI and will oversee contract compliance by the survey firms; and (iii) the speed and effectiveness of oversight and dispute resolution (appeals) by the Commission as a whole.

The AIF must be made effective and accountable as the protector of the interests of the presumed proprietors. Under existing practice, it becomes the interim title holder of all the land during pendency of the transformation and immatriculation procedures – it substitutes for state-ownership of the underlying tract of land. The AIF is expected to represent the collective interest in taking all actions and it has an educative role, helping each landholder to understand the extent of his/her rights and responsbilities in the procedure. There are standard rules and forms, which are used to establish the AIF, and these appear to create … the structure to protect the interests of the members.60 The rules define the General Assembly, which unites as members all persons who hold the presumed proprietorship rights to the parcels in the zone. Votes in the assembly are apportioned one per parcel – irregardless of parcel size. One person may have multiple votes if he/she holds several separate parcels; but if he/she is one of several co-owners of a large parcel, there is no proportionate division and a single vote is given to the group. In any case where a lot is owned by a proprietor with someone else as occupying tenant, then the two parties are considered to be co-owners and their vote must be worked out between them. Votes in the general assembly are cast to elect the six-person Council of Delegates (executive committee) and to adopt and approve the financial reports and reports on operations. The Association by-laws specify that actions are adopted by majority vote, however, in keeping with Beninese practice, consensus is sought before taking actions.

59 The full procedure is outlined in Benin National Commission on Transformation of Permis d’habiter into Land Titles (2005). 60 See Benin National Commission on Transformation of Permis d’Habiter to Land Titles (2005) at pg. 26, the model Order of Approval for creation of an AIF, and model Association Charter. See also, comment on the effectiveness of the process in Lassissi (2006) at 165-170.

20 In the theoretical context of the transformation PH to TF program, which is anticipated to be a finite process, the structure and method of operation of the AIF appear to be … In the interim stage of the procedure of transformation, the title to the whole underlying tract of land passes into the name of the Association by immatriculation. This step is then followed by the re-subdivision of the parcels, with the result that a specific title document is prepared and recorded in the land registry for each plot in the name of the Association. The program design and authorizing legal acts assume that this is an interim status and the inidvidual landholder will come forward soon afterward to have his/her name placed in the registry and to receive the title certificate. In the pilot projects, however, most citizens have not followed through. Only 110 individual titles have been issued by July 2006 out of 1,483 titles created.61 Given that the project has come to an end and there is no longer active support and oversight; it is unclear whether the Assocations continue to function; who is leading them; and whether citizens are taking any steps to insure that their presumptive ownership status is being preserved. It is easy to recognize a defunct “Association” as a potential mechanism for activities of the “land mafia.”

… thorough review of the current status of the parcels, which were registered under AIF ownership in the pilot projects….

3.6 Insuring future protection for presumed proprietors against adverse claims

… under the principle of voluntary choice to seek a title, many landholders will continue to hold only a permis d’habiter or some alternative, less-than-title, form of tenure. In the future, citizens will still face claims, advanced by persons alleging descent from an original customary proprietor, and other claims, based on alleged irregularities in the previous “chain” of actions.

As seen above, the various improvements in the creation and preservation of documentation are expected to provide more effective methods for citizens to verify the support their rights in situations of dispute. Ultimately, however, the problem of adverse claims can only be resolved in one of four ways:

. Carry every urban land parcel through the full process of immatriculation with individual circonspection and constatation to decisively remove all former rights and claims; . Use procedures of “mass” immatriculation, which substitute activities of the CLI and AIF to supply the verification of rights; . Add a fundmanetal new principle to the law, such as notorious possession over time or bona fide purchaser rights, which can overcome adverse claims as they are brought sporadically into the courts; or . Create a “fund” – money or reserve lands – which can be used by the state or communes to “buy out” the residual rights of claimants.

61 Of the 1483 titles created in the seven zones, 292 were initially registered in state ownership and 1191 were in AIF ownership; see Government of Benin, National Commission on Transformation of PH to TF, final report (2004). The report of 110 individual titles in July 2006 is given by Lassissi (2006) at pg. 170.

21 All four solutions involve complex and fundamental issues of law, practicality, capacity and cost. ... The law On Rural Landholding, which was adopted in January 2007, made the decisive choice for Benin of the fundamental principle that rural custom would be maintained and be modernized to gradually, over time, gain the equivalent status with civil law. This principle and the legal and administrative structure of the PFR, which makes it practically workable, was formulated over a period of more than ten years and it brought to resolution issues that had their origin in almost 100 years before.

Resolution of the urban land issues will need a similar period of experimentation, proof of workable mechanisms, as well as social and economic adjustment. …

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