Good governance in public land management

W. Zimmermann Willi Zimmermann is a land policy adviser

The story about public land is a story of power relations, the relationship between state and civil society, and experiences – both good and bad – during periods of nationalization, colonization, restitution or privatization during political transition. There is a clear need for, and interest in, sharing experiences about ongoing work on reforming the public land sector around the world. Many developed countries, post-transition countries and developing countries have embarked on a thorough re-evaluation of the role of government in their societies. There is a trend towards public-sector reform and delegation of decision-making over public land assets to local authorities. General principles for “good” asset management have been established that governments need to adopt in order to strengthen their public property management systems and enhance their efficiency and transparency. Reforming the management of public land must contribute to a basic set of development principles, namely, reduction of severe poverty, achievement of the Millennium Development Goals, progress in good governance and transparent fiscal management of the public sector. Good governance in managing public land first of all means establishing a sound policy regarding how government should intervene in land matters. The most critical element in guiding improvement in this area is the formulation of an explicit public land management policy in line with land policy and fiscal policy that sets out clear objectives related to economic growth, equity and social development, environmental sustainability and transparent fiscal policy.

ISSUES political leanings or socio-economic Public land is land owned by the state or status? by local authorities. Public land accounts These questions take on added weight for a large portion of public wealth of in the former centrally-planned economies both developed and developing countries. and in post-conflict countries. Public land Yet, public property assets are often management is flawed and contentious mismanaged, and nearly all countries because it is dominated by a top-down underutilize these resources. The power to process that encourages favours to special allocate public land is of great economic and interests and promotes polarization to political importance in most countries, and obtain such favours. As a consequence, it is a common focus of corrupt practices. public land rights are often transferred Public land is often treated as a “free good”, through rule of power processes (Box 1) whereas “good” land in terms of location, and not a transparent market mechanism. use and service delivery is in fact scarce and In many countries, the state itself is the valuable. This raises obvious questions: primary threat to secure land tenure, • Why is the management of government especially for the poor. property so badly handled across the Violation of good governance principles is world? most common in managing state property • Why do so many countries share the assets. Some big issues are unresolved in same symptoms regardless of their many countries, such as:

land reform / réforme agraire / reforma agraria 2007/2 31 BOX 1 Global survey on forced evictions

The forced evictions covered in the global survey occur to a large extent on state land as a result of development projects, discrimination, urban redevelopment schemes, delineation of national parks, land alienation in both rural and urban areas, and in situations of armed conflict and ethnic cleansing, or in their aftermath. Examining the practice of forced eviction from a human rights perspective reveals that the reasons and justifications commonly provided by governments for implementing forced evictions, and the manner in which evictions are carried out, rarely meet the international standards required by human rights law and rarely correspond to basic notions of human dignity.

Source: COHRE (2006).

• the lack of policy orientation (fiscal good governance have not matured to the policy and public land policy) compared point where they are capable of handling with other sectors; the vast amount of data needed to manage • the strong resistance to transparent public land effectively. At present, we are procedures and independent audit conditioned by the consequences of the fact in many countries because of vested that this is what the government of the day interests of political leaders and officials in a particular society has at its disposal to at central level and in local government; use as an immediate tool for meeting some • power-related political interference in agreed-upon problem. public land acquisition and public land The possible impact of illicit allocation; misappropriation of state assets on • the high incidence of state capture development processes and poverty through land grabbing, illicit land eradication is enormous. It has both swaps, and corrupted concession direct and indirect negative impacts on arrangements by powerful people; development. • the low awareness of public property Weak governance in managing public problems at all levels – government property assets shows enormous institutions and international consequences on all sectors – economic development organizations; development, poverty alleviation, the • the lack of information on what is where environment, political legitimacy, peace and where is what; and security, and development cooperation. • the weak statistical information, It has both direct and indirect impacts on reliability of information, and analysis the security of common property rights, on on state property, e.g. transfers to local access to land and on revenue generation governments, state and municipal for the state. It directly diverts public funds enterprises and trusts; and assets away from the public sectors • the fragmented and inefficient into the hands of the select few. Moreover, institutional arrangements combined it directly undermines the public’s trust with the lack of clarity of role and in the ruling government and governance functions of stakeholders at central and processes – a factor essential for good local government level. governance and lasting development By its nature, the whole history of public reforms. Corruption and the looting of state land management has been ad hoc and assets at the top sends a negative signal to opportunistic. This is because decisions the other civil servants and can encourage about its use are power-related rather than a corrupt culture and unethical conduct institutional. So far, the institutions of throughout the civil service (Box 2). Without

32 land reform / réforme agraire / reforma agraria 2007/2 BOX 2 Political corruption and the looting of state property assets is a development issue

Political corruption in the form of accumulation or extraction occurs when government officials use and abuse their hold on power to extract from government assets, from government revenues, from the private sector, and from the economy at large. Political corruption takes place at the highest levels of the political system, and can thus be distinguished from administrative or bureaucratic corruption. Bureaucratic corruption takes place at the implementation end of politics, for example in government services such as land administration and the tax department. Political corruption takes place at the formulation end of politics, where decisions are made on the distribution of the nation’s wealth and assets and on the rules of the game. Extraction takes place mainly in the form of the looting of state assets, soliciting bribes in bidding processes for concessions, procurement, in privatization processes such as the disposal of state land, and in taxation or negotiation of concession fees. Extracted resources (and public money) are used for power preservation and power extension purposes, usually taking the form of favouritism and patronage politics. It includes the politically motivated disposal of state property resources. By giving preferences to private companies for land concessions (agro-industry, forest and extractive industries), the perpetrators can obtain party and campaign funds, and by paying off the governmental institutions of checks and control they can stop investigations and state asset audits and gain judicial impunity.

Source: Adapted from Utstein Resource Center (www.u4.no).

a strong, competent and clean civil service, and what rights are attached to it, where development reform is bound to fail. all of the existing information is located in a complex institutional environment, GOOD PRACTICES and how complete, accurate, reliable and Only a few countries have tackled explicitly relevant the information is for planning and comprehensively the deficiencies of and decision-making. There is wide their public land management systems, and divergence in approaches and institutional only incomplete information is available arrangements for managing state land on such reform processes. This makes the information. Some governments implement lessons learned from experience rather a central database while others opt for limited compared with reforming land departmental or decentralized information administration systems, which many systems. Ultimately, all public land should countries have embarked on with support be properly registered. As an intermediate from the international community (Table 1). step and complementary management tool, Good practices for reforming public land there are good experiences with public management are designed to regulate the land inventories. They contain all the topics covered in the following sections. information on public land for management purposes but do not replace the register. Public land inventory and information systems In a first approach, compromises could One central point has to be made. No be accepted in terms of survey accuracy accountability, transparency and effective but not in terms of regulatory content. management is possible without adequate Most countries have established some sort knowledge about the qualities and of land information system but, perhaps quantities of public land, related legislation surprisingly, only very few are showing good and regulations (where is what and what examples and functionalities of information is where). Many governments share a systems for the specific requirements of common problem. They do not know where public land management (Treasury Board and how much public property they own Canada, 2000). Comprehensive, easy-to-

land reform / réforme agraire / reforma agraria 2007/2 33 TABLE 1 Country cases in a learning environment

Country Good practices

Canada Overall reform of the public sector. Consequently, transparent public asset management is based Monitoring guide: on a comprehensive accountability system and has been implemented at all levels. Guiding www.tbs-sct.gc.ca/common/us-nous_e.asp principle is to acquire, manage and retain real federal property only to support the delivery of Source: DRFP: www.tbs-sct.gc.ca/dfrp-rbif government programmes and in a manner that is consistent with the principle of sustainable development. The design of the Directory of Real Federal Property (DRFP) with its functionalities and standards as well as the audit guide and the monitoring guide could serve as good practice in other countries.

Egypt Reform of the public sector and reform of state land management has been initiated in the last Public Land Management Strategy few years, and valuable material has been developed with the support of the World Bank. There Draft Policy Note is broad support for the state land reform from the highest political level. Internal and external Source: World Bank, April 2006 dialogue is a strategic component of the learning process. Policy orientation within a long timeframe is defined before the legislation will be amended. Several institutional and organizational scenarios with the discussion on pros and cons are supporting the decision-making process. There are some difficulties in integrating military and security interests.

Cambodia Tackling of the huge overall state land problem in a post-conflict and post-transition country Multi-donor supported Land Management by enabling legislation, land policy formulation, countrywide reform of the land sector, inter- and Administration Project (LMAP) institutional arrangements (land policy board), delegation of power to provincial committees, Source: LMAP project documents implementation and capacity building with international support. Nevertheless, positive impact is still limited by weak governance. State land problems reflect power relations at the highest level of the government. Tackling the problems goes far beyond project measures.

Ghana The overall objective of the state land audit (as a component of LAP in the central region) is to The first five-year Land Administration Project enable the Government of Ghana to formulate and implement across the board a realistic, fair, (LAP-1) timely and comprehensive policy on State-acquired and State-occupied lands. Source: Ascertain the stock of state or public lands, including the effective usage of such lands. These LAP Information brochure 2006 included lands that had been either compulsorily acquired or occupied by the State without formal acquisition. Determine the acquisitions for which compensation had been paid and those for which partial or no compensation had been paid. Ascertain acquisitions for which there had been change of use as against the original purpose of the acquisition. Assess the extent of encroachment. Sensitization workshops and review meetings were held in 2005 and 2006. The exercise was successful and many lessons have been learned.

Central European transition countries Political and professional debate on public-sector reform around political decentralization, re- Source: assignment of public functions and devolution of state-owned assets. All assets connected to Urban Institute, 2006 and functions assigned to local government should be transferred. Special issues are: the legislative Open Society Initiative, 2003 process; the scale, sequencing and timing of the transfer of public land; the competencies of local government for acquisition, management and disposal of public land; the related rules for financial management of public assets; and introducing standardized accounting practices, new forms of internal and external audit and transparency, and rules for minimizing conflicts of interest.

access and easy-to-use systems have been of the government in acquiring, managing established in only a few countries. and retaining public property is that it should only do so to support the delivery of Public land policy and the regulatory framework government programmes and in a manner A public land policy provides fundamental that is consistent with the principles of directions. However, it has to be sustainable development, poverty reduction complemented by a law on public land and good governance. Within this context, management or a similar piece of legislation public property must be managed to the that should provide parameters as to maximum long-term economic advantage what can and cannot be done with state of the government, to honour social and land, and spell out the fundamental environmental objectives, to provide responsibilities of government and the adequate facilities for users, and to respect necessary decision-making processes as other relevant government policies. well as setting general parameters for The essential policy goal is to set forth the allocating public land. A guiding principle criteria for deciding who is to benefit from

34 land reform / réforme agraire / reforma agraria 2007/2 how much of these resources, for how long or public land commission for overseeing and for which purposes. At the very least, the process. Examples are the Higher the policy of public land management has Committee for State Land Management to clarify: (Egypt), the National Land Commission • policy goals, especially state land policy (Kenya), and the Council for Land Policy for implementing ecological, social, (Cambodia). economic and cultural goals; The basic regulatory framework on public • a clear commitment of the government property should focus on fundamentals and the outline of an action plan; to limit discretion and, thus, abuses. It • a statement that the public land asset is should provide the principles and not very held in trust for the people; detailed rules or terms, which are better • principles for regularization of public left to executive regulations or contracts. land; Land law and public land law reform need • how it will guarantee security of fresh attention because much legal reform common property rights, indigenous is often concerned with formalization of land rights and resource rights on “informal” land rights in favour of the public land; state (Bruce et al., 2006). For example, • the framework for the institutional customary systems are not informal but jurisdiction and public use by different represent an alternative formality. authorities; A regulatory framework (land law, law • devolution of public property to local on public land, by-laws or regulations) is government (if needed for its portfolio); required for the following critical public • the framework for special-purpose property areas, which often show weak cooperation, public–private partnership, governance realities: and land trust; • registration of public land and • transparent principles for the allocation inventory; of state land, and for what purposes; • public land classification and re- • principles of fiscal management, classification; performance reporting and audit; • public land disposal and exchange; • accountability and transparency • compulsory purchase, valuation of requirements for managing public land. public land, and compensation; Reforming the management of public • regularization of bundle of rights; land must contribute to a basic set of • resettlement; development principles, namely reduction • land concessions, leases and contracts; of severe poverty, the achievement of the • law enforcement and public land Millennium Development Goals (MDGs), recovery (in cases of illicit allocation); and progress in good governance and • audit and fiscal control. transparent fiscal management of the Nevertheless, we do not need to wait for public sector. The development objectives a comprehensive and complete regulatory of growth, poverty reduction and revenue framework for achieving better results generation need to be balanced and made towards improved public land governance. compatible in designing the strategy for Most importantly, a public land inventory, public land management. As in many an inter-institutional technical secretariat, countries there is still not much awareness and a board for overseeing the process and interest in properly managing public combined with accountability and land, the question will always be who will transparency are the ingredients for making define the development objectives and guide a start. Law and legislation are just part of the policy development for public land. a process, not the end. Some good experiences have been made by Regularization is an important good nominating a high-level, interministerial governance tool for avoiding land conflicts, board such as a national land policy board human rights violations and eviction.

land reform / réforme agraire / reforma agraria 2007/2 35 BOX 3 Directorate on Corruption and Economic Crime, Botswana

After the enactment of the Corruption and Economic Crime Act on 19 August 1994, the Directorate on Corruption and Economic Crime (DCEC) was established on 5 September 1994. The Act sets out its functions, prescribes the powers and duties of the director, states the procedures to be followed in handling a suspect, and specifies the offences involving public officers, employees of public bodies, agents and those in the private sector. The Government of Botswana saw that significant results had been achieved by implementing what has become known as the “three-pronged attack” of detailed investigation, corruption prevention and public education. The Corruption Prevention Group examines the practices and procedures of public bodies, and the private sector if so requested, in order to identify corrupt practices and to secure the revision of methods of work or procedures that may be conducive to corrupt practices. For example, abuse of land board procedures and allegations of corrupt allocations of state land were received by the DCEC in 2001. The DCEC conducted a detailed study of the procedures involved in the allocation of lands with a view to eliminating opportunities for corruption and making the allocation processes fully transparent. Being a scarce resource, land is a very contentious issue. Thus, one of the recommendations was to have land board members adequately trained and fully conversant with applicable policies and legislation. In a few cases, land board members and public officers were sentenced for issuing false documents involving the allocation of land.

Source: www.gov.bw/government/dcec

In many countries, there is no There are several important issues in straightforward inventory or registration the design and operation of a successful process for public land visible for many compliance and enforcement system. reasons. There are numerous cases Enforcement involves a number of of invasion, informal urban and rural components (legislative groups, legal settlements, appropriation of public rights instruments, enforcement agencies of way, residual claims, and unclear and courts) that act independently, or overlapping or conflicting interest between are autonomously administered, yet communal properties and public land. must function together to be effective. Therefore, a process of regularization is There is also a relatively broad range of recommended based on a participatory enforcement responsibilities involved approach with transparent rules. in the administration and management Legal instruments vary from country to of public lands and land resource country. They include statutes, decrees utilization contracts. Compliance and (presidential, ministerial, federal, state or the effectiveness of enforcement depend provincial, and municipal), ordinances and critically on the conditions and clarity of by-laws of local governments, regulations the legislation, on the strength and clarity and government contracts. These of the commandments written into these various legal instruments define who has laws, and on all four components working enforcement powers, and under which legal together. instruments. They also establish the legal basis for sanctions or charges as well as the Law enforcement by specialized anticorruption penalty provisions, all of which are central agencies to the enforcement system. However, which Anticorruption strategies will usually have ones are involved in any given case are to consider whether to establish a separate usually determined in a rather ad hoc way institution such as an anti-corruption at best and in a self-interested way at worst. agency (Box 3) to deal exclusively with

36 land reform / réforme agraire / reforma agraria 2007/2 corruption problems, whether to modify local level. At local-government level, special or adapt existing institutions, or some attention must be given to the sometimes combination of both. A number of legal, non-transparent and non-accountable policy, resource and other factors should be behaviour of local leaders (Open Society considered in this regard. Initiative, 2003). The United Nations Convention against Examples can be: corrupt practices of Corruption requires the establishment of land disposal and land conversion (less such agencies. Nevertheless, anticorruption than market value and favouritism); commissions are problematic when misusing the instrument of compulsory political leaders are only responding to land acquisition for undercover purposes; demands from international donors. In the shift of public ownership to municipal such countries, policy-makers can ignore enterprises (where surplus public land and domestic demands for reform and enact the revenues could disappear in a non- minimal reforms to satisfy external agents. transparent system); and manipulating This minimum may be nothing more than zoning combined with land conversion for the establishment of an anticorruption private gain. commission, an office of the ombudsman, or an antifraud unit without enabling Public land and the commons legislation, competent staff, or a budget. Common property regimes are management systems where resources are accessible Devolution of public land from central institutions to a group of rights holders who have to local level the power to alienate the product of the Decentralization reforms are one of the resource but not the resource itself. fundamental components of public-sector Common property can be legally owned by reform and democratic development. the state, a community or an organization. In many countries in transition, Within this legal framework, a group of property devolution was simultaneously traditional rights holders manages the implemented with the dismantling of the resource exclusively to preserve and socialist ownership model in the context of enhance its long-term productive capacity privatization and restitution. Devolution of for the benefit of all current and future public property was and still is discussed members of the group. All members share extensively during the political reform reciprocal rights and duties that can only be process, and arguments are exchanged for amended by collectively binding decisions. and against property devolution. There can It is particularly useful to look at which be no real local autonomy without a sound users have rights of access, withdrawal, economic base. Significant own resources exclusion, management and alienation, and are required for fiscal decentralization, and for what uses. Access and withdrawal are public land can be an important source considered use rights, while management, of municipal revenue. The most common exclusion and alienation are rights of arguments against devolution were the control over the resource. “Ownership” is risk of inefficient management of public often conceived as holding the full bundle land and the lack of capacities. Useful of rights. From this listing of the bundle experiences for countries still facing the of rights, it is already apparent that state reform process have been made during common property is much more complex the last two decades. The challenge of than simple ownership. The concept of governance and accountability at local- land resources being divided into mutually government level is big and similar to the exclusive “properties” is gradually giving challenge at central government level. Basic way to one of being a mutually inclusive principles and clear rules must be defined set of “partial” interests. Much of the and enforced for avoiding weak governance innovation is a result of the continuing and corruption in managing public land at evolution in managing scarce resources,

land reform / réforme agraire / reforma agraria 2007/2 37 natural and human-made. It would be as complementary objectives in order to much more resource efficient if a number provide win–win development options. of individuals and/or enterprises could There is generally a lack of knowledge and discover non-competing uses of the same awareness of this broader implication in resource base. Yet all too often government rural as well as in urban land management. agencies fail to recognize community-based Examples of the linkage between legal land and resource rights on state land. status and land use are: There has been the steady appropriation of • regularization of informal settlements many of the most valuable local common on public land for supporting upgrading properties by the state and their re- programmes; designation as state or public lands. This • providing public land for housing the has been undertaken on the assumption poor and for rural landless; that the state is the only proper guardian • facilitating exchange of public land of such properties and the rightful primary (land swap) for development or beneficiary of their values, and often on an conservation purposes; assumption that these same properties are • guiding acquisition and disposal of in any event weakly tenured at best. public land for achieving broader Even in countries where public land is development objectives; registered, there is generally no registration • land readjustment combined with of partial interest and recognition of the public land banking and for rural and bundle of rights. The regulatory framework urban development; must provide a clear legal base for the • land exchange for facilitating zoning registration of partial interest over space and land-use regulation; and time and the recognition of the group. • co-land management models (state and Comanagement models (e.g. through local communities) and participatory participatory land-use planning) for clearly land-use planning for securing resource defining the role of the state and the role of rights in time and space the local group in managing the public land resource on the ground should complement Accountability and transparency the regulatory framework. Good governance and anticorruption measures in public land management can Integrated land-use management and public land take a variety of forms, and their adequacy The major objective of land management will depend on the prevalence of the is matching the land rights with land-use respective types of corruption and on the rights and land-use options for achieving political and institutional environment of sustainable development objectives. the country in question. As an entry point International agreements are affecting for assessing and discussing the current national legal systems, and national and state of the art of public land governance local land-use systems are paying attention in any country, one could best check the to the urgings of international declarations Governance Research Indicator Country and conventions. Snapshot (GRICS) rule of law dimension In the context of managing public (WBI, 2005). The rule of law dimension property it is clear that the legal status and reflects the power relations in a country and classification of public property, present is directly related to the quality of managing land use and the desired (best) land- public assets. use options are interlinked and should This is particularly important where not be dealt with separately in policy political corruption occurs, where discussions or in the operation and delivery institutional and enforcement capacity is of public property. Integrated land-use likely to be weak, and where, consequently, management and public land management the timing, sequencing and design of reform are closely connected and should be seen are crucial to ensuring the feasibility and

38 land reform / réforme agraire / reforma agraria 2007/2 sustainability of the reform process. There are numerous good practices, There is the need to curb high levels of but such experiences are scattered, not administrative discretion, which, coupled systematically analysed, and not easily with a lack of clear rules and regulations, accessible or properly documented. There are conducive to the persistence or is an enormous need and interest not facilitation of phenomena such as land only for sharing experiences about work capture, the corrupt allocation and in progress in all countries but also for management of public land, and land tailored capacity-building opportunities in allocation more generally. Most of the the effective management of public land. causes and conditions contributing to Public land will continue to take on weak governance and corruption in these greater social and economic significance. areas are best and most sustainably In doing so, the related institutional, legal addressed by comprehensive institutional and operational arrangements that should reform and capacity building. They secure multiple interests in specific parcels concern performance evaluation, regular will take on additional political importance. auditing and reporting, service orientation, We have not yet scratched the surface on budgeting and access to information, and crafting new institutional arrangements the nomination of an inter-institutional pertinent to land in this broader sense oversight board. Especially in countries (Bromley, in press). with political corruption, the design and Reforming the management of public implementation of good governance and land must contribute to deliberate policy anticorruption strategies is a politically and development principles, namely sensitive issue, with powerful interests the reduction of severe poverty, the standing to lose out in the process and achievement of the MDGs, and progress with results manifesting themselves in the in good governance and transparent fiscal medium to long term rather than in the management of the public sector. The short term. development objectives of growth, poverty Some “new public management” (NPM) reduction and revenue generation need to be countries such as New Zealand, Canada balanced and made compatible in designing and others have established legal and the strategy for public land management. operational requirements for easy-to- The following steps highlight and access performance and accountability summarize the major points made towards reporting on state assets, including public reforming the management of public land: land. However, there is also good reason 1. Create awareness and recognition at why countries in political reform processes the highest level in central and local should be careful in adapting NPM. It could government, development institutions lead to the fragmenting of an already weakly and civil society: What could be the integrated state and/or accelerate the waste driving force for reforming public land of public goods. management? (For example, public- sector reform, MDGs, poverty reduction CONCLUSIONS AND RECOMMENDATIONS strategy papers, governance reform, Even advanced economies have generally and social justice.) managed their public land assets very 2. Develop a good deliberate policy poorly in the past, and many countries around how governments should are only now launching reform efforts and intervene in public land management improvements. This new interest is mainly and land markets: Governance checks driven by public-sector reform and fiscal could be good starting points for reform in some countries, or devolution understanding the scope of problems to of state assets from central to local be solved and discussion of principles government or the challenge of governance and options on managing public land. and accountability in other countries. 3. Develop the regulatory framework:

land reform / réforme agraire / reforma agraria 2007/2 39 Reviewing, complementing and making land should be designed and offered by the the legal framework coherent, providing international community, and curricula on mechanisms for enforcement and for land administration should be updated. the right to access information. Global statistical information and analysis 4. Develop and apply a comprehensive on public land at central-government and accountability chain: Performance local-government levels is extremely weak benchmarks, fiscal control, internal compared with other relevant indicators and external public land audit, conflict on sustainable development. Creating a of interest rules, and interacting global learning network for exchanging with anticorruption framework of the information and developing a knowledge government. base for effective public land governance 5. Develop transparent fiscal management would certainly contribute to sustainable procedures: Valuation of public land land management. and accounting (eventually accrual accounting), revenue transparency, REFERENCES and reporting. Bromley, D. (in press). Land and economic 6. Develop alternative institutional development: new institutional arrangements and organizational scenarios for the for the 21st century. Cambridge, USA, Lincoln acquisition, management and disposal Institute of Land Policy. (also available at www. of public land: Broad discussion lincolninst.edu). of pros and cons for centralized, Bruce, J.W., Giovarelli, R., Rolfes Jr, R., decentralized, mixed custodian models Bledsoe, D. & Mitchell, R. eds. 2006. Land law or special-purpose state cooperation. reform, achieving development policy objectives. 7. Nominate high-level body for overseeing Washington, DC, World Bank. the decision-making process and for Centre on Housing Rights and Evictions control: For example, interministerial (COHRE). 2006. Global survey on forced public land board with trustee function evictions, violation of human rights. Geneva, of the government. Switzerland. (also available at www.cohre.org). 8. Develop the regulations, technical tools Open Society Initiative. 2003. Transfer of public and standards for the registration of property to local governments in central Europe public land and land inventory. (available at www.lgi.osihu). 9. Design and implement a capacity- Treasury Board Canada. 2000. Property building strategy and specific training management framework policy (available at www. modules for professionals involved in tbss-ct.gc.ca). managing public property. World Bank Institute (WBI). 2005. Governance The role of the international community Research Indicator Country Snapshot (available at is first of all to be aware of the importance http://info.worldbank.org). of public land for development. There is a need to integrate public-land matters much better in the formulation of land policies, public-sector reform and fiscal reform initiatives as well as in public-good policies. There is certainly a need for more research on dealing with the recognition and registration of the bundle of rights on public land, on global analysis and on innovative institutional models for acquisition, management and disposal, for example, special-purpose agencies or public–private partnership models. Specific training modules for effective management of public

40 land reform / réforme agraire / reforma agraria 2007/2 FAO/22765/G. Diana Réforme du système d’enregistrement des droits de propriété en Géorgie: vers une bonne gouvernance en matière de régime foncier et d’administration des terres

Dans la décennie qui a suivi l’indépendance de la Géorgie en 1991, les réformes consistant à passer d’une économie centralisée à une économie de marché avaient essentiellement un caractère ponctuel. L’absence de base juridique solide empêchait l’administration foncière d’être réellement efficace. L’omnipotence d'une seule entité sur la gestion des terres publiques ainsi que la gouvernance défaillante, tant au sommet de l’État que dans les collectivités locales, le chevauchement des activités et le manque de consensus dans le processus décisionnel et de transparence et d’information du public conjugués avec la fragilité de l’État de droit ont fait le lit de la corruption. De plus, les activités des donateurs étaient mal coordonnées, ce qui aggravait l’inefficacité du système. Après 2003, le gouvernement a commencé à réformer l’enregistrement des droits de propriété en se fondant sur des principes de bonne gouvernance. Cette volonté politique a bénéficié de l’aide des donateurs qui se sont engagés à appuyer les processus. Les réformes ont mis principalement l’accent sur: la protection des droits de propriété et des droits fonciers; et la création d’un système d’enregistrement exempt de corruption, transparent et axé sur le client. Une approche tenant compte des besoins des parties prenantes a été élaborée en vue de garantir une indépendance financière par rapport au budget de l’État et de créer des revenus réguliers. Ces facteurs ont contribué à la mise en place d’un système national d’enregistrement des droits de propriété durable, efficace, exempt de corruption, impartial et unifié. Reforma del sistema de registro de derechos de propiedad en Georgia: hacia una buena gestión pública de la tenencia y la administración de la tierra

En el decenio que siguió a la independencia de Georgia en 1991, las reformas dirigidas a pasar de una economía de planificación centralizada a una economía de mercado tuvieron principalmente un carácter ad hoc. La eficacia en la administración de la tierra se vio obstaculizada por una base legal deficiente. La concentración del poder sobre las cuestiones relacionadas con la tierra en una sola entidad, la mala gestión pública por parte de sus máximos dirigentes y las entidades locales, la duplicación del trabajo y la falta de decisiones adoptadas por consenso, de transparencia y de conciencia pública, todo conjugado con una aplicación escasa de la ley, creaban una base para la corrupción. Además, las actividades de los donantes estuvieron deficientemente coordinadas, lo que agravó la ineficacia del sistema. Después de 2003, el Gobierno inició reformas en el registro de los derechos de propiedad que tuvieron en cuenta los principios de buena gestión pública y modelos logrados de países desarrollados. Esta voluntad política claramente declarada se vio reforzada por una disposición por parte de los donantes a respaldar los procesos. Los principal objetivos de las reformas eran: seguridad de los derechos de propiedad y tenencia, y la creación de un sistema de registro público unificado, orientado al cliente, transparente y libre de corrupción. El planteamiento adoptado para responder a las necesidades de las partes interesadas trataba de garantizar la independencia financiera respecto al presupuesto estatal, así como la generación de ingresos sustanciales. Estos factores contribuyeron a la creación de un sistema nacional eficaz, eficiente y sostenible para el registro unificado, imparcial y libre de corrupción de los derechos de propiedad.

42 land reform / réforme agraire / reforma agraria 2007/2 Property rights registration system reform in Georgia for good governance in land tenure and administration

T. Dabrundashvili Tea Dabrundashvili is International Project Manager, FAO/UNIFEM Project Improved Food Security and Enhanced Livelihoods through Institutional and Gender-sensitive Land Reform in Tajikistan

In the decade following Georgia’s independence in 1991, reforms aimed at moving from a centrally planned economy to a market economy were mainly ad hoc. Effective land administration was hampered by a weak legal base. The concentration of power over land issues in a single entity as well as poor governance by top management and local government, duplication of work and a lack of consensus-oriented decision-making, public awareness and transparency all combined with the weak rule of law to create a basis for corruption. Moreover, donor activities were poorly coordinated, compounding the inefficiency of the system. After 2003, the government initiated reforms in property rights registration that took into account good governance principles. This political will was reinforced by a readiness on the part of donors to back up the processes. The main thrusts of the reforms were security of ownership and tenure rights, and the creation of a unified, customer-oriented, transparent and corruption-free public registry system. A responsive approach to the needs of stakeholders was intended to guarantee financial independence from the state budget as well as good income generation. These factors contributed to the establishment of an effective and sustainable national system for unified, impartial and corruption-free ownership rights registration.

INTRODUCTION INCENTIVES AND DRIVERS FOR CHANGE Georgia has two autonomous republics and IN TERMS OF GOVERNANCE ISSUES TO BE it is divided into 9 regions and 67 districts TACKLED (rayons). After the breakup of the Soviet From 1997 to 2004, the State Department Union, Georgia became an independent for Land Management (SDLM) was the country in 1991. principal autonomous land administration During the first decade of independence, agency. the country suffered from internal conflict, The chief registrar managed the land corruption, poor governance and high cadastre and registration. This institution poverty levels. Georgia has also been consisted of a national (central) office, heavily over-aided in recent years, which 67 rayon (district) offices and 7 regional has led to a degree of donor fatigue. offices. These offices were headed by a zone However, the change in leadership in registrar, responsible for the operations 2003 presented a new opportunity for the and other registry activities in the zone. government and donors to engage in a more The SDLM supervised the work of the harmonized and efficient way in order to regional offices. However, in practice, implement reforms. the regional and district offices were the

land reform / réforme agraire / reforma agraria 2007/2 43 subject of horizontal management from Thus, a good basis for corruption was the local governments. The decision- created by: making process of the SDLM’s regional and • the concentration of the whole decision- district offices was often influenced by the making power on land issues under the local governments, and by different land one entity; committees and councils. • poor governance in terms of unclear The responsibilities of the SDLM were distribution of responsibilities between wide-ranging and included legal–technical the SDLM’s top management and local functions (land registration, cadastre, governments; and land valuation) and functions of a • duplicated registration works by the more political nature (land reform, land Bureaus of Technical Inventory; allocation, alienation, change of land • a lack of consensus-oriented decisions; use, and state control over land use and • the almost non-existence of public protection). awareness and transparency; The SDLM made some progress in the • the vague legal framework; execution of first registration. Support from • the weak rule of law. donor organizations contributed greatly to Moreover, the absence of a land policy, this progress. However, because projects of a clear development strategy and of were donor-driven, their implementation unified cadastral and registration standards followed several different approaches and resulted in poorly coordinated donor standards. There were no unified technical activities, and helped to form an ineffective specifications or standard instructions and inefficient system. for cadastre and registration in place. After the so-called Rose Revolution Moreover, donor coordination was very (23 November 2003), the SDLM was poor. liquidated and the National Agency of In addition, a “weak or non-existent legal Public Registry (NAPR) was established base hindered land administration after under the Ministry of Justice. This independence” (UNESC, ECE & CHS, 2001). process initiated the reforms considered After the adoption of the new constitution necessary for the creation of an effective in 1995, great progress was made in the electronic registration system using modern development of land-related legislation. technologies and the standards of good However, much of this was very ad hoc. governance of developed countries. There were still gaps that needed to be Fundamental reforms were initiated for filled, and legislation was often drafted to the registration domain for movables and meet the needs of individual projects. The real estate as there was both a clearly long term still requires a sustainable legal stated political will from the government to framework. reorganize and the readiness of the donors The situation in urban areas was very to back up the processes. The reforms different. Systematic registration was had to cover institutional and legislative limited to the German project in Tbilisi and aspects, ensure transparency, and enable little progress was made through sporadic participatory and consensus-oriented registration. The Bureaus of Technical decision-making. A responsive approach to Inventory held ownership registrations the needs of stakeholders and customers and other records for apartments. The would guarantee financial independence rights on real estate were recognized by the from the state budget as well as good State only after registration in the Public generation of income. All the above would Registry. However, owing to duplication of contribute greatly to the establishment works and poor public awareness in terms of an effective, efficient and sustainable of registration and titling, many people system with a unified, impartial and non- considered the technical inventory records corruptive registration of ownership rights to be sufficient to prove ownership. all over the country. The reform package

44 land reform / réforme agraire / reforma agraria 2007/2 was prepared and the initial steps were • capacity building of personnel; taken. • coordination of donor organization In the course of the structural activities; reorganization (Parliament of Georgia, • computerization of the processes 2004a), the SDLM became subordinate according to modern standards. to the Ministry of Justice and had to The task of the NAPR is state registration be reorganized. The NAPR was then of ownership and other rights to real established (Parliament of Georgia, 2004b). estate and movables. In view of the reform The NAPR is a legal entity under public objectives, from the outset, the NAPR aimed law and it enjoys autonomy and financial to provide easy access to public registry independence in its management and information, secure ownership rights and decision-making. Establishment of the simplify registration procedures in order to NAPR entailed the liquidation of the SDLM stimulate small and medium-sized business and of the Bureaus of Technical Inventory development. in 2004. Previously, the Department of Geodesy Currently, the land management and and Cartography had regulated surveying land administration functions are separate. and mapping activities conducted by The NAPR is responsible for the cadastre state organizations and the private sector. and for movables and real-estate right Until 2005, cadastral surveys had to be registration. Its duty is to continue the conducted by the licensed surveyors. process of integrating the cadastre and However, the Government then abolished registration, the two fundamental elements the licensing system for the cadastre of ownership and parcel information. Land and backed up this decision with the management issues, such as soil erosion, argument that it was a measure to remove land protection, and land-use management, extra barriers for private surveyors. For have been transferred to the Ministry of the NAPR, the principle objective for the Environment and Natural Resources implementation in the course of the reform Management, and some functions (e.g. land became that of defining the precisely consolidation) have been transferred to the determined standards and procedures Ministry of Food and Agriculture. for the cadastre and registration. A As mentioned above, the new law comprehensive framework of registration determined the liquidation of the Bureaus instructions/procedures and cadastre of Technical Inventory. The information standards had to be prepared in order formerly kept there has been transferred to ensure mechanisms for producing to the Public Registry. The Public Registry high-quality work and the elimination of has had to ensure the proper systemization corruption. and processing of the data obtained after The establishment of a single the liquidation of the Bureaus of Technical Informational Cadastre Centre under Inventory. the NAPR was determined in order to integrate and update systematically the DESCRIPTION OF THE REFORM geo-information handed over by the donor- Major objectives financed projects. The main objective of The major directions of the reform were: the Informational Cadastre Centre is to • provision of security of ownership and establish an information service of district tenure rights; registries / territorial registration offices, • creation of a unified, modern, customer- and to digitalize all the information in oriented, one-stop-shop, transparent, each registration office, and archive it in a corruption-free public registry system digital format, as well as to implement the through comprehensive institutional, consequent computerization of registration financial, technological and legislative procedures. In addition, the Informational reform; Cadastre Centre is also responsible for

land reform / réforme agraire / reforma agraria 2007/2 45 preparing specific registration software. The minimization of the procedure for the main types of information are: ortho-photos, registration period. Registration service satellite images, digital maps, registration fees had to be fixed and differential in geo-information database, and cadastral terms of timing. Reasonable registration database. The registration database will fees combined with transparent, customer- be systematically updated and information oriented, corruption-free services had to accumulated in the Informational Cadastre ensure good income. Centre. Another key issue of reform was that of The NAPR also has to conduct rights improving donor coordination, because registration in relation to movables. “coordinating efforts taken by State However, movable property registration Department of Land Management were is a relatively new field in the country. going on but had to be considered as not Considering the practices and lessons sufficient” (Kaufmann, 2003). Improvement learned from developed countries, the meant achieving consensus among the NAPR intended to establish movable stakeholders, and exploiting the synergies property rights registration. However, there of donor efforts, expertise and resources in were precedents of mortgage registration, order to establish a sustainable, effective although the cases were scattered and efficient cadastre and registration among the Chamber of Notaries and land system according to the standards of management offices. There was neither developed countries. a legal framework for movable property The development strategy of the NAPR mortgage registration nor clear procedures involves six main areas: to make the process transparent and • institutional, customer-oriented. • legislative, One of the major aims of the reform • technological, was to improve the legislative framework, • administrative, which needed updating through new laws • financial, and amendments to existing legislation, • donor coordination. normative acts, etc. Obviously, without a comprehensive and clear legislative Institutional reform framework and strong monitoring, all Since the reform, the Public Registry has reform efforts would be ineffective. been under the Ministry of Justice, and To ensure achievement of the defined operated by the NAPR. However, it is objectives effectively and efficiently, human not part of a vertical management of the resources development was crucial. It was government. decided to prepare a capacity-building The Ministry of Urban Development and plan, which would be supported by donor Construction formerly shared responsibility projects. with the SDLM for land-use planning and However, in order to attract and retain policy formulation. The Bureaus of Technical qualified personnel and carry on operations Inventory were subordinated to the above- in an effective manner, the NAPR had to mentioned ministry and held the records for ensure a stable financial and material- real estate in urban areas. The Bureaus of technical base (to provide adequate salaries Technical Inventory continued functioning and working conditions). Being a legal for almost 14 years after independence. They person under public law, the NAPR should duplicated registration work. function on a self-financing base and no To achieve system unity and to improve longer be dependent on the deficient state service in terms of establishing a one-stop- budget allocations. shop, the Bureaus of Technical Inventory Besides legislative and institutional were liquidated. The information kept there reform, the NAPR management targeted was transferred to the NAPR (above).

46 land reform / réforme agraire / reforma agraria 2007/2 In addition to the Bureaus of Technical exchange” was limited to the distribution Inventory and the SDLM, there was of such decrees, orders, etc. Besides, the another registry – the lien registry. This regional offices (as well as local offices) registry provided access to small credits. were participants in the land distribution The registry ensured rights registration on committees, and the heads of regional mortgaged real estate and movable property offices frequently used to influence district and, accordingly, issued the appropriate offices in the decision-making process as abstract upon request for credit unions they were considered higher in hierarchy. or other interested bodies. The Georgian The accumulation of non-transparent, Chamber of Notaries operated the lien decision-making power on land issues was registry. In 2004, it was decided that the creating a good opportunity to smoothly lien registry was also to be operated by the adjust or re-adjust facts and processes NAPR. and so cover corrupt dealings. As the The above-mentioned steps ensured regional offices did not undertake land the implementation of the one-stop-shop management, registration or cadastre work, principle for citizens. There is no longer any their existence, rather than facilitating need to make separate enquiries at different communication, acted as an extra barrier organizations. The database of the Bureaus to direct communication between the of Technical Inventory and lien registry central and district offices. Moreover, the operate under the same institution – the maintenance of the whole office was an NAPR, where details on property ownership additional financial burden. on property and any other type of rights In consideration of the above arguments, registration are held alongside the movables the regional offices were abolished (as charges registry. This makes it possible they were mainly bureaucratic bodies). to conduct the process securely and It was recognized that registrars were conveniently for customers. The customers independent in their decision-making, no longer have to go back and forth from while the Central Office needed to support one place to another place several times them administratively in terms of providing in order to collect documents according a comprehensive legislative framework to different procedures and different fees. as well as explanatory seminars on every All the arrangements are now handled by new or amended legislative or normative the NAPR. The process is now much less act. Following the reform, the registrars time-consuming and rather inexpensive became solely accountable for every single for customers compared with the previous registration entry provided according to system. the law. Their performance is monitored randomly by a special department of the Administrative reform Central Office of the NAPR as well as by From the SDLM to the NAPR the General Inspection Unit of the Ministry Owing to the lack of a comprehensive land of Justice of Georgia. Independence of the policy, the absence of a clear development registrars in their decision-making was a strategy and the existence of many gaps clear delegation not only of tasks but also of in legislation, the heads of the regional responsibilities. offices of the SDLM had no mechanism Salaries were very low, with a minimum for ensuring a unified registration model wage of lari 35 and a maximum wage at least on the regional level. Moreover, of lari 150 (lari 1 = US$1.74 in August separate decrees or orders issued by the 2006). These low salaries were necessary Central Office or the Government about at the time owing to the need to make land issues were not clearly explained to rational and effective use of human as the staff of district offices or monitored well as financial resources. Staff numbers by the regional office. “Information were optimized while implementing

land reform / réforme agraire / reforma agraria 2007/2 47 administrative reform, and the number of In accordance with the above-mentioned personnel was reduced from 2 100 to 600. concept, the registration service has been The overstaffed entity had been neither reorganized to provide system transparency effective nor efficient. An important decision and adequate service. The physical and was that to abolish accounting departments functional separation of the front-offices in the territorial registration offices. It was and back-offices of the registration service important to eliminate the flow of cash at is considered a significant change in the the registries. The NAPR now distributes system. This has meant the elimination staff salaries by plastic cards through bank of citizens’ involvement in the registration accounts. The sole focus of the registrars process and, therefore, the creation of has become the registration process. an appropriate working environment for The Central Office of the NAPR provides registration officers. Within this process, management for administrative, logistical free legal consultancies are held at the and financial issues. After implementing offices. Citizens can easily find appropriate the administrative reforms, the average services on the clear notice boards. salary rose immediately from lari 57 to Moreover, the registration procedure has lari 452. been simplified from 67 steps to 9. These The administrative reforms also aimed two aspects have reduced registration to recruit highly skilled professionals for times. To this end, registration software an effective and efficient operation of the has been created, which has already been NAPR. To that end, in the first phase of the introduced at the Tbilisi Registration Office. reform process, qualification exams were Moreover, the database for Tbilisi has been conducted. The examination strategy and placed on the Internet. The NAPR has a written test was prepared in consultation Web site, where the basic information has with donor-funded projects and local non- been placed. governmental organizations (NGOs). The An internal control and audit division has exams were conducted by the Ministry of been established. It has a hotline and is Justice of Georgia. In this way, the NAPR charged with the following main tasks: staff were recruited. • Plan and conduct preventive activities Human resources development, capacity for disciplinary and legislative violations building and training are considered by NAPR staff, and conduct internal essential components for the sustainable investigation of such facts. development of the institution. New • Analyse the activities of the staff opportunities have been provided by within the limits of its competences, the Swedish International Development and monitor the activities of the NAPR Cooperation Agency (SIDA) project. offices. This management and training support • Check applications and accusations, project will greatly help the NAPR in its and respond; prepare conclusions about initial three-year period of establishment. internal investigations and submit them Within this project, the main directions of to the chairperson in order to enable capacity building are: (i) management; (ii) sound and impartial administration registration; (iii) information technologies; of the rule of law and appropriate and (iv) geo-database development. responsiveness to claims by customers; The service known as the “improved and monitor the operations of the registration concept” has been established registration clerks. at the Tbilisi Registration Office in order to enhance service quality. The main Donor coordination principle of the concept is the focus on There has been a significant focus on system safety, transparency, and ensuring improving donor coordination from the adequate service. Later on, this principle outset of the initial phase of establishing will also be applied in district registries. the NAPR as the synergy of expertise,

48 land reform / réforme agraire / reforma agraria 2007/2 finances and efforts will make it possible operates in a consensus-oriented way. to create the most effective and efficient Within its framework, periodical meetings system. The target for everyone has are arranged in order to develop common been the same, but the implementation approaches to customer-oriented problem- methods, approaches and procedures solving. have been different. It was important Thus, the registration system of the public to make the process target-focused and registry has become a centralized body in consensus-oriented, with improved levels terms of independence, finances, functions of accountability, participation and and administration (separate from local inclusiveness. With these aims in mind, governments/authorities) and, at the same working groups with representatives from time, a decentralized one, considering all the projects were set up to address the complete delegation of tasks and four aspects: (i) registration database and responsibilities to the local district offices, software; (ii) development of legislation; which have excluded conflicts of interest (iii) registration procedures/instructions; with regard to public administration. and (iv) administration structure and a human resource qualification improvement Legislative reform strategy. The World Bank expert (Sharp, Law on the State Registry 2004) evaluated the effectiveness of this The initial formation of a new legislative synergy of efforts thus: “It should be framework started with the approval of the recognized that the both the work groups Georgian Law on the State Registry in 2004. and the management of the new Agency The scope of the law is to define the type of have been extremely active…and significant State Registry, the State Registry system, its progress has been made.” The other organizational and legal principles, and the assessment (Danielson, 2004) on that terms of references of the registry bodies. decision stated: “The progress in general is impressive.” and “The coordination between Law on fee for services rendered by the National Agency of Public Registry and NAPR the donor organizations is much better The law on fee for services rendered by now than a year ago. The cooperation the NAPR was a significant innovation for between the involved parties seems to be Georgia (Parliament of Georgia, 2004c). closer and direct treating the subjects. It is the cornerstone for strengthening The Informational Technology-people the NAPR’s financial independence and showed how they care about each other’s has helped in combating corrupt dealings competence.” When the working groups between registration staff and customers. had accomplished their tasks, the Donor Customers usually paid a bribe in order Coordination Council was established in to speed up the registration procedure early 2006. (rather than for falsification of documents). The NAPR cooperates closely with the The registration procedure was time- Chamber of Notaries of the Ministry of consuming (40–45 days) and the service Justice and with the Tax Department of was frustrating because of long queues. the Ministry of Finance on developing Therefore, customers were content to pay a enterprise registration and tax lien/seizure bribe. regulations. In addition, it has broadened The new law has established fee rates, stakeholders’ inclusiveness in the decision- payment procedures and terms for services. making and problem-solving processes. The Registry has introduced an accelerated The main stakeholders, such as NGOs, registration service (Box 1). bank associations, representatives of the This law regulates fairly the correlation ministries, independent experts, etc., of the services rendered in obligatory terms have been identified, and a deliberative and the money paid. In short, it has set council has been established. The council service standards. It gives possibilities

land reform / réforme agraire / reforma agraria 2007/2 49 BOX 1 Key innovations of the law on service fees

The law has introduced an accelerated registration service with a fixed fee and the following terms and conditions: • Initial registration: 1, 3 or 5 working days. • Further registration, including registration of transfer, encumbrance, limitation or termination of property right (except mortgage): 1 or 3 working days. • Mortgage: 1 working day. • Movable property rights registration: 1 or 3 working days. • For initial registration of right on real estate, including preparation of cadastral maps, completion of registration cards, and issuance of registration certificates or/and abstract, the following fee rates and terms were set: − registration of agricultural land: 10 working days, free of charge; − registration of non-agricultural land: 10 working days, lari 36; − accelerated registration of non-agricultural land: 1 working day – lari 150, 3 working days – lari 108, 5 working days – lari 72. • Where an amount exceeding the fee payable under this law is paid, the difference between the paid fee and the fee rate determined by this law is to be refunded. The amount paid is to be refunded in full in the event that: − the NAPR refuses to render service on legal basis; − an interested person refuses service before commencement thereof; − the service is not rendered by the NAPR within the terms determined by this law.

for refunds and/or reimbursement where transfers of multiapartment buildings/ obligations are not met by the Registry. condominiums under construction The law has set strict registration terms, (Article 15). down from the previous 40–45 days to a Another important provision is the maximum of 10 days for initial registration, registration of linear constructions with the possibility of registration in 1 day (Article 16), something not envisaged with equivalent payment, at five times less previously. It allows and defines registration the normal term and fee (lari 36). The new for oil, gas and other pipelines. The demand accelerated registration service is optional for registration of such objects has been for the customer, and it has contributed increasing from various entities and/or greatly to eliminating corrupt dealings organizations, such as railways and oil as well as to enhancing the financial companies. The legislative gap or so-called independence and strength of the NAPR. “blank spot” was a critical impediment for investment and economic development The law on the registration of the rights as there was no legal stipulation to on real estate acknowledge ownership or tenure rights on Broadly speaking, the Law of Georgia such objects by the state. on Registration of Rights on Immovable The new law defines clearly and Property (Parliament of Georgia, 2005) precisely for each specific case the list of defines the terms more clearly, fully and registration documents to be submitted to structurally (Box 2). Moreover, it has the registration office (Article 20). It has considered the active development of simplified the registration procedure for the construction business in Georgia, when the reference notice issued by the which required security of rights through former Bureaus of Technical Inventory has the registration of initial ownership and been lost or damaged beyond identification.

50 land reform / réforme agraire / reforma agraria 2007/2 BOX 2 The Law on Registration of Immovable Property Rights

Complex reforms have been carried out with the aim of developing a secure, transparent and simplified registration system of real estate rights. Important innovations of the Law of Georgia on the Registration of Immovable Property Rights are: • specification of the documents for public register; • definition of the initial and further registration of right to multiapartment buildings under construction; • definition of the special cases for registration of real estate having an independent property right (linear constructions, e.g. pipelines); • prohibition imposed on the registration service to demand any documentation or information from the applicant other than that required by law; • stipulation of the basis for the suspension, refusal or termination of the registration; • stipulation of the basis for making changes, additions, and rectifications of the technical errors in the public register entries; • demarcation of the rights that are subject to the compulsory registration in the public register and the rights that are subject to voluntary registration in the public register; • lien registration establishment.

Previously, the applicant had to make a To ensure proper arrangements for staff claim in the courts. Now, the applicant just wages, the registration offices have been has to provide a signed written statement. divided into five categories (Box 3), taking In brief, the innovations of this law into the account the income received by have improved the registration system nine separate district offices concerning the considerably. Its definitions are in plain defined fee. language, which has reduced registrars’ Flexibility to move from one category possibilities for “interpretation” and has to another is ensured, according to the created a more simple and transparent increase in income generated per registry. system. Moreover, it clearly and As mentioned above, the decision to impartially empowers the citizen to obtain abolish the accounting departments in reimbursement in the event of violation of the territorial registration offices and to the registration terms by registration clerks make fee payments through the bank was or owing to other circumstances. important for eliminating cash flow at the registries. The NAPR now distributes staff Financial reform salaries by plastic cards through bank The law on fees for services provided for accounts. The sole focus of the registrars the financial independence and strength has become the registration process. of the NAPR. It represents the cornerstone For the NAPR, the income ensured by for further reforms and for the sustainable registration service fee was lari 8 162 400 maintenance of the system in terms of its (including VAT) in 2005. Of this amount, material and technical basis and human lari 1 062 500, as VAT, was transferred resources development. Under the financial to the State Budget. In the past, the State reform, an Internet banking service was Budget allocation for the SDLM had been introduced, and a computerized accounting lari 1 200 000 – almost the same sum as system (known as Orisi) was set up and that contributed by the NAPR to the State connected to the local computer network. Budget as VAT. This system has considerably facilitated accounting procedures.

land reform / réforme agraire / reforma agraria 2007/2 51 BOX 3 Salary-scale categories for registries established according to income generation

There are five salary-scale categories: • the first category covers 2 offices: Central and Tbilisi registration offices; • the second category includes 4 registration offices with average monthly income exceeding lari 10 000; • the third category includes 9 registration offices with average monthly income of lari 4 000 – 10 000; • the fourth category includes 12 registration offices with average monthly income of lari 2 000 – 4 000; • the fifth category includes 41 registration offices with average monthly income not exceeding lari 2 000.

Source: NAPR (2005).

Technological reform with donor projects. The main objective Main goals of technological reform during the development of the software was The main goals of technological reform are: to create a customer-oriented, transparent • development of registration software; and secure system for the registration of • establishment of secure electronic ownership and other property rights. The registration – cadastre system; software has simplified the registration • establishment of e-governance-ready procedure – reducing a 67-step procedure system. to 9 steps. It has envisaged promoting Technological reform has also envisaged access to registration data via the Internet. the establishment of a unified electronic The interested parties (notaries, banks, registration system with a well-protected etc.) will be able to access data without central database. The key aspects of the leaving the offices. In addition, it is planned technological reform are: (i) registration to establish a unified geo-database in system networking; and (ii) information order to enhance data security, increase publicity. accessibility, and raise publicity. The The electronic registration system needs enhancement of information accessibility to encompass: (i) systematic integration; (ii) and publicity related to real estate will information integration; and (iii) information promote the development of the property publicity. market. The future land information system should support users at all levels and EXPERIENCES AND LESSONS LEARNED provide stakeholders with easy access to The activities undertaken by the NAPR for information. The Information Management system improvement have already generated Centre of the NAPR will handle the new successful outcomes. database at national (central) level. The Information Management Centre will act as Introduction of a framework for transparency an umbrella department for the registration In order to ensure publicity for and and dissemination of data from the NAPR transparency of the system, one of the main systems. priorities of the NAPR has been to inform the mass media and the public about Software development the ongoing reforms. Citizens have been The prerequisite of technological reform provided with full information. A public- was registration software development. relations plan has been developed, press The registration software (known as conferences and briefings are organized NAPReg) was developed at the Information frequently, and media releases are prepared Management Centre in close cooperation and disseminated. In order to ensure

52 land reform / réforme agraire / reforma agraria 2007/2 transparency, the NAPR has also opened qualified staff through a transparent a Web site, which contains all the basic process. In addition, as human resources information. development and capacity building through training were identified as a cornerstone Setting of service standards for effective functioning, the special The NAPR has established fixed fee rates Management and Training Project was and clear payment procedures with developed and submitted to the SIDA for strictly determined times. The setting of that purpose (SIDA, 2005). The project the service standards for registration has is being successfully implemented by been a key factor in combating corruption. Landmateriat. The NAPR budget envisages It has also contributed significantly to the updating and maintenance of the proper financial improvements and institutional equipment. development. Secure financing Capacity building Reforms have been made in the financial As a result of the reforms, the registration sector in order to attract and retain procedure has been much simplified (from qualified specialists at the NAPR and at 67 to 9 steps). For monitoring performance, the same time to ensure a sound material a hotline was set up to detect and respond and technical base (in order to provide immediately to any problem faced by adequate salaries and working conditions). customers of the registry. For the same A first step in this direction was the gaining reason, a glass box for complaints, claims of financial independence from the State, and suggestions was installed in the Tbilisi which has meant operating on a self- Registration Office. This is a useful tool financing basis. This has provided the for fostering responsiveness, participation, opportunity to establish competitive salary equity and inclusiveness. scales and introduce categories according to income provided per registry. Making Improvements to systems and processes fee payments through banks has been The institutional reforms that have been important in eliminating cash flow at the implemented have supported improvements registries (above). to systems and processes. The separation of functions of land management and Establishing audits land administration was a first step to In order to ensure the rule of law, building up an effective unified registry. The responsiveness to claims by customers, and previous practices of the registration system monitoring of the work done by registration were complicated, vague and in some cases clerks, the internal control and audit division duplicated by the Bureaus of Technical has been operating successfully to detect Inventory. The NAPR has developed and and act against disciplinary and legislative introduced back-offices and front-offices in violations by NAPR staff. It monitors and order to improve the registration service. analyses the activities of the staff within the The processes have been consolidated limits of its competences, checks claims and in accordance with the one-stop-shop responds to them, and prepares conclusions principle. about internal investigations and submits them to the NAPR management to aid in Capacity building and the development of a human decision-making. resources policy As a first step in administrative reform, the Making effective use of information technology and NAPR initiated and conducted qualification communications exams through massive open-vacancy Technological reforms have focused on announcements in order to recruit highly- the establishing of a unified electronic

land reform / réforme agraire / reforma agraria 2007/2 53 registration system with a central The hotline shows that more questions database, registration system networking, regarding registration issues are coming and information publicity. To achieve from the district/rural population. This these goals, the first step was the highlights the need to enhance public development of registration software and awareness in district areas. the computerization of land records. Implementation by the NAPR of The development of the software has development plans was not always possible itself facilitated the simplification of in the times as anticipated and scheduled the registration procedure. Reforms in originally, e.g. software development, and technology and communication have approval of instructions for registration focused on improving data accessibility via procedures and cadastre standards. the Internet for banks and notaries. In general, the registration software was developed in a very accelerated and optimal Being effective, efficient and consensus-oriented period (1.5 years). However, at the start of Improvement in donor coordination was the process, it was estimated that it would essential as the synergy of expertise, take only 6–8 months. The implementation finances and efforts would then make process showed that perfecting technical it possible to have the most effective details in order to keep pace with changing and efficient system functioning. It was legislation is rather time-consuming. important to make the cooperation process Notwithstanding the difficulties, the target-focused and consensus-oriented, successes achieved through the reforms with improved levels of accountability, for system re-engineering are important. participation and inclusiveness. With It is important that the above-described these aims, it was good practice to have a achievements be recognized internationally. functioning donor coordination council. EPILOGUE Stakeholder inclusiveness The application of the principles of good Active cooperation with the stakeholders governance, such as participation, the made it obvious that in order to achieve rule of law, transparency, responsiveness, effective functioning of the system it consensus-oriented approach, equity, was necessary to broaden stakeholder inclusiveness, and accountability1, in inclusiveness in the decision-making and reaching the overall objective of the problem-solving processes. To this end, the registry (i.e. the development of a unified, establishment of the Deliberative Council simple, customer-oriented, transparent has proved a successful initiative. and corruption-free registration system) are essential. Therefore, it is highly Less positive experiences recommended that they be considered In most cases, making clear, distinct during the re-engineering of a property borders between levels of subordination rights registration system. Taking into and independence among institutions is the account the positive trend, the NAPR a delicate issue. Such sensitive issues is purposefully continuing to implement often have an impact on good governance strictly defined customer-oriented reform characteristics such as participation and (one-stop-shop principle) in order to accountability among the institutions, establish a transparent, incorrupt and which are considered stakeholders. In this effective registration system equipped regard, some processes of the NAPR (e.g. with modern registration-informational various administrative management issues, technologies. qualification exams, and staff recruitment The reform strategy of the NAPR, which is processes) were cumbersome or obstructive the principle entity for land administration, because of exaggeration by the supervising body. 1 www.unescap.org/huset/gg/governance.htm

54 land reform / réforme agraire / reforma agraria 2007/2 United Nations Economic and Social Council, has worked in six main areas (institutional, Economic Commission for Europe & legislative, technological, administrative, Committee on Human Settlements (UNESC, financial, and donor coordination) in ECE & CHS). 2001. Land administration order to establish an effective and efficient review on Georgia. Working Party on Land system. Administration. It is a matter of pride for us that in World Bank / International Finance the World Bank / International Finance Corporation. 2006. Doing business in 2006: Corporation publication Doing Business creating jobs. (available at www.worldbank.org). in 2006, Georgia, as a rapidly growing country in terms of doing business and developing, obtained a positive assessment mainly for the reforms carried out in property registration. The report (World Bank / International Finance Corporation, 2006) says: “Georgia the top reformer in 2004 – made the most progress. The newly created Agency of Public Registry offers expedited registration and combines other procedures to allow entrepreneurs to obtain a registry extract, certificate of property boundaries and proof of no other claims all at the same time. Before, that took visits to 3 agencies… Georgia also cut fees and eliminated the transfer tax, reducing the costs of registration by 75%.”

REFERENCES Danielson, D. 2004. WB agricultural development project, land registration component: mission report. Kaufmann, J. 2003. UNDP land management project, mission report. National Agency of Public Registry (NAPR). 2005. Annual financial report. Parliament of Georgia. 2004a. Law on Structure, Responsibilities and Activities of the Government of Georgia. Parliament of Georgia. 2004b. Law of Georgia on State Registry of the Ministry of Justice of Georgia. Parliament of Georgia. 2004c. Law of Georgia on Fee for Services Rendered by the National Agency of Public Registry. Parliament of Georgia. 2005. The Law of Georgia on the Registration of the Rights on Immovable Property. Sharp, D. 2004. WB agricultural development project, land registration component: mission report. Swedish International Development Agency (SIDA). 2005. Management and training support project for registration and cadastre in Georgia; fact- finding mission in Georgia. Report No. GE 2 – 4.

land reform / réforme agraire / reforma agraria 2007/2 55 Bonne gouvernance dans la privatisation et la restitution des terres agricoles pendant le processus de réunification de l’Allemagne

L’article commence par une présentation courte de la situation et des problèmes rencontrés en 1990, dans la phase initiale du processus de transformation du paysage politique allemand. Il explique les motifs principaux de la réussite de la mise en place du programme politique relatif à la transformation de la structure de la propriété agricole et forestière et appliqué par le Gouvernement fédéral allemand dans le cadre du processus de réunification de l’Allemagne. La responsabilité de ce processus ayant été confiée à un «organisme d’État» unique, le processus de mise en œuvre a pu être incorporé dans un cadre de gouvernance public-privé, ce qui a facilité l’instauration d’une «démarche pédagogique» pour résoudre les problèmes imprévus et de réaliser le suivi des performances, de la capacité de contrôle et de l’efficacité. Des mesures organisationnelles importantes adoptées pour améliorer l’efficacité et la bonne gouvernance sont décrites, ainsi que des mesures internes visant à rendre le marché foncier plus souple et dynamique et à protéger et accroître la valeur des actifs devant être gérés et vendus.

Examen de la buena gestión pública de la privatización y la restitución de tierras agrícolas durante el proceso de la reunificación alemana

El artículo comienza con una breve descripción de la situación y los problemas a que se enfrentó Alemania en la fase inicial de su proceso de transformación en 1990. Se explican los elementos clave para el éxito de la ejecución del programa político «Transformación de la estructura de la propiedad en el ámbito de la agricultura y la silvicultura en el proceso de reunificación alemana» del Gobierno Federal de Alemania. La atribución de la responsabilidad de este proceso a un solo «organismo estatal» implicó que el proceso de ejecución pudo incorporarse a un marco de gestión a cargo de una entidad pública, lo que permitió reaccionar a los problemas imprevistos y supervisar la ejecución, la controlabilidad y la eficiencia desde una perspectiva de aprendizaje. Se describen importantes medidas de organización encaminadas a fomentar la eficiencia y la buena gestión pública, y medidas internas para apoyar la flexibilidad y el dinamismo del mercado de tierras así como para garantizar y aumentar el valor de los bienes por administrar y vender.

56 land reform / réforme agraire / reforma agraria 2007/2 Addressing good governance in the process of privatization and restitution of agricultural land during the German reunification process

D.-H. Kuchar and A. Gläsel Detlev-Helmuth Kuchar is Chief Audit Executive, German Agricultural and Forestry Privatization Agency, BVVG Andreas Gläsel is a consultant with the Internal Audit Department, German Agricultural and Forestry Privatization Agency, BVVG

The article begins with a short overview of the prevailing situation and problems faced in the initial phase of the transformation process in Germany in 1990. Key elements leading to the successful implementation of the political programme “Transformation of the ownership structure in agriculture and forestry within the German reunification process” by the Federal Government of Germany are explained. The allocation of responsibility for this process to a single “state agency” meant that the implementation process could be embedded in a public- and corporate-governance framework, which facilitated a “learning orientation” in reacting to unforeseen problems and in monitoring performance, controllability and efficiency. Important organizational measures aimed at fostering efficiency and good governance are described, as well as internal measures to support a flexible and dynamic land market and to secure and increase the value of assets to be managed and to be sold.

INITIAL SITUATION IN 1990 (4 500) or as state-owned companies (515) In a first step of the privatization process, – the Socialist Agricultural Production beginning already about six months Cooperatives (LPGs) and the so-called before the official Unification Treaty of State-owned estates (VEGs). Forest areas 31 August 1990, all (formerly “state- were managed by state-owned forestry owned”) property holdings of the German companies. The transfer of the agricultural Democratic Republic (GDR), namely all cooperatives to stock companies was companies, were converted into stock governed by the Agricultural Adjustment Act. companies/legal entities. The shares were All cooperatives and companies farmed transferred to the ownership of the Trust agricultural or forestry land on the basis Agency (THA), founded on 8 March 1990 of extensive use rights (more or less free (Fischer and Schröter, 1993). The legal of charge) by law (e.g. § 74 LPG Law). contract privatizing all shares was stated Thus, only the state-owned agricultural in the Trustee Act. Later on, a precise date and forestry areas were transferred to for bringing the activities of the THA to an the THA. In 1990, such State-owned land end was set by the Federal Government of totalled 2.1 million ha of agricultural land, Germany (31 December 1994). or 35 percent of all agricultural land, and The situation in the agriculture and 2.2 million ha of forestry land (90 percent). forestry sector was somewhat different. Although all other land had not been The agricultural business entities were expropriated by 1989 and, therefore, was organized either as socialist cooperatives still legally owned by individuals or the

land reform / réforme agraire / reforma agraria 2007/2 57 church, these properties were more or less individuals or corporations) or the Allocation worthless assets because of the above- of Ownership Act (which restored land mentioned use rights granted by the GDR needed for the execution of public tasks to (Willgerodt, 1993). municipalities, the Federal States or the Federation itself by “allocation”) (Fieberg FOUNDING AND TASKS OF THE GERMAN and Reichenbach, 1997). Second, it was to AGRICULTURAL AND FORESTRY PRIVATIZATION sell all land not expected to be privatized by AGENCY (BVVG) the above-mentioned or other laws. Because of the foreseeable long-term nature of the transformation process for External and internal measures of financial control ownership of agricultural and forest land Choosing one-single state agency to be and to move political pressure off the responsible for managing and executing the Federal Government and the THA, with selling of all agricultural and forestry land respect to § 1 Para. 6 of the Trustee Act: to be privatized facilitated controllability “For the privatization and reorganization of of the business operations and monitoring publicly-owned assets in agriculture and of performance by the Federal Ministry forestry, the THA is to be organized to take of Finance (BMF) on behalf of the Federal into consideration the particular economic, Government. Modern management ecological, structural and property law- principles were able to be adopted much specific features of this area.” more easily than in a “normal state- The THA, in close collaboration with the authority”, e.g. in regard to time limits on Federal Government, set up the German the appointments of managing directors, Agricultural and Forestry Privatization annual written agreements on objectives, Agency (BVVG) on 1 July 1992. and monthly meetings on all current The BVVG was charged by the THA and key issues between the BMF and the the Federal Ministry of Finance with two board of management of the state-agency tasks. First, it was to manage all former responsible for implementation. State-owned agricultural and forestry land As a limited liability company (Table 1), until a concrete privatization decision the BVVG is embedded in the systematic could be made by other authorities on the monitoring and controlling instruments basis of the most important Property Act of the public-governance and corporate- (which re-privatized expropriated land to governance frameworks.

TABLE 1 Governance frameworks and the BVVG

As a “limited liability company” As a “state agency”

The BVVG is subject to all general legal regulation mechanisms (in Every state/agency has to include in the “normal” auditing report particular, the German Commercial Code [HGB] and all ancillary a protocol, after § 53 of the Act on Budgetary Principles of the commercial and tax laws) and to the principles that apply for all Federation (HGrG), in which detailed questions for checking the “large stock companies (such as limited liability companies)” 1. regularity of business operations, management and other public Uniform provisions for the setting-up of transparent accounting apply governance aspects have to be answered. in particular. Like all federal authorities, the BVVG is subject to external financial Assets, financial and revenue situation must be audited by controlling by the government and can be audited at any time by the an independent and capable audit company each year on the Federal Court of Audit (BRH), for example. accounting date, and a corresponding auditing report has to be published.

All commercial and tax-related offences also apply without restriction The federal administration has passed a guideline for corruption to the BVVG. As office-holders, the employees of the BVVG are prevention for its offices and authorities. Among other things, this subject to the offences of accepting benefits and accepting bribes guideline defines the legal prevention mechanisms for creating (§§ 331–338 of the Criminal Code [StGB]). As a result, the public more transparency and traceability for administrative actions in prosecutors and the police must officially investigate employees of areas particularly vulnerable to corruption. This prevention guideline the BVVG if they receive information. applies directly to the BVVG.

1 According to the classification in § 267 HGB, “large stock companies” are companies with a balance sheet total of more than 21.24 million DM, sales revenue of more than 42.48 million DM and more than 250 employees.

58 land reform / réforme agraire / reforma agraria 2007/2 The Federal Court of Audit (BRH), whose the privatization process successful. Often, members are judicially independent, investment needs were pressing for fast audits the complete accounts as well as problem-solving. the economic effectiveness and regularity The THA and the BVVG responded to of the Federal Government’s financial this problem with the implementation of and economic management, using cross- “learning procedures” in their organizational sectional audits for several government and operational design and organizational authorities and selective audits. It reports behaviour. In order to secure investments annually and directly to the Bundestag while reorganizing ownership structures, (Federal Parliament) as well as to the the decentrally-organized branches were Federal Administration (Art. 114, Para. 2, often under great pressure (often political Clauses 1 and 2 of the Basic Law). As part pressure) to solve problems. Central of this overall contract of external control of directorates/departments at headquarters the execution of policy programmes of the (in Berlin) supported (e.g. with legal Federal Government, in recent years, the advice) the development of new solutions teams of the BRH have repeatedly audited to problems and communicated these best the way in which the BVVG conducts its practices to all other branches as well tasks. Through their audit reports, the as to the legislator and representatives Bundestag, BMF and the BVVG have been concerned. Thus, the two institutions took informed of the results. on the often needed “transaction costs” As part of the company, the Internal for creating new solutions and acted as Audit Department is directly subordinated “change agents” within the transformation to the BVVG board of management and process (Czada, 1996). is an organ of internal financial control. In later reviews of the Property Law or It supports the board of management as the Allocation of Ownership Act, the Federal well as those responsible at a divisional Government enshrined “opening clauses” and branch level in fulfilling tasks by to enhance the use of such consensually providing independent and objective deviating, substatutory solutions to speed assurance and consulting services. One of up the self-organization transformation its tasks is to add value and improve the process (and to reduce state costs by operations of the organization as well as to unburdening the courts).2 evaluate and improve the effectiveness of risk management, control and governance THE AGENT – INTERNAL PROVISIONS processes. Inasmuch, the Internal Audit FOR EFFICIENT AND TRANSPARENT Department carries out a subsequent cross- IMPLEMENTATION checking of functional instructions and This section describes various internal implementation.1 governance processes that helped to ensure transparency and high efficiency in the day- Learning orientation and self-organization of the to-day operations of the implementing state transformation process agency. In the early years of the transformation Transparency here must not just be process (primarily from 1989 to 1992), understood in the sense of corruption enactment of legal regulations had to be prevention, but also as a general carried out in the absence of full knowledge requirement for traceable administrative of all concrete problem situations, and actions, customer friendliness, and above solutions were required in order to make all the fairness of access to land in the privatization process. The aim of these 1 See the Definition of Internal Audit by the Standards of strategic measures has been to counteract the Professional Practice of Internal Auditing; The Institute of Internal Auditors, Altamonte Springs (also available at http://www.theiia.org/guidance/standards-and- 2 § 31 Para 5 Property Law, § 2 Para 1 Clause 6 Law of practices/). Allocation of Property

land reform / réforme agraire / reforma agraria 2007/2 59 accusations of systematically favouring regularly involve only small order sums, certain groups of buyers or obstructing particular attention must always be paid to potential buyers (Kaufmann, Kraay and procurements in order to ensure open and Mastruzzi, 2002). transparent competition. Most important, An organizational manual, available to the parts of planning, awarding and all employees, defines the main tasks, settlement within a procurement process procedures, processes and responsibilities. are separated from organizational or The accompanying check on decisions by personal measures in order to prevent price various organizational units is ensured collusion or other actions that could involve through the ruling on signature and corruption. The same European standards deputization authorization. This means of equal opportunities for access to public that obligations of participation and orders apply to the BVVG as a state-owned responsibility are observed in order to agency as to all public authorities. prevent sealed-off, independent actions by individuals. Staff awareness and education The principle of dual control applies for The contracts of employment expressly external correspondence (and not only). state that every form of corruption is External correspondence is always signed forbidden. All employees are informed by two employees. Another example of the that the Guideline on Accepting Rewards principle of dual control is the separation and Gifts by Government Employees of the of land valuation from the pressure of Federal Government applies to them. The achieving sales – the aim is to ensure that applicable working conditions of the BVVG privatization is carried out at a market price include a requirement of approval by a that has been determined as objectively as superior for acceptance of gifts with a value possible. of more than €10. Where prior approval is not possible, the receipt of such a gift must Staff rotation be reported immediately. Monetary gifts The lowest organizational level in the should be donated to a generally-recognized BVVG’s operational sale and lease business charitable institution. In addition, all BVVG is that of regional teams. These teams employees are called on to report all cases usually consist of one section head and of suspected corruption – anonymously if one officer, who are responsible for all necessary – if there are specific indications sale/lease activities in a region – an and transparent evidence. administrative district. After a maximum of five years, these heads and officers must Internal auditing / full-time investigators take on other administrative districts/ All facts that form the basis of a known regions, this in order to prevent the suspicion of corruption are first investigated formation on non-transparent networks. internally by the Internal Audit Department. Once the results of a process of (internal) Awarding of public contracts to third parties pre-investigation are known, the BVVG An area particularly vulnerable to board of management has to decide on corruption is the selection and awarding further measures (possibly the involvement of public contracts to provide deliverables of the public prosecutors). (purchasing) and services, and in particular building services. The BVVG is affected Corruption prevention by this in the procurement of goods and The above-mentioned sections have services for its own work (including IT, explained in brief the organizational vehicles, and office equipment), assessor standards against the background of services (valuations), and building the Corruption Prevention Guideline of services (demolition, and emergency safety the German Federal Administration, measures). Even if the individual cases which was optimized and revised in

60 land reform / réforme agraire / reforma agraria 2007/2 2004. It now includes the instructions Agriculture of the Federal States.3 These and recommendations on the preventive offices keep a record of leasehold rents measures of the United Nations treaty and hold statistical data on the usual local against corruption, which was signed (average) leasehold rents. In addition, the on 9 December 2003. The prevention Federal Statistical Office collects data on guideline contains binding instructions for the lease market from about 100 000 farms all Government authorities and offices for every two years. Thus, the land lease identification of areas particularly vulnerable market in Germany is embedded in an to corruption, and the minimum measures institutional framework that enables that should be taken against corruption market monitoring and reduces the risk (Federal Ministry of the Interior, 2004). of speculation or asymmetric information between landowner and tenant without PRIVATIZATION STRATEGY AND INTERNAL interfering with the basic right of freedom of MEASURES TO INCREASE ASSET VALUES AND contract (FAO, 2001). TO SUPPORT THE DEVELOPMENT OF A FLEXIBLE AND DYNAMIC LAND MARKET Privatization strategy The privatization strategy chosen by THA/ Flexible and dynamic land lease market BVVG was implemented successfully A modern and sustainable agriculture because different instruments of privatizing policy needs to ensure access to land in State-owned land (leasing and selling) a flexible and low-cost way that protects could be combined in respect to three liquidity for farms. Leasing arrangements major (overlapping) stages and there was secure income from assets for owners who the capability to react sensitively to several are no longer engaged in agriculture as secondary conditions: well as providing access to this land for • The liquidity situation of many newly- farms. One in eight farms in Germany is founded farms and forestry companies a leased farm. In 2005, 63.9 percent of did not permit the sale of areas of land farmed land in Germany was secured by in the formation period. lease contracts, while 90 percent of the • The legal claims to transfer land back owners of leased areas do not or no longer without payment or the assignment of work in agriculture. In eastern Germany, real estate were specific to the areas; the proportion of leaseholds for farms therefore, the sale of areas required was 81.2 percent (85.1 percent in 2003) clear clarification that these areas of (German Farmers Association, 2006; land were not underlying such legal Federal Statistical Office of Germany). claims. The most important underlying conditions • Thus, the above-mentioned legal for this leasing of land are regulated in framework for land lease came into the §§ 585–597 of the German Civil Code force with unification on 3 October (BGB). The prerequisites for concluding 1990. The land market in the former or changing lease contracts have not been GDR first needed to consolidate itself. increased unnecessarily. In contrast to the Institutions had to be built up, staff had situation in some transforming economies, to be trained, and data on the market lease contracts are not registered in the had to be collected. land register – thus, the lease contracts are usually concluded between the owner and Lease phase the user in a written form. German lease law The conscious prioritizing of first does not stipulate a duration for leasehold concluding 1–2-year lease contracts, and rights either. However, a term of from 2 to 12 or 18 years is usually agreed on. 3 Land Lease Transaction Act, 8 Nov. 1985 (BGBl, I, S. 2075) However, the landowner must report the and Ordinance to the Land Lease Transaction Act, 6 Feb. lease contract to the Regional Offices for 1995.

land reform / réforme agraire / reforma agraria 2007/2 61 then 6–12-year contracts was a suitable lease prices because the regional reaction to the secondary conditions agricultural offices responsible for issuing mentioned, as it was easier to revise official lease-price statistics did not have lease contracts concluded on the basis of appropriate data on which to base their uncertain data than if irreversible sales information. As a result, simple valuation decisions had been made. With extensive methods initially had to be used by way checking and clarification processes of precaution; rough figures such as euro with the regional agricultural offices, the per land point (soil quality) were used as a capability of potential lessees were proved guideline. before long-term lease contracts (> 6 years) With external assistance from experts, the were concluded. The lease phase gave farms THA drew up a guideline for determining the opportunity to become more stable in leasehold rents in 1993. Based on view of the new market conditions and to recommendations from the specialist allocate liquid assets for a later purchase. advisory board of the BVVG (an advisory committee of agriculture policy experts, Preferential sale valuation experts, and agricultural In the second phase of implementation economists), this guideline was turned into of the privatization process, the farms in an internal leasehold-rent framework in eastern Germany were first to be given 1996. the opportunity to increase their property As described above, the German land resources by purchasing formerly state- lease market is based on a model whereby owned land at preferential conditions the lease prices can develop dynamically within a federal land-purchasing according to the performance of the farms programme (referred to as land-purchasing and the general economic situation. For programme within the Indemnification and broadening the data basis for the official Compensation Act [EALG] and the Land lease-price statistics and, thus, determining Purchase Implementing Regulation [FlErwV]). realistic typical local leasehold rents as fast as possible, in addition to the Sale at the full market value on the concluded land lease contracts being sent developed land market to the regional agricultural offices by legal Coupled with the idea of increased obligations, negotiated and increased lease performance and, thus, better financial prices were often actively communicated to resources in farms, a price increase in the the regional agricultural offices. agricultural land market is expected. With With the improved economic situation the prioritization of sales at the full market of the farms and, therefore, a need to value as of around 2008, it should be increase lease prices (and to secure lease possible to take maximum advantage of this prices from inflation), negotiations were expected price increase – in other words, possible because a frequent (e.g. three- the added value compared with a sale at yearly) reciprocal option of adjusting the price level on the non-developed land the lease prices was formulated in the market in 1998 (Klages, 2001). lease contracts. While the share of the BVVG in the land-lease market decreased Internal measures to increase asset values and to from about 35 percent in 1990 to support the development of a land market 11.8 percent in 2005, the “announcement Land lease market – high leasehold rents effects” of the negotiated lease prices The conclusion of lease contracts with the by an institutionalized lessor such as THA enabled the farms in eastern Germany the BVVG to the market should not be to manage the areas of land used by them underestimated. Figure 1 shows the before 1990 after the use-rights by-law development of lease prices in eastern lapsed with unification. However, it was Germany compared with western Germany extremely difficult to identify appropriate between 1991 and 2005.

62 land reform / réforme agraire / reforma agraria 2007/2 250

200

150

100 EUR/hectare Western Germany 50

Eastern Germany 0 1991 1993 1995 1997 1999 2001 2003 2005

FIGURE 1 Leasing fees for agricultural land in eastern and western Germany, 1991–2005 Source: German Agriculture Publishing House (2006).

Land sales market depending on the location. Standard ground Because under a “good governance” values and other collected data are to be perspective the aspects of transparency published in a suitable format (Kuse, 2006). and flexibility are among the most desirable The Valuation Ordinance (WertV) contains outcomes of state regulations on the land binding rules for determining the market market, some general elements of the land value using three standardized valuation market and valuation of real estates in methods (comparative method, income Germany have to be explained here. method, and depreciated reconstruction In 1960, the Federal Government enacted cost method), describes the necessary data, the Federal Building Act, which abolished a and refers to the data that were recorded by general price freeze for the real estate market the committees of valuation experts. of 1935. As a long-term strategy against In their valuations, publicly-appointed speculation on the land market with all its valuation experts and all other market side-effects, it was decided not to statically participants refer to the methods provided fix values/prices. Instead, instruments of a by the Valuation Ordinance and the data system of market monitoring were directly provided by the committees of valuations enshrined in §§ 193–199 of the Federal experts in order to guarantee a level of Building Code (BauGB). comparability and transparency on the The introduction of a concept and land market that is as high as possible definition of the term “market value” brings (European Valuation Standards, 2003). the advantage that all participants in the land/real estate market have a uniform Selling policy of the BVVG understanding of the “market value”. Because of the provisions in federal budget The Federation has enacted the Federal law, the BVVG is obliged to sell real estate States to establish committees of valuation at the market value unless it is transferred experts (Gutachterausschüsse) charged without payment on the basis of other with the task of collecting data on purchase laws or has to be sold preferentially as a prices and general data on the land market. result of the government’s land purchase Another task of these committees is to programme. To identify sales prices define standard ground values, which appropriate to the market, the BVVG uses means constituting average values for a the system of market monitoring to meet its standard plot of land based on the sales own objectives, and supports this system prices for other comparable plots of land, with own data and its selling policy.

land reform / réforme agraire / reforma agraria 2007/2 63 38 921 ha BVVG 16 000 ha without EALG 27.3% 28%

41% BVVG 42588ha with EALG 72.6%

41 300 ha 30%

Western Germany Eastern Germany (with BVVG) Eastern Germany (without BVVG)

Note: BVVG = German Agricultural and Forestry Privatization Agency EALG = Indemnification and Compensation Act

FIGURE 2 The land market in Germany, 2003 Source: German Agriculture Publishing House (2004).

With a market share of about 60 percent for transfer without payment or sale within of all agricultural land sold in eastern the land purchase programme in a publicly Germany, the BVVG is still the largest player bid procedure on the open market (to in the agricultural land market (Figure 2), anyone in Germany and also to any citizen even though the privatization process has of the European Union). already been underway for 15 years. As part of the organizational manual of As an element to provide fairness of the BVVG, detailed guidelines for using access within the privatization process, the various awarding methods and procedures “selling policy” (i.e. the yearly amount of depending on the market opportunities agricultural land being offered to the open of specific groups of real estate ensure a market) must reflect the ability to provide uniform, transparent privatization process. sufficient liquidity by the farms to invest in This helps to secure equal opportunities for the purchase of land. In consultation with all prospective buyers, to achieve an optimal the Ministries of Agriculture of the Federal economic result in the selling process and States, the BMF and the representatives of to minimize the influence of manipulation farmers’ interests, the BVVG has recently or corruption. limited the amount of land being offered to 25 000 ha/year. Single lots should be Internal and external valuation of specific real smaller than 50 ha, because the amount of estates or lots money needed to bid for a lot of more than A two-step valuation system with enshrined 50 ha would exceed the financial capability cross-checkings of results ensures a of many farms in eastern Germany. transparent valuation of land that is geared as closely as possible to the market value. Transparency in the selling process Specially-trained employees in the Another element of fairness of access is to branches of the BVVG are allowed to value sell all areas for which there are no claims plots of land up to a probable market

64 land reform / réforme agraire / reforma agraria 2007/2 value of €40 000 (or a maximum area of provisions from the “old Federal Republic” 10 ha) using an internal mass valuation of Germany – has significantly eased the procedure. Another employee conducts transformation process in eastern Germany. sales price negotiations and the actual The flexible lease market helped to sale with the buyer. Deviations from the prevent a breakdown in agricultural originally determined market value must production and in the stabilizing and be justified and documented in a clear emerging of new farms after 1990. However, way. This separation of land valuation even in the quite strong German economic from the pressure of achieving sales aims environment, the participants in the or the expectations of a prospective buyer agricultural land markets – the farmers ensures that privatization is carried out at – are restricted in their ability to provide a market price that has been determined as sufficient liquidity to invest in the purchase objectively as possible. of land. In this respect, the sensitivity of For all real estate not covered by the agricultural land markets requires a longer- internal mass valuation procedure (> term State commitment that provides €40 000 or > 10 ha), an assessment must appropriate support for the process with be obtained from an external, specially- the goal of developing a healthy ownership trained and independent publicly-appointed structure that treats all farm and property valuation expert (or a valuer certified forms in the same way. according to the EN 45013 standard); the The chosen privatization strategy has costs for this valuation are borne by the met these requirements by avoiding seller. excessive selling pressure in the land market, which would have favoured only LESSONS LEARNED the financially strong participants. In Notwithstanding of all the contradictions view of the long-term nature of a process and critical arguments, the reorganization such as this, modifications to the process process for the ownership structure has goal and implementation procedure may been relatively successful if we measure be necessary and can be implemented success by the support for the set-up of with reasonable effort. The systematic an effective land and forestry economy incorporation of “learning cycles” of in eastern Germany after 1990 and the this kind can increase “government economic and financial success of the effectiveness” within a process. privatization work conducted to date by the At the level of organizational design for BVVG for the government. implementation, the Federal Government It is not just the task of the State consciously decided to transfer to guarantee property rights and the responsibility for the administrative and inheritance of these. Another sign of utilization-related tasks associated with the “regulatory quality” is that the “State” privatization of formerly State-owned land defines and implements underlying legal to one single “state agency” (in the form of and institutional conditions, so ensuring a limited liability company). The execution that the public good of “the ownership of of implementation tasks by this “federal land” can be used to the maximum possible agency” has combined successfully a high added value for all. Therefore, German land degree of flexibility with “dual” control policy is based on market transparency mechanisms – in addition to budget-related and flexibility. Precautions in favour of provisions for all government authorities, competition over use rights and against independent auditors must be used to speculation and the manipulation of prices ensure that commercial and tax reporting are structurally enshrined in this. This and auditing obligations are met. existence of a clear vision for the future As we have attempted to show, the control land policy strategy – anchored in the processes present at various levels can help “model” of existing land policy and legal to achieve privatization objections efficiently

land reform / réforme agraire / reforma agraria 2007/2 65 as well as help to prevent corruption. Fieberg, G. & Reichenbach, H. 1997. Property The implementation of a government law. Munich, Germany, C. H. Beck. programme such as the “reorganization of Fischer, W. & Schröter, H. 1993. The foundation the ownership structure in agriculture and of the Trust Agency. In W. Fischer. The Trust forestry” can be organized within a good Agency: the impossible challenge, pp. 17–40. governance environment. Berlin, Akademie Verlag. German Agriculture Publishing House, ed. 2004. REFERENCES Land market 1 (2004/2005). Berlin. Czada, R. 1996. Agenda setting and adaptational German Agriculture Publishing House, ed. 2006. learning in the process of transformation Land market 2 (2006/2007). Berlin. in eastern Germany. Master pattern and German Farmers Association. 2006. Report on intersectoral variations of policy-programme agriculture 2006. Berlin. development. In A. Eisen & H. Wollmann, eds. Kaufmann, D., Kraay, A. & Mastruzzi, M. 2002. Institution building in eastern Germany – between Governance matters III: Governance indicators for external governance and self regulation, pp. 337– 1996–2002. Washington, DC, World Bank. 358. Opladen, Germany, Leske & Budrich. Klages, B. 2001. Privatization of the previously European Valuation Standards. 2003. Guidance state-owned agricultural areas in the new federal Note 13, pp. 246–253. London, TEGOVA. states. Aachen, Germany, Shaker. FAO. 2001. Good practice guidelines for agricultural Kuse, J. 2006. Transparency of the land market. In leasing arrangements. Land Tenure Studies German Agriculture Publishing House, ed. Land No. 2. Rome. market 2 (2006/2007). Berlin. Federal Ministry of the Interior. 2004. Texte zur Willgerodt, H. 1993. Re-privatizing to the former Korruptionsprävention (available at http://www. owners. In W. Fischer. The Trust Agency: to bmi.bund.de). adventure the impossible, pp. 241–262. Berlin, Federal Statistical Office of Germany. Akademie Verlag.

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