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Policy Makers Guide to Women's Land, Property and Housing Rights Across the World

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Policy Makers Guide to Women's Land, Property and Housing Rights Across the World POLICY MAKERS GUIDE TO WOMEN’S LAND, PROPERTY AND HOUSING RIGHTS ACROSS THE WORLD UN-HABITAT March 2007 POLICY MAKERS GUIDE TO WOMEN’S LAND, PROPERTY AND HOUSING RIGHTS ACROSS THE WORLD 1 Copyright (C) United Nations Human Settlements Programme (UN-HABITAT), 2006 All Rights reserved United Nations Human Settlements Programme (UN-HABITAT) P.O. Box 30030, Nairobi, Kenya Tel: +254 20 7621 234 Fax: +254 20 7624 266 Web: www.unhabitat.org Disclaimer The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning delimitation of its frontiers or boundaries, or regarding its economic system or degree of development. The analysis, conclusions and recommendations of this publication do not necessarily reflect the views of the United Nations Human Settlements Programme, the Governing Council of the United Nations Human Settlements Programme, or its Member States. Acknowledgements: This guide is written by M. Siraj Sait, Legal Officer, Land, Tenure and Property Administration Section, Shelter Branch, UN-HABITAT and is edited by Clarissa Augustinus, Chief, Land, Tenure and Property Administration Section, Shelter Branch. A fuller list of credits appears as an appendix to this report. The research was made possible through support from the Governments of Belgium, Italy, the Netherlands and Norway. Further Information: Clarissa Augustinus, Chief Land, Tenure and Property Administration Section, Shelter Branch, United Nations Human Settlements Programme (UN-HABITAT) P.O. Box 30030 Nairobi 00100, Kenya E-mail: [email protected] Web site: www.unhabitat.org 2 POLICY MAKERS GUIDE TO WOMEN’S LAND, PROPERTY AND HOUSING RIGHTS ACROSS THE WORLD TABLE OF CONTENTS GLOSSARY OF TERMS ...................................................................................................................................... 4 1. INTRODUCTION ................................................................................................................................... 6 2. ABOUT THIS GUIDE ............................................................................................................................. 7 3. WOMEN’S LAND ISSUES IN CONTEXT ....................................................................................................... 8 4. WOMEN’S PARTICIPATORY RIGHTS IN LAND GOVERNANCE .........................................................................10 5. WOMEN’S RIGHTS TO LAND AND PROPERTY ............................................................................................12 6. CONSTITUTIONAL PRINCIPLES ON WOMEN’S LAND RIGHTS ........................................................................13 7. ACCESSING LAND THROUGH LEGAL RIGHTS ............................................................................................14 8. THE IMPACT OF CUSTOMARY LAWS .......................................................................................................17 9. NEGOTIATING ISLAMIC PROPERTY RIGHTS ..............................................................................................17 10. INHERITANCE LAWS AND PRACTICE .......................................................................................................19 11. MARITAL PROPERTY RIGHTS ................................................................................................................21 12. JOINT TITLING FOR WOMEN .................................................................................................................23 13. FLEXIBLE TENURE OPTIONS FOR WOMEN ................................................................................................26 14. WOMEN’S MANAGEMENT OF PROPERTY ..................................................................................................28 15. PROPERTY RIGHTS IN DE FACTO UNIONS ................................................................................................30 16. WOMEN AS BENEFICIARIES IN LAND REDISTRIBUTION .............................................................................31 17. AFFORDABLE PRO-POOR HOUSING FOR WOMEN .......................................................................................32 18. LAND REGULARISATION AND FORCED EVICTIONS .....................................................................................35 19. CIVIL SOCIETY PARTNERSHIPS FOR WOMEN’S RIGHTS ..............................................................................37 20. CONCLUSIONS AND RECOMMENDATIONS .................................................................................................40 SELECTED BIBLIOGRAPHY ..............................................................................................................................41 ACKNOWLEDGEMENTS ....................................................................................................................................42 POLICY MAKERS GUIDE TO WOMEN’S LAND, PROPERTY AND HOUSING RIGHTS ACROSS THE WORLD 3 GLOSSARY OF TERMS Community of Property: jointly owned property during marriage which in the case of separation, divorce or death, is generally divided equally between the husband and wife. It can be absolute or partial depending on the extent of which individual private properties and profits of spouses are brought into the arrangement. Community titling: group title arising out of strong communal land rights in preference to individual property rights. Concession of Real Right to Use: an instrument for regularising public land in Brazil which may be used in cases of the occupation of public or private areas, in cases of housing programmes and projects of social interest. Co-operatives: a land sharing system, where land is held in tenancy in common rather than joint tenure, with members having a right to unilaterally withdraw their land. Compulsory joint tenure: legal default assumption that land and/or housing is held by both spouses whether through joint titling or through other marital property regimes. Customary communal tenure: all land including communal land and family/lineage-held land belongs to the community with individuals having identifiable user rights. Customary law: the marital property rules often governed by statutes as well as cultural norms that are often patriarchal. In some countries, the Constitution grants primacy to customary laws, and its influence is pervasive in several African and Asian countries. De facto unions: cohabitation between unmarried couple which is not always recognised by law. Ejido: a community and collective land tenure that emerged out of the Mexican 1917 agrarian reform. Family tenure: family (often an extended one) collectively owns the land of family members without individual property rights. Group land market transactions: groups of persons and families come together to participate in the land market in order to facilitate the transaction. Intestate succession: inheritance where there is no will and the partition of estates (including community of property) is as per the law with heirs identified through inheritance degrees. Joint titling: A specific, formal form of shared tenure where the names of both spouses are entered in the land title document so that one spouse cannot alienate the property without the consent of the other. Joint registration: requires property of spouses be registered in both names, though this could be mandatory or optional. Management of marital property: there are three models – joint, which requires both spouses to act 4 POLICY MAKERS GUIDE TO WOMEN’S LAND, PROPERTY AND HOUSING RIGHTS ACROSS THE WORLD together; sole management, where the husband invariably has the exclusive management;, and sole authority and equal management which gives neither spouse, acting alone, the power to manage the whole of the property. Marital authority: power for the husband to act on behalf of his wife, for example in land transactions. Though no longer written into most civil codes, it is still a strong customary norm. Marital property: joint spousal property under community of property regimes which generally excludes property independently acquired by a spouse before marriage. Identification of marital property is significant for the management and alienation of property and the dissolution of marriage. Matrilineal marriages: property in inheritance is transmitted though females to the nearest matrilineal male, usually a nephew of the deceased person, and not necessarily the sons. In some Asian matrilineal systems, women can inherit. Optional joint tenure: allow joint ownership of land or property, but do not have the legal presumption that both members of a couple have a right to land or property acquired during a marriage. Therefore, the spouse must be able to show that the couple intended that the marital property be jointly held. Patrilineal: property in inheritance is transmitted through males directly to sons. Separate Property: property owned by each spouse in his or her individual right gives that spouse full power to manage and dispose of his or her separate property. Generally, such separate property is property acquired by either spouse before marriage, along with property acquired by one spouse during marriage either by gift or inheritance. Shared rental and occupancy rights: collective rental housing. Shared tenure: broad category of rights to land and housing
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