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TG9 Creating a System to Record Tenure Rights and First Registration

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TG9 Creating a System to Record Tenure Rights and First Registration GOVERNANCE OF TENURE TECHNICAL GUIDE 9 Creating a system to record tenure rights and first registration The FAO Governance of Tenure Technical Guides are part of FAO’s initiative to help develop capacities to improve tenure governance and thereby assist countries in applying the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. The FAO Governance of Tenure Technical Guides are prepared by technical specialists and can be used by a range of actors. They: • translate principles of the Guidelines into practical mechanisms, processes and actions; • give examples of good practice – what has worked, where, why and how; • provide useful tools for activities such as the design of policy and reform processes, for the design of investment projects and for guiding interventions. For more information on the Guidelines and FAO’s activities on governance of tenure visit: www.fao.org/nr/tenure GOVERNANCE OF TENURE TECHNICAL GUIDE No. 9 Creating a system to record tenure rights and first registration FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS Rome, 2017 CREATING A SYSTEM TO RECORD TENURE RIGHTS AND FIRST REGISTRATION I This publication is intended to support the use of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. It is not intended to contradict the language of the Guidelines as endorsed by the Committee on World Food Security on 11 May 2012 nor the role of States in their implementation. This publication has been developed with the financial assistance of the Food and Agriculture Organization of the United Nations (FAO), and the Government of the United Kingdom of Great Britain and Northern Ireland. The views expressed herein are those of the authors and do not necessarily reflect the official policies or views of FAO. The designations employed and the presentation of material in this information product do not imply the expression of any opinion whatsoever on the part of the Food and Agriculture Organization of the United Nations (FAO) concerning the legal or development status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The mention of specific companies or products of manufacturers, whether or not these have been patented, does not imply that these have been endorsed or recommended by FAO in preference to others of a similar nature that are not mentioned. The views expressed in this information product are those of the author(s) and do not necessarily reflect the views or policies of FAO. ISBN 978-92-5-109834-9 © FAO, 2017 FAO encourages the use, reproduction and dissemination of material in this information product. Except where otherwise indicated, material may be copied, downloaded and printed for private study, research and teaching purposes, or for use in non-commercial products or services, provided that appropriate acknowledgement of FAO as the source and copyright holder is given and that FAO’s endorsement of users’ views, products or services is not implied in any way. All requests for translation and adaptation rights, and for resale and other commercial use rights should be made via www.fao.org/contact-us/licence-request or addressed to [email protected]. FAO information products are available on the FAO website (www.fao.org/ publications) and can be purchased through [email protected]. This publication has been printed using selected products and processes so as to ensure minimal environmental impact and to promote sustainable forest management. II CREATING A SYSTEM TO RECORD TENURE RIGHTS AND FIRST REGISTRATION Contents Preface . V Acknowledgements . VI 1. About this guide 3 A need for the guide . 3 Intended readers of the guide . 3 Matters covered in the guide . 4 Terminology . 5 Recording rights, the Guidelines and this guide . 6 Improving ways to record tenure rights: the sustainable management of recording systems . 8 2. The context for recording tenure rights 11 Key points of this chapter . 11 Recording and the broader social, economic and political context . 12 Stakeholders concerned with recording rights . 12 Are recording systems needed everywhere and should all rights be recorded? . 14 Benefits of recording rights . 15 3. Rights, holders and parcels 17 Key points of this chapter . 17 General considerations . 18 Forms of ownership and how they influence other rights . 19 Rights . 21 Identification of rights to be recorded . 21 Identification of rights that are regarded to be not capable of being recorded . 21 Information to be clarified where rights are identified . 22 Obligations that come with the rights . 22 Right holders . 23 Parcels . 25 The size and shape of parcels . 26 Boundaries of parcels . 26 Parcel maps and survey records . 26 4. First registration 29 Key points of this chapter . 29 Options for first registration . 30 Special considerations for the first registration of customary rights . 31 Identification of the rights to be recorded . 31 Identification of the processes and system to be used . 32 CREATING A SYSTEM TO RECORD TENURE RIGHTS AND FIRST REGISTRATION III Reducing the risk of failure of first registration . 33 Beyond first registration . 34 Correcting mistakes . 34 Updating records . 34 Systematic registration . 35 5. Some considerations for the design of a new recording system 41 Key points of this chapter . 41 Institutional arrangements . 42 Choosing the way in which the system will operate . 42 Registrars . 43 Examining information before it is recorded . 44 Examinations in the registry . 45 Examinations outside the registry . 45 Using the public to improve the quality of information . 46 Organization of the records around parcels . 46 Archives . 47 Public access and privacy . 47 Choices in the design of outcomes . 49 6. Policy and legal frameworks 55 Key points of this chapter . 55 The constitution and the registry . 56 The policy framework and the registry . 56 The registry law . 57 By-laws and regulations, orders and decisions, and instructions . 58 7. Future considerations 61 Key points of this chapter . 61 General considerations . 62 Introducing new systems and services more quickly . 62 Collecting information for recording rights in new ways. 62 Recording rights that have not been legally recognized . 63 Annex: What do the Guidelines say about the recording of rights? 65 IV CREATING A SYSTEM TO RECORD TENURE RIGHTS AND FIRST REGISTRATION Preface On 11 May 2012, the Committee on World Food Security endorsed the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (the Guidelines). By promoting secure tenure rights and equitable access to land, fisheries and forests, the Guidelines aim to contribute to the global and national efforts towards the eradication of hunger and poverty. The first general principle of the Guidelines is for states to recognize and respect all legitimate tenure right holders and their rights. It calls on states to take reasonable measures to identify, record and respect legitimate tenure right holders and their rights, whether formally recorded or not. Recording tenure rights, such as through registration, cadastre and licensing systems, can be an important way to recognize and safeguard those rights. This guide addresses the recording of tenure rights with the particular focus on creating a new system to record rights and recording rights in a system for the first time. While recording systems exist around the world, there are often cases where people are not currently served by systems to record their tenure rights. This guide addresses the cases where the most appropriate approach is to create a new system to record those rights, and it provides practical advice on how rights can be recorded for the first time. This guide is accompanied by another guide that focuses on a different aspect of recording tenure rights: improving existing ways to record rights (Improving ways to record tenure rights). As these two guides cover different aspects of recording rights, they can be read as standalone documents, and as such, they have some text in common. However, some readers may benefit from reading both guides. These two guides on different aspects of recording rights are part of a series of technical guides that offer advice on various aspects of improving governance of tenure, consistent with the Guidelines. CREATING A SYSTEM TO RECORD TENURE RIGHTS AND FIRST REGISTRATION V Acknowledgements This technical guide on Creating a system to record tenure rights and first registration was prepared by David Palmer and Anthony Lamb with contributions by Gavin Adlington, Safia Aggarwal, Anni Arial, Tea Dabrundashvili, Fernando de la Puente, David Egiashvili, Victor Endo, Vladimir Evtimov, Don Gilmour, Louisa J.M. Jansen, Sonila Jazo, Bengt Kjellson, Odame Larbi, Jonathan Lindsay, John Manthorpe, Robin McLaren, Rebecca Metzner, Sergio Nasarre, Neil Pullar, Cecilie Ravn-Christensen, Stefanie Rüntz, Eugene Rurangwa, Rumyana Tonchovska, Paul van der Molen and Margret Vidar. The guide benefited from a review of an earlier draft by Haddis Akbari, Alberto Andrade, Malcolm Childress, Lorenzo Cotula, Peter Dale, Ivan Ford, Lionel Galliez, Willy Giacchino, Renée Giovarelli, Charisse Griffiths-Charles, Lynn Holstein, Peter Laarakker, Hugues Marcard, John McLaughlin, Robert Mitchell, Didier Nourissat, Elizabeth Stair, Stefan Svenson and Mika Törhönen. The guide was edited by Shannon Russell and Luca Feliziani designed the layout. The Food and Agriculture Organization of the United Nations (FAO) thanks the Government of the United Kingdom of Great Britain and Northern Ireland (Department for International Development) for its financial contribution for the preparation of this guide. VI CREATING A SYSTEM TO RECORD TENURE RIGHTS AND FIRST REGISTRATION CREATING A SYSTEM TO RECORD TENURE RIGHTS AND FIRST REGISTRATION 1 This guide is about extending the recording or registration of tenure rights to people who currently are not served by systems to record their rights.
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