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Review of Tenure Terminology by John W

Review of Tenure Terminology by John W

NO. 1 JULY 1998 Review of tenure terminology by John W. Bruce 1. tenure terms

The term “tenure” comes from English . After their conquest of England in 1066, the Normans declared all previous land rights void and re- placed them with grants from their new . Derived from a Latin term for “holding” or “possessing,” land tenure means the terms on which something is held: the rights and obliga- tions of the holder. Land tenure is a legal term that means the right to hold land rather than the simple fact of holding land. One may have tenure but may not have taken . Re- source tenure describes rights to land, water, trees, and other resources. With the emergence of capitalism in England, landholders struggled to A land tenure system is all the types Landholders struggle of tenure recognized by a national and/ to reduce their reduce the obligations under their land obligations. tenure. They forced the monarchy to or local system of law taken together. simplify the system into two basic In a locality, one may find private tenures: freehold and leasehold. (Fee freehold of residential plots and simple and absolute are farmland, and mortgages of technical feudal terms and are practi- residential and farms, cally synonymous with freehold and common in grazing land, and private .) Under freehold, local or national government ownership Property is land is held free of obligations to the of parks and roads. Areas with a bundle of distinctive tenure arrangements are monarchy or state. Today, we usually rights. call this private ownership. Leasehold is sometimes referred to as tenure niches. when land is rented by someone other A land tenure system cannot be than the owner for a specified period. understood except in relationship to the economic, political, and social systems Property is said to be a bundle of which produce it and which it rights, since it can have multiple rights influences. Tenure systems are belonging to several different persons or characterized by country or type of groups. economic system, as formal (created by statutory law) or informal (unwritten, rights in the land. Even if the tenure is customary), and as imported or secure for the lifetime of the holder and indigenous. inheritable by the children, it may be insecure, for example, if it cannot be Agrarian structure is the pattern of freely bought and sold. Here, the term distribution of land among owners. This means full private ownership. This structure may be unimodal, where most usage is common among strong advo- land is owned by medium-sized cates of private ownership. landowners, or bimodal, where most land is held by very large landholders Property Redistribution and very small landowners. of landholdings Property is a set of rights and responsi- and tenure change changes the bilities concerning a thing; property also is the term for the thing itself. When we agrarian Tenure reform describes legal reforms want to make it clear we are using it in structure. of tenure whether by the state or local the former sense, we often say property communities. Tenure reform is different rights. from land reform. Land reform involves the redistribution of landholdings and Western law recognizes two basic changes the agrarian structure, while kinds of property. One is real (Anglo- tenure reform leaves people holding the American law) or immovable property same land, but with different rights. (European ). This is property in land and attachments to land, like Security of tenure can indicate that trees or buildings. The second is the state or other private individuals personal (Anglo-American law) or cannot interfere with the landholder’s movable property (European Civil possession or use of land. The tenure Law), which is property in all other itself may be short, for instance, a things. Different bodies of law apply to for one month, but if the leaseholders real and . can be certain that they will be able to keep the land for the one month, then is held by private the tenure is secure. This implies persons and includes property held by confidence in the legal system and lack legal persons, such as or of worry about loss of one’s rights. This partnerships. Individual property can is the narrowest usage of the term, indicate that a natural rather than a legal common among legal professionals. person is the owner. is When tenure is held by any level of government. too short the At the same time, economists often landholder use the term to include the confidence Common property factor noted above and a second lacks security. element: long duration. One month’s A (a term with origins in tenure would be insecure because it is English feudalism) is an area on which so brief. This relates to incentives for all landholders of a locality have a right investment. The reason people with a to activities such as grazing stock or one-year lease will not plant trees is that gathering wood. Historically, this is not they have no expectation of being able a form of ownership but a pattern of to use the wood. Security of tenure legally guaranteed use: all members are relates to the time needed to recover free to use the land simultaneously. the cost of an investment. When tenure is too short or too uncertain for most In 1968, introduced investments, economists say that the the concept of the “tragedy of the landholder lacks security of tenure. commons.” A commons, he argued, will inevitably be overused and degraded. A third way the term is used adds The degrading of the resource is another element: a requirement of full inevitable because each user has every

2 TB #1:TENURE TERMS incentive to use as much of the resource not legal, but a term developed by as possible. In response, some resource western social scientists to describe economists and others argued that a non-western property systems. commons did not involve unregulated use. Commons limit use because only Common property and community members have a right to use are used in combination with other them. Many commons have rules terms: a resource may be described as limiting use (limiting the seasons for a common property resource or an grazing, limiting types of livestock, etc.). open access resource, depending on A new distinction was introduced: open whether its use is controlled. Common access refers to a lack of limits on use property management refers to how a of a common resource; common community manages its common A refers to a situation where property. A common property institu- owns the land there are controls over the use of the tion may describe an organization that which it resource. Common property is not a manages the common property or the common property tenure arrangement allocates to legal term and is not so clearly defined its members. as many other tenure terms. itself.

Communal tenure in Africa/Asia Access, holding, possession, and prescription of land tenure is used in Africa and Asia to describe tenure that in- These terms describe situations rather volves a large amount of community than rules. Having access means being control over . The community is able to make some use of the resource; regarded as owning the land, but it it is neutral about whether one has a allocates land to its members for legal right to use the resource. Holding cultivation. The members’ rights are use and possession both mean that one has rights or usufructuary rights (or usu- control of the piece of land or resource. fruct). This implies a long-term right for Again, these terms connote nothing an individual or household to use land about whether that person has a legal and may include rights, but it right to hold or possess the resource. does not imply a right to sell the land. In Possession, however, may have fact, the community may retain the right legal consequences. If someone pos- to reallocate landholdings among its sesses land for a long time, openly, Common members. A communal land tenure without the owner’s permission, and system usually includes both use rights behaves like an owner, western law will property and allocated to households or individuals accept the person as the owner. This is open access and also common property in other prescription, or prescriptive acquisition are used in resources. The term communal tenure is of land. The prescription period (the combination with other terms.

LTC TENURE BRIEF 3 period the land is required to be held landlord can evict the tenant at any for prescription) differs from country to time. country but is generally 15–30 years. Mortgages Leases and tenancy A mortgage is a contract that commits land as security for a loan. Normally, Leasehold involves the owner of land the land remains with the mortgagor giving it to someone else to use tempo- until that person fails to repay the debt. rarily in return for rent. Lease and Under possessory mortgage, the lender tenancy are synonyms for leasehold. A takes possession of the land as soon as the mortgage is made and holds it until the debt is repaid. Often there is no interest on a loan secured by a posses- sory mortgage because the borrower can make income from using the land given as security.

Land registration and cadastral survey

Land registration refers to registration of property rights in land. Land regis- tration system refers to the administra- tive system for keeping and maintaining those records through registration of and transactions in land. Land registration is useful in proving titles when they are challenged and for assuring a land buyer that the seller is in fact the owner. Under registration, are registered. Title deeds are the contracts transferring ownership of land. Under title registration (also known as the Torrens system), the state does not merely register deeds and keep them available for inspection but makes a legally binding determina- tion about who is the owner and fixed amount for a specific period of guarantees that determination. Registra- time is called fixed rent. Or it may be a tion may be sporadic, in which case share of the production of the land, in each parcel is registered separately and which case it is called share rent. A voluntarily, often at the initiative and tenancy with a fixed rent is a fixed rent expense of the owner, or it may be tenancy, a tenancy with a share rent is systematic, in which case all parcels in called a share tenancy, and farming land an area are surveyed at the same time, leased under a share tenancy is share- compulsorily, and often without charge cropping. to the owner. Some types of tenancies are charac- Most systems of land registration terized by their duration. A year-to- involve a survey of the parcels. The year tenancy requires renewal each boundaries and location must be year. Tenancy at sufferance means the determined and recorded in case of

4 TB #1:TENURE TERMS disputes. A cadastral survey produces a or cadastral map that shows 2. Glossary of tenure parcels and their owners and can be terms used as the basis for a land . A map can be recorded on an aerial photo- access: The ability to use land or graph or on remote sensing imagery. If another resource. there has been a geodetic survey of the agrarian structure: The pattern of land region (which takes into account the distribution among landowners. curvature of the earth), there should be agrarian reform: Our broadest term a geodetic network, and the location of the parcel can be established by for the attempt to change agrarian The attempt reference to two points in that network structure, which may include land reform, land tenure reform, and to change that are visible from the parcel. The agrarian global positioning system (GPS) locates other supportive reforms as well as the point in relation to orbiting satellites. reform of the credit system. structure bimodal agrarian structure: A distri- may include Holdings, parcels, and their bution pattern for land in which land reform. division most land is owned by the largest A holding is all land held by a house- landholders and the smallest hold or person, whether owned, leased, landholders. or held on some other basis. A parcel is : The several rights that a unit of land legally defined by its constitute a tenure; alternatively, all acquisition as a single contiguous unit, the rights belonging to various so that it is under a single title. That title persons or groups in a piece of can be ownership, lease, or some lesser property. right. A field is a contiguous area of cadastral survey: A survey that land under a uniform cropping pattern determines the ownership, bound- with no legal implication. Plot is some- aries, and location of a parcel of times used as a synonym for parcel, but it can also be used for an area within a land. parcel farmed by one farmer when two cadastre (or cadastral map): A map or more farmers control different parts showing the results of a cadastral of a parcel. survey. co-ownership: Joint ownership by Parcels can be broken into smaller more than one legal person. pieces. This process, which may occur common property: A commons from Land or other at inheritance by division among heirs or which a community can exclude resources can by sale of part of the parcel, is called nonmembers and over which the be used or . Fragmentation community controls use. exists when a holding consists of several simultaneously common property institution: An by community separate parcels. organization that manages common property; or the common property members. Inheritance of land tenure arrangement itself. common property management: Inheritance (or succession) is the legal Management of a resource as process by which land passes from an common property. owner who has died to his/her heirs. common property resource: A re- The owner may before death have source managed under a common executed a will and testament, which property regime. specifies heirs. If so, the inheritance is commons: Land or another natural said to be a testate succession. If not, resource used simultaneously or the inheritance is said to be an intestate serially by the members of a succession. community.

LTC TENURE BRIEF 5 creditworthy: Term used to character- holding (verb): Having control of land ize a borrower who is a good risk or another resource. for a lender. holding (noun): All the land held by a household or person in whatever decedent: A deceased owner. tenure. deed registration: Registration of title deeds. immovable property: Property in land and attachments (European Civil fee simple (or fee simple absolute): Law). Archaic terms for freehold, from imported tenure system: Tenure English feudal tenure terminology. system copied from another Boundaries field: A contiguous area of land under a country. are fixed by common pattern of use or crop, indigenous tenure system: Tenure which may be a parcel or part of a system of local origin. reference to parcel. points in a individual property: Property held by fixed boundaries: Boundaries fixed by a natural person. geodetic reference to points in a geodetic informal tenure system: Unwritten, network. network. customary tenure system. fixed rent: A rent fixed in cash or a inheritance: The legal process by quantity of goods. which land or other property passes fixed rent tenancy: A tenancy for from a deceased owner to his or which the rent is fixed. her heirs. formal tenure system: A tenure system intestate succession: An inheritance created by statute. under a scheme of intestacy, fragmentation: The state of a holding, applicable by law. consisting of several separate parcels. land reform: The attempt to change freehold: Full private ownership, that is, and thereby improve the distribution free of any obligations to the state of land among landholders. other than payment of and land registration: in a observance of land use controls register the ownership and other imposed in the public interest. property rights in land (a broad, generic term). general boundaries: Boundaries land survey: Determining the bound- established by reference to physical aries and fixing the location of a features such as a river or parcel of land. General hedgerow. land tenure: Right(s) in land. boundaries geodetic network (or grid): The land tenure system: All the tenures network of fixed points established refer to provided for by a legal system, in a geodetic survey. taken together. physical geodetic survey: A survey that estab- lease (verb): To make a contract for features. lishes a network (or grid) of points temporary use. on the earth’s surface, taking into lease (noun): An agreement for tempo- account the curvature of that rary use by a lessee, who pays rent surface, which points can be used to the lessor (owner). as reference points to establish and leasehold: Tenure for a specified period reestablish the location of a parcel. for payment of rent, conferred by global positioning system (GPS): A the owner, whether state or private. system of survey which establishes lessee (or tenant): Person who leases and can reestablish points on the in land. earth’s surface by reference to lessor (or landlord): Owner who leases orbiting satellites. out land. heir: A person entitled by law to inherit, mortgage: A contract by which a either by will or by scheme of borrower commits land as security intestacy. for a loan.

6 TB #1:TENURE TERMS mortgagee: The lender who accepts property: A set of rights and responsi- the land as security. bilities concerning a thing, often mortgagor: The borrower who mort- stated as rights in a thing, to show gages land. they are rights against everyone. movable property: Property other than public property: Property held by any (European usage). level of government. A tenant may rent open access resource: A resource to real property: Property in land and which access is open and uncon- attachments (Anglo-American temporary trolled. usage). use of the open access: Use of a commons rent (verb): The act of leasing. land. without controls. rent (noun): Payment by a tenant to a parcel: A contiguous area of land landlord for temporary use of land acquired as a unit under one title. under a lease. partition: Breaking up a parcel into resource tenure: Right(s) in land and smaller parcels, by division in other resources including water and inheritance or by sale of part of the forests. parcel. personal property: Property other than real property (Anglo-American usage). plot: A synonym for parcel; also used to indicate a piece of land within a parcel managed by someone other than the parcel owner. possession: Having control of land or another resource. possessory mort- gage (or anti- chresis): A mortgage under which the land is scheme of intestacy: The heirs, their held by the lender until the loan is priority, and their shares, as speci- repaid, usually in lieu of interest. fied by law for cases in which there prescription period: The minimum time is no will or wills are not permitted. that land must be held to acquire it security of tenure (or tenure security): A tenant by prescription, usually in the range Tenure held without risk of loss; may pay a of 15–30 years. alternatively, tenure held without share of prescription (or prescriptive acquisi- risk, and for a long time (preferred tion): Acquiring ownership of land use of the term); alternatively, production by possession over a long period of tenure resembling full private as rent. time, which is open and without ownership. permission of the owner and during security: Property of the borrower which the possessor acts as if s/he promised to the lender if the loan is were the owner. not repaid on time. private property: Property held by share tenancy: A tenancy with a share private persons, natural or legal. rent.

LTC TENURE BRIEF 7 share rent: A rent consisting of a tenure: Right(s) in a landholder’s percentage of the production of the resource. land. testate succession: An inheritance sharecropper: A tenant paying a share under a will. rent. tenure niche: An area with a distinctive : Farming land as a tenure arrangement, usually related tenant under a share rent. to the particular use to which the sporadic registration: Registration of a land is put. TENURE parcel separately from others in the tenure reform: The attempt to alter and so improve the rules of tenure. area, voluntarily and generally at the BRIEFS title deed: The contract transferring initiative and expense of the owner. ownership (title) to land.

Tenure Briefs are published by the Land Tenure Center, an interdisciplinary center housed within the College of Agricultural and Life Sciences on the University of Wisconsin–Madison campus, as a source of applied information for professionals and students working worldwide on resource tenure, social structure, rural institutions, and development.

All views, interpretations, recommendations, and conclusions expressed in this paper are those of the author and not necessarily those of the supporting or cooperating institutions.

Author: John W. Bruce squatter: Someone who occupies land title registration: A land registration Director without any legal authority. Land Tenure Center that confers a guarantee of the title 1357 University Ave subdivision: Breaking up a parcel into by the government. Adjunct Asst Prof smaller parcels, by division in Dept Torrens system registration: Title University of Wisconsin inheritance or by sale of part of the registration named for its originator, Madison WI 53715 parcel. the Australian Robert Torrens. [email protected] succession: The legal process by which land or other property passes from unimodal agrarian structure: A For additional copies, contact: a deceased owner to his or her distribution pattern for land in which LTC Publications Desk heirs. most land is owned by holders with 1357 University Avenue Madison, WI 53715 systematic registration: Registration of average-sized holdings. Tel: 608-262-3657 all parcels in an area at the same usufructuary rights (or ): Fax: 608-262-2141 time, usually compulsorily and Email: ltc- Individual or household rights of use [email protected] therefore without charge to the which exist under communal tenure Website: www.wisc.edu/ltc owner. systems. tenancy year-to-year: A tenancy that will (or will and testament): A docu- Edited by Kurt Brown the parties must agree to renew Layout by Jane Dennis ment executed by the owner before each year. his or her death, specifying heirs tenancy at sufferance: A tenancy that and what portion of the each can be terminated by the landlord at Printed in the USA on is to receive, after debts are paid. recycled paper with any time. vegetable inks.

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