Incrementally Securing Official Access to Property in Informal Settlements
By Lauren Royston
Many South African households are not yet on the residential property ladder, even after state assistance since 1994, either through the transfer of existing township stock via the discount benefit scheme or the construction of new stock via RDP or BNG subsidies, has made significant contributions to enabling access to titles.
Some of these households in the so-called gap market are not poor enough to access state subsidy and yet lack sufficient private resources to enter the market. Many other poorer households, within the state subsidy income brackets, have not yet received state assistance and are active in the informal markets, obtaining access to land via a range of unofficial supply channels including backyard rentals, informal settlements and overcrowding in existing stock.
Using official backlog figures, these households number between 1.7 million (the official shack count) and 2.5 million (including overcrowding). These households hold property in a variety of ways, which often mimic aspects of individual freehold title or official rental. In many cases these tenure arrangements are configured locally with a strong social emphasis. Far from informal, they are often linked to land management practices that are locally organised.
Increasing Channels of Supply
Greater policy emphasis is needed on opening up additional channels of officially recognised supply for poor households, if greater access to property is to be achieved, along with the benefits it is meant to confer. Although additional channels of state assisted supply exist, individual title, through RDP or BNG housing, has been the dominant form of formal property access for poor households in South Africa since 1994. Reliance on this entry point condemns many households in need of shelter to waiting patiently (sometimes for very long periods of time) or to land occupation. For the lucky households, it squeezes them into official property through a single channel.
Increasing the channels of supply that accommodate poor people will multiply and diversify the entry points to property, relieving the pressure on RDP/BNG supply and creating additional options in between the two extremes of land invasion and subsidised housing. Many additional channels of supply already exist; they do not need to be created. The issue is that they lack official recognition and the benefits that flow from it, such as tenure security, legal status, access to services, a residential address, livelihood opportunities, consolidation support or the prospect of access to housing micro-finance.
One example of an additional entry point is small scale private rental, which is found in backyards all over the country and ranging in typology from Soweto to Sandton. Another is incrementally securing tenure in informal settlements, in advance of the provision of state subsidy for informal settlement upgrading. This is sometimes referred to as informal settlement “regularisation”. There are already multiple means for incrementally securing tenure in informal settlements, some of which are in operation in South Africa currently including municipal letters, by-laws and special zoning categories. Some mechanisms are administrative in nature, such as municipal letters, while others involve legal declarations, like the City of Johannesburg’s town planning scheme amendment approach. Urban LandMark is currently concluding the development of an approach that plots these mechanisms as increments along a tenure security continuum.
Many South African households are not yet on the residential property ladder, even after state assistance since 1994, either through the transfer of existing township stock via the discount benefit scheme or the construction of new stock via RDP or BNG subsidies, has made significant contributions to enabling access to titles.
Some of these households in the so-called gap market are not poor enough to access state subsidy and yet lack sufficient private resources to enter the market. Many other poorer households, within the state subsidy income brackets, have not yet received state assistance and are active in the informal markets, obtaining access to land via a range of unofficial supply channels including backyard rentals, informal settlements and overcrowding in existing stock.
Using official backlog figures, these households number between 1.7 million (the official shack count) and 2.5 million (including overcrowding). These households hold property in a variety of ways, which often mimic aspects of individual freehold title or official rental. In many cases these tenure arrangements are configured locally with a strong social emphasis. Far from informal, they are often linked to land management practices that are locally organised.
Increasing Channels of Supply
Greater policy emphasis is needed on opening up additional channels of officially recognised supply for poor households, if greater access to property is to be achieved, along with the benefits it is meant to confer. Although additional channels of state assisted supply exist, individual title, through RDP or BNG housing, has been the dominant form of formal property access for poor households in South Africa since 1994. Reliance on this entry point condemns many households in need of shelter to waiting patiently (sometimes for very long periods of time) or to land occupation. For the lucky households, it squeezes them into official property through a single channel.
Increasing the channels of supply that accommodate poor people will multiply and diversify the entry points to property, relieving the pressure on RDP/BNG supply and creating additional options in between the two extremes of land invasion and subsidised housing. Many additional channels of supply already exist; they do not need to be created. The issue is that they lack official recognition and the benefits that flow from it, such as tenure security, legal status, access to services, a residential address, livelihood opportunities, consolidation support or the prospect of access to housing micro-finance.
One example of an additional entry point is small scale private rental, which is found in backyards all over the country and ranging in typology from Soweto to Sandton. Another is incrementally securing tenure in informal settlements, in advance of the provision of state subsidy for informal settlement upgrading. This is sometimes referred to as informal settlement “regularisation”. There are already multiple means for incrementally securing tenure in informal settlements, some of which are in operation in South Africa currently including municipal letters, by-laws and special zoning categories. Some mechanisms are administrative in nature, such as municipal letters, while others involve legal declarations, like the City of Johannesburg’s town planning scheme amendment approach. Urban LandMark is currently concluding the development of an approach that plots these mechanisms as increments along a tenure security continuum.
Clearing the Definitional Terrain
Sometimes practitioners conflate title and tenure security. Title is one form of tenure. The registration of deeds (ROD) system is South Africa’s particular version of individual freehold title. Rental is another form of commonly understood tenure, which can be secured under the right conditions. In practice, there are also variety of often unrecognised tenure arrangements that describe people’s relationship to property and govern their rights and obligations. For security of tenure, processes and procedures that govern property are as important to consider as the form of tenure. Unfortunately, because title dominates so much in tenure approaches and discussions, policy and practice tend to emphasis the form of tenure to the detriment of the processes and procedures that secure tenure and the social relationships that underpin them. A focus on tenure security, rather than title, accommodates a broader conceptualisation of tenure arrangements and economic possibilities, and a more pro-poor perspective, rather than just focusing on tenure forms, like title, rental and so forth.
Sometimes people use the terms “interim” tenure, “incremental” tenure and “alternative” tenure interchangeably. Alternative tenure is a term that describes an alternative form to individual title. In South Africa these alternatives include rental forms (private, public or social), group forms of ownership (such as trusts, co-operatives, share block schemes and communal property associations) and sectional title ownership (in medium and high density accommodation in apartment blocks and townhouse complexes). Generally, alternatives to title would be of a more long standing nature than incremental tenure, with a different rationale (for example rental as a long-term Johannesburg accommodation option with home ownership in a permanent household base in Newcastle).
Incremental tenure is a progressive approach towards the achievement of ownership and, in Urban LandMark’s approach, is used to refer to the stepping stones, or increments, along the way to individual title in informal settlements. Incremental tenure also accommodates a more progressive approach than the interim tenure, which is more suggestive of a two stage process. The importance of an incremental approach to tenure is that it aims for progressively more secure tenure over time, which enables more opportunity for more households more quickly and earlier in the development process. Tenure becomes more secure as soon as the threat of eviction is removed. This can be achieved through official public statements or via official indications, such as the provision of basic services.
Tenure security increases when people have evidence to defend their claims. Evidence takes many forms including oral (for example through verbal testimony) and documented (for example municipal B-forms, affidavits, letters, municipal bills and the like). A shack number, spray painted onto a sheet of corrugated iron or a door, also provides a form of evidence of official recognition.
Critically, incremental tenure also accommodates what currently exists in informal settlements, and ‘what currently exists’ is often an organised system of local management for accessing, holding, using and transferring land. Upgrading programmes which ignore existing tenure practices have a tendency to fail; they too quickly replace existing arrangements with the new and unknown and they may inadvertently create conflict, sometimes violent, between residents with locally differentiated claims. The poorest and more vulnerable, both within a community and within households, are often worst off; but in the event of conflict, the entire community stands to lose.
Incremental approaches have a lot to offer, preferably beginning at settlement scale, to avoid the sometimes messy review of existing rights or the individualised determination of rights. Once a basic tenure security is in place, the door can be opened to increasingly collaborative state or community relationships for engaging on the more detailed and then more individualised aspects of tenure regularisation, including working with existing registers and forms of evidence, and the de facto rights and claims that underpin them.
Incremental Approach to Securing Tenure in Informal Settlements
As a starting point, consideration should be given to working with what currently exists in the settlement; the nature and content of rights, and the management of change. What currently exists can be further differentiated into existing practices of registration, differentiated de facto rights and claims and local land management practices.
Existing Practices of Registration
Local practices in registering existing claims and rights to land in informal settlements are characteristically community or municipality controlled and, in some hybrid arrangements, combine both community action and the hand of the state. Urban LandMark research collected evidence that communities and community structures have created their own land registration practices.
These registered rights and claims exist over, or on top of, the official system of title deed registration applicable to the underlying land. Few, if any, are untouched by the hand of the state. The research also identified that the state has also initiated land registration practices, primarily in opening municipal registers of informal settlement occupants. Earlier Urban LandMark research found that these practices have an important role to play in the land market.
The municipal prompt for setting up a settlement register is population stabilisation, rarely tenure security. However, even if registers are not established as instruments for tenure security, they quickly become so. Community organisations are generally brought into the registration process, not because municipalities perceive them as de facto land managers, but because they are critical for achieving a stable population once a municipal signal of some sort is given that the community has official recognition.
In these situations, the tendency for rapid population growth escalates, and because the existing community has something to gain from upgrading, there is generally a willingness to assume responsibility for curtailing new access, despite the large scale of unmet demand in the market. However, this role strengthens the hand of the community organisation as a local land managing institution, at least in the interim until formalisation takes place. Hence population stabilisation requires co-operation from the community and the community representative body, which, in turn, depends on the future plans for the area. Common purpose, or a sufficiently shared vision of the future, appears to be a precondition for successful state/community collaboration on settlement stabilisation and curtailing population growth. Meaningful engagement with community organisations, in structured processes of participation, is essential to achieve this common purpose.
What matters for tenure security in an incremental approach is the location of the register and who controls it, and the extent to which people have recourse to an external authority or a recognised community structure rather than an individual. Authority for land management is a powerful tool in communities and it is the vulnerable whose tenure is most at risk from state, community and family, and market pressures. The implications for incremental tenure security lie in how the issue of registers is addressed. A register that goes further than a record of occupants’ names and shack numbers becomes an instrument for tenure security especially if the site is linked to a layout plan, transcending the original intention of population stabilisation or control, as is generally the case with municipally initiated registers. A geo-spatially referenced register of use rights, linked to shack numbers, names, and a layout plan is a cornerstone of incrementally securing tenure in informal settlements.
Another dimension of what currently exists is the differentiated nature of de facto rights and claims. The de facto rights and claims of households should be identified in tenure upgrading processes and accommodated, where possible. This is best achieved in consultation with communities and community organisations which are, in many cases, the existing land managers. Incremental upgrading approaches secure rights on a more gradual basis, and at first on a less individualised basis, which better accommodates what already exists. The implications for incremental tenure security lie in the form of written evidence that is conferred; certificates, letters, contracts. Who obtains the document? How are recipients identified? What rights are being conferred and how do local perceptions of existing claims relate? Can a recipient legally trade the right if they wish to move?
As far as the third dimension of ‘what already exists’ is concerned—local land management practices—who holds the register and procedures for resolving disputes are particularly important. This has implications for layout plans and administrative capacity. Community participation in layout planning, by whatever method, and the roles of de facto land managers need to be resolved.
The Nature and Content of Rights
Tenure rights are often described as a bundle of rights with the sticks in the bundle constituting some or all of the following rights:
• Use (residential and productive uses).
• Rent or sublet.
• Sell or bequeath.
• Develop or improve.
• Realise benefit or return.
• Access to services.
• Access to credit (e.g. housing micro-finance).
• Access to economic opportunity.
• Claims to future development.
Informal settlement upgrading approaches seldom make explicit whether de facto claims are being secured, new rights are being conferred or current ones being upgraded. In an incremental approach a residential use right is the likely starting point, although the extent of congruence with what currently exists should be identified. Consideration must be given to how rights will be upgraded in future. A critical issue is about improvements and whether occupants are encouraged to construct formal dwellings or not, and how they are compensated if they do.
The Management of Change
Registers are seldom static documents. Change and adaptation need to be built into the incremental approach. Community organisations tend to adapt municipal registers to reflect changes arising from properties being transferred through either inheritance or sale. Municipalities themselves are responsible for re-registrations and the repeated shack numbering.
In preference to repeated rounds of registration, a more flexible and adaptive approach is required that accommodates both the need to plan for a known quantity of households and to accommodate reasonable changes, such as those arising from transferring rights and claims under agreed conditions. Successive re-registration has the tendency to multiply different forms of evidence and create confusion. The implications for incremental tenure lie in clarifying the nature of the occupation and whether or not it can be bequeathed or inherited, transferred or sold, bearing in mind that transfer will take place irrespective of official intention. The trick is to anticipate transfer rather than assume either compliance with non-transfer rules or enforcement. Clarifying, and instituting, the capacity to manage such change is therefore a critical component of incrementally securing tenure.
To Conclude
This article advocates for an incremental approach to securing tenure in informal settlements. The primary motivation for such an approach is that it broadens officially recognised property access, and the benefits that flow from property. These benefits are often construed in purely financial terms, whereas there are economic and social functions of property as well. Increasingly, research evidence is illustrating that the capital gains argument, which is premised on access to title and property sales for wealth accumulation benefits, does not automatically hold true across the board. For example, households who are first generation home-owners exhibit a lack of interest in property sales. Once the centrality of asset creation for financial gain is displaced, the role of secure tenure and a broader, speedier base of property access can be considered. Another motivation for an incremental approach is that it better accommodates working with what currently exists in informal settlements, which in turn is an important principle for successful informal settlement intervention.
Lauren Royston is the tenure theme coordinator at Urban LandMark
As a starting point, consideration should be given to working with what currently exists in the settlement; the nature and content of rights, and the management of change. What currently exists can be further differentiated into existing practices of registration, differentiated de facto rights and claims and local land management practices.
Existing Practices of Registration
Local practices in registering existing claims and rights to land in informal settlements are characteristically community or municipality controlled and, in some hybrid arrangements, combine both community action and the hand of the state. Urban LandMark research collected evidence that communities and community structures have created their own land registration practices.
These registered rights and claims exist over, or on top of, the official system of title deed registration applicable to the underlying land. Few, if any, are untouched by the hand of the state. The research also identified that the state has also initiated land registration practices, primarily in opening municipal registers of informal settlement occupants. Earlier Urban LandMark research found that these practices have an important role to play in the land market.
The municipal prompt for setting up a settlement register is population stabilisation, rarely tenure security. However, even if registers are not established as instruments for tenure security, they quickly become so. Community organisations are generally brought into the registration process, not because municipalities perceive them as de facto land managers, but because they are critical for achieving a stable population once a municipal signal of some sort is given that the community has official recognition.
In these situations, the tendency for rapid population growth escalates, and because the existing community has something to gain from upgrading, there is generally a willingness to assume responsibility for curtailing new access, despite the large scale of unmet demand in the market. However, this role strengthens the hand of the community organisation as a local land managing institution, at least in the interim until formalisation takes place. Hence population stabilisation requires co-operation from the community and the community representative body, which, in turn, depends on the future plans for the area. Common purpose, or a sufficiently shared vision of the future, appears to be a precondition for successful state/community collaboration on settlement stabilisation and curtailing population growth. Meaningful engagement with community organisations, in structured processes of participation, is essential to achieve this common purpose.
What matters for tenure security in an incremental approach is the location of the register and who controls it, and the extent to which people have recourse to an external authority or a recognised community structure rather than an individual. Authority for land management is a powerful tool in communities and it is the vulnerable whose tenure is most at risk from state, community and family, and market pressures. The implications for incremental tenure security lie in how the issue of registers is addressed. A register that goes further than a record of occupants’ names and shack numbers becomes an instrument for tenure security especially if the site is linked to a layout plan, transcending the original intention of population stabilisation or control, as is generally the case with municipally initiated registers. A geo-spatially referenced register of use rights, linked to shack numbers, names, and a layout plan is a cornerstone of incrementally securing tenure in informal settlements.
Another dimension of what currently exists is the differentiated nature of de facto rights and claims. The de facto rights and claims of households should be identified in tenure upgrading processes and accommodated, where possible. This is best achieved in consultation with communities and community organisations which are, in many cases, the existing land managers. Incremental upgrading approaches secure rights on a more gradual basis, and at first on a less individualised basis, which better accommodates what already exists. The implications for incremental tenure security lie in the form of written evidence that is conferred; certificates, letters, contracts. Who obtains the document? How are recipients identified? What rights are being conferred and how do local perceptions of existing claims relate? Can a recipient legally trade the right if they wish to move?
As far as the third dimension of ‘what already exists’ is concerned—local land management practices—who holds the register and procedures for resolving disputes are particularly important. This has implications for layout plans and administrative capacity. Community participation in layout planning, by whatever method, and the roles of de facto land managers need to be resolved.
The Nature and Content of Rights
Tenure rights are often described as a bundle of rights with the sticks in the bundle constituting some or all of the following rights:
• Use (residential and productive uses).
• Rent or sublet.
• Sell or bequeath.
• Develop or improve.
• Realise benefit or return.
• Access to services.
• Access to credit (e.g. housing micro-finance).
• Access to economic opportunity.
• Claims to future development.
Informal settlement upgrading approaches seldom make explicit whether de facto claims are being secured, new rights are being conferred or current ones being upgraded. In an incremental approach a residential use right is the likely starting point, although the extent of congruence with what currently exists should be identified. Consideration must be given to how rights will be upgraded in future. A critical issue is about improvements and whether occupants are encouraged to construct formal dwellings or not, and how they are compensated if they do.
The Management of Change
Registers are seldom static documents. Change and adaptation need to be built into the incremental approach. Community organisations tend to adapt municipal registers to reflect changes arising from properties being transferred through either inheritance or sale. Municipalities themselves are responsible for re-registrations and the repeated shack numbering.
In preference to repeated rounds of registration, a more flexible and adaptive approach is required that accommodates both the need to plan for a known quantity of households and to accommodate reasonable changes, such as those arising from transferring rights and claims under agreed conditions. Successive re-registration has the tendency to multiply different forms of evidence and create confusion. The implications for incremental tenure lie in clarifying the nature of the occupation and whether or not it can be bequeathed or inherited, transferred or sold, bearing in mind that transfer will take place irrespective of official intention. The trick is to anticipate transfer rather than assume either compliance with non-transfer rules or enforcement. Clarifying, and instituting, the capacity to manage such change is therefore a critical component of incrementally securing tenure.
To Conclude
This article advocates for an incremental approach to securing tenure in informal settlements. The primary motivation for such an approach is that it broadens officially recognised property access, and the benefits that flow from property. These benefits are often construed in purely financial terms, whereas there are economic and social functions of property as well. Increasingly, research evidence is illustrating that the capital gains argument, which is premised on access to title and property sales for wealth accumulation benefits, does not automatically hold true across the board. For example, households who are first generation home-owners exhibit a lack of interest in property sales. Once the centrality of asset creation for financial gain is displaced, the role of secure tenure and a broader, speedier base of property access can be considered. Another motivation for an incremental approach is that it better accommodates working with what currently exists in informal settlements, which in turn is an important principle for successful informal settlement intervention.
Lauren Royston is the tenure theme coordinator at Urban LandMark