Este documento foi preparado por Geoffrey Payne e Alain Durand-Lasserve, para a Relatoria da ONU para o Direito à Moradia Adequada, como subsídio ao estudo sobre segurança da posse que está sendo desenvolvido. O documento não necessariamente reflete a visão da Relatoria.
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Summary
Introduction and background
Access to secure land and housing is a precondition for reducing poverty, yet many millions of people live under the daily threat of eviction, or without sufficient security to invest what they have in improving their homes. Assessing the nature and scale of the problem is fraught with difficulties of definition as well as measurement. All attempts to assess the number of people globally who suffer from insecure land tenure and restricted rights have achieved limited success.
The responses by governments have so far failed to keep pace with the challenge of urbanization and urban growth in ways which enable the majority of people on low incomes to meet their basic needs. These groups now represent a large and in most developing countries an increasing proportion of total urban populations.
High land prices, inappropriate regulatory frameworks, bureaucratic inertia and political exploitation invariably conspire to inhibit progress. Mistaken confidence that there is a simple solution to such large and complex problems has also failed to address the diversity of legal, cultural, economic and political systems within which land tenure and property rights operate.
This review seeks to present a summary of the issues involved in addressing tenure security and insecurity. It offers a framework for understanding the nature as well as the extent of the issue, describes some of the methods to which people resort in order to improve their security of tenure and identifies some of the main actors involved and reviews policies and practices which claim or seek to address it. In doing so, it reports on many studies and published sources, but also draws on extensive personal experience.
Any discussion of land tenure and property rights needs to recognise the importance of cultural, historical and political influences, as well as those of technical and legal systems. Each of these influences results in subtle differences in the way key terms and relationships are defined.
Land tenure should primarily be viewed as a social relation involving a complex set of rules that governs land use and land ownership. Property rights may vary within, as well as between, tenure systems. It is therefore possible to have a high level of security, but restricted rights to use, develop or sell land, or a limited level of security, but a wide range of actual rights. The exact nature and content of these rights, the extent to which people have confidence that they will be honoured, and their various degrees of recognition by the public authorities and communities concerned, will all have a direct impact on how land will be used.
Insecure tenure covers a wide range of local situations, from total illegality to various forms of tolerated occupation, or occupation legitimized by customary practices but not considered as legal by government or local authorities.
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