/ LAND TENURE

LAND

In Roman Dutch law all that is physically contained within the land parcel is called the SOLUM. To be of any value, theSolum must include the ground surface, the SUBADJACENT SOIL below the ground surface( otherwise one would be trespassing if the roots of one’s vegetables grew below the ground level), and SUPERADJACENT AIRSPACE above the ground surface ( for otherwise one would be trespassing by building a house above the ground). The solum is seen conceptually as extending from the centre of the earth upwards to the sky.

The solum is often referred to as a PARCEL, and what is implied is that several elements are wrapped up together.

The land parcel comprises:

1.)The ground itself (including ground which is covered with water for all or part of the year).

2.)All trees and other plants growing on the land.

3.)Everything fixed to the ground including buildings.

4.)Anything below the ground. ( pipes, cables, rocks, mineralse.t.c)

5.)The airspace above the ground.

6.)Any servitudes or other real rights registered against the property

The boundaries of a land parcel may be defined as being vertical surfaces, extending from the centre of the earth upwards to the sky.

BOUNDARY LINES are then the intersection of vertical boundary surfaces with the topographical surface of the earth. In urban areas in Zimbabwe, these lines are usually demarcated ( marked on the ground) by iron pegs and other markers at the turning points. In England and some other countries beacons are seldom left at turning points of the boundary, instead a hedge, ditch or fence may point to the existence of aboundary.

Land Tenure

The root of the word TENURE is the Latin word TENEO, which means to hold. So land tenure is the way in which land is held, or in other words the relationship between people and land. This relationship may be complex, and include law, custom, sentimental attachments, economic considerations, ancestral rights and other factors. Today a very important part of that relationship is the legal component, that is why we have to study land law. An ideal system of land law endeavours to describe completely man’s relationshipwith land. Land law lays down what rights a person has over the land, what he may do and what he may not do. Land tenure therefore is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. (For convenience, “land” is used here to include other natural resources such as water and trees.) Land tenure is an institution, i.e., rules invented by societies to regulate behaviour. Rules of tenure define how property rights to land are to be allocated within societies. They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions Land tenure relationships may be well-defined and enforceable in a formal court of law or through customary structures in a community. Alternatively, they may be relatively poorly defined with ambiguities open to exploitation.

Models of land tenure

The tie between people and land may be complex, firsty and secondly very strong. People very often have intense feelings for the land which they hold; land where they grew up, and perhaps where their parents and grandparents are buried, perhaps land which they have personally fought to possess or repossess, and which they have given tears, sweat and blood to working and improving. Laws grow up which ratify (confirm and compact) this situation so that a person does not have to worry about losing his land and will pay rates which in part pay a law keeping force to uphold the legal system.

  1. The Solum, Proprietary Unit, Social Matrix Model
    In this model, the land parcel is seen as comprising three related elements:

A. The Solum

The solum is the physical entity of the land parcel, as described earlier.

B. The Proprietary Unit

This comprises the set of rights and restrictions which attach to the solum of the land parcel. The word PROPRIETARY means “belonging to an owner” or “ held as property”. The boundaries of a land parcel are the limits up to but not beyond which a set of rights in land extend.

A legal right is an interest conferred and protected by the law entitling one person to claim that another person give him something or do an act for him( positive right) or refrain from doing an act.( Negative right)

The principal right of ownership is that of DOMINIUM. Dominium is the right of ownership, and includes the right to possess exclusively, the right to use and take fruits, the right to dispose of and destroy.

C. The Social Matrix

A land parcel cannot exist in isolation, and so in a politically organised society recognition of the land parcel is contingent on the organisation of the society. For example if land is nationalised following a change in the government of a country, a different set of rights may come into operation between the individual and the land parcel.

The social matrix includes:

a). the political organisation of the community and the power of political decision.

b). The economic organisation of the community and the power of economic decision.

c). The religious organisation of the community, and the power of its influence in political and economic matters.

d). the customs and mores of the community and their power to inhibit or promote evolution.

  1. The Rights, Responsibilities, Restraints model
    An alternative model, describes land tenure as comprising three elements Rights, Responsibilities and Restraints. However, this model is not complete. We face a spatial problem of where rights begin and end, as nothing comparable to the SOLUM has been defined. Responsibilities and Restraints, on the other land, are becoming a more and more important part of the social matrix and proprietary unit, as the idea of stewardship of our natural environment comes increasingly into prominence. As population pressure increases it is accepted that no landowner should have absolute rights over his land.

Forms of Land Tenure

Landtenure is the relationship not only between man and the land, but also between man and man.

We can identify four principle forms of land tenure:

1.)Pastoral- typical of normadic, herding communities

2.)Cognate – traditional subsistence economy

3.)Western –individualised, marketable tenure. Often goes together with a capitalistic economy.

4.)Collective- Group land ownership. Often goes hand in hand with a socialistic economy.

A commonly held view point is that 1,2 and 3 are invariably evolutionary steps in the holding of land, which lead one from the other. The following passage by lord Lugard is frequently quoted in support of this:

“ In the earliest stage the land and it’s produce is shared by the community as a whole, latter the produce is the property of the family or individuals by whose toil it is won, and the control passes to the chief, who allots unoccupied land at will, but is not justified in disposing any person or family who is using the land. Later still when the pressure of the population has given the land an exchange value, the conception of proprietary rights emerges, and sale, mortgage and lease of the land apart from its user is recognised. These processes of natural evolution, leading to individual ownership, may I believe, be traced in every civilisation known to history.”

Zimbabwe seems, on the face of it to be adhering to this pattern. Communal land has in some instances at least, assumed a market value. It seems to be emerging that the village headman will allow the use of land only after cash has changed hands. It is a short step for people who wish to leave the land to insist that next owners pay back at least this initial investment, or a higher figure which reflects inflation and improvements to the land.

It is important to note that every form embodies some means whereby the individual may be controlled. In (1) family ties and the law of physical force prevail, in (2) land may be withdrawn if the possessor does not meet his social obligations, in (3) and (4) laws are often enforced by the police and military, and in (4) the right is often reserved for the individual to be expelled from the collective tenancy.

Pastoral Land Tenure

This form of tenure refers to people who have never conceived of the possibility of individual ownership of land, and is rarely found today. For as long as there was no shortage of land there was no question of it being owned. The concept of ownership was reserved for movables, such as cattle, weapons, clothes, tools and household articles. The social group, be it individual, family or tribe had free range, and moved to where the grass was greenest. In this form of tenure, there was no concept of ownership in immovables(eg. Land and things attached to it).

Cognate Tenure (sometimes called secondary tenure)

The great evolutionary step in mankind’s development was the adoption of settlements and permanent agriculture. Land became a factor of production, and acquired the attributes of property. However ownership, when it is recognised is subject to the right of reversion to the community as a whole. Land may originally be in the possession of one person by virtue of the work which he did in clearing it for agriculture, but thereafter it is passed to his family.

Secondary tenure is often referred to as cognate tenure, because it is characteristically based on the extended family unit. ( cognate means descended from a common ancestor). Zimbabwe’s communal lands are an example of this type of tenure. There are many variants o of this system: it predominates in Africa, it is also found in the Pacific islands and in parts of Asia and Central America.

A frequently quoted sentence which might have been from an African chief ia as follows:

“ I conceive that land belongs to one vast family, of whom many are dead, a few are living, and countless numbers have yet to be born.”

The following is a summary of some characteristics of cognate tenure:

  1. The absolute dominium (i.e ownership) of the land is vested in the living family members who hold it in trust from their ancestors on behalf of those not yet born. The ownership is joint and undivided.
  2. The land is not a negotiable good: it is inalienable outside the family group.
  3. The use of the land is both communal and individual. Some land is allocated for common use, such as grazing herds or gathering firewood, wild fruits, thatching reeds etc., but there will also be land set aside for cultivation by each nuclear family.
  4. Each male on attainment of adulthood has a right to the possession and use of a portion of land. The chief of the group or family head, or even the representative of the earth god, is obliged to allocate land to every eligible member of the group under the following general conditions
  1. The overall distribution of the land is equitable. A man receives sufficient for the needs of his immediate family, and the extent may vary according to circumstances.
  2. Possession is continuous and for life. The land right may be withdrawn only if the possessor does not meet his social obligations.
  3. No rent is payable, although occasional tribute may be payable to the chief: this is customary rather than contractual.
  4. Boundaries are ussually not clearly defined.
  5. The right to the land is one of possession, not ownership ( although improvements such as crops and buildings may be owned), and rights of possession may not normally be transferred – no sale, pledge or mortgage is possible.
  6. An individual holds his land as head of the family, and the right passes to his successor at his death.
  7. Continual family possession is reinforced by the burial of the dead on the land.
  8. The member of a cognatic group sees the land as the source of his identity and security. To be deprived of land is to be without a home, without status, and to be an object of contempt, outside of society. These are values foreign to the western mind.

Western Tenure

The Western system of land tenure is based on the concept of individual ownership, and upon the divisibility of rights in land. The system has developed alongside the capitalistic form of economy. Examples of this type of tenure are to be found in Europe, the new world of the Americas, and Australia. It has been adopted in Taiwan, the Philippines, south east and Northen Asia, North Africa and the Mediterranean, and in parts of East and Southern Africa.

There are many variants of Western Tenure, and we will consider three, the first of which is the most important:

  1. Mercantile or freehold tenure
    This is the most common form of Western tenure. Land is a fully negotiable commodity, and is used as private property for the exclusive personal benefit and profit of the owner. Land may be used and enjoyed, alienated and employed as basis for personal credit.
  2. Patrimonial tenure ( also known as feudal )
    Patrimonial tenure is largely of historical interest, but in some instances it is a tenure form from which modern forms have evolved. Patrimonial was exercised by lords, who inherited the dominium as members of a family lineage, generally primogeniture ( first born). The lords, having inherited dominium, had a right to demand tribute and services from the occupies of the land. The process of subinfeudation was characteristic of this type of tenure. A pyramidal structure existed, with the lord of the manor at the top. Those further down held land in return for services, sometimes token services; a bunch of roses every year on a certain date, for instance, and sometimes a tithe system, where a tenth of all produce from the land went to the overlord.
    Military conquest and the subsequent granting of land rights to favoured individuals followed by subinfeudation is typical process by which cognate tenure breaks down.
  3. Prebendal

The last form of western tenure is where property rights attach to an office. In effect these are rights to tribute and service from the occupies of land granted to the holder of some official position in society. Another name for prebendaltenure is inheritable nor assignable.

Eg. The president has prebendal rights to the use of the State House, but this attaches to the office of the president not to the person of the present incumbent, and the house may not be sold or bequeathed to anyone else.

Collective tenure

Collectivism is the opposite of, and a reaction against individualism in land tenure and other economic factors. Collectivised land tenure may be an aspect of a form of social order in which economic production is vested not in individuals but in the state. In eastern Europe collective agricultural practices were common place until a few years ago, mostly brought about by revolution rather than evolution. Now land is in many instances being resurveyed for individual title.

At other times cooperatives are formed by the voluntary pooling of individually held land because there are economic advantages in large scale operations. The rights of use and possession of the land are sometimes to a cooperative and individuals hold a share of the collective ownership ( the size of which may be related to their original contribution. Members of a cooperative are assigned household plots on which to build dwellings. The farm is then run by a managing director and field staff, and policies are decided at shareholders meetings as with any other business. Examples are found in Western Europe and the USA.

Collective tenure has certain similarities with traditional kinship tenure, with the biggest difference being that the common link between cooperative members is not cognatic, but political or else economic

Comment

The capitalistic system offers great incentives for development. In Europe, America, japan and Australia all highly industrialised societies, private property is seen as the foundation of stable society.

Individual ownership of land rights tends to emerge when land becomes scarce and there is competition for land and labour. Another process of individual ownership rights coming into being is that of tenure conversion, often systematic partition of kinship land as a deliberate agrarian process, usually preceded by a process of adjudication ( judicialprouncement).

Land Tenure in Zimbabwe

At independence Zimbabwe inherited a dual land tenure system that gave one group freeholds and leaseholds, the rights and duties pertaining to which were provided for and protected by law and another communal tenure, and their rights to such lands were not protected by the law but recognised administratively and subject to customary land tenure ( with inferior forms of rights).Therefore, in Zimbabwe one has always to consider at least two systems of holding land, the received Roman Dutch system, which operatives over the commercial farms and in urban centres ( including growth points and Rural service centres), and the indigenous system, at present uncodified, which operates in the communal lands of the country. After independence the Land Reform Program was instituted creating a number of resettlement schemes each with a different set of tenure arrangements. At present resettlement schemes cover about ---% of the country. State land occupies about 15% of the country, and the remaining 33% is occupied by small and large scale commercial farming and ranching activities, and urban areas.