Posted January 2000
All successful agrarian systems recognise the need for adjustments in land use to reflect changes in local demographic profiles, labour and management availability, capital, opportunities and so forth. Consequently, we can take it for granted that there will be a number of institutional means available to almost any rural population for transacting among themselves the variety of partial tenure interests in agricultural land and related resources.
Agricultural land tenure systems, of course, concern far more than just farmland. The value of agricultural land is also determined very much in line with available water resources, forests, orchards and other permanent crops, the suitability for commercial sites as well as buildings and other structures. Indeed, as the discussion of the multi-functional use of rural space takes on ever increasing importance in policy negotiation, the use of rural land for recreational facilities, scenic and public-purpose sites, and so forth can at times overshadow traditional agricultural land tenure concerns.
In order to deal with this extensive inventory of competing uses and users of landed property, land tenure experts have traditionally chosen to regard "tenure" as a bundle of rights. This bundle can be separated and reassembled in a wide range of different rights configurations. Thus, each of the rights, recognised in the bundle, can be defined as to who has the right to do what (purpose and intensity of use), and for how long.
Such rights in the use of the various interests that make up the bundle are normally institutionalised in terms of temporal interests (leasing, renting, share-renting, contractual license arrangements, etc.) and partial interests (such as, easements mineral rights, development rights, and so forth). The wide variety of terms applied to the kinds of partial and temporal rights arrangements (tenancy, license, fixed versus variable rents and so forth) underscores two competing tendencies. The first is the often particularistic character of such arrangements; the second is the need to institutionalise such arrangements. For instance, we normally discuss share tenancy in the context of under developed agricultural systems. Yet it is also very common in even the most modernised agricultural economies. It is popular, for example, for neighbouring dairy farmers in Wisconsin (United States) to agree that one neighbour will use land of the other to plant and harvest a fodder crop. In exchange the two neighbours will share the resulting harvest. As long as there is no disagreement on the nature of the arrangement, the rest of society cares little about how this agreement was instituted. But because land matters are a traditional source of conflict, institutional means are created to reduce transaction and litigation costs.
The need to deal with partial land tenure interests has been increasingly important as rural economies modernise. As the use of rural space has become increasingly multi-functional, there has developed an institutional means to deal with a variety of over-lapping and zoning needs. Indeed, there has been a whole sub-branch of land tenure that has emerged to study the evolving market in partial interests. For example, the European Union has established extensive environmental and ecological goals for its members. Thus, there has been, for instance, a renewed interest in preserving the rural character in peri-urban zones. Many jurisdictions in OECD countries have chosen to experiment with leasing or buying the development rights from agricultural property owners to preserve its use for environmental as well as recreational and aesthetic value. Of course, partial interests are not anything new. It has been part of the historical tradition in many of the countries participating in this Seminar to have a situation where the harvest rights (fructus) of certain fruit trees on land "owned" by one person belong to someone else. Indeed, it was quite remarkable during field visits to rural areas in Estonia, Lithuania, etc., during the early period of the restitution process, how often such rights were remembered in those situations where the trees were still standing. Old or new, the important point is that all advanced agrarian economies have highly-developed leasing and partial interests markets as a complement to existing land sales markets.
Given the finite character of land resources and the important political role of agrarian issues in any nation's political agenda, the value of rural land takes on a special characteristic. A surprising number of FAO Member Nations do not have any expressed restrictions on the sale, lease or commercial interests of foreigners in urban property, but have imposed restrictions on rural holdings (FAO 1998). This raises the interesting point of how should one determine the value of these various partial and temporal land tenure interests. FAO has been organising a world-wide analysis of this matter with our Member Nations (Melmed-Sanjak and Lastarria 1998; Ravenscroft et al. In press). There seems to be little doubt that land tenancies are most efficiently allocated when their value/cost is determined by the market. The emphasis here is on negotiated market transactions. That is, when all parties to the transaction of temporal or partial interests are able to negotiate the terms "at arms length", we find the lowest transaction and contract maintenance costs. Additionally we find the greatest access for new land use seekers in the areas of food production and rural development enterprises. The macro as well as micro policy mechanisms needed to create good land tenure markets are part of an on-going co-operative effort of a number of agencies.2
Leasing and partial interest markets are particularly suitable (and unavoidable?) for Central and Eastern European Countries (CEECs) at this point in the transition process. Those countries that have chosen to restitute properties that had been collectivised face the problem that the restituted parcels are located in reference to pre-WWII agrarian structures, markets and infrastructure. In most cases, these parcels are not suitable to current conditions. Other jurisdictions have simply divided the parcels out of the "whole cloth" of state farms and agro-industrial collectives without regard to their suitability for alternative farming systems. In both cases some redefinition of agricultural enterprise boundaries is desirable. Land values for a sale market are yet to develop; thus a lease market is an efficient way to get land into productive units that make sense under existing circumstances. This takes advantage of inherent flexibility and temporary nature of modern leasing arrangements.3
In a significant number of countries in transition, rural land, especially restituted farm property, has taken on a residual national/ethnic and/or cultural identity value that prevents it being a freely tradable capital asset for the foreseeable future. Formalised and institutionally supported leasing arrangements have the added value of clarifying and providing security to both the person leasing out as well as for the person leasing in. The partial or temporal interest, in contrast to alienation through sale, is much easier to constitute as a freely tradable production factor in the present circumstances, because leasing markets reflect the economic earning value of the land and are not as subject to speculative and other considerations.
In addition, the Region has an industrialised, highly educated population that is not likely to seek traditional farming as a way of life. Available statistics indicate that primary owners of much of the newly created rural parcels are already pensioners or nearly so. Neither of these populations are prime candidates to create innovative rural production structures. Thus, there is a need for flexibility to experiment with alternative economic uses of rural real estate, as well as to attract in new younger farmers who see agriculture's business potential.
Furthermore, the countries in transition are entering simultaneously into both an expanded world economy in agricultural goods and services and into an increasingly integrated European agricultural and rural development policy environment. These evolving regional and international agricultural alliances suggest the need for several decades of adjustment and fine tuning of the rural land resource use and agrarian structures. CEE Member Nations will be faced with sectoral competition for scarce capital resources. This is where the ability to integrate institutional developments in private property will become very important.
For these and other reasons, leasing is an appropriate mechanism during this period of structural adjustment. It facilitates individual needs and aggregate responsiveness without requiring a fully articulated land market system.
Much has already been written on the shift from societal to private property as a key component in the transition process (v. for example: Csaki and Nash 1988; Swinnen, Buckwell and Mathijis 1997).4 If leasing and partial interest markets provide suitable land tenure arrangements for putting private property interests in land to use in CEECs, how formally do these arrangements need to be institutionalised in terms of both means and extent. It is our argument that temporal and partial interest markets in land are just as reliant on good land records as the land sales market. This section sets forth some of the reasons why land leasing will benefit from the extensive work currently underway to create fully modern cadastres, land registries and conveyancing institutions.
CEECs have universally agreed that they will use modern cadastre and land registries as the institutional means for providing secure property rights in agrarian land and resources. The reasons normally given for creating these modern land tenure institutions hold just as valid for partial and temporal interests markets;
There has been a growing sophistication in our analysis of when and where it is appropriate to formalise land tenure relations. A point that has often been raised during the FAO work on land leasing is why would most rural populations need formal land tenure regularisation institutions like the registry and the cadastre at all. After all it is pointed out, they have been doing generally quite well without them since the Neolithic. In any agrarian system, we anticipate that under normal conditions, a majority of temporal and partial interest lettings will be informal, short term adjustments in labour, management and capital availability. Longer term arrangements and attraction of outside investments will necessitate transparency, security and low transaction costs. Therefore, in those situations where it is important to either attract financial support from outside the local community, the need is just as great for good LIS (land information systems) and regularisation and conveyancing institutions for partial and temporal interest markets as for real estate sales.
Should leases be entered into the land registry, and if so, when and under which circumstances? Most financial organisations in an advanced economy will insist on a legal recording of a lease when it involves a substantial amount of money and time. Short leases are often informal and unregistered. Yet it is common, even among friends to draw up a private recording instrument, to avoid any problems later on concerning memory of the details. It is important to remember that in advanced economies it is common to have generic leasing arrangements generally available at private businesses (e.g. stationary stores, attorneys offices, etc.) and/or public agencies. Fundamental to good contract and contract compliance is the secure knowledge of who has the rights to enter into obligations on specific parcels. That is, who can enter into legitimate negotiations over the letting of land.
However, there are circumstances when registering short term arrangements is desirable. In cases where the negotiating power between the two parties is very unequal, having a public record of the transaction facilitates ensuring equity matters.5 Since a lease or the letting or selling of any of the partial interests (e.g. mineral rights) changes the legal nature of a property, most longer term leases are entered into the registry. In actual practice, this is usually done in OECD countries at the insistence of the financial agency involved in the investments in the property. This is part of the close relationship between financial institutions and the property records system of an advanced economy.
It is important to remember that a majority of investments in the most advanced economies will be for enterprises, not property, and thus most financial institutions will likely have the larger proportion of their portfolio in enterprises using leased property. As such they are put at a certain greater risk of adverse selection (loaning to the wrong person or enterprise) and moral hazard (the borrower intends to default ).6 This is why lending agencies are more interested in the quality of the "business plan" of the enterprise than in the deed as collateral to counterbalance the costs of adverse selection and moral hazard. Thus in all EU countries a good lease is sufficient for an investment loan, if the basic enterprise plan is judged sound.7
With the emphasis shifted to the types of investments to be made under the terms of the lease, the question of both the length of the lease and the rights of the lessee in the improvements takes on a dynamic as opposed to a fixed character. In these terms, there is no ideal lease term, but rather the length of time, renewal provisions and so forth are contingent on the kinds of investments anticipated. In this sense, much discussion of the desirability for 99 year leases for countries with poorly functioning real estate markets is misplaced. The idea has been proposed many times as a way to give the kind of security that one could have under full ownership, while waiting for the proper legislation and conveyancing institutions to develop. Indeed, for all the reasons given above, and further discussed below, at this time in the transition process, it is important that lease terms are based on the business plan, not ideology. An investor with a good business plan for an agricultural enterprise is not going to be attracted to a jurisdiction offering a 99 year lease, but with poor land tenure regularisation institutions, as opposed to one with good institutional support but with a lease based on expected returns, amortisement and etc.
Rather than the idea of a very long lease being of foremost importance in investment strategy, such considerations such as ownership of improvements (indeed the types of improvements allowed are often a greater restriction to innovation), recovery of improved value of the property at the close of the lease should be given primary consideration. Another factor that is of more importance than having long terms (always keeping in mind the discussion at policy levels of 50 - 99 year leases) is the conditions of renewal and other ownership options. For example, many countries have found value in provisions on certain properties (often state-owned land) that the young farmer entering into agriculture will have the option of buying the land at a pre-set price after a certain trial period (e.g. five years) .8
From all perspectives of agricultural growth and investment in rural development, good leasing requires good land registries both from the point of view of the entrepreneur as well as the financial investors. There are as many reasons to have short term leases as there are to have long terms ones. For the countries in transition, the questions is not which length of time is best, but rather the principles of good leasing that attract capital for sustainable investment, employment generation and development. In the next section we will discuss what we think goes into such a strategy.
FAO has been assisting its member countries since its founding on the ways of establishing good leasing practice. Recently there has been a concerted effort to provide some of the lessons learned in the form of a "Good Practice Guidelines" for Private Sector Agricultural Leasing Arrangements (Ravenscroft, et al, in press).9 The present section will give a brief description of the main findings.
To accord with the principles of good practice, policy, technical and operational areas governing and informing all lease arrangements should demonstrate the following characteristics:
While these are considered essential elements in good leasing practise in a world-wide perspective, the following paragraphs illustrate how they apply to CEE Member Nations.
Simplicity: One of the temptations to be avoided in establishing sound leasing markets in Member Countries in Transition is burdening the process with well intentioned but unneeded legislation. This is especially true where the search is for sustainable agricultural development that will require a great deal of flexibility as sound arrangements are worked out. Legislation and local law should not attempt to anticipate all possible outcomes and problems, but rather provide clear simple guidelines. FAO recommends the approach of the "model lease". The model lease can often be no more than a page in length. It sets out the essential elements of the lease, dealing only with the fundamental factors of the parties, the land, the commencement and termination dates and what are the payment (consideration) arrangements. The essential point is to preserve simplicity and to provide both parties with a good model.
Minimising transaction costs: Keeping procedures straight forward and simple is an important factor in reducing transaction costs. The more experts and specialists (notaries, attorneys, government agencies, etc.) involved, the greater the cost to the contracting parties.10 Not incidentally it also increases the opportunities for graft and hence the requirements for developing systems of professional ethics. Thus, from the point of view of the FAO group, the focus needs to be on the general area of contract law and procedures of contract enforcement. This will be particularly important in the CEECs as rural modernisation will depend on attracting investments. Good leasing contracts are an essential ingredient, but outside investors must be convinced of the overall contract environment in the country before choosing to invest in a particular jurisdiction. This is another way of saying that in the competition for investment funds needed to finance needed projects, jurisdictions with the ability to enforce contract compliance will have an important advantage.11
Certainty: Good land records are essential for having simple and cost effective leasing contracts. Thus, the current efforts to reconstruct or to create modern land registration systems must be completed as soon as possible to stimulate a leasing market as well as a real estate market. An efficient land registry12 is essential in reducing the uncertainty that the person offering the land in lease or sale is the person with the right to do so and that no other is being sold the same right (adverse selection costs). It has been reported in several of the CEECs that inefficiencies in the existing land registry offices, lack of co-ordination between the cadastre and the registry and complications in the conveyancing process have led to increasing reports of unscrupulous individuals being able to initiate simultaneous leasing and/or sales transactions with multiple parties. The degree to which the certainty of the participants (adverse selection concerns) and the actual situation of the property are in question will effect both the availability and cost of financial backing. As was argued above, the completion of effective land registries is also a major component in the development of much needed credit and other financial institutional resources at the rural level.
Sustainability: Overriding social concerns have increasingly come to play a role in the use of rural space. All of the CEECs are working to bring their environmental and related policies and practices into co-ordination with those of the EU. Thus, sustainability becomes an issue in which the non-agricultural portion of the society takes not only a growing interest but also insists on the possibility of interventions. Thus, good leasing practice has to recognise that both the land owner and the tenant have responsibilities to ensure sustainable land use practices. Thus, most EU jurisdiction have insisted on what has been called "beneficial occupation" clauses. This is the requirement by the state that both the owner and the occupier of land have the duty to meet local environmental and related laws.
Equity and fairness between the parties: Essential to good contract is that the policy, technical and operational instruments of land leasing preserve the equity and fairness between the parties. This requirement often flies in the face of the social reality of the different parties. Normally in FAO's work, it is the landlord who is powerful and the land seeker who is at a disadvantage. In the CEECs it is often just the reverse. The land owner is often a pensioner who has to deal with a successor organisation to the former collective. The latter, since it is the only effective agent has a monopsony in the leasing market and has been able to keep rental value well below economic value of agricultural land (v. Schultze 1999:7). Competition will lead to a better fit between economic value of land and its rental price, but government will have to provide the appropriate policy environment to attract competition, in the first place.
Transparency: Transparency is desirable in any agricultural contract, but is vital in CEEC where the rehabilitation of the agricultural sector is dependent on attracting outside investment. This is part of the process reducing the transaction costs associated with adverse agent selection and moral hazards.
Preservation of the legal interests in property: CEECs are particularly fortunate in being able to create modern use of rural space in an environment where the potential problems of inequality in land ownership have been largely solved by the restitution and land distribution processes. Leasing markets, as was argued above, provide a way of preserving this equality in land ownership on the one hand, while allowing for farm structure rationalisation on the other. In addition, retaining the rights granted during restitution/distribution programmes preserves the additional benefits of land ownership, such as credit worthiness, community social status and so forth to a very large proportion of the rural population. Good leasing law, policy and practice need to secure the rights of both the person leasing out as well and the person renting-in land. Such security of property relationships will also be an important factor in the creation of truly democratic forms of decentralisation and local governance.
Promotion of the leasehold sector as a means of promoting flexibility in the market: This point has already been discussed at length in the context of this paper. It need be added here only the point that rather than view the use of intermediary rights and interests in agricultural property as an indication of a poorly developed agrarian economy, policy makers in CEECs should view it as a way of supporting a dynamic rural sector without the danger of prematurely stimulating one property structure over another (larger commercial farms versus small family farms).
A minimum of state regulation and intervention: Good leasing policy and practice should be part of the processes leading to good governance. Government needs to ensure the fair and level playing field that allows the participants to negotiate the terms of the leasing contract in conformance with the reality of the prevailing market. Experience in FAO Member Countries has amply demonstrated that much well intentioned legislation designed to protect the weaker party only exacerbated an already bad situation. When the leasing contract becomes too burdensome, too complex, over regulated, and so forth, it is bypassed. This ends up defeating the whole purpose of providing land tenure regularisation institutions, in the first place. Leasing contracts become too encumbered with adverse selection and moral hazard costs and the willingness to invest in rural enterprises declines. Thus, rather than trying to regulate leases, government policy should be to ensure open factor markets and the elimination of distortions caused by subsidised agricultural credit, machinery purchase by large enterprises and selective tax advantages that favour large commercial agricultural firms.
Good land leasing practice and partial interest markets are part of the overall development of land tenure regularisation institutions. While no one can predict the future with any accuracy, some trends are clearly evident for the kinds of challenges that will be faced by advanced industrialised economies like those of the CEE Member Nations when it comes to the future of agriculture and rural society. First and foremost, there will be an increasing emphasis on multi-functional use of (and demands on) rural space. Primary agriculture will continue to become just one of an important set of economic activities. Secondly there will be new and unforeseen innovations in the use of rural space as the urban - rural distinction becomes ever more blurred. And thirdly, it can be anticipated that there will be a growing emphasis on temporal and partial interest markets as the most efficient way to allocate multiple uses of rural time and space.
1The focus of this paper is on the countries in Eastern and Central Europe that are the most likely to be admitted early into the European Union. The author is aware of the vast difference between these countries and many Member Nations in the CIS that are still defining the nature of land rights to carry them into the next century (v. especially Lerman 1999). The author thanks D. Iaquinta, N. Ravenscroft, J. Strasma, S. Nichols and J. Juhasz as well as others for their comments on an earlier draft. They are free to take credit for the good ideas. Errors of commission or omission are personal favourites of the author and are not to be shared.
2FAO, IFAD and the World Bank are co-operating with a large number of civil-society organisations on a multi-faceted investigation of the functioning of land tenure markets as part of the Popular Coalition effort.
3We will expand on the length of lease terms in the concluding section, but will suggest at this juncture that during the transition period, short terms leases (10 years or less) are probably preferable to keep large blocks of land from becoming prematurely defined.
4It has been argued that one of the reasons that the transition process is proving more difficult than first imagined is that the whole process of completely changing the system of ownership of the modes of production is simultaneously as much a philosophical and psychological negation of recent historical experiments in central planning as it is an imperative for integration into larger economic and political organisations.
5Although it is hard to think of a comparable case in the CEE countries under discussion in this paper, the positive results from a formal registration of share-cropping arrangements at the Panchayat level in West Bengal is illustrative. Land lords were reluctant to allow any improvement in the land use practices of their tenant for fear of loosing their land to the land reform commission. At the same time, share-cropping farmers saw little incentive in trying improved agricultural practices, since they only created increased tenure security risk. The relatively simple policy of registering even short term share tenancy arrangements (often for only a season or a single agricultural cycle) led to a substantial increase in agricultural innovation and associated poverty alleviation ( Rawal 1998a and 1998b).
6Though not commonly discussed in the literature, this is a common enough problem in situations where there is a favourable formal agricultural credit scheme and where agricultural land is required as collateral. In this kind of moral hazard situation, the borrower buys up titles to rural properties with no intention to ever using them, and indeed he may sell them out again in the informal market. Once a suitable portfolio of properties is assembled, a loan is secured for an ambitious "agricultural project". The money is instead invested in urban property and the agricultural loan is defaulted. The Bank can then attempt to resells the title on the market, but can only recuperate the land through very costly and conflictual means. The observed result is a "formal" market in paper titles and an informal market in land use and occupancy rights.
7Also, in those countries where an important portion of properties are held in some kind of letting there are well established remainders (the time left on the lease) markets. However, as Neil Ravenscroft has pointed out (especially during a personal communication) in the UK which has traditionally been at the vanguard in leasing policy and law, nowadays assignment and subletting are only a legal right under business tenancies (Landlord and Tenant Act 1954, part II). Under the agricultural holdings legislation of 1986, tenants cannot assign or sublet under any circumstances. Thus, the traditional remainders market no longer exists. He goes on to report that under the Farm Business Tenancy code (1995), the question of subletting and assignment is left to the parties, but in practice, landlords always reserve these clauses, again denying any effective market in remainders. Indeed, following Neil's communication, a quick review of EU legislation indicates that almost all members have legislation restricting subletting and assignment.
8France's SAFER provides a good example of flexible arrangement to attract young, entrepreneurial farmers to developing agricultural enterprises.
9This was the result of a multi-year project headed by Simon Keith (FAO Senior Land Tenure Officer) and in partnership with the Land Tenure Center and the University of Surrey.
10This would also include the importance of keeping the costs of the original land registration down.
11A point that is discussed in more detail in Ravenscroft, et al is the role of providing access to information and education on good leasing practice. This is just as essential in CEECs as it is in other parts of the world.
12FAO has recently reported on some research it has been undertaking on the range of transactions that must be dealt with in a modern land registry office. Most land registries are simply incapable of meeting demands and therefore introduce (rather than reduce) adverse agent concerns. See Palmer 1999; and Riddell, Nichols and Toselli, 1999.
13A point that is forcefully brought home when one looks at the population density of Los Angeles and Java, they are almost the same! For a further analysis of the peri - urban and peri - rural dimensions of rural development see: Groppo 1997; Iaquinta 1999)
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