1. For background and technical details, please refer to the supporting documentation prepared for FAO, and available through the Land Tenure Center, University of Wisconsin-Madison: Lastarria-Cornheil, S. and Melmed-Sanjak, J. (1999) Land tenancy in Asia, Africa and Latin America: a look at the past and a view to the future. Working Paper No. 27. Land Tenure Center, University of Wisconsin-Madison; Ravenscroft, N., Gibbard, G. and Markwell, S. (1999) Private sector tenancy arrangements in Europe: themes and dimensions - a critical review of current literature. Working Paper No 28. Land Tenure Center, University of Wisconsin-Madison.
2. Perrier-Cornet, P., Blanc, M., Cavailhes, J., Dauce, P. and Le Hy, A. (1991) Farm take-over and farm entrance within the EEC. Internal Report. Brussels: ECSC-EEC-EAEC; Economic and Social Committee of the EC (1994) Opinion of young farmers and the problem of succession in agriculture. Report 573/94. Brussels: CES.
3. Evidence from England and Wales, where the Agricultural Tenancies Act 1995 reduced significantly the regulation of new tenancies, demonstrates that rather than whole farms, many tenants seek ‘marginal extra acres’ to make their existing farming business more efficient. Most new lettings (over 90%) are thus to existing tenants, rather than new entrants [see Errington, A., Millard, N. and Whitehead, I. (1998) The emerging shape of farm business tenancies. Paper presented to the RICS Research Conference ROOTS ‘98. London: RICS Research Foundation].
4. In Botswana, adaptive tenure reform has retained elements of customary regimes, including the right of avail. Under this system, land is allocated by tribal chiefs to households. This land remains in their possession as long as they cultivate it. However, this usufruct right can be overridden by the chief, with all or part of the land reallocated as the circumstances dictate. ‘What this meant was that individual land rights were inferior to communal land rights which anyone could and did exercise as and when necessary’ [Kalabamu, F.T. (2000) land tenure and management reforms in East and Southern Africa - the case of Botswana. Land Use Policy 17(4): 305-319].
5. Examples of license agreements, in the English and Welsh context, are referred to in Stratton, R., Gregory, M. and Williams, R. (1983) Share farming: a guide for farmers and landowners. London: Country Landowners’ Association; Midland Bank (1985) Practical share farming. London: Midland Bank; Spicer and Pegler (1983) Joint ventures in farming. London: Spicer and Pegler.
6. This discussion is part of the growing literature on adverse agent and moral hazard in land tenure transactions (see Riddell, J. Agricultural land leases and the development of effective land registration systems: Reference to FAO Central and Eastern European Member Nations, in Structural changes in the farming sectors of central and eastern Europe, eds C. Csaki and Z. Lerman. Washington, D.C.: The World Bank). The principal-agent relationship between the farmer (agent) and landlord (principal) will differ according to the amount and quality of information each has about the other when negotiating the contractual arrangement (e.g., sharecropping or leasing).
7. ‘Good land tenure systems are a necessary foundation for sustainable agricultural practices. The on-going liberalization of the world’s political economy has brought to the fore the need for open and transparent land markets and market transactions’ [Riddell, J.C. (2000) Emerging trends in land tenure reform: progress towards a unified theory. Paper in SD Dimensions Series. Rome: FAO.
(www.fao.org/WAICENT/FAOINFO/SUSTDEV/Ltdirect/Ltan0038.htm).
8. The level of tenant protection in Scotland, for example, is seen as a major barrier to the expansion of the leasing sector (Land Reform Policy Group, 1998, Identifying the problems. Edinburgh: Scottish Office).
9. Lastarria-Cornheil, S. and Melmed-Sanjak, J. (1999) Land tenancy in Asia, Africa and Latin America: a look at the past and a view to the future. Working Paper No. 27. Land Tenure Center, University of Wisconsin-Madison.
10. Although known by different names under different legal regimes, beneficial occupancy effectively defines normative standards relating to the care and condition of land. To avoid sanction (such as the revocation of a lease agreement) the tenant must adhere to these standards. This implies a simultaneous responsibility on the part of the landowner to ensure that the tenant has the necessary fixed equipment to discharge the duty.
11. In their review of the impact of tenancy liberalization in England and Wales, Errington et al (1998) found that the principal beneficiaries had been existing farmers wishing to increase the size of their farm. They concluded from this that liberalization had freed up the land market for ‘marginal extra acres’ (see note 3 above).
12. This is exemplified by the debates leading to the enactment of the Agricultural Tenancies Act 1995 in England and Wales, in which restrictions on landowner freedoms were effectively curbed (see Gibbard, R. and Ravenscroft, N., 1997, ‘The reform of agricultural holdings law’ in Jackson, P. & Wilde, D.C. (eds) The reform of property law. Aldershot: Dartmouth Publishing Co. Ltd. pp 111-126)
13. Break clauses are stipulations in the lease agreement that the lease can be terminated at specific times, for specific purposes (such as a requirement by the landowner to resume direct productive use of the land).
14. See Wulff, H. (1992) ‘Agrarian land law in Denmark’, in Grossman, M.R. and Brussaard, W. (eds) Agrarian land law in the western world. Wallingford, Oxon: CAB International.
15. See Country Landowners’ Association (1997) CLA farm business tenancy survey 1996. London: Country Landowners’ Association; Millard, N., Whitehead, I. and Errington, A. (1999). Flexibility and farm business tenancies: to what extent is the industry making full use of the new-found freedom? Paper presented to the RICS Research Conference: ROOTS ‘99. London: RICS Research Foundation.
16. The role of women in farming and the need to protect their interests in tenure reform is noted by Wily (2000).
17. In his work on land registration, Palmer (1999) makes the point that recording basic details of land transactions provides both information and security for all involved. Of course, the degree of protection offered is wholly dependent on the extent to which the parties to a lease can enforce its provisions, which is itself dependent upon the enforceability of the rule of law [see Palmer, D. (1999) Making land registration more effective. Land Reform, Land Settlement and Co-operatives 1999/1-2].
18. See, for example, the Agricultural Holdings (Miscellaneous Provisions) Act 1976 in England and Wales, which granted tenancy rights to the husbands/wives and children of deceased tenants, subject to them meet certain suitability criteria.
19. Deregulation of tenancy in England and Wales has allowed the parties to a lease to agree term lengths suited to their individual requirements. In the case of marginal additional leases of bare land, the terms are often short (typically 1 to 3 years). In the case of whole farms, the terms are longer, reflecting the greater time required for the tenant to get established and develop a farming business [Millard, N., Whitehead, I. and Errington, A. (1999).
Flexibility and farm business tenancies: to what extent is the industry making full use of the new-found freedom? Paper presented to the RICS Research Conference: ROOTS ‘99. London: RICS Research Foundation].
20. In suggesting that a verbal agreement is generally appropriate for small plots let on an annual basis, it is recognized that issues of location may dictate an alternative approach. In particular, urban and peri-urban agricultural plots can have significant non-agricultural values, meaning that landowners require protection of this value if they are to lease out their land for agriculture in the short term. In cases such as these a written agreement is likely to be appropriate.
21. See Wulff, H. (1992) ‘Agrarian land law in Denmark’ in Grossman, M.R. and Brussaard, W. (eds) Agrarian land law in the western world. Wallingford, Oxon: CAB International.
22. Grossman, M.R. & Brussaard, W. (eds) Agrarian land law in the western world. Wallingford, Oxon: CAB International.
23. See Kalabamu, F.T. (2000) Land tenure and management reforms in East and Southern Africa - the case of Botswana. Land Use Policy 17(4): 305-319.
24. See Millard, N., Whitehead, I. and Errington, A. (1999). Flexibility and farm business tenancies: to what extent is the industry making full use of the new-found freedom? Paper presented to the RICS Research Conference: ROOTS ‘99. London: RICS Research Foundation.
25. Notwithstanding the sense and equity of separating repairing and maintenance obligations, the trend in many regions is to attempt to place this responsibility fully on the tenant. For the position in England and Wales following tenancy deregulation, see Millard, et al (1999), note 44 above.
26. Although Farm Business Tenancies in England and Wales have been lauded for their flexibility, initial monitoring of the reforms suggested that most tenancy agreements continued to be based on conventional agricultural leasing structures [see Millard, N., Whitehead, I. and Errington, A. (1999). Flexibility and farm business tenancies: to what extent is the industry making full use of the new-found freedom? Paper presented to the RICS Research Conference: ROOTS ‘99. London: RICS Research Foundation].
27. This case is argued fully in Ravenscroft, N., Gibbard, R. and Markwell, S. (1998) Private sector tenancy arrangements in Europe, volume 3: position paper. Unpublished report to FAO. School of Management Studies for the Service Sector, University of Surrey, UK. See also Ravenscroft, N., Gibbard, G. and Markwell, S. (1999) Private sector tenancy arrangements in Europe: themes and dimensions - a critical review of current literature. Working Paper No 28. Land Tenure Center, University of Wisconsin-Madison.
28. See Lorvellec, L. 1992. ‘Agrarian land law in France’, pp 51-70 in Grossman, M.R. and Brussaard, W. (eds) Agrarian land law in the western world. Wallingford, Oxon: CAB International.
29. It should be recognized that there are also economic dimensions to landownership, particularly as small family farming becomes uneconomic in many developed countries.
30. See Kerr, J. (1994) Farm business tenancies: new farms and land 1995-97. London: Royal Institution of Chartered Surveyors.
31. See Arnison, C. (1999) Land tenure and land markets in the transitional economies of Eastern Europe: a review of progress to date. Paper presented to the RICS Research Conference: ROOTS ‘99. London: RICS Research Foundation.
32. See Commission of the European Communities (1982) Factors influencing ownership, tenancy, mobility and use of farmland in the member states of the European Community. Luxembourg: Commission of the European Communities; Lipinsky, E. (1992) ‘The functions of taxation and farm credit in agrarian reforms and land tenure systems in EEC member countries’, pp. 241-279 in Kern, E.S. (ed) International seminar on land reform and the problems of land legislation. Moscow and Rome: All-Union Academy of Agricultural Sciences & FAO.
33. See Kalabamu, F.T. (2000) Land tenure and management reforms in East and Southern Africa - the case of Botswana. Land Use Policy 17(4): 305-319.
34. See Melmed-Sanjak, J. and Lastarria-Cornhiel, S. (1998) Land access, off-farm income and capital access in relation to the reduction of rural poverty. Land Reform, Land Settlement and Co-operatives 1998/1: 5-18; Riddell, J.C. (2000) Emerging trends in land tenure reform: progress towards a unified theory. Paper in SD Dimensions Series. Rome: FAO.
(www.fao.org/WAICENT/FAOINFO/SUSTDEV/Ltdirect/Ltan0038.htm).
35. For example, the Land Transfer Act in Germany limits the sale price of agricultural land to 150% of the average sale price of land of comparable quality.
36. Ciparisse, G. (1997) ‘Dynamiques foncieres et agriculture en zones periurbaines’. Land Reform, Land Settlement and Co-operatives 1997/1: 67-73.
