External factors that influence the development of LAPs
Experience has shown that during the implementation of LAPs, factors external to the project intervention, which can boost or, by contrast, limit the expected impacts of the programme, should be considered. External factors that have been identified in relation to LAIs are linked to the following areas.
Influence of external factors on the possible effects of the modernization and strengthening of land administration institutions
Influence of external factors on the possible effects of the modernization and strengthening of land administration institutions
External factors that influence LAPs results
External factors | Effects on Land Administration Institutions |
|---|---|
National policies | Scope in relation to the situation of the country in its political aspect; clarity in the reforms to be carried out and the political will to implement them, transparency in implementation and decision-making, and encouraging citizen participation in formulating them. |
Legal reforms | These facilitate key procedures for carrying out national regularization and modernization procedures by strengthening the capabilities of land administration systems and dealing with the most needed sectors. LAPs cannot exert control over the formulation and approval of new laws or reform because this process depends on the balance of power in the chambers of deputies, but they can have a key role in preparing proposed reforms. |
Interinstitutional framework | Coordination between national institutions and between levels of national and local government is important for modernizing systems and establishing effective, organized links in the legal and institutional framework. LAPs cannot always exert control at this level, as the decision about how to encourage intersectorial coordination often depends on levels higher than the LAIs themselves. |
Decentralization level | The way in which the government distributes functions and responsibilities to centralized land administration institutions and subnational entities greatly affects the national development of LAS. Although LAPs can have an impact on the strengthening of authorities involved in LAS at various levels, their effect may be limited to decentralization or devolution of their role. |
The land policy context
The institutional political context of the country has proved to be a key factor in the development of a project, as it influences the approval of public policies, strategies to reduce poverty, the approval of reforms to the legal and institutional framework of access to land and coordination between sectors working on its management. It is similarly necessary for the Executive Power to be able to guarantee national budgets for the sustainability of ex-post processes of programme implementation. Experience has shown, in the implementation of LAPs, that good national governance can positively influence the development of programmes and the influence of their impacts.
A further important aspect to be considered, which can influence the successful implementation of LAPs and all land tenure regularization processes, is the participation of National Government, Local Government and Civil Society. Land policies should therefore encourage effective coordination between these three sectors and above all encourage the participation of civil society through civil associations, neighbourhood committees and trade associations, particularly in legal diagnosis and post-cadastral mapping processes.
The institutional framework
Studies conducted on the subject recommend that one of the practices that has the greatest effect on the efficiency and effectiveness of LAS is concentrating the linked register and cadastre in a single institution; if this is not feasible, then a link via single electronic system incorporating cadastral and registration information practices strongly influence the implementation of LAPs. Therefore, it is important that the cadastre and register are linked together and at the same time have the participation of other government institutions such as agriculture ministries, bodies responsible for cultural heritage, indigenous peoples, protected area committees, the banking sector (private or public), etc. LAPs have a key role in facilitating these links and interconnections, however this process is difficult to implement outside a political and institutional context that encourages this integration. The institutional framework is also crucial for promoting gender equality in access to land in the identification and attitudes of civil servants with respect to registration and information procedures for women and other groups that have historically been discriminated against.
Efforts made in relation to the institutional framework
Efforts made in relation to the institutional framework
The efforts made in relation to the institutional framework in the first phase of LAPs:
EL SALVADOR
The register and cadastre institutions were separated in El Salvador in the early ‘90s and their procedures were largely obsolete. Modernization began with the creation of a model register with a social function, collecting cadastral information on social ownership subject to titling in both urban and rural areas. The land register nevertheless continued with its personal folio system based on handwritten books, with no effective coordination with the cadastre. In 1994, political will enabled El Salvador to become the first country in the Central American Region to make these structural changes, with the creation of the National Registration Centre (CNR). This organization combined cadastre and register functions in a single institution, transforming the personal folio into the real folio system. The positive outcome of this reform was the creation of a single entity belonging to the executive authority, which cut its costs by expanding its systems by economies of scale. This reduced the costs of services by combining physical and legal information, thus increasing the legal certainty of land tenure.
HONDURAS
In Honduras, the land register had been attached to the judiciary and the cadastre to the executive authority until the enactment of the Land Law in 2004, which set a precedent for the creation of an integral legal framework and strengthened land administration in the country. This law allowed the creation of the Property Institute which monitored the national cadastre and real property register and enabled integrated land tenure planning. It similarly transformed the personal folio registration system to a real folio system, allowing cadastral information (accurate geospatial description) and legally recognized rights to be combined.
NICARAGUA AND GUATEMALA
In Nicaragua and Guatemala, the cadastres and registers remain separate, with the former belonging to the executive authority and the latter to the judiciary. In both cases, LAPs have sought to facilitate the development of a computerized information system linking data from both institutions regarding parcels, so that the folios real can be generated. Currently, both institutions in Nicaragua have a linking a system and carry out regulation processes with a single standard.
See the fact sheet on Evaluation of the adoption of new technologies, for further information about cadastre and register linking in Central American countries.
Legal reforms
During the design phase of LAPs, studies were carried out on the legal framework of each country, identifying and supporting the reforms required to guarantee significant impacts. In relation to legal reforms, the political context of the countries, effective coordination between institutions and the circulation of the land policy among the population are factors that have a key role. The lack of specific legal reforms concerning the modernization of land registers (changing from the book system to IT systems), the regularization of tenure, the decentralization of LAS or the recognition of women or indigenous communities and territories may be serious obstacles to implementing LAPs.
Studies conducted in Central America, related to land market access, found that the majority of property market transactions take place outside the official processes established by land administration authorities, such as the cadastre and register. This situation results in the information on the object and subject of properties1 being constantly out of date and therefore generates an inefficient land administration system that is not transparent and is costly for users. This lack of formality in handling land transactions has several explanations, in particular the fact that the majority of Latin American and especially Central American countries have legal frameworks in which there are different types of ownership documents and procedures, such as supplementary titles, private transaction documents, and state concessions2.
Efforts made in relation to legal reforms
Efforts made in relation to legal reforms
The efforts made by each country as regards legal reforms during the first phase of LAPs should be noted.
In the case of Nicaragua, four strategic laws for the legal stability of ownership and institutional modernization were approved and took effect as part of the Land Policy. These are: the Law on Public Land Registers, the Cadastre Law, the Land Regularization Law and the Law on the Demarcation and Titling of Indigenous Communities’ Territories. The latter, approved in 2003, facilitated progress in demarcation and titling processes of territories of the Nicaraguan Caribbean Coast communities. The Cadastre Law, approved in 2005, had a major impact on the total reform of the national cadastre, affecting the three main aims of the cadastre: physical, legal and fiscal. This law transferred cadastral functions to municipal authorities, including those where no physical cadastre existed. Coordination with the register was similarly regulated through the Integrated Cadastral and Registration Information System, and coordination rules were laid down with registers to regularize ownership. The Law on Public Registers, approved in 2009, allowed the integral modernization of the institution, established bodies to administer the registers, allowed registration with the use of IT technology and improved the registration procedure. It also laid down the broad outlines of the legal qualification of documents, legalized links with cadastral information through a single system and above all allowed regularization and correction of registers by cadastral mapping (in areas with no tenure disputes).
In Guatemala major changes were also prompted in the legal framework, establishing, maintaining and updating national cadastres, and thus supporting regularization processes3.
As regards Honduras, with the approval in 2004 of the Property Institute Law, this institution became a decentralized agency attached to the Presidency of the Republic, which has technical, administrative and financial autonomy. By mandate, this law allowed the inspection of land rights in the country and the integral administration of the cadastre and land register. It should also be noted that civil society and private enterprise take part in managing this institution.
In El Salvador the greatest achievement was the creation by law of the National Registration Centre in 1995. It has a strong institutional capability, combining the legal register and cadastre institutions.
Efforts as regards gender equality
Efforts as regards gender equality
As regards gender equality and joint titling and/or allocation (man and woman), the majority of countries in the region have adopted reforms to the legal framework: Costa Rica in 1990, Honduras in 1991, Nicaragua in 1993 and Guatemala in 1999.
The joint allocation and titling of land, generally state or agrarian reform land, explicitly states that ownership rights are granted both to men and women, as a collective heritage. Reforms to the legal frameworks in favour of joint titling prevent either spouse taking unilateral decisions about property without the agreement of their partner (buying, selling, mortgages, etc.) and prevents either one being dispossessed by will.
In the implementation of LAPs, the titling of ownership rights in favour of the couple or the woman is an impact indicator, which should be measured through the registration system in its property titling statistics (see results framework and fact sheet X). As regards the legal framework of LAIs and the reduction in inequality of access to tenure rights for women, it is important to consult the technical guide “Governing land for women and men”, published by the FAO in January 2013, particularly as regards key messages on legal aspects or legal reforms.
Decentralization policies in land administration systems
Decentralization has been a common theme in political spheres and in discussions about public management in Latin America. Major legal reforms have therefore taken place in the region, particularly in Central America. These reforms have enabled countries to develop policies and regulations that need powers and the transfer of competences, decision-making power and resources to local governments, communities and mainly municipal authorities (see module 3 on LAPs and subregional entities).
Generally, the decentralization scheme in Central America rests at municipal level, within which there are two government levels: central and municipal. In the eastern part of Nicaragua, along the whole Atlantic coast, there are also two regional governments corresponding to the North Atlantic and South Atlantic regions; in these cases, exceptional for the Central American region, roles should be analysed in the land administration system in a differentiated manner. In Mexico, Panama and other Latin American countries, indigenous communities and territories have also achieved recognition of their territorial rights and have gradually established their own forms of land and natural resource administration; in some cases they have achieved some autonomy in terms of land use and access rights, raising local taxes and legal territorial planning. As regards LAPs, coordination between central government and local government institutions is necessary in the transfer of cadastral data to municipal districts. This coordination should therefore allow municipal districts to carry out planning of their territory, land use, land valuation and raising property taxes (if this is part of their function) and other levies. It is part of municipal duties to ensure that the regularization of land encouraged by national governments effectively provides men and women with better access to basic services and public infrastructure.
For further information on Decentralization and LAS (see the Chapter on the Results framework of LAPs at subnational entity level).
Basis of an effective LAS
Experience has shown that any LAI which seeks to be effective and efficient should be supported and strengthened by five basic pillars: human resources, technical skills, the legal and operational framework, its autonomy and the financial control of its management (for further information about these pillars, refer to the fact sheet on categorization of LAIs).
