Partner Dentons UKMEA LLP 11 June 2013 A Bundle of Rights in - - PowerPoint PPT Presentation

Stephen Ashworth Partner Dentons UKMEA LLP 11 June 2013

A Bundle of Rights in Governance Framework: Informal, Customary and Legal

Summary  Ownership is never absolute  Tailor any control over land use to the local  Regulate both use and lack of use  Treat use as only one of the property rights, and not always permanent

A Bundle of Rights in Governance Framework: Informal, Customary and Legal

UK  Imagine absolute property ownership as a bundle of sticks  Property in the UK is thought to be the full bundle. Is it?

• Crown interests
• Rights of access/common/light
• Sub soil
• Overhead
• Planning controls : 1947 and all that
• Nuisance controls

 In all societies the sticks are shared -- boundaries in UK are clear and enforceable  Land use controls shift regularly

A Bundle of Rights in Governance Framework: Informal, Customary and Legal

Botswana  In customary societies often similar levels of control but rights secured in different ways  Botswana example: everyone entitled to land

• to live on - in town
• ften, additional land in village to grow crops and in the

bush for cattle

• rights granted by the city/tribe
• rights protected as long as used -- if no building the land
• ften reverts back
• rights can be transferred, although often only within families
• enforceable rights in customary courts as well as civil

courts, although legal tests/approaches differ

A Bundle of Rights in Governance Framework: Informal, Customary and Legal

Botswana  Other land treated largely as a common, although unused because of lack of water/access  In urban areas use plans starting to emerge, but limited enforcement  In Western eyes property and planning more precarious, less clear, less certain  Less able to operate as security

A Bundle of Rights in Governance Framework: Informal, Customary and Legal

Zimbabwe and South Africa  "informal" settlements  Occupancy often the starting and finishing point  Land where no-one has better bundle of rights to claim possession  Unplanned, unregulated, but politically tolerated and stable  Uses unrestricted but sometimes local community controls of anti-social uses  Economic services often provided -- electricity, sometimes water and sewerage

A Bundle of Rights in Governance Framework: Informal, Customary and Legal

Conclusions  UK property and use rights are fragile and changeable, rightly so  Informal and customary rights are equally robust, and may be more difficult to change  Planning requires an honest acceptance that one of the bundle

• f sticks is being given away, or shortened

 Need to make the argument why that is worthwhile  Regulate both use and failure to use