U.S. citizens are fortunate to live in a relatively open political and economic milieu that respects and encourages the accumulation of private assets. Land is among the most important and complex of these assets. For property owners, it's crucial to understand how the concept of land tenure affects the enjoyment of private property rights. For Americans in general, it's important to see the ways in which land tenure varies across political and geographical boundaries. The world is littered with cautionary examples of unfavorable land tenure systems.
What Is Land Tenure?
Broadly defined, land tenure is the legal framework that defines the structure of private land ownership within a given political jurisdiction. It governs the rights that private property owners enjoy as well as the restrictions that they face. In most cases, the codified or common-law provisions of land tenure arise out of pre-existing social and cultural norms. In some places, land tenure is meticulously outlined and offers clear provisions for the use of given surface and subsurface features of the land. In others, it's poorly defined or subject to the whims of corrupt political actors.
Types of Land Tenure
There are several commonly defined types of land tenure. These are:
- Public: Virtually all states and countries own significant tracts of land. The resources and features of public parcels are generally government-owned and may be available for limited use by private citizens.
- Private: Private property exists for the enjoyment and enrichment of the individuals or entities. Private land tenure may be transferred between such parties in accordance with the laws and customs of the political jurisdiction in which it lies.
- Common/Communal: Many societies maintain "commons" that can be used by specific members for various economic or recreational purposes. Such tracts might range from pastureland in agrarian societies to members-only community centers in urban environments.
- Open: This form of land tenure shares much in common with the "public" construction. In addition to the international ocean waters that are governed by maritime law, open-access areas include state recreation zones and certain mining districts.
Differences Around the World
Although the common-law model that prevails in the United States and Europe is recognized as an ideal form of land tenure, there's no one-size-fits-all solution to global land tenure issues. In many developing countries, common and open forms of land tenure are far more common. Private property rights are often ill-defined or absent in these areas. Generally speaking, members of the developing world's economically disadvantaged underclass enjoy limited access to private property and may depend on state-owned lands for economic activities like grazing, crop-raising, mining, water access and other subsistence activities.
Property Rights: Formal and Informal
Land tenure rights that are codified by law are known as "formal property rights." These permit landowners to dispose of their holdings in certain ways and limit the size, structure and acceptable uses of the parcels that they own. Formal land tenure rights govern everything from the use of subsurface minerals to the size and function of buildings constructed on specific parcels. By contrast, informal land tenure is governed by custom or prior practices. In some cases, it actively clashes with existing law: For instance, the unregulated slums that ring many developing-world cities often exist on land that's not zoned for residential use.
Benefits of Secure Land Tenure and Property Rights
Disputes over property ownership arise even in jurisdictions with strong, explicit legal traditions of land tenure. From instances in which a local government claims an overriding "eminent domain" interest in a private parcel to clashes between two individuals who claim exclusive ownership of the same house, these disputes can be prolonged, emotional and expensive. Fortunately, they're relatively mild in comparison to the intractable clashes that occur between public and private entities in countries without coherent land tenure frameworks.
History has shown that strong traditions of land tenure promote economic prosperity, strong governance and stable legal systems. U.S. landowners would do well to learn from the cautionary examples of weaker land tenure regimes and take measures to ensure the continued existence of the model from which they benefit.
