Cooperative, Communal and Collective Forms of Land Tenure and their Contribution to the Social Function of Land and Housing

Yves CABANNES, 2014

Cooperative, Communal and Collective Forms of Land Tenure: Why are they relevant?

Cooperative, communal and collective forms of land tenure - CCCFTs - cover a broad range of types of land tenure and use. Most people are unaware of them, as there is little information about them. However, their existence is crucial if the right to decent housing, as defined by the United Nations, is to exist. These forms are the cornerstones of the utopian right to the city, defined by Henri Lefebvre as the superior right. Furthermore, we are positing here that these non-individual forms of land tenure, of housing, and more generally of the city guarantee its social function as a right. Indeed, most legal and institutional studies, practices and mechanisms focus on the social function of private property in Brazil or Colombia¹ and stress the regulatory function of land tenure, mostly based on individual and private ownership. This is definitely positive and deserves to be pursued and developed. Nonetheless, we believe that an alternative route for positioning social and spatial justice and achieving a social function of land tenure is to document, to highlight and to strengthen the many non-individual forms of land tenure and use, which are sometimes based on customary law, or are the result of 19th century philosophies and social struggles, or even of recent or ongoing experiments.

Communal forms of ownership are not homogenous; their diversity is linked to the multiple uses, legal practices and cultures, as well as the social struggles which have impelled their creation or their continued existence. The series of different solutions gathered under the global term CCFT - Collective, Communal and Co-operative forms of Tenure is not a set typology but rather a structured inventory of non individual forms of land tenure and use which are currently enacted to access housing within and on the outskirts of cities. Overall, these solutions have proved their effectiveness and are a perfect illustration of what Erik Olin Wright calls real utopias², meaning that “Real utopias capture the spirit of utopia but remain attentive to what it takes to bring those aspirations to life”.

An attempt to organise various non individual forms of land tenure

Cooperative regimes

Cooperative Housing and Cooperative forms of tenure are by far the most commonly known systems, existing under a wide range of modalities. We have selected two of the most influential ones, still in expansion, as illustrations:

The seminal Scandinavian Cooperative model, also known as the Mother-Daughter Cooperative model, was developed by HSB Riksföbund in Sweden. In this model, the ‘mother’ (also known as ‘parent’ or ‘secondary’) cooperative associations are responsible for building housing developments, which are then sold to ‘daughter’ (also known as ‘subsidiary’ or ‘primary’) cooperatives. The daughter cooperatives often purchase management and administrative services from mother cooperatives. Although there is no obligation to do so, this process helps preserve the organisational relationship. Tenants are members of both the mother and daughter cooperatives simultaneously. The model is also noteworthy in that it combines housing and saving schemes within one organisation. Financial risk for members is limited to their daughter cooperative only (NATCCO National 2004, HSB 2012, HSB 2012).

Mutual Aid Cooperatives promoted by the Uruguayan Federation of Mutual Aid Housing Cooperatives (FUCVAM), deserve special attention. They are normally built as a result of a collective process which involves the future occupants; ownership is collective and indivisible. As Nahoum highlights in the reference book on the FUCVAM experience: “ A very high proportion of mutual aid cooperatives are “users” or “sole mortgage” co-ops which means that the ownership of the houses (and therefore the responsibility for the mortgage) belongs to the co-op as a whole and not to each individual member”. (Nahoum 2008)

Community Land Trusts

Community Land Trusts, existing under a wide range of modalities, are a second essential regime. One of the most adapted means of securing the social function of property, they also go beyond that by helping to build the Right to the City. Statutory definitions vary from country to country; however the one proposed by the Building and Social Housing Foundation (BSHF) clearly illustrates its unique features:

“A community Land Trust is a not-for-profit community controlled organisation that owns, develops and manages local assets for the benefit of the local community. Its objective is to acquire land and property and hold it in trust for the benefit of a defined locality or community in perpetuity” (Diacon, Clarke et al. 2005).

CLTs have been expanding over the last fifty years, primarily in the USA. According to the national network, close to 250 CLTs were active there as of June 2013. A number of CLTs exist in the UK as well and a limited number of cases have been or are being implemented in countries as diverse as Australia, Belgium (Brussels), Kenya (Voi) and Canada (Milton Park, Montréal). A growing number of governments have recently shown interest in this system.

Letchworth Garden City, situated a half an hour by train from London, was the first Garden City to be built based on the blueprint elaborated by Ebenezer Howard. It still retains a central relevance within CLTs since it is the only CLT existing, not as a single initiative or a series of initiatives on the same territory, but rather as a freehold and communal tenure alongside very long-term individual leases. Letchworth Garden City (LGC) Heritage Foundation was established as a Charitable Industrial and Provident Society. Various other organisational structures preceded the current one. The first objective of the Foundation is to “pro-actively manage assets and income”. When the city was founded, all land was held in trust. However, during the 1970s, part of the trust’s land was lost. This was the result of a national law which allowed people to buy their houses, thus shifting from leaseholders of the Trust to individual Freeholders. Despite this loss of housing plots, most of the city is still held in trust and its assets were estimated to be around £110 million in 2012. The foundation “explores all opportunities to optimise the commercial returns from their asset in order to maximise funding available to support their charitable commitments” (Letchworth Garden City Heritage Foundation 2010).

Mixed Community Funds and Collective Agreements in Asia

The Asian Coalition for Community Action (ACCA), an Asian Coalition for Housing Rights (ACHR) programme implemented from 2009 to 2011, set out to improve housing for the urban poor in over 150 cities across fifteen countries through a combination of large and small, community-led development projects. Collective Land Tenure agreements were widely used to secure access to land for urban communities.

Over the span of three years, the ACCA carried out 111 large housing projects at a total cost of almost $4 million. 8,611 households directly benefitted from the projects and a total of 42,760 households received secure tenure either through collective or individual tenure agreements. Collective agreements were used in 36 out of the 111 big housing projects (32%) (Asian Coalition for Housing Rights 2012).

One of the reasons for the ACCA’s success in implementing collective forms of land tenure was the successful precedent set by existing urban development organisations and governments. In Thailand, the Community Organisation Development Initiative (CODI), part of the Thai government, had successfully used collective land agreements for urban slum dwellers throughout Thailand, particularly through its Baan Makong Programme, (literally, secure housing). By January 2011, the CODI had worked with 92,458 households in Thailand; 44% of households had cooperative land ownership and 39% had a long-term lease on community cooperative land (Community Organizations Development Institute 2008).

Similarly, in Cambodia there were well-established mechanisms for improving housing and security of tenure for the urban poor, which included city development funds, community savings initiatives and government collaboration. Cambodia also has a well-developed system of commons regimes in rural areas; however, to date the mechanisms relating to indigenous communities and natural resource governance have not been employed in urban areas.

Communal Tenure and Customary Rights

Communal tenure “refers to a situation in which a group holds secure and exclusive collective rights to own, manage and/or use land and natural resources, referred to as common pool resources, including agricultural lands, grazing lands, forests, trees, fisheries, wetlands or irrigation waters. Communal tenure can be customary and age-old, its rules relying on community decisions, or it can be newly designed for a specific purpose” (Anderson 2011).

Common property regimes and Customary Land are not limited to land in remote forests or rural areas, but can also be found on the fringes of cities. As these lands are absorbed by the expansion of cities, the result is the dispossession of massive numbers of poor villagers and land users.

In Latin America, there are numerous well-documented examples of successful rural, collective land systems, such as in Tierras Altas in Bolivia. However, to date there have been very few attempts to adapt and apply rural collective systems in urban settings. In the case of Bolivia, the strong rural bias in the 2009 Constitution has even made urban communal spaces illegal. It is the author’s recommendation that the Special Rapporteur set up a task force to address the arbitrary division of tenure solutions by encouraging the sharing of experiences between rural and urban communities and the systematic evaluation of the potential for collective rural solutions to be applied to urban environments so that the security of tenure for insecure groups is improved. Three sub-categories could and should be expanded at that level:

• Mexican Ejidos and Indigenous Communal Lands when absorbed by urban expansion. Article 27 of the Mexican Constitution was modified in order to allow the privatization of ejidos, one of the conquests of the Mexican Revolution. Despite this, communities, in varying situations, have continued to retain a collective regime on these lands.

• Shareholder cooperatives have recently introduced in China an interesting communal tenure system which, in differing forms and under certain conditions, might enable hundreds of millions of people to maintain their livelihoods.

MTDCC, Maharashtra, Pune, India

One final innovative example of communal tenure comes from Pune, the second largest city in the State of Maharashtra, India. The Magar agricultural community, faced with increasing losses of farmland to rapid urbanisation, pooled their 400 acres of farmland in order to collectively develop, manage and own a mixed-use township in the rapidly developing peri-urban area. The construction process, which began in 2000, is managed by the purpose-formed Magarpatta Township Development and Construction Company (MTDCC), a private limited company. As the farmers had previously owned the land privately, shares in MTDCC were divided amongst the families by a simple method in which one share is equal to one square metre of land contributed to the collective. The shares could be traded exclusively amongst the member families, not on the open market. The result has been a high degree of tenure security and livelihood diversification. About 70% of the member families are earning a minimum of Rs 40 lakh (approximately US $85 000) per year (Sami 2013). The success of this project has been attributed to exceptionally strong leadership and the development of highly effective multi-stakeholder coalitions, formed as a result of a political power and leadership vacuum in Pune (Ibid)

Usucapiao Colectivo (Collective Adverse Possession) A fifth category deserves closer attention because of its recent contribution to housing the poor while retaining the collective aspirations of human flourishing. Only a handful of cases exist to date in Brazil. This regime of quasi ownership on land is still in an early phase of development.

Looking Forward: Proposals for Future Actions

In addition to the recommendations made by the Special Rapporteur to the General Assembly of the United Nations, three more proposals, conducive to the social function of property, are briefly presented:

• Facilitating Urban Policies for CCFT

  One of the findings of the desk review is that successful CCFT depend largely on Housing and Land policies that go beyond a specific program. Such was the case in 1968, when the Co-operative Law in Uruguay paved the way for turning cooperatives into a subject of collective credit eligible for the National Housing Bank. This is also the case for the Social Inclusionary Law in the USA through which 15 %, and sometimes more, of new housing developments should be earmarked as affordable housing for families whose income is below that of the median local income. Without such a law, Community Land Trusts would not have expanded as they did and would not have become an international reference in a relatively short period of time. It is therefore suggested that knowledge concerning policies facilitating and/or supporting CCFT, in their wide variety of forms, be consolidated.

• Addressing Land Rights for Women through CCFT Practices

  This paper indicates that some interesting practices favouring women’s rights do exist around the world. CCFT does not, however, necessarily mean that land and housing security of tenure and land rights for women have increased. The information on innovative practices in most cases is not complete enough and deserves in-depth and systematic analysis in order to feed into a global and mutual learning exercise.

• CCFT: Going Beyond “Land for Housing” Only

  The existence of CCFT demonstrates the need to go beyond the limited definition of “land for housing”, expanding the definition to include the categories of non-housing CCCFT, tenure for mixed housing / non-housing uses, land for growing food or for other activities through which people make their livelihoods. Available information suggests that these types of commitment which extend beyond housing would be a key strategy in broadening households’ assets, allowing them to improve their livelihoods and making them more resistant to external economic shocks. Therefore, their capacity to stay in place and reach a long term secure tenure would be increased. The broadening of cooperative, communal and collective forms of tenure from land to housing to urban and peri-urban land as a whole is needed in order to guarantee a social function for land. In this way, real possibilities of transforming the utopian idea of the Right to the City into real utopias could be brought to life.

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