Forests Sourcebook - HCV Resource Network

Box 1.18
Typology of Property Rights
Property rights can be viewed as reflective of social relations.
Property rights are rules that govern relations
between individuals with respect to property and they
should therefore be defined by the community or the
state to which such individuals belong. Property rights
need to be clearly defined, well understood, and
accepted by those who have to abide by them—and
strictly enforced. Property rights need not always confer
full “ownership” and be individual; depending on the
circumstances it may be best if they are bestowed on the
individual, in common, or to the general public. Most
important for sustainable development is that property
rights are deemed secure (van den Brink et al. 2006).
No single typology of tenure or property rights is
universally accepted. Some typologies distinguish
between legal tenure and customary tenure, others
between de facto and de jure rights, while others distinguish
among property regimes. Property rights are also
often seen as a bundle of rights that include the right to
access and withdraw, manage, exclude, and alienate
(Schlager and Ostrom 1992).
Legal tenure is recognized as legitimate under the
policies and laws of the state, while customary tenure is
recognized as legitimate by the traditions and customs
of a society but has not been formally codified in the
law. Customary tenure systems exist in many countries
with significant populations of rural poor, where land
allocation and use are determined through longstanding
“customary” methods that, in many countries,
operate outside the formal legal system. Such customary
tenure systems are dominant in many
indigenous areas where traditional social structures are
largely intact. Customary systems are associated with
traditional land administration institutions and customary
laws that define how rights are governed, allocated,
and preserved. The systems are effective because
they respond to a community’s social, cultural, and
economic needs and because they are enforced by local
leadership. Customary tenure systems typically possess
both collective and individual dimensions. In part, the
collective aspect relates to the community as compared
with outsiders. Internally, the collective element relates
to community land and resources, while the individual
dimension concerns transactions, successions, and
exchanges of family plots between community members.
While it is reasonable to consider that both collective
and individual tenure have their place in forest
activities, introducing individual tenure from outside
includes risks.
There are cases where customary rights have been
legitimized but are still identified as customary rights.
In such cases, the term “customary” helps identify the
origin of the right. De jure rights are given lawful
recognition by formal, legal instrumentalities, while de
facto rights are rights that resource users continuously
work cooperatively to design and enforce.
A common typology of property rights distinguishes
among private, common, and public or state
property rights:
■
■
■
■
Private property rights
– individual or “legal individual” holds most if not
all the rights
– property can be leased under a contract to a third
party
Common property rights
– group (for example, community) holds rights
– group can manage property and exclude others
– rules are important to manage and distribute
resource
Public property or state property rights
State holds the bundle of rights
Open access results from the ineffective exclusion of
nonowners by the entity assigned formal rights of
ownership.
Source: Authors’ compilation using Molnar and Khare (2006) and Jensby (2007).
different set of opportunities for communities to use and
protect their resources with varying outcomes (figure 1.1).
While government statistics and information available
from land administrations are usually a good starting point,
greater insights concerning evidence of historical use and
dependence, as well as customary laws and rights, are often
gathered through participatory mapping.
Importance of pilots. Pilot activities can be important to
expanding the range of possibilities, demonstrating the
viability of rights-based forestry approaches to improve
livelihoods, generate income, or advance conservation. The
objective is to build on a multisectoral analysis of forest
tenure and access without limiting the recognition or
devolution of rights where reform is ongoing.
NOTE 1.4: PROPERTY AND ACCESS RIGHTS 51