Global Report on Human Settlements 2007 - PoA-ISS

Security of tenure: Conditions and trends
115
bring the objective of security of tenure for all closer than
ever to universal fruition. If a balance can be struck between
those favouring free market, freehold title-based solutions to
insecure tenure and those who view security of tenure both
as an individual and group right, as well as a key component
in any effective system of land administration and land registration
and regularization, it may be possible to envisage a
future of much improved tenure security for the urban poor.
Indeed, viewed through the lens of human rights,
among all elements of the right to adequate housing, it is
clearly the right to security of tenure that forms the nucleus
of this widely recognized norm. When security of tenure –
the right to feel safe in one’s own home, to control one’s
own housing environment and the right not to be arbitrarily
and forcibly evicted – is threatened or simply non-existent,
the full enjoyment of housing rights is, effectively, impossible.
The consideration of security of tenure in terms of
human rights implies application of an approach that treats
all persons on the basis of equality. While it is true that all
human rights are premised on principles of equality and nondiscrimination,
viewing security of tenure as a human right
(rather than solely as a by-product of ownership or the
comparatively rare cases of strong protection for private
tenants) opens up the realm of human rights not merely to
all people, but to all people of all incomes and in all housing
sectors.
The rights associated with ownership of housing or
land tend, in practice, to generally offer considerably higher
– and, thus, in legal terms, more secure levels of tenure –
protection against eviction or other violations of housing
rights than those afforded to tenants or those residing in
informal settlements. Thus, the right to security of tenure
raises the baseline – the minimum core entitlement –
guaranteed to all persons by international human rights
standards. While security of tenure cannot always guarantee
that forced evictions will be prohibited in toto (particularly in
lawless situations of conflict or truly exceptional circumstances),
perhaps no other measure can contribute as much
to fulfilling the promise of residential security and protection
against eviction than the conferral of this form of legal recognition.
Examining security of tenure simultaneously as both a
development issue and as a human rights theme clearly
reveals the multilevel and multidimensional nature of this
status and how it relates to people at the individual or household
level, the community level, the city level, and at the
national and international levels.
This chapter provides an overview of the main conditions
and trends with respect to tenure security in urban
areas today. It provides a brief outline of various types of
tenure, of variations in the levels of tenure security and a
discussion of the problems of measuring tenure security. This
is followed by an analysis of the scale and impacts of tenure
insecurity and various types of evictions. The last sections
focus on groups who are particularly vulnerable to tenure
insecurity, and the reduction in tenure security often experienced
in the aftermath of disasters and armed conflict.
TYPES OF TENURE
Tenure (as distinct from security of tenure) is a universal,
ubiquitous fact or status which is relevant to everyone,
everywhere, every day. Yet, there is a wide variety of forms,
which is more complicated than what the conventional
categories of ‘legal–illegal’ or ‘formal–informal’ suggest. On
the one hand, there is a whole range of intermediary
categories, which suggests that tenure can be categorized
along a continuum. On the other hand, the types of tenure
found in particular locations are also a result of specific
historical, political, cultural and religious influences. It is
thus essential that policy recognizes and reflects these local
circumstances.
On a simplified level, any type of tenure can be said to
belong to one of six broad categories – namely, freehold,
leasehold, conditional freehold (‘rent to buy’), rent, collective
forms of tenure and communal tenure. 6 In practice,
however – and, in particular, with respect to the development
of policy – it may be more useful to acknowledge the
wide variation in tenure categories that exist globally. Table
5.1 provides an overview of the many forms that tenure
(each with varying degrees of security) can take throughout
the world.
The broad categories of tenure types identified in
Table 5.1 reveal the complex nature of tenure and why
simple answers to the question of how best to provide
security of tenure to everyone is a complicated process.
One-size-fits-all policy prescriptions concerning security of
tenure simply do not exist. It is correct and true to assert
that all should have access to secure tenure; but determining
precisely how to achieve this objective is another story all
together.
Box 5.1 presents a brief overview of the variation of
tenure categories typically available to the poor in urban
areas of developing countries, differentiating between the
formality of settlements and the physical location in the city.
Yet, the common denominator for most of these tenure
categories is inadequate degrees of tenure security.
It is important to note that no one form of tenure is
necessarily better than another, and what matters most is
invariably the degree of security associated with a particular
tenure type. Tenure is linked to so many factors and variables
– including, as noted above, political, historical, cultural and
religious ones – that proclaiming that the formal title-based
approach to tenure alone is adequate to solve all tenure
challenges is unlikely to yield favourable results. While
complicated from a purely housing policy perspective, it is
perhaps even more so from the perspective of human rights.
For if human rights protections are meant to be equitable,
non-discriminatory and accessible to all, and often capable of
full implementation with a reasonably clear set of legal and
policy prescriptions, this is certainly not always the case with
regard to security of tenure. It can be done; but failing to
realize the complex nature of tenure in any effort designed
to spread the benefits of secure tenure more broadly is likely
be detrimental both to the intended beneficiary and policymaker
alike.
When security of
tenure … is
threatened or simply
non-existent, the full
enjoyment of
housing rights is…
impossible
One-size-fits-all
policy prescriptions
concerning security
of tenure simply do
not exist
No one form of
tenure is necessarily
better than another