Global Report on Human Settlements 2007 - PoA-ISS

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Security of tenure
Fully legal
Degree of legality
Zero legality
Figure 5.1
Urban tenure
categories by legal
status
Source: adapted from Payne,
2001e
No security
Security of tenure
often has as much to
do with one’s
perception of
security as the
actual legal status
Squatter tenant
Pavement dweller
Tenant with contract
Freeholder
Leaseholder
Legal owner – unauthorized subdivision
Owner –
unauthorized subdivision
Squatter owner –
regularized
Tenant in unauthorized subdivision
Squatter ‘owner’ – non-regularized
Degree of tenure security
de facto rights may vary considerably
Full security
tion from the State against forced evictions’. 12 Under international
law, forced eviction is defined as ‘the permanent or
temporary removal against their will of individuals, families
and/or communities from the homes and/or land which they
occupy, without the provision of, and access to, appropriate
forms of legal or other protection’. 13
While all persons reside with one or another form of
tenure, not all tenure types are secure. Moreover, security is
not necessarily only available through the formalization of
tenure rights. As many analysts have asserted, security of
tenure often has as much to do with one’s perception of
security as the actual legal status one may enjoy. A variety of
tenure arrangements can provide tenure security. People can
have de facto security of tenure, coupled with varying
degrees of legal tenure when, for instance, governments
provide assurances against displacement or incorporate a
neighbourhood within a special zone protected against
evictions, such as is envisaged under the Brazilian City
Statute (see Box 11.8 in Chapter 11). Governments can also
recognize security of tenure, but without officially regularizing
the community concerned, and can also issue interim
occupancy permits or temporary non-transferable leases that
can provide forms of secure tenure. At the other end of the
Box 5.2 Tenure types in Phnom Penh, Cambodia
In the case of Phnom Penh, nine types of tenure have been categorized, from the most to the
least secure:
1 certificate of ownership;
2 certificate of possession;
3 government concession;
4 court order after dispute;
5 family registered book;
6 unauthorized occupation of private land;
7 unauthorized occupation of state private land;
8 unauthorized occupation of state public land; and
9 pavement/mobile dweller.
Source: Payne, 1997.
spectrum, governments can support laws and policies which
envisage long-term leases and secure tenure through leasehold
or freehold rights. As Figure 5.1 shows, tenure must be
viewed as a spectrum with various degrees of security,
combined with various degrees of legality.
In practical terms, however, the issue of tenure
security may be even more complicated than that outlined in
Figure 5.1. Security (and insecurity) of tenure takes a
plethora of forms, varying widely between countries, cities
and neighbourhoods, land plots and even within individual
dwellings, where the specific rights of the owner or formal
tenant may differ from those of family members or others. As
noted above, the figure does not, for example, include
customary or Islamic tenure categories, nor does it take into
account other specific historical, political or other circumstances.
Box 5.2 presents the variation of tenure categories
in one specific location, Phnom Penh (Cambodia).
Moreover, it is important to point out that different
tenure systems can co-exist next to each other. This is not
only the case at the national level where a country may
maintain and recognize many different types of tenure, but
even at the neighbourhood or household level. It is quite
common in the developing world for informal settlements to
be comprised of homes that possess varying degrees of
tenure security, and that provide differing levels of rights to
inhabitants depending upon a variety of factors. The
common practice of squatters subletting portions of their
homes or land plots to tenants is one of many examples
where individuals living on the same land plot may each have
distinct degrees of tenure security/insecurity.
This discussion highlights the fact that security of
tenure is a multidimensional, multilevelled process that is of
universal validity, but which needs to be approached and
acted on in a myriad of ways, many or all of which can be
consistent with internationally recognized human rights.
Understanding the different categories of tenure, the
varying degrees of security that each affords dwellers and
how the benefits of secure tenure can be spread more extensively
and equitably throughout all societies remains a major
policy challenge. While human rights law now clearly stipulates
that security of tenure is a basic human right, ensuring
that all who possess this right enjoy security of tenure
remains a major challenge to governments and the broader
international community.
At the extreme end of the secure–insecure tenure
continuum are the millions of people who are homeless.
Even within this group, however, there is a wide range of
different tenure types, with different levels on tenure
security, or rather, in this case, different levels of tenure
insecurity (see Box 5.3). Homelessness is quite often the
outcome – for shorter or longer periods of time – when
communities, households or individuals are evicted from
their homes. However, due to the wide range of definitions
of homelessness, general lack of data, and in particular
comparative data, this <strong>Global</strong> <strong>Report</strong> does not include a
specific discussion on the trends and conditions relating to
homeless people.
Insecure tenure is not exclusively a problem facing
those residing within the informal housing and land sector,