Global Report on Human Settlements 2007 - PoA-ISS

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Security of tenure
Control of land is
particularly important
for women
question of how best to ensure that tenure security can be
accessible to all. For example, policies that focus on the
possession of freehold title as a means of increasing security
of tenure 60 tend, effectively, to leave out those who do not
wish to, or who cannot, become possessors of freehold title.
It is important to recall, however, that a nation’s wealth is
not invariably linked to the percentage of those owning
property. For example, during the early 20th century when
the power of the UK was at its peak, up to 90 per cent of its
population were tenants. Similarly, tenants today form the
majority among the population in some of the world’s
wealthiest countries, including Germany, Sweden and
Switzerland. Tenants in these and similar countries have
substantial security of tenure protections, grounded in
enforceable law before independent and impartial courts,
which may be a reflection of their overall share of the total
population and corresponding political influence.
Women
Box 5.15 Inheritance and gender
Beyond the trends of increasing poverty and inequality,
continued discrimination against women also contributes to
tenure insecurity and resultant forced evictions. The World
Bank notes that ‘control of land is particularly important for
women… Yet traditionally, women have been disadvantaged
in terms of land access.’ 61 In many (if not most) countries,
traditional law implies that women’s relationship to men
Inheritance is often treated as peripheral to, or semi-detached from, general debates and policy
formation concerning security of tenure, land rights, land reform or regularization. However,
inheritance is one of the most common ways of women acquiring land or access to land. Since
women in many countries have not generally been able to purchase property or benefit from
land reforms, in many cases a woman could only become a landowner by inheriting land from
her husband or companion on his death.
Issues related to succession and inheritance are regulated through the civil codes in
most Latin American countries, with the exception of Costa Rica and Cuba, where these have
been laid down in family codes. In countries such as Panama, Honduras, Mexico and Costa Rica,
absolute testamentary freedom leaves the surviving spouse defenceless in a marriage under a
separate property regime.
In the Balkans, Serbia Montenegrin inheritance laws identify the surviving spouse and
his/her children as the heirs of the first inheritance degree who inherit in equal parts per
person. The laws also protect the spouse through a lifetime right to use the deceased’s real
property, or a part thereof if such request is justified by the spouse’s difficult living conditions.
Under compulsory Islamic law, only one third of an estate can be bequeathed, with the
remaining subject to compulsory fixed inheritance rules that generally grant women half of that
which is granted to males in a similar position.
Most of Southern Africa has a dual legal system where inheritance is governed by both
statutory and customary laws. In a number of countries, including Lesotho, Zambia and
Zimbabwe, the constitution still allows the application of customary law in inheritance matters
and courts have upheld discriminatory practice. Under customary law and with only a few
exceptions, inheritance is determined by rules of male primogeniture, whereby the oldest son is
the heir (the oldest son of the senior wife, in case of polygamy).
Property grabbing from widows of HIV/AIDS-affected husbands is a particularly acute
problem in Southern Africa, although the act of dispossessing widows of property is a criminal
offence in most countries of the region.
Source: UN-Habitat, 2006f
defines their access to land. ‘Legal recognition of women’s
ability to have independent rights to land is thus a necessary,
though by no means sufficient, first step toward increasing
their control of assets.’ Without such independent recognition,
including structural discrimination in the areas of
inheritance and succession rights, women experience
constant insecurity of tenure (as well as that of children).
This is particularly highlighted in the context of the
HIV/AIDS epidemic as the death of a husband (or father) may
lead to the eviction of the rest of the household. Although
women’s equal rights to housing, land, property and inheritance
are well established under international human rights
law, major obstacles are still inherent in policies, decisionmaking
and implementation procedures in realizing these
rights. Hence, women are disproportionately affected by
gender-neutral approaches to land inheritance and are often
unable to access their formal rights (see Box 5.15).
Moreover, when the lack of secure tenure facilitates
the carrying out of forced evictions, women are disproportionately
affected, as noted by the Advisory Group on Forced
Evictions (AGFE):
Indeed, for most women, the home is the single
most important place in the world. Beyond
shelter, it is a place of employment, where
income is generated; it is a place to care for
children; and it provides respite from violence
in the streets. Evictions often take place in the
middle of the day, when the men are away from
home. Women are left to fight to defend their
homes, and the evictors meet such resistance
with violence, beating, rape, torture and even
death. Violence and discrimination against
women are not only the result of evictions;
rather, they are often the cause. Domestic
violence frequently drives women out of the
home, effectively forcibly evicting them. In all
situations, women forced from their homes and
lands are further robbed of economic opportunities,
ability to provide for their families’
stability and means of autonomy. Women often
experience extreme depression and anger in the
aftermath of forced evictions. As a result of a
lack of autonomy or stability, women become
even further marginalized. 62
In many parts of Africa, for instance, women have access to
land so long as they remain within their husband’s and/or
parents’ land because ‘traditional law implies that women’s
access to land is mediated through their relationships with
men’. 63 Achieving security of tenure rights without a formal
link to a male relative can thus still be impossible in a
number of countries. Women often face disproportionate
challenges in landownership even in cases where their
spouses have died and they should be the bona fide owners
(see also Box 5.16). Yet, it should be noted that legal recognition
of women’s ability to have independent rights to land is
a necessary, although by no means sufficient, first step
towards increasing their control of assets.