URB - Access To Land PDF

WORKING PAPER
Capacity Building to Sustain Peace and Integration
ACCESS TO LAND IN INDONESIA

REFLECTIONS ON SOME CASES
UN Habitat (Indonesia)
European Union’s Aid to Uprooted People Programme
January 2014
Cover picture:
One of the remaining ex‐refugee’s houses in front of the Kupang District office in Oelamasi.
© UN Habitat Indonesia, 2012.
WORKING PAPER
Capacity Building to Sustain Peace and Integration (CBSPI).
ACCESS TO LAND IN
INDONESIA
REFLECTIONS ON SOME
CASES
UN-HABITAT (INDONESIA)
EUROPEAN UNION’S AID TO UPROOTED PEOPLE PROGRAMME
JANUARY, 2014
DISCLAIMER
The designations employed and the presentation of material in this report do not imply
the expression of any opinion whatsoever on part of UN HABITAT and the writer
concerning the legal and official status of any country, territory, city, district, area,
institutions or of its authority, or concerning the delimitation of its frontiers or
boundaries, or regarding its social, economic or administrative systems, legal status,
official nomenclatures of any terms used. The analysis, conclusion or recommendations in
this publication do not necessarily reflect the view of the United Nations Human
Settlements Programme, the United Nations, United Nations member states, or the donor
and donor member states.
ACKNOWLEDGEMENT
Lead Consultant and Principal Writer: Nora Clichevsky
Co‐writer and Editor: Kemal Taruc
National Land Consultant: Erna Heryani
Research Consultant: Pablo Vitale
The contents of this work may be freely reproduced, translated, and distributed provided
that attribution is given to authors and the organisations.

TABLE OF CONTENT
TABLE OF CONTENT
LIST OF ABBREVIATIONS iii

EXECUTIVE SUMMARY vi
INTRODUCTION 1
1. Objectives 3
2. Methodology 3
2.1. Premise 3
2.2. Fieldwork 3
2.3. Secondary sources of information 4
2.4. The problems of lack of information 4
3. Organization of the report 4
PART I. DIAGNOSIS 5
1. General Characterization or the Indonesian Reality 7
1.1. Population distribution in a complex geography 7
1.2. Brief descriptions of the case studies 7
2. Urban and rural land: between customary land and private property 9
2.1. Adat Land: Tradition and Risks 9
2.2. Land tenure: characteristics and conflicts 9
3. The political and administrative organization, the civilian society and the issue of land 10
4. The specific organization in charge of land matters: the National Land Agency (BPN) 10
4.1. Legal framework 10
4.2. Land titling 11
4.3. Land and Planning 13
4.4. The superposition of laws and rules and State actions 14
A classification of the conflicts over land 15
PART II. RECOMMENDATIONS IN LIGHT OF THE LATIN AMERICAN EXPERIENCES 17
1. In relation of security of tenure 19
1.1. Some examples of alternatives to full ownership (or recorded deed) 21
1.2. The costs of legalization and resources of the State 23
2. In relation to the institutional organization 25
2.1. In relation to the national and the local level 25
2.2. On the responsibilities of local / district governments 27
3. In relation to the organization of the Indonesian territory and development plans for the 29
short, medium and long term
4. In relation to the participation and training of the population in the subject of 31
access to land and housing
5. In relation to land management and land market procedures (costs, tax policies) and 33
the possible instruments of secure tenure
5.1. Land management 33
5.2. Land reserves (or land banks) 34
i
ACCESS TO LAND IN INDONESIA: REFLECTIONS ON SOME CASES
5.3. The dynamization of vacant (or abandoned) land 36

5.4. In relation to titling. Individual/cooperative/collective titling, costs 39
5.5. In relation to the cadastre 44
6. Taxation and access to land 45
6.1. The transfer of building rights 45
6.2. Recovery of capital gains 46
7. In relation to the camps: conflict, resettlement, post‐conflict, women situation 47
8. Regulate or relocate? 49
9. By way of conclusion: the most relevant recommendations 49
9.1. In relation to the institutions: 50
9.2. In relation to policies 50
BIBLIOGRAPHY 59
Reference 59
Articles in newspapers and magazines 64
Web links: 65
ANNEXES 67
Annex I. Glossary 69
Annex II. List of people interviewed 72
Annex III. Legal framework 74
Annex IV. Numbers of “New Citizens” in Kupang District 2013 75
Annex V. Regulation Of The Government Of The Republic Of Indonesia Re Land 77
Registration N0 24/1997
Annex VI. Maps 80
Map 1. Indonesia - Administrative Divisions 80
Map 2. Indonesia ‐ Locations of Case studies 81
BOXES:
Box 1. The supplementary title
Box 2. The case of Trinidad‐Tobago
Box 3. Project: Improvement of the Management Capacity of the Municipality of Moreno in
Relation to Urban Land. Policies on debtors of vacant (and abandoned) urban land.
Box 4. Background of secure land tenure and regularization in Brazil: The case of Diadema
Box 5. A National Policy: Estatuto da Cidade‐EC‐, Brazil
Box 6. Colombia: Coordination of territorial planning, urban and land‐title regularization.
Box 7. People´s Participation: The case of Argentina
Box 8. The Peruvian case
Box 9. “Comités de Tierra Urbana” –CTU‐ (Committees of Urban Land) in Venezuela
Box 10. The case of Mexico
Box 11. Land policy in Quito
Box 12. The role of women
Box 13. Communal lands
ii
LIST OF ABBREVIATIONS
AEIS Areas de Especial Interés Social Brazil (Areas of Special Social Interest)
AMBA Area Metropolitana de Buenos Aires (Metropolitan Area of Buenos Aires)
BAL Basic Agrarian Law, Indonesia
BAPPEDA Badan Perencanaan Pembangunan Daerah /City’s Development Planning Board,
Indonesia
BAPEDAL Badan Pengendalian Dampak Lingkungan/Local Environmental Protection Agency,
Indonesia
BAPPENAS Badan Perencanaan Pembangunan Nasional /National Development Planning Board,
Indonesia
BIG Badan Informasi Geospasial (National Mapping Agency)
BPBD Badan Penanggulangan Bencana Daerah (Provincial Agency for Disaster Management)
BPM Badan Pemberdayaan Masyarakat (Community Empowerment Agency)
BPMD Badan Pemberdayaan Masyarakat Desa (Village Community Empowerment Agency)
BPMPD Badan Pemberdayaan Masyarakat dan Pembangunan Daerah (Village Community
Empowerment and Development Board at provincial and district level)
BPN/NLA Badan Pertanahan Nasional (National Land Agency)
BPPKB Badan Pemberdayaan Perempuan dan Keluarga Berencana (Women Empowerment
and Family Planning Board)
Bupati Head of Government at district level
CARE International humanitarian organisation
CDRU Concessão de Direito Real do Uso, Brazil (Concession of In Rem Right of Use)
CIS-Timor Central Information Service of West Timor, Indonesia
COFOPRI Comisión de Formalización de la Propiedad, Peru ( Informal Commission for the
Formalization of Informal Property)
CONPES Consejo Nacional de Política Económica y Social, Colombia (National Council for
Economic and Social Policy)
CORETT Comisión para la Regularización de la Tenencia de la Tierra, Mexico (Commission for
the Regularization of Land Tenure)
CPTH Centros de Participación para la Transformación del Hábitat,Venezuela (Participation
Centers Habitat forTransformation)
CTU Comités de Tierra Urbana, Venezuela (Urban Land Committees)
Dinas PU Dinas Pekerjaan Umum (Public Work Department in District Level)
Dinas The Department of Social Affairs
DPP Dinas Pelayanan Pertanahan / Land Services Departement in District Level
EC Estatuto da Cidade, Brazil (City Statute)
iii
FONVIVIENDA Fondo Nacional de Vivienda, Colombia (National Housing Fund)

FOS Fraccionamientos de Objetivo Social, Mexico (Splits Social Objective)
FOTIVBA Foro de Organizaciones de Tierra, Infraestructura y Vivienda de la provincia de Buenos
Aires, Argentina (Forum of Organizations of Land, Infrastructure and Housing in the
province of Buenos Aires
IDSN Infrastruktur Data Spasial Nasional / National Spatial Data Infrastructure
INDECO Instituto Nacional para el Desarrollo de la Comunidad y la Vivienda Popular, Mexico
(National Institute for Community Development and Public Housing)
IOM International Organization for Migration
IPTU Imposto Predial e Territorial Urbano, Brazil (Real Estate and Urban Land Tax)
IRE Institute for Research and Empowerment, Jakarta
Kabupaten/Kab. District level administrative region
Kemendagri Kementerian Dalam Negeri / Ministry of Home Affairs
Kemenpera Kementerian Perumahan Rakyat / Ministry for Public Housing
KPA Konsorsium Pembaruan Agraria / Agrarian Reform Consorsium
KPDT Kementerian Pembangunan Daerah Tertinggal /State Ministry for Accelerated
Development of Disadvantaged Regions
KPTM Kelompok Perempuan Tekad Maju (Women’s Groups to Accelerate Advancement)
LG Local Government
LGAH Ley General de Asentamientos Humanos, México (General Law of Human Settlements)
MERCYCORPS MercyCorps
MF Ministry of Forestry
MRU Movimiento por la Reforma Urbana, Argentina (Movement for Urban Reform)
MusrenbangDes Musyawarah Perencanaan Pembangunan Desa (Development Planning Meetings at
village level)
MusrenbangCam Musyawarah Perencanaan Pembangunan Kecamatan (Development Planning
Meetings at sub-district level)
NGO Non-Government Organization
NTT Nussa Tenggara Timor
ONGs Organismos No Gubernamentales (Non-Government Organizations)
PDPU Proyecto de Derechos de la Propiedad Urbana, Peru (Project of Rights of Urban Property)
PEU Project Execution Union, Trinidad & Tobago
PIDESC Derechos Económicos Sociales y Culturales (Economic, Social and Cultural Rights)
PIKUL Local Based NGO in Kupang ( Nusa Tenggara Timur –NTT- Province)
PISO Programa de Incorporación de Suelo Social al Desarrollo Urbano,Mexico- (Program to
Incorporate Social Floor Urban Development)
PNPM Program Nasional Pemberdayaan Masyarakat (National Program for Community
Empowerment)
iv
Pokja-AMPL BM Kelompok Kerja Air Minum dan Penyehatan Lingkungan Berbasis Masyarakat (Working
Group for Community-Based Water Supply & Environmental Sanitation)
Pokja-PKK Kelompok Kerja Pemberdayaan Kesejahteraan Keluarga / Working Group for
Households Welfare Programme
Pokja-PKP Kelompok Kerja Perumahan dan Kawasan Pemukiman / Working Group for Housing
and Settlement Areas
POT Plan de Ordenamiento Territorial, Colombia (Land Ordering Plan)
PMNA Peraturan Menteri Negara Agraria (Regulation of the Minister of Agriculture)
PROCEDE Programa de Certificación de Derechos Ejidales y Titulación de Solares Urbanos, Mexico
(Certification Program of Communal Rights and Titling of Urban Sites)
PROGA Programa para la Gestión Eficiente de Activos Públicos, Mexico (Program for the
Efficient Management of Public Assets)
PROMEBA Programa de Mejoramiento Barrial, Argentina (Neighbourhood Improvement Program)
PUA Plan Urbano Ambiental, Buenos Aires, Argentina (Urban Environmental Plan)
REDD + Reducing Emissions from Deforestation and Forest DegrAdation
RPJMDes Rencana Pembangunan Jangka Menengah Desa (Medium-term village planning)
RPK Rumah Perempuan Kupang ( Local based-NGO in the District of Kupang, Indonesia)
RPU Registro Predial Urbano, Peru (Urban Land Registry)
RT Reservas Territoriales, Mexico (Territorial Reserves)
RDTR Rencana Tata Ruang Detail (Detailed Subdivision Plan)
RT / RW Rukun Tetangga (Neighbourhood) / Rukun Warga (Commune)
RTRW Rencana Tata Ruang Wilayah /Master Plan
Satker Kemenpera Satuan Kerja Kementerian Perumahan Rakyat/Working unit of State Minister for Public
Housing
SEDESOL Secretaría de Desarrollo Social, Mexico (Ministry of Social Development)
SEKDA Sekretaris Daerah / The Secretary of Government at district level
SNSVDU Sistema Nacional de Suelo para la Vivienda y el Desarrollo Urbano, Mexico (National
Land for Housing and Urban Development)
SRA Secretaría de Reforma Agraria, Mexico (Ministry of Agrarian Reform)
SRF Serviço de Regularização Fundiaria, Brazil (Service of Municipal Land Regularization)
UPZ Unidades de Planeamiento Zonal, Brazil (Units of Zonal Planning)
ZEIS Zonas Especiais de Interesse Social, Brazil (Zones of Special Social Interest)
v
EXECUTIVE SUMMARY
THE OBJECTIVES OF THIS PAPER ARE:

• To analyze the situation of Indonesia regarding access to land, particularly in West Timor, Poso
and Ambon;
• To make recommendations on secure tenure, especially for the local governments, and illustrating
them with examples from policies implemented in Latin America
The Introduction shows the methodology used to prepare this document, which has been based on sec-
ondary information and on field work carried out in Kupang, Belu, Poso, Ambon and Jakarta.
In the first part, a synthetic analysis is presented of the situation in the studied areas, as well as of the
urban and rural conditions relative to land: between customary land and private property; the Adat
Land: tradition and risks, and the land-related conflicts that exist among the different social sectors, the
relationship of the population with the agencies, among different religious groups, migrant/non-migrant,
etc. Reference is also made to the political and administrative organization, to the civilian society and the
issue of land and, in particular, to the specific organization in charge of land matters: the National Land
Agency ( BPN )-Legal framework, as well as to Land titling, Land and Planning and the overlap of laws
and rules and State actions.
The second part, recommendations in light of the Latin American experiences, comprises recommenda-
tions at the institutional level and about land management policies and instruments, including examples
from Latin American countries with the purpose of making it possible to replicate initiatives whose
implementation has had positive results for the access to land by the sectors with higher needs (whether
displaced by wars, migrants for various reasons, population impoverished in recent decades).
Emphasis is placed on experiences regarding the security of tenure, in relation to the institutional orga-
nization (national, district and municipal levels of government; the responsibilities of local and district
governments concerning the participation and training of the population in the subject of access to land
and housing, in relation to land management and land market procedures (costs, tax policies) and the
possible instruments of secure tenure. Two matters that are very important for the Indonesian case have
also been addressed: land reserves (or land banks) and the dynamization of vacant (or abandoned) land.
Another topic noted as important to formulate a policy on urban and rural land is the titling of that land
in a country like Indonesia, where even cadastres are not unified and there is an overlap of lands consid-
ered to be forests and supposedly dedicated to residential or farming uses.
Directly linked to the possibility of access to land, the issue of tax policy and how it can affect the specific
land policy has been commented, as well as the relevance gained by the Cadastre to carry out a policy on
land. There is also a discussion of aspects related to the camps and their problems, and the pros and cons
of the policies of regulation and relocation.
Finally, an account is made of the policies implemented in Latin America and how they might apply to
Indonesia in general and to Eastern Indonesia in particular.
The annexes provide a glossary, maps with the location of the studied areas, the interviews held and the
most relevant aspects of the policy of land registration in Indonesia.
vi
INTRODUCTION
1
2
INTRODUCTION
INTRODUCTION
1. OBJECTIVES
The objectives of this paper are:
• To analyze the situation of Indonesia regarding access to land, especially in West Timor, Poso
and Ambon;
• To make recommendations on secure tenure, especially for the local governments, and illustrating
them with examples from policies implemented in Latin America.
This Working Paper is within the framework of the Project “CAPACITY BUILDING TO SUSTAIN
PEACE AND INTEGRATION -- Strengthening Local Governance in support of West Timorese Wom-
en and Communities Left Behind after Conflict.”
2. METHODOLOGY
To prepare this WP, the starting points were the premise stated in item 2.1, the Fieldwork described in
2.2, and Secondary sources, as mentioned in 2.3. In short, this report is the result of research work carried
out between the months of September and November, 2013. We started by surveying secondary sources
that provided a first approach to the situation and also gave us an indication of the difficulties involved in
accessing certain data and information, and the fieldwork was performed in October, 2013.
2.1. PREMISE
The methodology applied is based on the premise that in order to make policy recommendations, in our
case regarding land, it is necessary to have a diagnosis that is as thorough as possible --in the short time
allotted to the consultancy. This will allow us to formulate the most realistic recommendations possible,
in the sense that they can be applied, or can serve as input for defining policies if, obviously, there is a
political will to develop and implement them.
Therefore, it was necessary to analyze documents about the history of Indonesia (from the Dutch colo-
nization to the most recent past) to know the specific characteristics of the economic and socio-political
situation in relation to land, and the special features of various regions in Indonesia, as well as the situa-
tion concerning East Timor and its relation to Timor Leste (mainly the problem of the former refugees)
and the character assumed by inter-religious conflicts, especially in Ambon and Poso).
We also studied the political and administrative organization, to be able to make recommendations at the
various levels of government, with special emphasis on the local level, as well as the social organization
in a country where tribal communities still carry some weight and where there are different types of land
tenure (see Annex I).
Finally, we have identified processes in Latin American countries that could be taken into consideration as
regards the policies to be planned and implemented in Indonesia, and particularly in the cases analyzed.
2.2. FIELDWORK
During the month of October the research consultant visited Indonesia, where nearly fifty interviews were
held with government officials from the sub-district level (Desas) to the national level, with representatives
of the civilian (camps and resettlements leaders) and NGOs involved with the research issues. All the
interviews were organized, assisted and oriented by the UN-Habitat team, in particular by Ibu Erna
Eryani and Pak Yayat Kurniawan. (Annex I1 detail of all interviews). Also, visits were made to camps,
resettlement and areas affected by the social conflicts of each case.
3
The fieldwork was conducted in the districts of Kupang and Belu, in the province of Nusa Tenggara
Timor (NTT), where there is a considerable number of refugees from the armed conflict that led to the
creation of Timor Leste, between 1999 and 2002. This situation is the object of the intervention by the
UN-Habitat team that constitutes the main case considered in this report (and which is reviewed in the
Evaluation Report, by the research consultant).
Two other places, Ambon (Maluku) and Poso (Central Sulawesi), were included as case studies to give
further reach to our observations. In these two districts, the social conflict is manifested in the confrontation
between religious groups, but is related to social issues that go beyond the religious affiliations and, once
again, are strongly connected to the tenure of the land. In both districts, since the end of nineties up to
now, the population is territorially segregated according to their religious beliefs.
Interviews were also held with officials and NGOs leaders at a national level, in order to confirm or rectify
the information obtained at the district and provincial levels, and to broaden the scope of the observations
(see Annex II).
In spite the short time taken by this research, in the three situations and four districts we were able
to collect information that we believe is significant to move forward in the analysis of the present
potentialities and limitations pertaining the secure access to the land and its tenure, with the intention
of formulating proposals to reverse today the current difficulties of the popular sectors to have land and
housing according to their needs.
2.3. SECONDARY SOURCES OF INFORMATION
The documents collected and analyzed are included in the Bibliography, at the end of this WP:
• Documents sent by UN-HABITAT
• Internet collected documents: international organizations reports, NGOs report, academic
theses, articles for scientific journals, papers submitted to scientific conferences; land legislation
(see Annex III) and statistical documents.
• Documents about practices in other countries in relation to land policy, especially in Latin
America.
2.4. THE PROBLEMS OF LACK OF INFORMATION
Through the fieldwork and the documents from secondary sources, we verified that in Indonesia, and
perhaps particularly in the cases studied, which are marginal to the more developed areas of the country
such as Jakarta and Java, the lack of information has made it difficult to complete the study as we had
expected. For example, there was no information --except, partly, in Kupang- about the number of refu-
gees or former refugees, the number of people and/or families living in camps or other kinds of informal
habitats. Nor has it been possible to access land cadastres specifying the ownership of each lot, whether
those belonging to the government in its different centralized and decentralized agency or the ones in
private property areas.
Neither could the prices of the land (and the functions of land market; that the land market not exist
in the Eastern Indonesia), be found out in the different field studies conducted, nor information on the
environmental status of the land subject to the policy recommendations. The recommendations set forth
some priority guidelines to obtain information about these matters, which are essential to formulate
policy recommendations as realistic as possible.
3. ORGANIZATION OF THE REPORT

The WP is composed of this introduction, Part I. Diagnosis, Part II. Recommendations in Light of the
Latin American Experiences, Bibliography and the six Annexes.
4
PART I
DIAGNOSIS
PART I : DIAGNOSIS
PART I
DIAGNOSIS
1. GENERAL CHARACTERIZATION OR THE INDONESIAN REALITY
1.1.POPULATION DISTRIBUTION IN A COMPLEX GEOGRAPHY
The cases studied have exposed the diversity of the prevailing situations regarding land tenure:
• from the institutional point of view;
• from the viewpoint of the types of property and registers.
This allows us to make a series of reflections on Indonesia as a whole and, in particular, on the cases stud-
ied. It is no news to point out that Indonesia has about 250 million inhabitants, distributed in many of
its 17,500 islands1, which are very differentially inhabited and even have, in part, different administrative-
political regimes. This geographical dispersion is replicated in the ethnic and cultural diversity (about
300 groups) and the religious diversity in the country (though with a significant majority of Muslims:
87.18%; Census 2010).
It’s worth mentioning, though we won’t delve into it here and it was not often directly mentioned in the
interviews, that two sociopolitical factors had a tangential effect in the conflicts and problems observed:
the Dutch colonial condition of the country until the mid-twentieth century, and the two long presiden-
cies since its independence (Sukarno, 1959-1965 and Suharto from 1965 to 1998). These facts have a
decisive impact on some of the existing tensions; to mention only the examples that were given during
our field work: the complex titles granted by the Dutch; the unclear definition of the boundaries in the
colonial era, and the contradiction between certain principles of the 1960 Basic Agrarian Law (BAL) and
its effective implementation during the “New Order.”
1.2. BRIEF DESCRIPTIONS OF THE CASE STUDIES
Kupang and Belu

The situation of the Warga Baru (WB)2, after fourteen years of their displacement, remains unsolved, es-
pecially as regards access to and tenure of the land. The conflict in the island of Timor generated, among
other social consequences, the displacement of population from the current Timor Leste to the districts
of the province of NTT, mostly the provinces located in West Timor.
The most common housing arrangements for the refugees (WB) were the “camps” (se Annex IV), charac-
terized by their precarious conditions regarding both the houses and, particularly, the security of tenure.
In 2013, the number of households affected by this situation is 1,690; and the total numbers of refugees
in Kupang District are 3,982 households.3
However, there is other --unaccounted-- WB with assigned housing that, for different reasons, is still stay-
ing in the camp4. In this regard, there were recurrent references to the existence of problems in the lands
assigned for resettlement (unsuitable environment or location and, mainly, uncertain tenure conditions)
and in the houses built (deficient quality of the materials and the construction, basically).
1. The total number of the islands are different, another source of information stated 13,466 islands (http://www.menkokesra.
go.id/content/di-indonesia-ada-13-466-pulau-bukan 17508-pulau, reviewed 12/ 12/2013)
2. Warga Baru, “New Citizens”, is the name given to the displaced in Timor Leste; to settle in West Timor they adopted
Indonesian citizenship. The previously established residents are called Warga Lokal.
3. In the total West Timor, the program of the Ministry of Housing in charge of this situation held an initial number of 4,672
affected households, but in 2011 that figure had risen to 8,727 homes. Only a part of these households continues having
unresolved housing needs. One the problems deemed as crucial is the definitive registration of the WB, because there is a new
generation to claim and the number of WB continues to grow, thus making the problem unmanageable. (Jedi Satriadi and
Arief Setiabudhi, Ministry of Housing) (see Annex IV).
4. In addition to this statement of the officials of the Ministry of Housing, two of the respondents WB had remained in camps
housing and own land in other areas.
7
There are also differences in the degree of integration between the displaced population (WB) and the
people traditionally residing in the area (WL). In Belu, a district bordering Timor Leste, there are stronger
cultural affinities between WB and WL, besides the fact that the moving of population predates the
conflict. In Kupang, on the other hand, there is a significant number of settlers who moved from the
opposite end of the island, so their relations with WL are far more complex.
This situation also implies a different approach by the local governments. In Belu, the officials interviewed
pointed out that the treatment of the problem of the WB is integrated in the overall social policies, since
they are considered part of the district’s population in an undifferentiated way. In Kupang, by contrast, the
peculiarities of the WB situation continue to be taken into account. In terms of the policies implemented,
however, the differences appear to be smaller: in most of the cases surveyed these are policies for the whole
population with specific quotas allocated to WB and WL5 .
In several interviews, it came out that there is a constant tension between the necessity of land to be used
not only for housing but also for subsistence resources, and, at the same time, the concern of not creating
disparities with the situation of the WL, population who also have unresolved needs of housing and
livelihood, and require government assistance too.
Ambon and Poso

Each of these districts has had, since 1999, an inter-religious conflict that has lead to the displacement of
people. Until today, in both places the segregation between Christians and Muslims persists; in Ambon,
this tension seems to have subsided, while it appears to be more prevalent in Poso.
In Ambon, capital of Maluku, the first conflict started in January 1999, continued for two years and led
to the displacement of about half a million people (and caused around 5,000 deaths). The strife was ini-
tially marked by ethnic components (also related to the fact that one of the groups in conflict comprised
relatively recent migrants). However, the character of the conflict changed quickly from ethnic to reli-
gious. The fact that the migrants are mostly Muslims while the majority of Ambonese are Christians may
contribute to the rapid shift of the nature of the conflict6.
The result of the conflict is the distribution of the population in different areas of the district that main-
tain a religious homogeneity, although, according to several interviewees, this separation no longer holds
in settings such as schools, markets and other places where there is an interaction between Christians and
Muslims. In 2011, there was a confrontation that was quickly contained.
In Poso, on its turn, there was a mounting cycle of violence. It started in 1998, but broke out in 2000,
escalating up to the point that local authorities take refuge in a military camp. Only by the end of De-
cember 2001, the national government took the initiative that led to the “Malino Peace Agreement” (the
conflict in Ambon ended with the signing of “Malino II”). As a result of that agreement, the local govern-
ment began to reorganize and resume its duties, they proceeded to identify those affected by the conflict
and they built camps. Since 2002, there have been several initiatives undertaken by the LG in response to
the displaced people (there is a significant amount of property burned, some to date).
Although between 2006 and 2007 there were still conflicts, the Government considered that the emer-
gency situation had been overcome. At the local level, since 2010 there have been no specific programs to
address the post-conflict situation, although, as in Belu, there are still quotas in the programs specifically
targeted for those affected.
5. Key interventions of national government, specifically for WB were promoting repatriation WB group (joint program with
IOM) relocation elsewhere in NTT, the other provinces and relocation, the resettlement in the same district (this was the most
popular choice) . In the latter case distinguished two types of housing provision: self or constructed by the State (through the
military initially, but with funds from various agencies, mainly the Ministry of Housing ). Interview with Wendelinus Inta (UN-
Habitat Belu, former CIS-Timor ).
6. It is worth noting, as an illustrative example of the NGOs’ action in the region that Mercy Corps’s work in Ambon began in
2000 responding to the post conflict emergency, since 2005 aiming at a broader and lasting recovery, and since 2009 focusing
on the empowerment of the settlers within a framework of productive development. For this purpose, they are working on
strengthening the capacities of governments, especially at the local and sub-local levels, and with a particular emphasis in
reinforcing the mechanisms of Musrenbang (discussion of planning and budget at grass-root level).
8
PART I : DIAGNOSIS
2. URBAN AND RURAL LAND: BETWEEN CUSTOMARY LAND AND PRIVATE PROPERTY
2.1. ADAT LAND: TRADITION AND RISKS
The Basic Agrarian Law --BAL- is the main law regulating land rights. It recognizes both the traditional
arrangements and the Western property rights. Recognition of ‘Adat’ or customary land rights and cus-
tomary systems of tenure, which are explicitly acknowledged in Article 5 of the BAL, has become a critical
element of contention in Indonesia. The root of the problem is that most of the existing implementing
regulations of the BAL failed to elaborate, and are even contradictory to, the Adat principles.
In the past, the government has attempted to recognize the existence of customary land provided that the
following criteria exist:
• The land is under the ownership of a recognized Adat community
• The boundaries are defined and understood and
• The community is recognized and functioning as such under Adat law principles (Heryani &
Grant, 2004)
Due to the characteristics of the process of human settlement in the country, a significant part of the land
(the biggest portion in some provinces) remains uncertified, and under traditional arrangements. But
these situations of occupied, untitled land are treated differently in the various regions of the country,
which seems to us to be a particularly sensitive issue. In several of the institutions and districts observed,
this form of customary settlement, in many cases linked to traditional modes, was defined in different
ways: the lands in Adat, Tanah Ulayat, lands that have certification by the Dutch, lands that the State
considers its own (the case of Central Sulawesi province). This, according to several interviewees, poses
risks to the safety of tenure, for various reasons that go from the possibility of eluding formal procedures
to make transactions with the land, to the interpersonal quarrels that arise about them, and the difficulty
in clearly defining the boundaries of each plot.
2.2. LAND TENURE: CHARACTERISTICS AND CONFLICTS
The BAL provides several alternative land rights, which can be certified:
a. the right of ownership (Hak Milik)
b. the right of exploitation (Hak Guna Usaha)
c. the right of building (Hak Guna Bangunan)
d. the right of use (Hak Pakai)
e. the right of lease (Hak Sewa)
f. the right of opening-up land (Hak Membuka Tanah)
g. the right of collecting forest product (Hak Memungut Hasil Hutan)
h. Other right not included in the above-mentioned right which shall be regulated by law and
rights of a temporary nature.
However, the only type of degree offered for the popular sectors is full individual private ownership (Hak
Milik). As elaborated in the recommendations, in the Latin American experience this does not always
means safety in the tenure, a point that also came up in some interviews. Some NGOs in Kupang pointed
out that the settlers tend to prefer to remain under traditional modalities, especially because certification
of the lands may mean that one or more members of the clan/family want to and can sell them. In this
respect, they also stated that the growth of cooperatives that lend money to those families, which renders
the property title unnecessary for access to a bank loan (a recurrent argument to state the importance of
regulation, besides security of tenure). Titling may imply the disarticulation of the future generations, of
the family/clan (Marga7). These systems of communal tenure do not exist in the borders of the district,
7. Clan of the population that makes up the parcel Adat. A Marga usually has a leader or head (in some regions this is the Raja).
9
but only within in. The need of agreement by all the members of the Marga to sell or buy land causes that
many transactions fail to come through (because some of the owners don’t agree). This happens not only
in rural areas but also in cities (an example given was the Government Office of Kota-Kupang). And there
are also conflicts about the BPN titles granted.
Some of these disputes, according to the interviewees, are based on the fact that the Adat honors the
tradition of sharing the land, but this clashes with the interests of buying and selling. There are also
permanent transfers within that tradition, but these are trying to be formalized to avoid conflicts8. This
issue is particularly present in cases of displacement by social conflict, such as the WB.
3. THE POLITICAL AND ADMINISTRATIVE ORGANIZATION, THE CIVILIAN SOCIETY AND THE
ISSUE OF LAND
Indonesia is a unitary presidential republic, but since 1999 it has been promoting a strong process of
decentralization (Law No. 22/1999, at present Law No. 34/2004). In its 34 provinces (5 of which are
formed by special territories), there is an administrative division with two types of jurisdictions delimited
according to the prevalence of urban or rural areas in the territory.
• The city (Kota), with a city government. The head of the local city government is the Walikota
• The extensive rural “peri-/non-urban” (Kabupaten), with a district government. The head of the
local district government is the Bupati.
• A sub-district level (Kecamatan, which is led by the Camat, appointed by the head of the district/
municipality)
A level below the sub-district, which is the lowest administrative level:
‐‐ Kelurahan, in the city (kota) where the administrative authority is the Lurah, and is appointed
by the local government;
‐‐ Desa, in the rural district, where the authority is the Kepala Desa, the name of this level is
translated as Village.
‐‐ Nagari, in West Sumatera or Gampong in Aceh, similar to the Desa, but in districts that
recognize traditional forms of land tenure (Ulayat); the political authority coincides with the
head of the territorial clan: the Raja.
‐‐ Both in the city and in the rural periphery, there are the Rukun Warga (RW, consisting in
several RTs) and the Rukun Tetangga (RT, set of households)9, which also have their leader/
authority.
4. THE SPECIFIC ORGANIZATION IN CHARGE OF LAND MATTERS: THE NATIONAL LAND
AGENCY (BPN)
4.1. LEGAL FRAMEWORK
State policy dealing with land is in the Constitution (1945). Article 33 sub-article 3 provides that
land (earth), water and natural richness inside are controlled by State and must be utilized for welfare of
the people. Implementation is primarily through Law Number 5, 1960, the Basic Agrarian Law (BAL).
The BAL was put into practice through many government regulations, presidential decrees, ministerial
decrees, etc. However in 1970 other laws relating to land were enacted without considering the BAL,
consequently some laws and regulations dealing with land are contradictory (see Annex III). In 1997
Government Regulation No. 24 of 1997 on Land Registration is approved (see Annex V).
8. Meeting with NGOs: Torry Kuswardono (Pikul), Elfrid Saneh (CIS- Timor ), Andrian and Yaret Arianto Nenobesi (CARE).
9. The numbers of households that make up a RT and of RTs that form a RW vary in each region.
10
PART I : DIAGNOSIS
Legal conflict and confusion produces problems and impacts on disparity of land holding, land owner-
ship, land use and utilization, slow implementation of agrarian reform, land disputes and conflicts, aban-
doned land, etc. In response the House Consultative Assembly issued Provision Number IX/MPR/2001,
about Agrarian Reform and Natural Resources Management and Decree Number 5/2003 about imple-
mentation of provision (Winoto, 2009) (see Annex III).
4.2. LAND TITLING
Not all land in Indonesia are ‘full deeds’ --some Adat land is given a semi-legal ‘recognition’ (socially, cul-
turally, customary) of its existence --while the documented proof is being prepared-- before it gets a full
legal rights in the registration procedure of BPN. If ‘sufficient document’ and ‘proof ’ can be demonstrated
then the Adat land can be registered and certified (the procedure to determine the kind of ‘proof ’ needed
is not clear yet, so it creates different interpreation and potential areas of disputes). If the land is ‘state
land’ or ‘public land’ then a ‘land granting right’ is issued by BPN.
For lands that have been used or ‘occupied’ with some kind of administrative document from the village
office as a proof ’ and endorsed by local witnesses, then the State could a process of ‘right granting’ as
stipulated in Government Regulation 24/1997. In practice, there will be a Land Investigation Commit-
tee (stipulated in official regulation PMNA No. 7/2007) who shall check, survey, and study the object
(i.e., land) for its location, boundaries, size, etc.), as well as the ‘subject’ (i.e., the legality) for its history of
ownership if there are some kind of documented proof of ‘right.’ Also, is important to check if the land is
not under legal dispute or became a collateral or other legal agreement with other parties. After the inves-
tigation then an announcement will be made publicly to see if there are any other claims by other parties.
If there is no claim and everything is in order then an official status report will be issued10.
Since a tax or fee charge is mandatory under the Law, it applies only for documented transfer of right
recorded by public notary. Since 2011 for the “Prona Program” (national land registration program) the
local government who now has the authority to tax does not charge it to the land owners/applicants to
ease the burden to public.
The management of land titling in Indonesia has been centralized by the BPN since 1988. Originally, the
BPN had other functions and a more active role in land policy11; at present the certification process is the
main activity of the agency12.
Although it is a non-ministerial Agency it has a big size with more than 20,000 full time staff and only be
given a relatively simple administrative roles to register, issue, certify and record the transfer of land rights
(from buy/sell transaction or inheritance)13.
10. Decision made by the Land Investigation Committee is crucial; it will determine the kind of legal status of the land based
on their finding and the official record to be issued thereof
11. Uke Mohamad Hussein (BAPPENAS), told us that a few years ago the BPN had valuation and making spatial plans, beside
certification. The official definition of the BPN role establishes: “In carrying out the task referred to, BPN performs functions: 1.
Formulation of national policies in the field of land; 2. Technical policy in the field of land; 3. Coordination of policies, plans and
programs of land; 4. Guidance and general administrative services in the areas of land; 5. Organization and implementation
of surveys, measurements and mapping in the field of land; 6. The registration of land in order to guarantee legal certainty;
7. Setting and decision rights over land; 8. Implementation of land use planning, land reform and settlement of specific
areas; 9. Preparation of administration on land owned and / or owned by the state / local cooperation with the Ministry of
Finance; 10. Supervision and control of land ownership control; 11. Cooperation with other institutions; 12. Organization and
implementation of policies, plans and programs of land; 13. Community empowerment in the field of land; 14. Assessment
and treatment issues, disputes, cases and conflicts in the area of land; 15. Assessment and development of land law; 16.
Research and development in the area of land; 17. Education, training and human resource development in the area of land;
18. Management of data and information in the field of land; 19. Development of functional institutions related to land area;
20. Cancellation and termination of legal relationships between people, and / or legal entities with the land in accordance with
the provisions of legislation in force.” (http://indonesia.go.id/en/lpnk/badan-pertanahan-nasional/2453-profile/375-badan-
pertanahan-nasional, reviewed 10/11/2013).
12. However, according to Iwan Nurdin (KPA General Secretary), there is a huge dispersion and lack of coordination among the
twelve institutions involved in land management. This implies difficulties also for companies and investment.
13. As an illustration to calculate the average productive capacity of BPN in each local (cities/districts) offices relative to the
number of BPN staff and numbers of the land certificates issued per year it gives a figure of one certificate per two person-
days. Local government always uses BPN as an excuse for faults in their land policies.
11
The legal framework is the Government Regulation No. 24 of 1997 on Land Registration. From the ap-
plicants’ point of view, the problems to implement are mainly caused by:
• High cost of tax on transfer of right.
• Unclear or ambiguous required documents as “proof ” of “right” (to own, occupy, use, etc.) that
the applicant should submit to the Committee for review.
• People do not have the document.
• People avoid paying land/property tax so that they do not have any document (even a tax slip)
to ‘prove’ that they live on the land.
• People cannot afford to pay land tax; they consider it is too expensive.
• Do not know which office they need to go to register14
On the other hand, challenges found by local government to provide land registration to the public:
• Very limited numbers of staff at local government capable for doing the verification and
investigation to check the document and conduct field survey;
• Limited budget of the local government to improve the work and give proper services;
• Insufficient facilities to conduct the survey;
• Low responses from the public, too little campaign or socialization about the importance of land
registration so that many people do sell/buy land only by a direct personal transaction and do
not register the transfer of right;
• Need to improve land registration process not only simply by lowering the cost but should also
be done in a more integrated national policies.
The BPN is usually a receptor of land titling demands, through BPN local offices, which are located in
each Kota and Kabupaten of the country. However, the way of developing that certification process has
differences in each disctrict; for example, in Kupang and Belu, the BPN interviewed said that in case of
conflict with the land the main role in determining the right owner corresponds to Local Government
agencies (DPP in Kupang District). Once any disagreement is resolved then BPN proceeds to certify
the land. In Ambon, the BPN local agency takes part in the resolution of land ownership conflicts and
claims15.
Is important mentioned that it is recognized by BPN that there is some ‘discrepancy’ in the structures of
data collection, of appropriation/control (penguasaan), of ownership (pemilikan) and use (penggunaan),
and of the utilization (pemanfaatan) of the land. Usually it is measured properly to get the exact dimen-
sions of the land area but not automatically registered and certified because the owner has to prepare the
supporting document, pay fees and taxes (if it is a state land), in most cases the owner do not have the
document or have the money to pay fees and taxes16.
In short, the land certification process is expensive for low-income people; that are why several govern-
14. A case study of Simalungun District (in North Sumatera) studied by the Law Department of Simalungun University in North
Sumatra (http://fhusi.wordpress.com/ reviewed in 12/13/2013), the result of interviews on why people are not yet registered,
are shown in following table:
No Reasons # respondent
1 Too expensive 52
2 Too far to go to the land registration office 5
3 Unclear procedures, too cumbersome process 40
4 Too busy to do it 1
5 Other reasons 4
Total number of respondents 102
15. Tri Utomo, BPN Kupang; Goncalo Antonio, BPN Belu; J. Matulessy & Pak Toga, BPN Ambon.
16. http://www.bpn.go.id/Publikasi/Dokumen-Publik/Renstra reviewed 12/21/2013.
12
PART I : DIAGNOSIS
mental and non-governmental agencies implement policies to respond to this problem. In this regard,
CARE has also been working in Kupang under the same EU’s funding to help land registration to WB
on their land that has already had sufficient documentation to be registered. Also, CARE itself and Local
Government agencies draw upon national and provincial programs to develop titling processes; especially
PRONA and PRODA17.
A further difficulty concerning certification is that there is no unified record of personal identification,
which means a huge challenge for the control of the property and the transfers of land (and makes it pos-
sible to evade restrictions on the amount of property)18.
But another important highlight is that the office in the BPN who deals with land is an Echelon 1-a level;
whereas the national policy on land specific use is made Ministerial levels (such as Public Work, Forestry
etc.). In practice then BPN only gives supporting roles, and does not involve in the ministerial policy
making that affects those lands. In other words, BPN could not manage land in a coherent way at the state
level (such as on mining, agriculture, forestry, coastal and small islands, and other sectors).
It is noteworthy that in early 2006, BPN focused policy on the extreme disparity of land holding, land
ownership, land use and utilization. This policy was directed by Presidential Decree Number 10/2006,
relating to land administration at national, regional and sectorial levels. The long term development plan
in UU No.17/2007 mandated BPN to implement efficient and effective land management; enforce law
dealing with land rights through democratic, transparent and just principles; reconstruct regulations of
land reform for betterment of occupation, right, use and utilization of land; identify incentives and dis-
incentives in the tax system according to size of area, location, and land use; improve access to land by
the poor; improve the land law system through an inventory; enhance land regulation taking into con-
sideration Adat rules; improve resolution of land conflict through administration, justice, and alternative
dispute resolution; and develop human resources (Winoto, 2009:3-4). These changes reformulated land
policy based on four main principles:
‐‐ Improvement of the welfare of people;
‐‐ Distributive justice;
‐‐ Fostering of a just and peaceful sustainable system of Indonesian society; and
‐‐ Creation of social harmony (resolved land conflicts and disputes).
4.3. LAND AND PLANNING
Relating to the planning, there is a statutory spatial planning, stipulated in the Law of 26/2007. There
are levels of spatial planning for both urban (city administration) and rural (district administration) areas,
from the overall master plan (RTRW) down to the more detailed subdivision plan (RDTR). However,
the vast numbers of Local Governments (cities and districts) in Indonesia (508) after 5 years of the enact-
ment of the law there are still cities/districts that have not made the master plan, let alone the subdivision
plan. The planning area is the administration boundary. In 2013, spatial plans officially enacted by local
legislation are19:
• For Provinces: 18 (out of 33 Provinces, or 54.5%)
• For Districts or Kabupaten: 256 (out of 398 Districts, or 64.3%)
• For Cities 70 (out of 93 Cities, or 75.3%)
However, there is a problem because these plans are not automatically tied consistently to the overall na-
tional policies of urban and rural land, as mention in below.
17. PRONA (Proyek Operasi Nasional Agraria) at the national level and PRODA (Proyek Agraria Daerah) at the provincial level;
in both cases, these programs are managed by the Local Government, and the certification is given by the BPN.
18. Iwan Nurdin (Secretary General of. KPA).
19. http://www.penataanruang.net/# reviewed in 12/22/2013
13
4.4. THE SUPERPOSITION OF LAWS AND RULES AND STATE ACTIONS
Some rules and regulations have not yet fully revised to avoid overlaps, or even worse, in some cases they
have multiple interpreations or are in conflict to each other:
• Basic Agrarian Law vs. Law on Forestry, no clear boundaries between forest areas and non-forest
areas; no clear practical definition about ‘right on land’ and ‘right to use/manage’ land.
• Law on Forestry vs. Law on Mining. Forest concession right given to timber companies in many
cases are overlapping, or on the same exact location for the mining concession.
• Law on Spatial Planning vs. Government Regulation of Land Use. Spatial Planning is managed
through the Ministry of Public Work and work in a regulatory structure from national, province,
local spatial planning. Each are consistently tie one to another in a very structured format from
levels of government: Central. Province, City/District. Whereas BPN manages in a ‘quasi
centralized’ in its own internal organizational structure outside of the local government; i.e., local
BPN office in the city report directly to its province office and to the national office. The head of
local governments (Walikota or Bupati) cannot control the local BPN office in its jurisdiction.
The impact of this ‘dual structure’ makes it difficult to create the effective spatial planning to be
implemented in a particular location or specific lots at a city-/district-wide detailed sub-divisions
consistently with the land registration, land boundaries, and land rights/ownership status.
• Ambiguous or multiple interpreations on State Land vs. Adat Land and/or Ulayat (Tanah Negara
vs Tanah Adat/Ulayat), as well as on the naming of Cadastre vs. Land Registration (Kadaster vs
Pendaftaran Tanah).
The government has launched a series of measures at the national and local levels to focus on particular
needs, to resolve overlaps and to simplify the complexity of the legal instruments, as well as to confirm
the security of tenure, and strengthening the institutional arrangements for the governance of land. These
initiatives include:
• In 2010, a Presidential Task unified on Reducing Emissions from Deforestation and Forest
DegrAdation (REDD +). The Working Group is working on REDD + tasks related to the
development of a set of strategies and implementation plans. The REDD + Working Group has
16 working groups to address specific issues
• Efforts to transform property rights seriously question the existing structures that support
deforestation. This means that any reform must challenge the power of the local government
and MoFor on forest lands20.
• The House passed a Land Acquisition and Compensation Act in December 2011, which covers
the purchase of land for public projects such as railways, ports, roads and dams21.
• Approval Geospatial Law in 2011, adopted the National Spatial Data Infrastructure of Indonesia
(INDE), and ordered Badan Informasi Geospasial (BIG, National Mapping Agency) as the lead
agency. BIG Group and REDD + are also taking steps to combine community mapping with
satellite imagery and other geospatial information in a geographic information system that can
help OneMap recording and enforcing agreements reached through negotiation the community
(Clifford Bell & Srinivas, 2013).
20 In May 2011, the national government announced a moratorium of two years for the grant of new licenses for land use in
the primary natural forests and peat land areas.
21 This law is seen as an instrument to remove existing blockages to the implementation of infrastructure projects
14
PART I : DIAGNOSIS
5. CONFLICTS OVER LAND

Several of the interviewees believe that the conflicts are mainly linked to: political usage of problem by
actors pursuing their own interests (political or economic); disputes about the established uses of the land
its actual use (in this regard, seem to be the problems surrounding forest lands and the ensuing regulatory
and administrative conflicts); new investors with an eye on the particular land; the difficulty to establish
ownership in the cases of Adat or Ulayat land, which are handled by oral agreements of usage; the attempt
of an owner to get back lands that were transferred when they were unproductive and which, with the
improvements made by the occupant, have recovered their value. In all cases the reference is to situations
where tenure is not certified. In Belu, there are similar testimonies. Another recurring comment was that,
in many cases, the provision of land for resettlement has deficiencies as regards services, infrastructure and
equipment. In addition to that, in several cases the resettlements are located in areas of environmental risk
(requiring later mitigation works).
In this respect, a relevant testimony was given by the interviewees from the DPP (District Land Service,
Kupang), an agency that has been dealing with various conflicts over land in the district since 2011. They
pointed out that in most of the cases the disputes are intra-familial and related to the intended sale or use
of non-titled lands (Adat). This kind of conflict at domestic as well as at a larger scale is escalating as the
price of land goes up and more outside people are eyeing for land. However, the ‘land market’ does not
have a clear, formalized and identifiable way of functioning.22.
A CLASSIFICATION OF THE CONFLICTS OVER LAND

In general terms, the conflicts observed can be classified as follows : 23
People
In almost every interview, mention was made of existing problems that are mostly associated to the lack
of clarity in regarding the ownership of untitled land and, especially, to the limits of the plots, which in
many cases are imprecise (one of the NGOs interviewed in Poso is working on participatory mapping, in
an attempt to answer to the problem).
Different cultural groups or between established population and migrants (WB /
WL)
Especially in the case of Kupang, newcomers (WB) from more distant areas of Timor Leste are coming
from different clans or tribes who settled in one’s prevailing location in the adjacent established com-
munities (WL). This creates a potential conflict, more latent than overt, but nonetheless significant, that
impacts on the security of land tenure.
Different religious groups (in Ambon and Poso)
In many cases, the religious factor is combined with the above mentioned ones (imprecise lot boundar-
ies, newcomers to places with an already established population), so it emerges very strongly and results
in a territorial segregation based on religion. In this regard, although residential segregation persists in
Ambon, this problem seems to be even more serious in Poso, where the religious affiliation was constantly
mentioned as a decisive variable in different territorial conflicts in the region24.
22. Yustin Ceunfin, Jon Sula and Luis Neno, DPP Kabupaten Kupang.
23. Ibid.
24. In Poso, a recurrent point was that the religious issue is, in fact, a problem (maybe it wasn’t directly mentioned, but upon
each conflict that was given as an example, if we asked about it, it turned out that the parties involved had different religious
affiliations). Despite the fact that they have lived together peacefully for years, the situation there is much tenser than in
Ambon. And the State’s intervention is much more inadequate in the “provider” role, because in the repressive one there is
a notorious military and police presence which, according to the NGOs, creates another series of more “domestic” conflicts.
The point is that the religious background makes all the problems found elsewhere regarding the lack of clarity in tenure (also
associated to the costs of titling) and the imprecise lot boundaries, becomes a fertile breeding ground for serious conflicts.
(Discussion with NGOs, Poso).
15
Civilian population and the State in its different levels of government. National,
provincial, district (unclear documented titling, disputed tenures, forest areas)
The Government, both when it acts and when it doesn’t, always takes a stand. Therefore, there are con-
flicts associated with the lack of action by the government (leaving unresolved needs such as titling), and
also when it claims occupied lands more directly. For example, Francisco Ximenes, a representative of the
Naibonat Camp (Kabupaten Kupang), concerns that the camp where he has lived since 1999 is placed
on lands belonging to the Navy (that had also been in charge of building the houses) and although he did
not think that people are at risk of being evicted, the local Navy recently sent telegrams stating that they
should leave the houses.
Intra-bureaucratic
Inconsistent, uncoordinated, and conflicting policies among agencies at different levels of government
who are in charge of different matters: land, housing, forestry, extractive (mining), or those at the same
level of government who are in charge of different policies (for example, between the BPN and the Min-
istry of Forestry).
The differences between jurisdictions over the administration of resources and budgets were another con-
stant topic in the interviews. This was related, on the one hand, with the difficulty to arrange and execute
coordinated policies, and on the other hand, with the relative overlapping of functions. The case of forest
land, and the lack of a clear understanding about it, was particularly significant.
Local population and foreigners (only in tourist and extractive areas)
Mainly in Poso, but also in the rest of the interviews, the conflict over the mining vs. “palm oil” activities
emerged as a problem that can escalate and impact on the displacement of popular sectors from farming
lands.
16
PART II
RECOMMENDATIONS
IN LIGHT OF THE
LATIN AMERICAN
EXPERIENCES
PART II : RECOMMENDATIONS IN LIGHT OF THE LATIN AMERICAN EXPERIENCES
PART II
RECOMMENDATIONS IN LIGHT OF THE
LATIN AMERICAN EXPERIENCES
These recommendations are addressed primarily to the local governments, but they also deal with actions
that should be taken by the district, and even the central, governments. They have been prepared based on
Part I of this document and on the Latin American experience in implementing land policies to facilitate
the access to land by the poorest sectors of society.
We are confident that the experiences we briefly describe here can contribute to support the designing of
land policies by the governments, especially the local ones that are intended to be reinforced in Indonesia
following the policy of decentralization.
The Latin American local governments that have been able to implement innovative policies on urban
land, have done so through the autonomy --sometimes partial- that some of them have, depending on
each country, and in the case of federal countries, on each provincial/state government. Such innova-
tive policies have been developed mainly in Brazil and Colombia, the leading countries in the region
in matters of land policies, especially in the last three decades. But also in other countries, some local
governments have developed or adjusted policies implemented in other territorial contexts, to facilitate
the access of the lower-income population to urban land, as the first step towards a secure habitat --with
different tenure arrangements to ensure they will not be evicted- that is socially acceptable from the stand-
point of its physical conditions (according to the quality of housing, services and community facilities,
and with lower environmental risks).
The majority of the local governments that have implemented the policies we here describe are not heads
of the most important municipalities in terms of population and productive activities. In many cases, the
innovative projects have been carried out by inland local governments, some of them with a high percent-
age of population living in poverty, and in other cases, by municipalities that belong to the metropolitan
areas but have a marginal role in them, as some townships in the City of Buenos Aires, Argentina. Many
of these municipalities present similarities with the areas of Eastern Indonesia studied for this report: mar-
ginality, low density of population, poverty, and, in some countries, with people who have been displaced
as a result of the prevailing political situation (internal wars, guerrilla warfare, migration due to expulsion
from agricultural areas, etc.).
In the following pages we present some examples related to the reality of Indonesia and, finally, a table
showing the main tools of the policies carried out in Latin American countries that can be developed and
implemented in Indonesia, especially in the East.
1. IN RELATION OF SECURITY OF TENURE

Security of tenure can be obtained through various instruments, from intermediate documents to public
deeds, offering different kinds of security. When there are political changes, especially with more au-
thoritarian governments, intermediate tenures can be more vulnerable because they confer only a partial
security, being contingent on a rather long period of possession and on the success of the legal process
leading to the final tenure or deed. The definition of “security of tenure” varies in theory and in practice.
The definition of the rights attributable to the occupants has important variations according to the differ-
ent realities of the region, ranging from titles --such as absolute or temporary tenure-, to contracts --such
as social renting and other leasing arrangements-, and precarious administrative permissions --temporary
licenses and certificates of occupation- (Fernandes, 2002).
A generic typology illustrating a notional range of objectively defined tenure categories was pro-
vided by Payne (Payne & Durand-Lasserve, 2012 :18) which attempted to demonstrate how tenure
security increased incrementally as the degree of legality increases (see Figures 1 & 2).
19
Figure 1: A continuum of tenure types
Source: Payne & Durand-Lasserve, 2012, pp.19
Figure 2: Range of tenure categories found in many cities by degree of tenure security
NB: For simplicity, this illustration deletes customary and Islamic tenure categories
Source: Payne & Durand-Lasserve, 2012, pp.20
20
Only in some places, like Colombia, their legislation includes the possession and transfer of rights as valid
legal instruments, thus protecting the families who have this type of tenure from the risk of eviction.
Clearly, the public deeds --registered in the respective Public Property Registry- are the documents that
give absolute safety to their holders. “An institution like this one must operate on a rational, impersonal
and “disinterested” basis, and the land title can be publicly defended in lawsuits that stand on the prin-
ciple of universal access and compliance with the rule stating that the law transcends individual interests.
Possession of the legal title allows owners the freedom to use and dispose of the property, being only
subject to legal rules that regulate (rationally, impartially and in the public interest) its use and its sale”
(Varley, 2001, u/p). This security ceases to exist, in part, when titling is not made through public deed
(Canestraro, 2013).
The public deed is obtained through: i. Direct negotiations between the owner --public or private- and
each occupant that end up in a purchase/sale; ii. Expropriation of the private owner/s for reasons of public
interest and subsequent allocation of the property of the lots to their current occupants. iii. Judicial alloca-
tion of lots through the application of acquisitive prescription –usucapio- (see Annex I).
1.1 SOME EXAMPLES OF ALTERNATIVES TO FULL OWNERSHIP (OR RECORDED DEED)25
In some countries, like Brazil, the number of years for prescription has been reduced, as established in the
Constitution of 1988. It is granted to families occupying private land of no more than 250 m2, for a pe-
riod of 5 years, in a peaceful way, through the “Ação Especial Usucapião Urbana” (Special Urban Usucapio
Action). This policy was validated and regulated by the City Statute. In some municipalities, such as Porto
Alegre and Recife, it had been applied since the nineties but with limited results, because until 2001 there
were several stages to go through for the actions to be approved. That year, the collective proposal for ac-
quisitive prescription was accepted, so now a group of occupants of a certain settlement get together and
they don’t have to prove individually the five-year period of occupation but only the lifetime of the settle-
ment, with the possibility of being represented by the association of settlers as a surrogate of the group.
As regards intermediate tenure, there are various modalities but they generally having similar processes
(see Box 1).
In Colombia, for example, the steps are: a) Ownership and agreement between individuals, very com-
mon in the early stages of illegal settlements, though they often remain in this situation for 20 years or
more before getting deeds. Because the subdivisions of land are illegal, the only document that the buyer
receives as a support in these transactions is a promise of sale of rights, not in the Public Instruments
Registry; b) Statement of Possession, which starts unsupported by any document. The settler goes to the
Public Notary and proves that he has been living in a specific lot for 5 years or more. This, according to
Colombian laws on housing of social interest, for example, implies the right to tenure through the process
of Appurtenance. c) Community Land Trusts. In these cases, the owners enter into agreements with com-
munity groups that promote projects, who are those with the intermediate tenure. Low income families
are the intended future owners. The deeds, during this process, are passed from the owner to the trust
institutions and then to the families.
BOX 1 : THE THE SUPPLEMENTARY TITLE

The supplementary title is intended to prove the which he must prove his possession. The prop-
possession and the guarantee of property rights erty holder is the one who requests the supple-
of the person who currently owns the real-estate mentary title, which replaces the original, legiti-
property. If the owner doesn’t have a valid title to mate title. This possessory entry receives equal
register, he can request a supplementary one, for registration treatment as the ownership, and the
25. Regarding alternative ways of certification for the Adat lands, in the interview with KPA they stated that their purpose is for
these lands to be acknowledged under the right of use (Hak Pengelolaan), which would fit within the BAL. So far, this method
is applied to GL, in the title under the name of the leader (Bupati). The same could apply to the Adat lands, titling them under
the name of the “chief of the clan”, to avoid the individual private titling that creates divisions and difficulties liable to become
more evident in the future generations. A more complex proposal is the one about forest land in Adat, because it requires
defining if it falls under the BAL or under the Forest Act; but there is a Supreme Court’s ruling that validates this modality
(interview with Iwan Nurdin, KPA General Secretary).
21
person who obtains it has all the rights that cor- with better right. If the person who registers is
respond, before the Registry, to the real owner the real owner, titling will stand firm against the
with a registered title. However, this equality actions of third parties. But if the applicant is
of effects does not hold in case the true owners not the owner, he and his heirs are exposed to
claim or bring suit against the applicant or his lawsuits by the true owners. Only prescription
heirs, who cannot have recourse to the public will safeguard them against such suits, and they
faith registration because the supplementary cannot claim their status of third parties pro-
title is extended notwithstanding a third party tected by the Registry.
In Bolivia applies the “anticrético” (“against a loan”) tenure system. An unusual tenure arrangement has
been implemented in Bolivia in response to the high rates of domestic inflation and of the formally weak
financial institutions of the private sector. Through this system, the owner of a house receives money (dol-
lars) in advance in exchange for allowing low-income families to occupy the property for an agreed period
of time, usually two years. What makes the “anticrético” system different from conventional leases is that
at the end of the term of the contract (or any agreed extension), the occupants return the property to its
owner and the owner returns the total amount initially received from the occupant. For the owner, this
is an effective way to increase his capital without incurring in high interest rates, and for the occupants it
means an effective way of living at a low cost. The occupant is required to return the property in the same
conditions it was received, and may even be able to buy the property if the owner agrees.
In Trinidad and Tobago applies the Certificate of Comfort (CoC). In 1998, the Tenure Regularization
Act established a Certificate of “comfort” that can be used to provide security of tenure to occupants as
the first step in a process designed to give them full legal title. The COC is a legal way to regularize squat-
ters in public lands that are not needed for public purposes. The problem is that once the COC has been
given, there is no incentive for the beneficiary to take the subsequent measures that would lead to a secure
tenure (see Box 2).
BOX 2 : THE CASE OF TRINIDAD - TOBAGO
In Trinidad and Tobago, the initiatives of land to regularize 2,500 settled plots. These plots
reform include titling programs. In 1986, the were in 12 sites taken from the regularization
Sou Sou Land Company Limited, formed by program of the previous Government, and be-
a group of opponents to the Government, had came the responsibility of the Project Execution
bought 1,200 acres of land on 13 sites for about Union –PEU-. In these places, the infrastruc-
10,000 people. In the first three years, the com- ture was improved. The government that took
pany had distributed about 1,500 houses with office in 1991 continued to apply the regular-
services and plots for farming. By purchasing ization based on the community rather than
relatively cheap rural land and making a very the individual approach prescribed by the law
basic subdivision, the company replicated the of 1986, and in 1992 it created the Committee
practices of informal settlements in Latin Amer- on Regularization of Tenure of Public Lands. In
ica. But it’s obvious violation of official regu- 1998 a new law was passed, the Act of Public
lations and standards for the regularization of Lands, concerning the regularization of shanty
settlements meant that a decade later none of towns and the development of lands for the
those 13 sites had been granted approval. Infra- poor. This law also gave rise to the Land Settle-
structure services provided by public companies ment Agency. Informal settlers in Trinidad and
were also very slowly implemented. Tobago welcomed the Certificate of Comfort,
an intermediate holding instrument, and in a
In 1986, a general elections year, the State en- period of one year, about 80 % of the people
acted the regularization of settlements in pub- eligible to obtain this certificate applied for it.
lic lands. To finance housing programs, the (Rajack & Barhate , 2004; Payne & Durand
new government successfully negotiated a loan Lasserve, 2012).
with the IDB, a part of which would be used
22
The usucapio is applied in various countries as treintanial prescription. In some of this countries, like Bra-
zil, the number of years of prescription has been reduced, as established in the Constitution of 1988 (land
is granted to families occupying private lots not exceeding 250 m2 for a period of 5 years, in a peaceful
way, through the Special Urban Usucaption Action). In Guatemala, possession26 grants the person who
has it the presumption of ownership, until proven otherwise. For possession to result in domain, it has to
be grounded in a fair title, acquired in good faith, in a continuous, peaceful and public way, and for the
time established by the law. The recorded possession of a property, once completed the period of ten years
since the date of registration of the title in the Land Registry, becomes a domain registry and may oppose
any other registration of ownership of that property27.
In Brazil, the Concession of Real Right of Use --CDRU- is implemented exclusively for occupations in
fiscal properties; the concession is usually granted for 99 years, although in some of the programs ana-
lyzed, it is accorded for a shorter period that is renewable, which gives security to the holders and the state
does not sell its land assets28. The CDRU has been applied since the nineties in several municipalities of
Recife29, Porto Alegre, Sao Paulo, Diadema, Natal, Campinas, among others, and has been institutional-
ized at the national level by the aforesaid Statute of the City
1.2 THE COSTS OF LEGALIZATION AND RESOURCES OF THE STATE
In Latin America, there is a noticeable lack of resources to carry out regularization plans because the as-
sumptions made are not appropriate –as in the case of Colombia, where they couldn’t sell a State asset to
be transferred to a regularization program (Vejarano, 2004) or because the existing funds are misused –as
in the case of Guatemala with the Social Window Program (Drummnond, 2004), or because the political
and institutional problems determine that the budgets cannot be properly used, at least in the expected
time –as in the case of “Programa de Mejoramiento Barrial” --PROMEBA- (Neighborhood Improvement
Program) in Argentina-. In other cases, as in Porto Alegre, where resources are allocated in the partici-
pative budget, the population (possible beneficiary of the regularization program) must fight for them
against other priorities of the rest of the population in the city, which has meant that annual resources
have fluctuated, determining whether more or fewer solutions could be attained (IBAM 2002).
Many local programs have budget constraints, especially because of the government changes that gener-
ally take place at the national level with each election and the priorities established by the new authorities
for the allocation of resources. The budget estimates are not compatible with the proposed objectives and
there are often no specific resources for the programs.
THE COSTS OF LEGALIZATION FOR THE POPULATION
In relation with the costs of titling, it appears that in Indonesia titling costs are high, according to the
fieldwork carried out. But the experiences in other countries, for example the free deeds in some provinces
in Argentina, are an important precedent to consider in relation with the costs of total titling (or deed
registration), because it allowed a number of people who could not pay the costs of the deed, but had their
papers in order, to become full owners, thus giving them full security of tenure and sparing them from
depending on political changes, in contrast with other cases of “not complete” or “sale tickets” that may
be subject to eviction in case of a political change.
At this point, we must disaggregate the costs corresponding to measurements of the land; the local costs
(if any) required to obtain a primary registration, and the costs of registering in public record. Micro-
loans might be granted, for example, to pay for the costs of measuring that the government is not willing
or able to afford from the economically-financial viewpoint, as they did in Argentina through the imple-
mentation of the “Programa Arraigo” (Rooting Program) since the 90s of last century.
26. Civil Code, Articles 617 620 633 and 637.
27. The Register aims at the registration, annotation and cancellation of acts and contracts relating to ownership and other
real rights over real estate property, under Article 1124 of the Civil Code. Despite its importance within the framework of the
laws and institutions governing the acquisition and transfer of land ownership in Guatemala, the processes for recording and
reporting on properties are slow (Drummond, 2004).
28. It can generate a demand for new land because of the density of some “favelas” and therefore there is a need to relocate
part of the population (depending on the criteria used to determine the minimum lot size)
29. Through the “Plano Diretor de Desenvolvimento”, Law N º 15.547/9.
23
We must also consider the costs in the three registration options: individual, cooperative and collective. In
Latin America, there are few countries that choose a type of ownership that is not individual, due to their
history (associated with the Roman law of property). However, there are good examples in Uruguay and,
in part, in Brazil, where cooperatives have proven to be an interesting alternative to individual ownership.
In most of the programs for the regularization of ownership, the beneficiaries do not pay for the land,
but only for the costs of measuring and registering it. Some people pay for the land, but just a symbolic
price. Only in a few cases the payment is set according to the market price of the regularized land and the
income of the beneficiaries.
The programs for urban regularization are also mostly subsidized and the beneficiaries only pay, after-
wards, taxes and service charges, but in many cases they (informal occupants) were already paying proper-
ty taxes and fees. Programs such as the mass legalization in Peru are free, but the beneficiaries have to pay
services and taxes (a sum of US$ 4 million compared to the US$ 66 million total cost of the program).
Only in one of the programs –Habitar Brasil- the people can effect payment by working.
Here are some examples. In the “Programa Arraigo” (Attachment Program), in Argentina, lots were sold
at an average of 2 US$/m2, and 75 % of the population made installment payments to buy the land (until
2000), but there were also some cooperatives that failed because they couldn’t pay, so they won’t be able
to register. The program was practically at a standstill between 2000 and 2004. Then, some situations that
had been unsolved for many years started to be regularized, but there is no updated information about
their performance30. In recent years, the program was turned into a Land Commission for Social Habitat
were undertaken several actions to regularizing the ownership situation, but no date Statistics.
In Nicaragua, the State cannot give away their land for free (and most legalization is done on public land),
so the beneficiary must pay for the land, but at subsidized prices: the cadastral value of the square meter
must not be over US$ 1.0 and will not be affected by devaluations or interests. But when the family group
is in a situation of extreme poverty, they are exempted from paying for their lot. Also, legalized settlers in
private lands cannot be evicted if they go to the appropriate agency to explain the socio-economic causes
of the delay in paying. The City Council grants the property title, free of charge, to the family unit, and
the Nicaraguan Institute of Territorial Studies also gives cadastral certificates for free (Morales, 2004).
Is important to highlight that the poorer families are unaware of the importance of registration31, since
they do not have adequate information; therefore, they need further information and social resources to
be able to choose whether to register or not. The lack of urban culture, in the sense of absence of mecha-
nisms to coexist (and deal) with unknown persons makes people afraid of entering into transactions.
PUBLIC REGISTRATION AND LOANS
One of the fundamental assumptions for legalization is that people can access to credit by the private
financial system. It considers that outside regularized families, the main beneficiary of the land regulariza-
tion process is the financial system. But the idea that the existence of proprietary security is sufficient for
the development of credit facilities is invalid because banks require borrowers have a certain income (fam-
ily or individual, as each agency) and not just having ownership of the land. In turn, for formal financial
institutions are also costly lending small amounts.
In Peru, there is a generally cautious attitude to borrowing. This is explained by the lack of a steady job
and good income. So obtaining a loan in the population generates the fear of losing any property (DES-
CO, 2001). In Brazil, the assumption that de Soto (de Soto, 2003) property title would be the driver
of economic activities supported by credits earned from the property of the property as collateral, not
sustained, given the behavior of the population benefiting from regularization programs (IBAM, 2002).
30. The forms of financing may consider a segmented demand, according to their actual willingness to pay, to the disregard of
it, which can lead to the alleged beneficiary population for legalization cannot pay, which, by country and political situation,
you can reach eviction and kick the field (if it is mortgaged as security for the same debt). Many countries are implementing
trusts for these cases of regularization, although we have not registered in the universe of projects studied
31. Although there is a campaign for a Cadastre Culture that the COFOPRI is doing in collaboration with the National
Superintendency of Public Registries and is carried out through road shows. Seven are planned to start with (in 2004) and it
is expected that 14,000 people will participate (Rouillon, 2004).
24
In Mexico, many people who own land do not want a bank loan. It has been proven that before owning
the property they already had credits (possibly at a higher interest rate, but that does not matter much to
them) through private agents or family members, friends, etc. There is a kind of informal loan “market”
that the population has access to.
Requesting a loan from a bank or a government agency means losing the flexibility that is one of the
reasons why people build their houses illegally. A term used by the urban poor in this context is clarify-
ing: they say to get hooked meaning “to borrow money”, but the reference to drug addiction is a revealing
metaphor that is in sharp contrast with the classic association of “public matters” --in this case, legality-
with independence and freedom (Varley, 2001)
A research in Argentina confirms that obtaining the property title does not result in a larger number of
people receiving loans. In 1,800 families legalized between 1989 and 1998, there were no differences
found, as regards access to formal credit, between them and another group of families not yet regularized.
The regularized families continue to obtain informal credit through relatives, colleagues, neighbors and
friends (Galiani and Schargrodsky, 2004).
2. IN RELATION TO THE INSTITUTIONAL ORGANIZATION
2.1. IN RELATION TO THE NATIONAL AND THE LOCAL LEVEL
Following the diagnosis made through fieldwork and bibliography, we define the institutional reorganiza-
tion as a crucial factor, which must include the articulation among agencies at different levels of govern-
ment (from local to national) and of agencies within the same level of government that work on similar
topics having to do with the access to land (including forest companies, for example, and the BPN). Field
work shows that not all institutions work articulately, either horizontally or vertically32.
Our main recommendation in this regard is;
• To give greater autonomy at the level of local government on matters of land, leaving to the BPN
the broader strategies related to rural and urban land.
• To implement progressive taxation to reduce accumulation of land ownership as well as increase
state revenue.
• Need a good system of land administration, modern, integrated across the country.
Latin American experiences show the important role played by local authorities in the access to land by
the sectors that are most in need (in general, those with lower income, migrants, displaced). In some
municipalities, they have formed a land bank through negotiations with large landowners, debtors of real
estate rates and/or taxes. This is the case in the town of Moreno, in Argentina (see Box 3), for example,
where part of the land bank lots was sold at very low prices to lower-income sectors (Saavedra, 2005).
In other cases, the application of a progressive property tax, as in Brazil (where the city of Belo Horizonte
has led this policy since the eighties of the last century; Fernandes, 2003), allowed to liberate land for the
32. A particularly sensitive case is the definition of forest land. In the interview we conducted at the national BPN, the official
told us that, of the 20 million hectares estimated as being registered, about a half might be included in the updated cadastre.
The total amount of land in the country is about 190 million hectares, of which 145 million hectares are forest lands and, a
smaller portion, mining and coastal lands; the remaining 45 million hectares are under the purview of the BPN (those remaining
25 million hectares would be under Adat or similar, which seems a relatively small amount). Forest lands are completely outside
the jurisdiction of the BPN, so it does not intervene in cases of de facto uses of those lands; there are conflicts, especially due
to the lack of definition of the border zone between one area and another. As an example, the interviewee told us that in
the office of the BPN in Borneo, where he worked, a group of investors presented a request for location (which requires the
agreement of several parties at the local and provincial level). The permission was granted, so the land was measured and
the corresponding title was issued. But the Ministry of Forestry (MF) claimed those lands, considering they were under its
jurisdiction, so the provisions of the BPN (titling) and the local government (location permit) were overturned. This evidences
the tensions among public agencies, as well as the need to produce a clear, definitive and available mapping of the land, its
uses and the jurisdictions (there is no availability to MF’s maps and the limits of the areas under its jurisdiction, as stated in
the BPN). Additionally, at the local and provincial levels, there are also agencies that regulate forest uses (which were those
consulted in the case of Borneo, and which backed the authorization). (Interview with Pak Heru , BPN -- National, Jakarta).
25
market, thus increasing the offer of land with infrastructure and enabling a higher portion of the popula-
tion to have access to that market. This kind of policy must be combined with a policy of “soft” credit for
the purchase of land, materials, etc. (Clichevsky, 2006 a).
Also, the local governments, if they are holders of lands (and this is something that in Indonesia is not yet
correctly known; below are some recommendations in this regard) can carry out social policies with them,
using them for facilities (health, education, recreation) or selling them at prices and financial conditions
that are affordable for the low-income sectors, or apply other instruments, such as the granting of real
right of usage, which is used in Brazil. (Clichevsky, 2006 b).
BOX 3. PROJECT: IMPROVEMENT OF THE MANAGEMENT CAPACITY OF THE MUNICIPALITY OF MORENO

IN RELATION TO URBAN LAND. POLICIES ON DEBTORS OF VACANT (AND ABANDONED) URBAN LAND.
In 1997, the Municipality of Moreno, in Ar- while starting legal actions to obtain the owner-
gentina, implemented the project called “Im- ship of those lots. Upon receiving a favorable
provement of the Management Capacity of the court ruling, 5% of the land goes to public uses.
Municipality of Moreno in Relation to Urban The rest, that is 2,280 lots, are sold : i ) to in-
Land”, with the purpose of providing the local dividual buyers, over a period of 4 years, to be
administration with a series of resources and paid in 8 years, or ii) to private investors, with a
skills that would enable undertaking a compre- payment term of 4 years.
hensive land policy in the local territory, to fa-
cilitate the access to land for the poorest sectors By the end of the project, 1,696 lots had been
and to improve the municipal revenue. transferred by their owners through extra-judi-
cial agreements, as a compensation for the debts
The specific objectives of the project were: i. To they had with the Municipality. 580 other lots
implement procedures for mass regularization were sold at auction as ruled by the court. The
of ownerships and the transparent functioning owners of 869 lots cancelled their debts through
of the market of land lots for low-income peo- judicial or extrajudicial agreements.
ple, ii. To organize forms of public intervention
to expand the supply of urbanized land; iii. To Almost two years after the project concluded, in
update cadastral information. October 2001, the Direction of Lands in More-
no reported that, concerning the lands incorpo-
The actions listed in the project included the rated to the municipal patrimony through the
judicial enforcement of debts corresponding to actions promoted by the project, so far 532 lots
no less than 4,000 vacant lots with no tax pay- were destined to housing for poor families, that
ments recorded, in order to create the necessary is, 17% of the 3,145 lots recovered through the
conditions to finance a five year intervention project. The allocation did not mean the defini-
program, and with the goal of reaching 14,400 tive legal processing of the transfers, a procedure
vacant lots in similar conditions. Not counting that requires more time and must also be en-
a 5% of real-estate properties destined to public dorsed by the City Council, but was granted by
use, there would be a supply of 13,680 lots that means of certifications of the possession of the
the municipality would put on sale, over a pe- property, taking into account the urgent hous-
riod of 10 years, with a payment term of 8 years. ing needs of the families who received them and
according to the Ordinance on Allocation of
The Municipality would also try to have tenure Lots and Housing of Social Interest (Saavedra,
of at least 2,400 abandoned lots, considered to 2005).
be of strategic value for their urban programs,
It is important that the local administrations have a specific agency in charge of the issue of land (whether
a Land Office, Sub-office or Direction), that must coordinate their actions with the organizations in
charge of urban and rural planning, and with the agency in charge of environmental issues at the same
local level. Obviously, such local agency dealing with land must also be in line with the policies set forth
by the provincial and national agencies (the BPN and the Ministry of Forest issues, among others)33.
33. Regarding this point and the following one, there are land offices at the LG level, as mentioned in the Diagnosis section,
but they have relatively limited powers. In the case of Kupang, for example, the DPP Dinas Pelayanan Pertanahan, has an
important role in the conflicts around land tenure, but it is subsidiary to the action of the BPN, which is ultimately in charge of
26
2.2. ON THE RESPONSIBILITIES OF LOCAL / DISTRICT GOVERNMENTS
In Indonesia, generally, the local governments are reluctance of to get additional budget for land
procurement. Based on our observation and interview in Kupang and Jakarta34 regarding the ongoing
program from Central Government through the Presidential Directive in 2011 to close out the
remaining problems of ex‐refugees for good; however there have been different policies and approaches
on the way to implement the programs by different ministerial offices.35
While administrative decentralization has been established since 1999, the Desa have not taken a major
responsibility in fostering the access to land by the population. Their main role has been organizing the
documentation that the families submit to send to the BPN for its titling. Nor do they have initiatives
on the issue of property tax (they only charge fees for the services they offer directly, such as garbage col-
lection).
The international experience ‐‐especially that of Latin America‐‐ provides relevant examples
of how municipalities can be excellent land managers, when they have that mission and that role
in their charters.
In Brazil, for example, many municipalities, including Belo Horizonte, Recife, Diadema (see Box 4) and
Porto Alegre, have implemented innovative land management policies, sometimes articulated
to the financial policy of the municipality, as in the case of the Participatory Budget in Porto Alegre.
There, priority areas of intervention were determined in the municipal territory, which were accompa-
nied by tax measures to enable their implementation. In those municipalities, and in all of the Brazilian
townships after the approval of the City Statute in 2001, it is possible to define areas of social interest
with permission to build social housing in them; negotiations are made with the owners of the land to
determine what part of it they will keep and what part will the municipality get to exercise its prerogative
of either selling land or building affordable houses.
BOX 4. BACKGROUND OF SECURE LAND TENURE AND REGULARIZATION IN BRAZIL. THE CASE OF DI-
ADEMA
In Brazil, the “Concessão de Direito Real do among others, and has been institutionalized at
Uso --CDRU-” (Concession of In Rem Right of the national level by the already mentioned City
Use) is implemented exclusively for occupations Statute.
in fiscal properties; the concession is usually
granted for 99 years –although in several In Diadema, the Municipality has introduced a
programs it is for a shorter, renewable, period- concept about the social function of property,
which gives security to the holders, and the State also questioning the inviolability of property
does not sell its assets in land ( Pinho , 2002). rights. In 1982, a grassroots organization
The CDRU has been applied since the nineties supported by the Catholic Church --the City
in several municipalities such as Recife, Porto Commission of “Favelados” of Diadema-
Alegre, Sao Paulo, Diadema, Natal, Campinas, promoted important transformations in the
the certifications. These local areas do not seem to perform tasks such as those described in these recommendations that are
promoted in Latin America by local and / or provincial governments.
38 The Minister of Public Housing in a meeing with the Bupati Kupang (August 13, 2013) stated that he would not want to
deal with land procurement. In the same day, in a different occasion the Coordinating Minister of Social Welfare stated to the
Bupati Kupang that the government has allocated additional
budget for land procurement, acknowledging that without land acquition then the housing construction cannot be made.
Land procurement is considered as a sensitive policy subject to a close scrutiny by the supervisory agencies
35. Bupati of Kupang explains that land aquisiton in Kupang District can initially be made through the informal local custom
known as Okumama in a sirih-pinang ceremony to get an agreement between those who need the land and local landholders
before it gets the official recognition and certification for the
transfer of land rights. The ceremony will provide a kind of endorsement and recognition by local indigenous chiefs and land
holders that new inhabitants will live on those land, and a pledge will be made by the local land holders that they will keep
their promise and never take back the land (symbolically
shown by the sirih-pinang or the betel nut exchange they chew and spit over the ground; and people never take back what
they have spat off).
27
city. Public intervention in the areas of housing of clandestine and irregular settlements, and
and urban regulations assumed positions which acted on processes of settlements in areas of
progressively confronted the situations of protected fountainheads. The use of CDRU
extreme precariousness of the illegal settlements meant a great achievement for the legitimization
and the consolidated power of urban owners. of illegally settled areas and their integration
to the city. However, its use presented some
Thus, the “favelas” were integrated into the limitations: 1. The high density of the “favelas”
urban structure through works of sanitation led to a big demand for land destined to social
and basic infrastructure. At the same time, housing, because their re-urbanization often
the process of land legalization was started, as required a decrease in density. 2. The case of the
there were simultaneous interventions in the “favelas” located on private land, which could
legal field by means of the CDRU, which in not be re-urbanized through the CDRU. It was
1985 was consolidated as a municipal law that necessary, where possible, to identify the owners
changed the category of municipal public areas and negotiate with them to avoid evictions. 3.
from “public properties of common use by the Despite being regularized and urbanized, many
people” to “available patrimonial properties of settlements remained stigmatized and could
the municipality”. not fit in with their settings. 4. In many cases,
Moreover, in 1989 the “Serviço de Regularização the construction of infrastructure increased
Fundiaria del Municipio –SRF-“ (Service of the value of the land, and in time the resident
Municipal Land Regularization) was created, population was expelled to more precarious
which started by dealing with the regularization areas. (Clichevsky, 2006 a).
Brazil has also sanctioned the surface right: a division of the right to build and the right of ownership of
the land, which means a limitation of the property rights. It was integrated into the “Estatuto da Cidade”
(City Statute), founded on the social function of property, and it is defined as the right on the sur-
face, the airspace or the subsurface of the land. According to the City Statute, the ownership of a
piece of land does not mean unlimited power over it; the existence of urban regulations (construction
codes, laws on divisions into lots, laws of use and occupation of land, environmental standards)
represent constraints that prevent the owner to occupy the ground in any way he wants (see Box 5).
BOX 5. A NATIONAL POLICY: ESTATUTO DA CIDADE-EC-, BRAZIL (CITY STATUTE).
At the federal level, for over a decade, a pro- a space for other instruments that, due to the
cess of preparation and negotiations was carried lack of federal regulation, could not be imple-
out around a complementary bill to the Chap- mented. It is important to point out that the
ter on urban policy of the Constitution. It was Statute, as it mentioned by the Ministry of Cit-
known as the “Estatuto da Cidade” --EC- (City ies, functions as a “toolbox” for the local urban
Statute), was passed in July, 2001 and has been policy.
in force since the 10th. of October of the same
year. The Federal Law of urban development re- The City Statute reaffirms the constitutional
quired by the Constitution regulates the urban guideline about the Master Plan, establishing it
policy instruments to be applied by the federal as the basic instrument for the policy of urban
authorities, the states and especially the munici- development and expansion. It is mandatory for
palities. Since that date, the chapter on urban municipalities with over 20,000 inhabitants
policy of the 1988 Constitution, together with What can be done on or under the land may be
the mentioned Statute, provide the guidelines separated from the land itself and thus passed
for urban policy in Brazil, at the federal, state on to another user, without this meaning the
and municipal levels. sale, concession or transfer of the property. Ac-
The text finally approved and enacted incorpo- cording to the Statute, the owner can grant the
rates the local experiences, reinforcing practices surface right of his land for a definite or indefi-
and instruments already in use and also opening nite period of time, for free or for a price.
28
THE REAL ESTATE CONSORTIUM
Another instrument available to the municipality (in this case, urban) is the real estate consortium, which
is a way of joint urbanizing between the government and private sectors with the purpose of promoting
urban investments in areas not provided with infrastructure and for which there is demand for their occu-
pation. The goals are to avoid speculation on real estate and to enable the occupation of large unoccupied
areas within the urban structure that do not have full infrastructure, thus fostering urban development
alternatives for landowners who do not have the capital required to divide their land in lots or to build.
This may facilitate policies directed to the occupation of vacant urban lands and increase the offer of large
urbanized areas, thus enabling projects of social interest.
The private owner participates with a large, not urbanized area, and the public sector invests in infrastruc-
ture, returning to the owner an urbanized plot from the original area with a value equivalent to the initial
value of the total un-urbanized area. The remaining already urbanized area is kept by the State to imple-
ment housing or public facilities programs. This action may be voluntary or result from a compulsory
urbanization procedure.
Associated management is explicitly stated in the Law of Territorial Planning of Colombia. For example,
the landowners involved must share encumbrances and necessary infrastructure works, and the building
capacity assigned by the Plan is proportionally distributed among them. In other countries, the consor-
tium is contemplated at a local level, in urban plans, as in Montevideo, and in the Environmental Urban
Plan, still pending implementation, in the city of Buenos Aires (Clichevsky, 2006 b).
The application of this instrument requires the existence of a system of modern cadastre, coupled with
specific legislation for the establishment of each public/private partnership that includes the definition of
the investments to be made, the deadlines of the works, the section of land to be returned to the owner
and an anticipation of the future use of the rest of the public area.
3. IN RELATION TO THE ORGANIZATION OF THE INDONESIAN TERRITORY AND DEVELOPMENT

PLANS FOR THE SHORT, MEDIUM AND LONG TERM
At present, for the RPJM (National Mid-term Plan --5 years-), the authorities are working on five main
lines of proposals:
• Positive information on land data. This is already underway as regards the “single map”,
where they have a very active participation and work especially on the BPN. In this respect,
a particularly important issue is the definition of clear forest boundaries, with the prospect of
working out a “forest certification”, since up to now that information is handled exclusively by
the MF. Since 2011, there is a presidential mandate to draw up this unified map, encompassing
all the territorial information.
• Reform of land allocation. Faced with a provision that does not consider subsistence needs
associated with the land, the aim is to implant productive capacities, especially in low-income
populations. This includes from loans to programs of training and assistance. .
• Creation of a land bank. There is a law on abandoned lands that could be used; they are also
considering the purchase of land.
• Establishment of a special Land Court. At present, when facing conflicts related to the domain
and use of the land, there are three different jurisdictions to resort to (civil, criminal and public
administration –or something similar-). The premise is the need to unify these areas.
• Increase the capacities of the BPN.
Obviously, all these initiatives should be developed jointly. Local planning regarding the subdivision, use
and occupation of the territory should be articulated with the proposed development plans at the district,
provincial and national levels. Some of the instruments mentioned in these recommendations are directly
related with the guidelines proposed for the five-year term planning. Is necessary that all the plans are suf-
29
ficient flexibility of the rules in relation to the processes of growth/decrease in population, included the
needs of the population (of native, migrant, displaced, etc.). The case of Colombia, in Latin America, is a
good example of this (see Box 6).
BOX 6. COLOMBIA: COORDINATION OF TERRITORIAL PLANNING,URBAN AND LAND-TITLE REGULARIZATION.
This is an example of a program that enhances During the execution of the program, there
the social component and the coordination was a significant advance in the process of
of the participants, as well as the relationship neighborhood legalization and the program of
between land-title and urban regularizations. land titling was structured as a program of the
The Development Plan called “For the Bogotá City. Regarding the first point, during a period
we Want” (1998-2001) establishes as a top of three years, 365 “neighborhoods” of illegal
priority the Program for “De-marginalisation origin were legalized (the average for previous
of Neighborhoods”. This program responds to years was of eight illegal settlements per year).
the qualitative environmental deficit through Between 2001 and 2003 –in continuation
interventions in social infrastructure. The of the De-marginalisation Program, the
Program sought to raise the quality of life District Administration structured the
of the people who lived in neighborhoods Comprehensive Program for the Improvement
with deficiencies in infrastructure and social of Neighborhoods, as part of the District’s
services by acting on those issues that could Housing Policy, aimed at providing land that
help overcome such deficits and empower the can be urbanized to build social housing,
community to build their own destiny. controlling the informal urban expansion
and achieving the overall improvement of the
The Program set out a scheme of management neighborhoods. The program includes actions
and coordination that involved the direct based on the urban regulation, starting from the
participation of twelve entities from the spatial-physical division, made for the purpose
District (central administration order) and the of ordering by the Plan de Ordenamiento
local administrative authorities (mayors), as Territorial –POT-(Land Use Plan), of units of
well as communities and Non-Governmental zonal planning that divide the localities to the
Organizations, but in the specific actions, both effect of their planning.
social and infrastructural, all the institutions at
the central level of government also participated. Based on the Management Plan, a line of
The Program’s investment in the 12 peripheral intervention is determined by “Unidades de
locations amounted to about U.S. $ 500 Planeamiento Zonal” –UPZ- (Units of Zonal
million, for works of infrastructure, mainly in Planning), which have priority for Overall
the construction of water and sewage networks, Improvement (26 in total for the 12 locations
local pavements, risk mitigation, tree planting, with incomplete development) over a period of
construction and improvement of neighborhood about 10 years.
parks, schools, hospitals and social gardens. The
Program promoted social actions mainly aimed Similarly, in 1997, after a long process of legal
at strengthening community organizations actions, technical developments, discussion
and stimulating the process of community processes and citizen participation, the Law of
participation and social control. Progress in Territorial Development was passed (Act No.
this field comprised the leadership and political 338). It was conceived as part of a process of
will of the District Administration and the re-structuring the national institutions in order
promotion of inter-institutional coordination to coordinate and update the provisions of
processes that facilitated joint decision-making Act 9 of 1989, and the rules set forth in the
by the different agencies of the Capital District. Political Constitution and in the other related
regulations. It also picks up a number of tools
30
for managing urban land. Essentially, the three The existing legislation is extensive and in
main principles of the law are: many ways novel, but implementing it is very
complicated due to a lack of effective policies.
• The social function of property The law is overly detailed and full of procedures,
• The prevalence of general interest over private with several problems of legal technique in its
interest; wording, which makes it difficult to understand
and increases the cost of the procedures, thus
• Equitable distribution of obligations and creating conflicts based solely on formal
benefits. considerations (Maldonado, 2Costa &
Hernández, 2010).
4. IN RELATION TO THE PARTICIPATION AND TRAINING OF THE POPULATION IN THE SUBJECT

OF ACCESS TO LAND AND HOUSING
In relation to the participation and training of the population, it´s important:
• Try to include refugees in the programs regarding land tenure and house building, as peers with
the “local” population.
• Involve the population in determining the surface of land available (areas of the lots) according
to the families’ needs and to the existence of land -- this can be done starting from the discussion
about the area needed in workshops, to the actual demarcation of the land in question, which
means a more active participation -- very positive in other countries where this methodology has
been applied, for example in the case of Cali, Colombia, since the nineties of last century, and in
Tegucigalpa, Honduras, at the beginning of this century.
Since there have been good experiences with the process of Gotong Royong --”self-building”- (at least in
Kupang36) in terms of a better quality of the houses as compared to those built by the state: develop
specific methodologies for this Gotong Royong so it doesn’t become too heavy a burden for the people that
build the houses by themselves, and so that it doesn’t mean their over-exploitation (that in addition to
their regular work they have to spend a long time in self-building).
• Develop specific methodologies for this Gotong Royong so it doesn’t become too heavy a
burden for the people that build the houses by themselves, and so that it doesn’t mean their
over‐exploitation (that in addition to their regular work they have to spend a long time in
self‐building).
• Incorporate women to these processes, in the building stages: they can perform tasks
appropriate to their gender (limiting too heavy work) and age.
• Training through workshops for the formation of “self‐builders” of houses.
• Training through workshops for the manufacture of domestic furniture of houses, using materials
and designs that meet the families’ needs and possibilities allowed by the area of the house.
• Evaluate alternative housing policies for the social sectors most in need of them, in technological
and economic‐financial terms.
The Box 7 demonstrates a case in Argentina.
36.According to the testimony of Tio Keban, Director of the Pokja -- PKP Nusa Tenggara “for the construction of housing, based
on the provision of land by the local government, two procedures were employed: one third through building contractors,
that is, more traditional and with the usual problems (low constructive quality) and the other two thirds through Gotong
Royong. A subsequent evaluation showed 66% deficiency in the first mode and 20% in the second one”. Keban stressed that
participation in the process is crucial to improve results.
31
BOX 7. PEOPLE´S PARTICIPATION. THE CASE OF ARGENTINA
Grassroots activism in the fight for land workshops in the South, North and West of the
and housing in the Metropolitan Area of Metropolitan Area of Buenos Aires, to study
Buenos Aires has a long and rich history. and debate the federal programs for housing
Neighborhood advancement committees, construction announced by the national
coordinators of shanty-town organizations, government.
joint councils of low-income settlements,
territorial organizations of the unemployed The experience of coordination with the
and land occupants, are just some examples of province of Buenos Aires grew stronger and gave
coordinated association between neighborhoods rise to a Working Group that has been working
and territorial organizations that has taken place jointly with the Undersecretary of Land, the
in the past half century. During the last thirty Undersecretary of Urbanism and Housing, and
years, there has also been a number of habitat the Institute for Housing, since 2009.
NGOs providing socio-technical support to Based on the experiences of fighting for the right
grassroots organizations. Many of these have also to have access to housing and to the city, the
served as coordinators between neighborhood organizations explore the limits and the conflicts
organizations and sources of private and public between what is legal and what is legitimate, they
financing, collaborating to negotiate donations consider the contradictions in jurisprudence
of land from private owners and from the between respecting and guaranteeing the rights
Church, promoting land regularization, to ownership and access to housing, and
administrating microcredit revolving funds for they corroborate that the progress achieved in
housing and neighborhood improvement, and updating or revising regulatory frameworks has
executing plans of infrastructure and housing to be supported by grassroots organization and
construction with public funds. Throughout mobilization to be sustainable over time and
the years, an intricate web of relations developed become part of the State policies, and not be
among the neighborhoods and their leaders distorted by the administrative and political
and organizations, the habitat NGOs, the changes of Governments.
technicians and officials from different levels
of the public administration, and professionals The participants in the FOTIVBA became
dedicated to the issue of low-income habitat. strongly involved in the fight for the right to
This network also includes researchers from have access to the city as a result of their having
different disciplines who are interested in the studied the design and the ways of applying
housing situation of low-income sectors, in their policies and instruments, their experience with
struggles for access to secure tenure, to dwelling legal processes against claims and in defense
and to the city, and in the public policies on of the rights to land, their participation in the
housing and habitat. writing up and passing of local and provincial
laws, and their interaction with professionals
When the new housing policy was announced, devoted to researching and acting in the field
a wide network of neighborhood organizations of low-income habitat. The rights established
and related habitat NGOs saw the opportunity in the Constitution and in international
to profit from their constructive experiences treaties of constitutional standing, such as the
and organize a space from which to analyze one on Economic, Social and Cultural Rights
public policy, talk to political decision-makers, (PIDESC) are permeating all of FOTIVBA’s
influence the design of the habitat policies and activities, providing theoretical and legal
foster the participation of the people who lived support to their claims and actions.
in the areas that would be affected by the public
actions announced. In early 2005, the “Foro The FOTIVBA has thus become an active
de Organizaciones de Tierra, Infraestructura participant and promoter of the Buenos
y Vivienda” –FOTIVBA- (Forum of Land, Aires nucleus of the “Movimiento por la
Infrastructure and Housing Organizations in Reforma Urbana” –MRU- (Urban Reform
the Province of Buenos Aires) was created, and Movement), publicly reporting theoretical
in March it started to organize three regional and practical advances in legislation around
32
land management, participative planning and has organized working groups that deal with
development of rights related to access to the evictions and leases, ownership regularization,
city. The work is carried out both within the housing, social production of the habitat and
participating organizations and outside the territorial planning.
MRU, in an effort to communicate to the
public, as well as to the provincial and national At the same time, during 2010 and 2011 the
legislators, ideas and inputs on the necessary Forum worked on the discussion and writing up
changes in the legal framework regarding of the provincial bill of law for the Promotion of
land, habitat, territorial and urban planning Low-Income Habitat, posing three fundamental
. A result of that work was the creation of principles on which the habitat policies of the
Habitar Argentina, an entity that has held Province of Buenos Aires should be conceptually
meetings in Congress and in different provinces and legally based: the right to the city, the right
of the country to discuss these issues, and has to housing, and the social function of the city.
thereby been able to incorporate legislators, That law was passed in 2012 and has not yet
judges, lawyers, officials and universities to their been regulated (Varela, 2012).
activities. Since May, 2010, Habitar Argentina
5. IN RELATION TO LAND MANAGEMENT AND LAND MARKET PROCEDURES (COSTS, TAX

POLICIES) AND THE POSSIBLE INSTRUMENTS OF SECURE TENURE
5.1. LAND MANAGEMENT
As in Eastern Indonesia no price data exist on earth, is necessary:

• Propose studies of land prices, given that they couldn’t be, or were only partially, assessed in
the field study37. This topic has been crucial in the implementation of policies, for example, in
Latin American countries, because depending on the price (compared to the minimum wage,
for example, or to how many salaries must a family pay for a lot) the policies formulated by
the state will be more or less aggressive in relation to the market, especially as regards vacant or
abandoned land: how long has the land been in such conditions and what is its price, and based
on this, certain policies, which are detailed below, will be set forth. Although in Indonesia –at
least in the case studies- there is no “formal” land market , nor any certainty as to who owns the
land (as stated in the Diagnosis), the land has prices that must be paid by those individuals or
families who want to settle in a specific lot.
• Analyze the actors involved in the processes of access to land, according to the different types
of access currently existing in Indonesia: owners (either the national State, the Navy, individual
owners, depending on the different regions of Indonesia); intermediaries of different kinds;
those who need access: families, cooperatives, etc..., their different ways of operating in different
geographical areas and under different conflicts in terms of access to the land. Because, as stated
in the Diagnosis, in many interviews the people interviewed did not know who owned some of
the lands. Knowing who the owners are will make it possible to devise specific policies for each
one, or for a cluster of them
• Analyze the prices of the land for the purchase (and subsequent deed) in relation to the other
options that the population has: renting, provenance, loan tenure, among others, and of course,
in relation to the population’s income and what they can set aside for the purchase/rent or other
form of access to the land. Prices must not be so high that most people cannot have access to the
land; therefore, the state should have an influence on the costs of the land.
37. For example, as noted above, in the DPP-Kupang they stated that the conflicts around land tenure increase with the
growth of land prices, but when consulted about these price increases, there were no precise data or available sources to
accurately estimate the situation.
33
• The lot to access should cover the dwelling of the family or various arrangements of families,
clans, tribes and/or cooperatives, as well as the area required to farm, so that it is enough for the
families to have means of survival and even a surplus to access the food market and other services
(such as health and education) and goods, such as clothing, etc.38.
5.2. LAND RESERVES (OR LAND BANKS)
Two issues are worth analyzing in relation to land reserves: firstly how does the State own them; does it use
its own lands or does it have to buy/expropriate to get them?, and secondly, how does it use them; to sell,
donate, transfer, build social interest housing, or others? The few existing experiences in Latin America
illustrate different options around these issues.
The attempts of urban reforms from the sixties of the last century, in which land banks were one of the
most important instruments, didn’t go further than the planning stage, and only after several decades, the
land reserve policy has begun to be applied.
It is a policy that has been scarcely implemented in Argentina and other Latin American countries, with
the exception of Colombia and Mexico, where the instruments for its application have been, and still are,
very important. The land bank’s patrimony should comprise, in addition to the urban land each of the
public institutions may own, purchases according to the following criteria:
• Purchase of central lands, with infrastructure in the area or very nearby, so that the costs of
providing it are much lower. This means a rational utilization of the installed and unused
capacity in infrastructure, and it is also more adequate for residential use by the low-income
population, since it reduces transportation costs and time. Of course, it is essential to consider
the environmental conditions of the land to be acquired.
• Acquisition of large peripheral lots, mostly without infrastructure, which determines that a high
percentage of the investments must be made in basic works. This would only be justified in case
the land can be acquired at a very low cost.
The main aspects to take into account when setting up land banks are: i. The costs of infrastructure and
facilities to make it “urban”, which depend on their location; ii. Since there are no legal constraints, the
landowners are not always willing to part with their land voluntarily, in which case it is necessary to imple-
ment measures that enable its expropriation (in those cases where the State establishes that the incorpo-
ration of such land to the bank is essential to comply with its social function). iii. Forms of marketing
(price and financing) that the State will have to determine in accordance with other policies for the fight
against poverty.
An interesting mechanism for establishing the Bank land is the preferential right of purchase by the com-
petent government agencies. It is based on the landowner’s obligation to publicly state his intention of
selling his property. If the State wishes to acquire the property in question, the owner is obliged to sell it
to the State.
These land reserves can be used to: relocate people living in various forms of illegality, with a density
higher than compatible with the urban-environmental standards, located in areas of risk or with unsolv-
able legal problems, through sale, donation or transfer of the right of use according to the policies applied
by the State for the management of urban land; to improve the environmental conditions and implement
projects of social infrastructure, recreation, parks, and expansion of the existing facilities, or to offer the
land in the market, for the low-income population.
38. This need for land as livelihood (defined both by its location and by the availability of farming land in the lot itself or near
it) was an issue recurrently raised in interviews with people displaced by the conflicts in Timor and also in Ambon and Poso. As
several interviewees pointed out, immediately after the conflict situation is over, it becomes necessary to develop alternatives
for livelihood. In this sense, in Timor –both in Kupang and in Belu- the former refugees argued that at such time the crucial
need is land to generate for survival, even more than housing; this is a difficult demand for the Local Government to solve,
given that the same need exists among the previously settled population . As noted by Wendilinus Inta (UN- Habitat Belu, ex
CIS-Timor) , “there is a constant tension between the need to have land used not only for housing but also for subsistence
resources, and at the same time not create disparities with the situation of the WL, who they also have needs”.
34
One of the main goals must be, precisely, to put the land on the market and thus offer the possibility of
access to urban land to the poor, as a way of preventing urban informality. In this case, it is necessary to
define what requirements must a person meet to become a buyer, how will the sale be effected, at what
price, whether with a subsidy quota, crossed subsidies or special credits, it there is a grace period for the
payment of taxes, among other questions.
In Mexico, there have been preventive mechanisms since 1971, following the creation of the “Instituto
Nacional para el Desarrollo de la Comunidad y la Vivienda Popular” –INDECO- (National Institute
for the Development of the Community and Low-income and Housing). Until 1982, the activities of
the INDECO and of the Commission formerly Committee) for the Regularization of Land Tenure –
CORETT- only had a minimal impact because they did not change the processes of urban expansion nor
contributed to reduce environmental damage. The 1984-88 National Program for Urban Development
and Housing established the “Sistema Nacional de Suelo para la Vivienda y Desarrollo Urbano” –SNS-
VDU- (National System of Land for Housing and Urban Development) as a course of action of preven-
tive nature. The SNSVDU results were also far from meeting the expectations since, from the goal of
66.000 hectares of land to be expropriated between 1983 and 1988, only one third was achieved. (Favela
Ramirez, 2000: 199).
The main limitation was the fact that most of the lands surrounding the cities were collectively owned,
and their being subject to the agrarian laws made it difficult to transfer them to the system of private
property and to put them under the control of urban law. The only possibility to establish “Reservas Ter-
ritoriales” –RT- (Land Reserves) was through the mechanism of expropriation, which required the agree-
ment and coordination between the “Secretaría de Desarrollo Urbano y Ecología” –SEDUE-(Department
of Urban Development and Ecology), the states governments and the “Secretaría de la Reforma Agraria”
–SRA- (Department of Agrarian Reform).
The RTs were imprecise in the way they were conceived and presented in the urban development plans,
since they didn’t contain specific guidelines for their urbanization or their connection to programs of
infrastructure, roads and networks.
As a result of the 1992 Constitutional reform, its regulation through the Agrarian Law of the same year
and its subsequent incorporation into the 1993 “Ley General de Asentamientos Humanos” –LGAH-
(General Law of Human Settlements), land management was substantially modified --especially regard-
ing the transformation of rural suburban land to land for urban uses- and the conflict between urban and
rural legislations was solved. Mechanisms to incorporate “ejido” land to projects of economic and social
development multiplied, and expropriation ceased to be the only way possible, since for the first time
there was an association between communal landholders, local government and investors (Olivera, 2001).
Since that year, municipal and state governments have taken a more active role in implementing the ac-
tions for urbanizing the “ejidos”. The SEDESOL has opened channels to control the ways of incorporat-
ing the “ejido” and communal land to urban uses. The first “ejido” urban development companies were
established between 1992 and 1994 as a pilot test in fifteen cities, and since 1995, a program of land
reserves with national coverage has been incorporated, with innovative methods to extend the urban area
of the “ejido”.
In 1996, the “Programa de Incorporación de Suelo Social al Desarrollo Urbano –PISO- (Program for the
Incorporation of Social Land to Urban Development ) was created to increase the transfer in the “ejido”
urban process from the agricultural sector to the urban sector. This involves the participation of the fed-
eral government through the SRA, SEDESOL and other regulatory agencies as CORETT. The PISO’s
aim is to attain the availability of the land that is needed in the cities to meet the requirements of housing,
urban facilities and expansion. (Azuela, 2001).
A SPECIAL WAY TO USE THE LAND BANK: THE TRANSFER OF THE RIGHT TO USE
This way consists in transferring the use of public land to an individual as a right in rem, for specific pur-
poses of residence. This legal instrument only grants the right to use and enjoy the property in question,
and expressly prohibits transferring the property right, which remains under the control of the State. This
instrument is currently used in Brazil.
35
5.3. THE DYNAMIZATION OF VACANT (OR ABANDONED) LAND
Most Latin American cities have integrated land by “producing” separate divisions into lots and leav-
ing the land between them “in wait” or as a reserve of value until the more distant lands are occupied,
which will predictably cause an increase in the demand, and therefore the price, of those lands in wait.
This practice varies depending on the identity and the outlook of the landowners involved. That is one
of the reasons why there are extensive empty urban spaces in cities and metropolitan areas, together with
the almost total absence of tax penalties for the retention of urban land. Thus, the situation may remain
unchanged for decades.
It is estimated that about 44% of urbanized land in Rio de Janeiro, and 32% of urban lots –about 1.5
million of them- in the metropolitan Area of Buenos Aires, are vacant. In San Salvador, vacant lots in the
historic center amount to 4.6% of the entire metropolitan area. Unused areas with water supply and sani-
tation correspond to 7.6 % of the Metropolitan Area of Lima, Peru. In Quito, Ecuador, 21.7 % of the ur-
ban area was empty in 1993, a surface that could accommodate 1,390,000 new residents and would allow
to double the current population of the city (Clichevsky, 2002). In the metropolitan area of Guadalajara,

the empty spots are scattered and go from vacant lots of less than 100 m2 in low-income neighborhoods
to large rural estates. In the city of Guadalajara alone, 26.6% of the municipal area is defined as unused
in the 2000 Guadalajara Municipal Development Plan. And, of course, the figures would be even more
alarming if we were to add the areas of the buildings in the historic center that have been abandoned.
The Management Plan for the Guadalajara Metropolitan Area indicates that 22% of this area, already
provided with infrastructure and services, is underused. For a city whose growth requires an annual aver-
age of nearly 1,000 hectares, these intra-urban reserves could meet the demand for at least the next eight
years. (Fausto Brito, 2000).
In Latin American cities, therefore, there is a large volume of empty lands, many of them with good ac-
cessibility and possibilities of being provided with basic services. If these lands were actually placed on the
market, they would significantly expand the supply of land and possibly have immediate effects on cur-
rent land prices (Clichevsky, 2002, 2003). This situation is directly related to the possibilities of carrying
out prevention policies, by vitalizing vacant lands.
There are several instruments that can be applied to revitalize unused or vacant land, from regulations to
tax policies, which have been implemented in only a few countries of the region, or applied with very poor
results, as has happened with the property tax on vacant land.
a) Normative Instruments
The AIES & ZEIZ
The countries in Latin America where normative instruments have been applied to revitalize vacant land
are still few. Among these, Brazil and Argentina stand out for the innovative use they have made of such
instruments.
Brazil has applied, since the eighties of last century, the “Áreas de Especial Interesse Social” –
AEIS‐ (Areas of Special Social Interest). In Diadema, a municipality in Sao Paulo, in 1993 the authorities
established as a priority the enactment of a Master Plan that offered access to land for poor people, by
implementing the AEIS. Two categories were defined:
• AEIS 1, comprising empty land classified as private lands with no construction, underused
or unused, for the implementation of Social Interest Housing Projects and as reserve areas for
community facilities, in an attempt to carry out an actual intervention of the local land market,
and
• AEIS 2, destined to re‐urbanization and regularization of the land of settlements constituted
under the patterns of the traditional legislation.
Adopting and implementing the AEIS required negotiations with landowners, who believed
that such restricted use of the land would devaluate their properties and reduce the possibility of gen-
36
erating jobs by establishing industries instead of social housing. However, after a tense process of
formulating, enacting and implementing the AEIS 1, the instrument became a regular feature within
the functioning of the city’s land market. The
price of land decreased and the population’s chances of purchasing it increased. Thanks to the grass‐root
movements, the City Council valued the processes and made theme more transparent, and the public
authorities became less vulnerable to pressures, sometimes from the political clienteles. Those results
were positive because the low‐income sectors were well organized: they took hold of the instrument
developed by the government and became permanent social actors in the municipality’s urban policy,
actively participating in the negotiations around the regulation strategy. Besides access to housing
for the poorest families, this process meant gains for the municipal authorities, who came closer to the
people and fulfilled their role of mediators in disputes over urban land.
It is worth noting that the integrated management of the AEIS referred to urban voids and “favelas” is an
interesting tool for managing urban land, because an excess of the demand for housing that resorts to the
urbanization of overpopulated “favelas” can be redirected to the AEIS of vacant land, which means that
they are complementary. In Diadema, the AEIS gave place to a significant expansion of the market for
social housing in the city, while the preservation area of the basins was relatively maintained, in
contrast with the situation in neighboring municipalities.
In 2001, the EC took up and gave significance to national policies already being imple-
mented by some local governments, to comply with the social function of urban property. Among them,
the “Zonas Especiais de Interesse Social” –ZEIS‐ (Zones of Special Social Interest) create the conditions
for the urbanization and use of vacant land and buildings. Local governments have the responsibility to
define, in their Master Plans, the guidelines for urbanization; they can give more flexibility to the existing
rules for use and occupation, but respecting the acceptable sanitation parameters. The Strategic Master
Plan of the Municipality of Sao Paulo determines subdivisions in lots and regulates the use and occupa-
tion of the land. It defines various areas of social interest through the delimitation of ZEIS in all the sub‐
municipalities, which have readjusted the Regional Plans recently enacted by the City Council, together
with the Municipal Housing Plan and the new Law of Occupation and Land Use.
That Plan and the Regional Master Plans, in process of being approved, will establish hundreds of
ZEIS in São Paulo. The ZEIS 1 is vacant or underused lands intended for the production of housing of
social interest, social and cultural facilities, etc. The ZEIS 2 are underused lands or buildings in areas with
urban infrastructure, services and job offers (usually in the central area) proposed for the production and
renovation of social interest housing and the implementation of mechanisms to revitalize activities that
generate jobs and income. The ZEIS 3 are lands located in areas of protected water flows endowed with
urban infrastructure, where it is permitted to produce housing of social interest exclusively
destined to population moved from areas of risk and dam borderlands. (Da Paz, 2004).
PROGRESSIVE REAL ESTATE TAX AND COMPULSORY BUILDING
The purpose of instruments such as the progressive real estate tax and the compulsory building is to put in
the market land that is vacant or underused, often in central locations, with basic infrastructure and close
to facilities. The owners of such lands are required to exploit them or they will be subject to compulsory
building and payment of a progressive tax, and eventually to expropriation.
If the owner cannot afford the tax values, they may decide to sell their land, even at a (relative) low price.
This has three potential effects: 1. poor people could buy a piece of land in the formal market, 2. inter-
stitial urban areas could have more population density, which would improve the urban economy, and
3. the State would collect more taxes and use part of the revenue for credits and/or subsidies to the poor.
This tax was first studied in Latin America, especially in Brazil, in the eighties, but its implementation
was refuted in court, until the approval of the EC in 2001. One of the first municipalities where it was
applied was Recife, since its 1991 Master Plan establishes that compulsory subdivision or construction,
progressive taxation and expropriation affect the real-estate properties –land, or paralyzed or unfinished
works- that are not attending to the social function.
37
The expropriated properties are used to implement social housing projects or urban facilities, and can also
be sold to individuals, through public tender, provided that the buyer presents a project for an appropri-
ate use of the area.
The Municipality of Porto Alegre began to apply innovative policies in the nineties, and in 1993 it imple-
mented the “Imposto Predial e Territorial Urbano” –IPTU- (Real Estate and Urban Land Tax). This regu-
lation establishes the compulsory building and/or subdivision of real-estate located in the areas declared
of “Urbanização e Ocupação Prioritária” --AUOP- (Priority urbanization and occupation), according to
the following parameters : i. Properties of less than 2.25 hectares are defined as subject to compulsory
construction or to compulsory subdivision into lots and construction, ii. Properties of more than 2.25
hectares are defined as subject to compulsory subdivision into lots. The social function of the property is
considered to be fulfilled when it is occupied by over 50% of the occupancy rate established for its area.
The expectation, in 1999, was that they could acquire 62.88 hectares of lands of less than 2.25 hectares
and 162.87 hectares of lands of more than 2.25 hectares, for exclusively residential use. In total, they
could have 301 hectares to produce 11,470 residential units, 16,763 urban lots and 25,862 jobs. There
are data on the application of this policy in 52 properties for a period of four years, in which about half of
the owners involved paid the first increased tax rates and then stopped paying (Saavedra, 2005).
Since 2001, with the adoption of the EC, such instruments as the progressive real estate tax and the com-
pulsory building have had nationwide force of law. The owner who does not comply with the provisions
of the compulsory building will be penalized by the progressive application of the IPTU for a term of 5
years. If the term expires, the area remains incompatible with the uses and densities established by the
Master Plan, and the property may be expropriated, with the State paying for such expropriation with
public debt securities. The objective of the instrument is to increase the supply of land and buildings to
meet the existing demand, so that the people who cannot find housing in the central areas are not forced
to live in suburbs with no infrastructure, in places at risk or in environmentally protected areas.
b) Reuse of unnecessary assets

Since the nineties, with the fiscal adjustment programs, in many countries the States have sold their lands
for different purposes, according to their political goals. In some cases, the revenue from the sale has been
used to solve the problem of access to land by the poor urban population, while in other cases it has only
met the needs of the real estate sector.
An interesting case in point, referred to policies for the low-income population, is the Colombian case.
In 1991, the subsidy in kind --which could be a piece of land- was established as a form of family subsidy
for housing of social interest. In order to vitalize the granting of subsidies under this system, in 2001 the
Congress declared that the lots with a potential for the construction of social housing, owned by non-
financial public entities at the national level, should be used for family housing subsidies in kind (Consejo
Nacional de Política Económica y Social-CONPES,2004). The National Government, in 2002, fostered
the development of a pilot program of combined subsidies in cash and in kind, with land lots belonging
to the Nation.
A crucial requirement was that the municipality and/or department involved should invest in urbaniza-
tion works. The program had its own resources for the supplementary subsidy in cash, which facilitated
its financing. The amount of the subsidy granted is equal to the market value of the lot assigned to the
household; the beneficiaries of the subsidy in kind could obtain an additional subsidy in cash. The sum of
the two subsidies could not exceed the top of the subsidy in cash established by current regulations. Once
the subsidies in kind and in money were allocated, the municipality could execute the project for housing
of social interest directly or indirectly, with public or private entities. This program meets the objective of
the “Country of Owners” set forth in the National Development Plan and contributes to reach the goal
posed for the four-year-term of having 400,000 solutions of social interest housing.
With the process of re-structuring the National Housing System, in 2003 it was recommended to ter-
minate the “Instituto Nacional de Vivienda de Interés Social y Reforma Urbana” –INURBE- (National
Institute of Social Interest Housing and Urban Reform) and create the “Fondo Nacional de Vivienda”
–FONVIVIENDA- (National Housing Fund), with one its functions being to implement the Program
of Family Subsidy in Kind for Housing. Based on the pilot program, the “Consejo Nacional de Política
38
Económica y Social” –CONPES- (National Council for Economic and Social Policy) implemented, in
2004, the Program of Family Subsidies in Kind for Housing in Lots of the Nation.
At the same time, the National Government created the “Programa para la Gestión Eficiente de Activos
Públicos” –PROGA- (Program for the Efficient Management of Public Assets), with the main objective
of developing a management system that maximizes the economic and social return of State the assets.
In Argentina, in the late eighties and early nineties of the last century, there were some experiences, in
the Province of Buenos Aires, of reusing the State lands intended for the low-income population. The
PROTIERRA Program was one of those initiatives, but in reality, the land assets that could be reused were
minimal, since they were mostly private properties of the public agencies and could therefore not be used
until declared unnecessary, something that might take decades (Clichevsky, 1991). During the nineties, it
was possible to sell some State lands, but most of them were bought by real estate agencies --even foreign
ones -- and were not used to solve the housing problems of the low-income population.
PRODUCTION OF URBAN LAND IN PUBLIC-PRIVATE PARTNERSHIP
Although the production of land in public-private partnership can be an important instrument to produce
land for the low-income population, there aren’t many examples of its application. In Jalisco, Mexico, in
1984 the law was amended to incorporate the “Fraccionamientos de Objetivo Social” –FOS- (Residential
Developments with a Social Goal), which are areas with minimal services, so they have a lower cost and
are accessible to the lower income population; urbanization and housing would be progressively incor-
porated through investments from the private sector. Until 1987, 124 compounds with 85,748 lots were
offered. The operation is promoted by different local agents, from the Municipality to the land owners
and developers.
In Quito, Ordinance No. 003/98 establishes progressive urbanizations of social interest –with minimum
of infrastructure when approved by the Metropolitan District-. The owner agrees to incorporate basic
infrastructure in a maximum period of ten years and the lots are notarized when the urbanization is com-
pleted. This makes it possible to put land at a lower price in the legal market, with the commitment to
carry out the work after the sale (Clichevsky, 2006 b).
5.4. IN RELATION TO TITLING. INDIVIDUAL/COOPERATIVE/COLLECTIVE TITLING, COSTS
Land tenure should be seen as a social relationship that involves a complex set of rules that affect the
way land is owned and used. Each type of tenure system has advantages and limitations. On public land,
the State assumes responsibility for ensuring access to secure land and housing for everyone, but often
at the expense of bureaucratic inertia, clientelism and corruption, while customary tenure guarantees
access to everyone in the community but has become the object of pressures that have often eroded the
social cohesion that is the basis of its legitimacy. When discussing tenure rights and land ownership, it is
always necessary to recognize the importance of the cultural, historic and political influences, and of the
technical and legal systems. Each of these influences results in subtle differences in the way key terms and
relationships are defined (Payne & Durand Lasserve, 2012)39. Insecure tenure covers a wide range of local
situations that go from a complete illegality to various forms of tolerated occupation, and to the occupa-
tion legitimized by customary practices but not considered legal by the government or local authorities.
This is the situation that prevails in Indonesia40.
39. As noted in the section on Diagnosis, according to several interviewees security in the tenure of lands under Adat is often
not associated to titling since; on the contrary, once the lots are certified they can be bought and sold more easily. In this
regard, there is a particular tension between the traditional forms, linked to the domain for use, and the legal forms that
involve titling and, therefore, the possible commercialization of the land.
40. A separate commentary must be made of the concern expressed by some interviewees about the current process of
certification which, upon adjusting the records to the formal economic system, could result in facilitating the transfer of land.
The implication, according to some of the NGOs interviewed, is that the small lots, once titled, might end up being transferred
to large landowners (especially the lots in the periphery, that have strategic locations, and those in areas for crops, such as
rice). From that standpoint, the goals of registering should be to determine the current situation so as to enable a better
redistribution of the land, and only after that, to certify. Disperse titling would only lead to a process contrary to the more
equitable distribution proposed in the BAL, since it would promote the sale of small lots to large landowners, when a group
of lands under Adat is fragmented.
39
It is essential that local communities play an active role in formulating and influencing tenure policies.
Also, gender issues are crucial to ensure equity. The international experience has shown that the goals of
improving security of tenure, increasing investment in housing, obtaining income through taxes on prop-
erties and improving the efficiency and equity of urban land and housing markets, can be achieved more
effectively through methods other than the granting of land titles.
According to Payne (Payne, 2005), there is a growing body of empirical evidence to show that absolute
ownership is not essential to increase the level of security of tenure, the investment in home improve-
ments, or even the increase of revenues through taxes on property. The experience of titling (indepen-
dently of any improvement in the neighborhood) as has been done in Peru, for example, shows that the
existing hypothesis underlying the massive titling (that families would improve their houses or ask for of-
ficial bank loans) have not been met, as shown in many studies made especially in relation to the Peruvian
case, like those of Ramirez Corzo & Riofrio (Ramirez Corzo & Riofrio, 2005); Caria (Caria, 2008) and
Calderon (Calderón, 2004; 2007).
One of the key assumptions41 regarding legalization is that people can have access to loans through the
private financial system (De Soto, 2003; Rouillon, 2004). The contention is that, apart from the regular-
ized families, the main beneficiary of the process of land regularization is the financial system. But the idea
that the existence of proprietary security is enough to develop credit facilities is not valid because banks
require borrowers to have a certain income (family or individual, depending on each agency) and not just
having the ownership of the land42. In turn, for the formal financial institutions it is also costly to loan
small amounts of money43. (See Box 8).
BOX 8. THE PERUVIAN CASE
The Government of Peru has promoted and difficulties in their execution. (Varela and
an ambitious decentralization program Archimbaud, s/f )
that has returned or transferred significant
responsibilities to regional governments and In 1996, the National Executive Power
to provincial and district municipalities. In took over the municipal responsibilities and
terms of the rights of property and tenure of procedures relating to the allocation, the legal
the land, the outstanding points are: (i) the physical sanitation, the titling and the urban
right of provincial municipalities to formalize licenses of human settlements in lands located
all the urban land within their jurisdiction, on fiscal or private properties. This was done by
with or without the technical support of reforming the competencies, the public entities
“Comisión de Formalización de la Propiedad and the procedures through the formalization of
Informal” –COFOPRI- (Commission for the property and through the creation of an agency
Formalization of Informal Property), and (ii) specialized in designing and implementing
the obligation of the district municipalities a National Program of Formalization: the
to issue the Single Cadastral Code, requiring COFOPRI, under the Ministry of Justice. In that
all real-estate properties to be registered in year, it was estimated that 50 % of the holders
the Register Public. These returns/transfers of urban housing had no title of ownership (
of functions related to real-estate properties Rouillon, 2004 ) in 2 million properties valued
have not been accompanied by the formation at about 20,000 million dollars. COFOPRI
of appropriate capacities at the sub-national carries out its work in 78 provinces located in
levels of government, which has caused delays 17 regions of the country, covering 46% of the
urban area of Peru. The objectives of the massive
41. Following the arguments of De Soto (De Soto, 2003).

42. In addition, lower income people face difficulties in accessing formal financial institutions because the technology used by
these institutions is not suitable for them and implies high non-monetary transaction costs (time of the procedures, demanded
requirements).
43. In close connection with the aforementioned difficulty to get loans caused by the lack of certification, several of the NGOs
interviewed suggested alternatives ways of obtaining resources, through cooperatives (interview with NGO in Kupang), or
through lines of credit offered by the State (interview with KPA).
40
titling undertaken by COFOPRI are to increase met the intended goals (considering an average
the value of the properties, to integrate them to of more than 3 people per family). Currently, the
the real-estate market and to make them eligible majority of the informal occupations are placed
for basic infrastructure services and loans. on lands that are not the most appropriate;
many are on hills with landslides and waterbeds,
In 1998, the “Proyecto de Derechos de la for example. COFOPRI refers them to the Civil
Propiedad Urbana” –PDPU- (Project of Rights Defense agency, which analyzes the plots with
of Urban Property) was passed through an potential environmental risk and identifies
agreement between the World Bank and the those that cannot be legalized. In the cases
Peruvian government, with the purpose of where Civil Defense indicates that the location
financing the titling plan. The local authorities of housing is feasible, it recommends to carry
in charge were COFOPRI and the “Registro out certain works to mitigate risks, which must
Predial Urbano” –RPU- (Urban Land Registry). be done before their formalization. Some people
The main objective of the project is the have received titles from the COFOPRI or the
comprehensive formalization of property rights. local authorities even when it was clear that the
The intended goal is for residents to have the lands where they lived were not safe or habitable
legal security of their possessions and to be (Kothari, 2004). In Peru, the titles obtained
able to use their properties more efficiently, through the COFOPRI are legal documents that
and also to implement reforms that ensure that officially recognize the settler’s property right to
transaction costs in the formal sector are lower the land, with cadastral registration. They are
than in the informal one so that property rights not granted through a notarized deed, because
will remain within formality (The World Bank, that would mean higher costs. The COFOPRI
1998). has implemented its own Registry --different
Between 1996 and 2004, 635,851 titles in 785, from the one that had been used until then- in
911 plots were granted in Lima, while the total order to expedite the process. From 2006 the
for Peru, including Lima was of 1,425,688 titles COFOPRI is in the process of municipalizing
in 1,929,070 plots in 13 locations, in addition and unifying the records, but it will be a long
to Lima (Saavedra, 2005). Of all the titles, and complex process because the members of
1,188,094 correspond to homeowners in human the Commission do not want to give up their
settlements; 43,272 to homeowners in housing powers, and organizing a single registry is a very
associations and cooperatives; 194,322 to people complex task.
in State housing programs; 24,396 to grassroots There has also been vacant land titling in
organizations and community entities holding unconsolidated settlements. A percentage of 30
lots and urban facilities; 8,719 to commercial to 40% is estimated to be “abandoned land”, that
lots; 182 to markets lots in human settlements, is, delimited plots with “phantom” owners that
and 49 to lots in public markets. 52% of the hinder the achievement of collective facilities.
beneficiaries are women (COFOPRI, 2004). This is because many owners live elsewhere in
Neighborhood organizations have legal status the city and only come sometimes, at weekends,
but they have been unable to obtain the title so they are known as “tourists”, since they have
because no collective land titles are issued. It another house, owned or rented, where they
is important to note that the PDPU aimed to live.
entitle 4 million people in four years, so it has
In Brazil, De Soto’s assumption that the property title would promote economic activities supported by
credits obtained on the basis of the property as collateral, has not been corroborated, given the behavior
of the people benefiting from the domain regularization programs (IBAM, 2002).
Since 2002, Venezuela is also implementing a massive program of regularization with an interesting devel-
opment of the participation of the population, through the Urban Land Committees-CTU-(See Box 9).
41
BOX 9. “COMITÉS DE TIERRA URBANA” –CTU- (COMMITTEES OF URBAN LAND) IN VENEZUELA
The National Government created the National grant land titles. In 2004, 57 cooperatives for
Technical Office for the Regularization of cadastral survey have been set up in 8 states and
Land Tenure, an agency attached to the Vice- 20 municipalities of the country, with which the
Presidency of the Republic, responsible for State commissioned 211,691 cadastral surveys.
preparing the guidelines and policies required to
achieve the objectives set for land legalization. The CTUs propose to the official agencies,
The executive units for that process were the particularly the newly created Ministry of
Committees of Urban Land, which had the Habitat and Housing, “the transformation of
following responsibilities: to promote, together the urban space and the democratization of
with the competent authorities, the creation of the cities.” To achieve it, they pose the creation
the registry of low-income urban settlements; to of the “Centros de Participación para la
implement the process of public consultation Transformación del Hábitat” –CPTH- (Centers
and the necessary procedures and mechanisms of Participation for the Transformation of the
of organization and coordination to regularize Habitat), where the community will be able to
land tenure in low-income neighborhoods exercise their power in the whole transformation
and residential areas; to study the situation of and evolution of the habitat. The Centers will also
neighborhoods and offer advice and technical make it possible for the neighborhoods to have
assistance to state and municipal governments permanent legal guidance, technical assistant
in matters of its competence. Between 2002 and ongoing training for the development of
and 2004, CTUs were formed in 111 of the plans and programs of habitat and housing. The
336 Venezuelan municipalities, and their work CPTH are the response of the neighborhoods
has benefited 106,483 families, having granted residents to the deficiencies of the institutions,
70,762 titles, duly registered with the competent under the revolutionary practice of participation
agencies or sub-office registries. Nationwide, and social control. As an organized entity, these
3,609 CTUs have been set up and 2,045 are in groups are willing to show that they are able
process of being registered, for a total of 5, 654 to democratize and transform cities, through
in the whole country. If each CTU comprises an open and genuine discussion that will allow
an average of 147 dwellings (the national the residents in this areas to take control of the
average), 831,138 families and a population of style and quality of their life (Venezuela, 2004;
4,155,690 inhabitants have been incorporated Fernandez Cabrera, 2012).
to this project in an organized way. “Having the The process has encountered difficulties, such
property title means starting to recognize the as the inexistence of cadastres, and there have
rights that people have over the land they live also been legal obstacles for the allocation of
on” (Venezuela, 2004). land owned by municipalities or of national
The primary mission of the CTUs is to take a assets. However, the granting of titles, both
census of their sector and prioritize the needs individual and collective, has been completed.
for public services. Concurrently, they attend to It is important to consider that regularization
other aspects of everyday life in the neighborhood, must include all the aspects set forth in
especially related to the productive activities the national urban legislation that permit
that are carried out, because knowing about overcoming the current situation of exclusion
them is useful to plan production strategies. of the urban territories constituted by the
The joint work of the National Technical Office neighborhoods. It is necessary to address both
for the Regularization of Land Tenure and the the urbanistic and the legal factors. It is also
CTUs has shown that there is a lack of cadastral essential that the regularization processes are
maps of neighborhoods and low-income excluded and safeguarded from the prevailing
residential areas, both in the municipalities political proselytizing. Another vital element to
and governorships. This led to the formation of ensure the overall success of the process is the
cooperatives specialized in this matter that carry estimation and supply of the adequate economic
out the task of taking the cadastral census in these and human resources. These resources should be
areas, since this information is vital in order to oriented to the local action (FAU- UCV, 2004;
Antillano, 2005).
42
In Guayaquil, from 1993 to 2000, 250,000 lots were measured, the families occupying them were count-
ed and 103,000 property titles were granted. The urban land has been consolidated in most of the city,
enabling the inclusion of these lands in the municipal cadastre. The process previous to the enactment
of the whole legal basis that supports the legalization plan was conducted through agreements with the
community, which made it possible to make changes in legal and technical issues so as to ensure a viable
program. (Varas, 2002).
In relation to the De Soto´s hypothesis, a study in Argentina confirms that obtaining the property title
does not result in a higher number of people benefiting from loans. In a survey of 1,800 families legal-
ized between 1989 and 1998, no difference was found in terms of access to formal credit between these
families and another group of families not yet regularized. Regularized families continue to have access
to informal loans through relatives, colleagues, neighbors and friends (Galiani and Schargrodsky, 2004).
In Mexico there was an important policy of legalization (see Box 10) but a number of people who own
land do not want a bank loan. It has been proven that even before owning the property they had loans
(perhaps at a higher interest rate, but that does not matter much to them) granted by private agents, rela-
tives, friends, etc. There is an informal credit “market” which this population has access to.
BOX 10. THE CASE OF MEXICO
In Mexico, in a period of two decades over The most important action, due to its
2.5 million lots have been legalized, but there implications for both the agricultural and the
are still one million families waiting for their urban sectors, is the creation of the “Programa
titles (Azuela, 2001). The agency responsible de Certificación de Derechos Ejidales y
for the regulation of human settlements on Titulación de Solares Urbanos” –PROCEDE-
communal land is the “Comisión para la (Certification Program of Communal Rights
Regularización de la Tenencia de la Tierra” – and Titling of Urban Sites), committed to
CORETT- (Commission for the Regularization providing legal certainty and security in land
of Land Tenure). 71% of the expropriation tenure to communal landholders in the country,
decrees issued, 77.3% of the area affected by the by granting land subdivision certificates and/or
regularization and 66.8 % of the property titles certificates of rights on land of common use, as
given, were carried out between 1991 and 1997. applicable, as well as urban land titles for each
and every communal landholder that requests
As regards the regularization of human them.
settlements in communal land, there have
been changes, because besides the CORETT, So, the PROCEDE, whose actions started
the Communal Assembly has been authorized in 1993, does not represent the privatization
to carry out that procedure. The “Ley General of communal lands, since it only pursues
de Asentamientos Humanos”, México LGAH their regularization by means of issuing and
(General Law of Human Settlements) also granting the corresponding certificates and titles
empowered the Assembly to establish, expand (privatization, in any case, is subsequent). The
and delimit the area of communal urbanization program covers 29,951 “ejidos” (communal land
and its growth reserve when devoting the area to subdivisions) and agrarian communities that
human settlements. comprise 3.5 million communal landowners and
settlers, as well as and 4.6 million plots and 4.3
Moreover, to overcome the conflicts that have million urban lands. The area of the communal
traditionally hindered expropriations, urban lands amounts to 50 % of the national territory
development commissions were established and its population represents just over 25%
in the states and municipalities to negotiate of all the country’s inhabitants. Beneficiaries
agreements that allow the communal landholders include, besides communal landholders and
themselves to incorporate their lands to the settlers, also residents and landholders. Joining
urban development within the legal framework. the PROCEDE is not an individual choice of
More than half of the expropriated area has been the communal landholder, but a decision made
destined to programs for regularizing irregular at the Communal Assembly.
settlements
43
Domain Legalization is usually done on government land. Legalizing private land is more complex due to
costs, negotiations, etc. While many of the legalization programs intend to legalize occupations in private
land, the number of solutions is significantly lower than in fiscal lands, as the State has to expropriate the
land first and then transfer it to the occupants, or act as a mediator in a direct negotiation between the
land owners and the occupants, so that the prices established by the owners are affordable for the people
occupying the land44.
In the regularization processes, the public deed is obtained through: (i). Direct negotiations between
owner --public or private- and each occupant, resulting in purchase and sale, (ii). Expropriation of the
private owner/s by reason of public interest, and subsequent allocation of ownership of the lots to their
current occupants45, (iii). Judicial allocation of lots through the application of acquisitive prescription (see
Glosary)
The Box 11 synthetically shows off legalization policy in Quito.
BOX 11. LAND POLICY IN QUITO
The policies implemented since 2001 were people in informal settlements are seeking their
ambitious in the sense that they promoted integration to have equal opportunities as the
a comprehensive treatment of the informal citizens of the “legal” city. Hence the importance
settlements. Their results have been assessed by of citizens’ involvement in this issue, so on the
the local government based on the number of one hand, the task of the local government is to
legalized and reformed neighborhoods. That formulate long- term, sustainable and inclusive
is to say, there are differences between what policies, and on the other hand, the citizens are
legalization “must” mean and the “actual” way it in charge of watching over the implementation
is conceived. If legalization is simply understood of these policies.
as the acquisition of individual deeds, where
does this leave the social and spatial inclusion of The challenge, then, is for the local government
the dwellers? Are they still considered “second not only to legalize the settlements that fulfill
class” citizens?”. Although the local government the technical requirements but also to focus its
has not focused on meeting that objective, the actions on offering alternatives for
5.5 IN RELATION TO THE CADASTRE
The existing complexity in relation to the property of the land, of the lands in Adat and others (private
or public), and the problems of cadastres and registers that don’t allow knowing exactly who the owners
are, indicate the need to have tools to determine the boundaries of the various land areas, according to
the different owners. An effort that is being made to have an updated cadastre will obviously improve
this situation46. The example of Latin American countries that have updated or developed their cadastres,
both rural and urban, mostly since the nineties of the last century and many of them with international
financing is worth noticing because they have enabled carrying out specific policies on both private and
public lands47.
44. A major difficulty lies precisely in the price of such negotiation; occupants, when incorporating their work and capital
investment, “produce” the land as “urban land”, and therefore the price they should pay for the land is the one prior to those
investments, but the original owners intend to sell it at market price.
45. But expropriation may cause problems; in Mexico, for example, the low levels of compensation have often resulted in
injunctions against the expropriations; for these resources, the authorities have often reached informal agreements with the
“ejidatarios” to increase their compensation
46.These advances in the creation of a national cadastre are being made both by the BPN and through an initiative of the
BAPPENAS that has a national administrative structure, to carry through a unified national mapping. In the Diagnosis of
this report we include some of the interviews where mention was made of the need for updated, accurate and available
information.
47. It is worth noting that in Latin America there was an almost total ignorance of the public lands of different agencies.
Therefore, when there was an intention of implementing active policies on these lands there were --and in some cases there
still are- many difficulties. The lack of transparency permeates all aspects related to land ownership.
44
Some specific recommendations are:

• Implementation of cadastres where they don’t yet exist, permanent updating of existing cadastres.
• Unification of national and local cadastres.
• Digitized cadastres can be accessed by the population, by organized cooperatives, or by clans /
tribes.
• Registration of the woman, in case she is the head of the household
• Joint registration of the woman and the man, in the case of families formed by a couple, or a
couple and their children (this relates to the next point of titling / registration of the property).
This policy is being implemented in most Latin American countries, Honduras being one of the
first, with significant results. .
• Updated cadastres are crucial when it comes to devising policies regarding major “concentrated”
owners of land, much of which has been abandoned for decades and, in many cases, the owners
are in debt with real estate tax collectors (local and/or provincial and/or national governments,
but mostly local). In Argentina, policies have been implemented to ensure that such “indebted”
owners donate part of their land to the municipality in exchange for forgiveness of a part (or the
whole, depending on the case) of the debt. This has enabled local governments to keep a reserve
of land (or land bank), as in the case of the towns of Moreno and Florencio Varela, in Argentina.
6. TAXATION AND ACCESS TO LAND

The tax issue is critical to understand and define policies of access to the land as well as the rates for ser-
vices charged by the various agencies and levels of government. In several Latin American countries, and
especially in Colombia and Brazil, they use instruments to boost the land market (that is, to put vacant
land for sale in the market), such as the progressive property tax and the valuation uptake through state
investments --as in Colombia, since the 90s of last century, and in some municipalities in Argentina and
Brazil- (Smolka, 2013).
Other countries also apply tax instruments that improve the conditions of access to the land for the
poorest segments of society: for example, they have a grace period for the payment of property tax and
they exempt properties appraised in less than a certain amount. This happens in Honduras, Ecuador, El
Salvador, among other countries.
In the last two decades (since the privatization of services such as water and electricity with the subsequent
increase in rates that until then had been subsidized), many Latin American countries have established
policies of “social tariffs” to be implemented by privatized companies, with or without government sub-
sidies.
In cases of regularization, there is a significant number of regularized taxpayers, but with very low or no
taxes. The real estate tax is useless to balance the fiscal accounts (municipal or provincial) due to exemp-
tions, delays in payment, and the low amounts paid in comparison with other taxpayers48.
6.1 THE TRANSFER OF BUILDING RIGHTS
This tool can be applied only to the largest cities in Indonesia, as obviously cannot implemented in small
towns or rural areas. The purpose of this tool is to transfer the right to build granted for a specific piece of
land, which can’t be used because it’s an area of historical or environmental preservation, to another lot in
an area established by the Master Plan. To implement the transfer, it is necessary to determine the Coeffi-
cient of basic exploitation, which represents the right to build the same proportion throughout the urban
area, to enable the implementation of the so-called “created land”. This means that most of the construc-
48. The problem is the delay in payment by the big landowners, and the imbalance between the fiscal appraisals and the
market prices, as well as the inequitable tax rates in most cities in the region.
45
tions that exist or are being built must fit into this index. Real estate shares that apply the exploitation
coefficient above the basic one must correspond to the smaller part of the totality of buildings in the city.
In Colombia, the transfer of building rights is based on the definition of a “construction index” equal for
all the land subdivisions of a determined area and treatment, which defines the maximum exploitation
possible at each site according to the surface to urbanize, that has to be of over 20 hectares. The index
defines as generating zones all the protected lands that make up the main ecological structure, and as
receiving zones all the lots that can be developed.
In Brazil, this instrument has already been used at the level of the local government for over 20 years.
It is defined, for example, in the “Plano de Desenvolvimento de Recife” (Development Plan for Recife),
enacted in 1991. To transfer the right to build, the Executive Power issues authorizations to owners,
landholders or legal occupants who, according to the Sector Plan of Land Use and Occupancy, have
their properties located in areas of historical, cultural , archaeological and environmental interest, or are
intended for the implementation of social programs. Such authorizations to transfer the right to build
can be negotiable, free of charge or onerously, totally or partially. The criteria for their application are
established by a specific law.
6.2 RECOVERY OF CAPITAL GAINS
The recovery of capital gains refers to the process by which the State tries to recover the valorizations
that private owners obtain in their properties as a result of actions undertaken by the government, both
through regulatory measures (zoning changes, for example) and direct investment (opening of a street,
among others). When implemented, it allows local governments to recover most of the land price in-
creases that can be attributed primarily to authorized changes of use, variations in density or conversion
of land use from agricultural to urban, as well as investments made by the State.
These increases can be recovered indirectly by turning them into government revenue in the form of taxes,
fees, levies and other fiscal mechanisms, or directly through local improvements to benefit the whole com-
munity (Argentine, Municipality of Trenque Lauquen,2012; Municipality of San Martin de los Andes,
2013)..
Colombia is the country of the region with the longest tradition in this area. There, the Territorial De-
velopment Act establishes that municipalities and districts are eligible to participate in the capital gains
resulting from public actions defined in the “Plan de Ordenamiento Territorial” –POT- (Land Ordering
Plan), or in the Partial Plans that complement it, in the terms and conditions set forth in the Act. One
or more of the following administrative decisions formally adopted in the POT, or in the corresponding
Partial Plan, are factors that generate participation in capital gains:
• Incorporation of rural land to land of urban expansion, or characterization of part of it as
suburban land.
• Establishment or modification of the regime of land uses or zoning.
• Elevation of the conditions to exploit building potential, area of construction or
• percentage of occupied land.
• Construction of public works.
Based on the determination of the effect of capital gains for each zone or sub-zone of influence, the mu-
nicipal or district Mayor settles the higher value caused by the generating events established the Land
Ordering Plan, or the Partial Plan and its amendments. Municipal or District Councils, only upon the
initiative of the Mayor, set the participation rate assigned to the generated capital gains, which may range
between 30% and 50% of the highest value per square meter. This rate may vary, within the established
range, in different areas or sub-areas according to their urbanistic qualities and to the socioeconomic con-
ditions of the homeowners of the properties.
Payment is made: a. In cash. b. By transferring to the entity or to one of its decentralized agencies a por-
tion of the land equivalent to the participation. c. By transferring a portion of the land in exchange for
lands located in other parts of the urban area, making the equivalency calculations of the corresponding
46
values. d. By formally conceding to the territorial entity or one of its decentralized agencies a share value
or a social interest equivalent to the participation interest, so that the public entity will initiate, together
with the owner or holder, a program or project of construction or development on the land in question.
The product of the capital gains participation in favor of municipalities and districts is destined to: i.
Purchasing land or buildings to develop housing plans or projects of social interest, ii. Constructing or
improving road infrastructure, public services in homes, recreation areas and social facilities to upgrade
urban settlements with an incomplete or inadequate development, iii. Implementing projects and works
for recreation, parks and green areas, and for the expansion and restoration of the centers and facilities
that form the network of the urban public space.
There are difficulties to overcome, such as those of measuring the relevant increase of the value of land,
negotiating payment methods and establishing partnerships for urban development. The task of “compar-
ing” the values of the properties before and after the project poses some operational difficulties: estima-
tions made at two points in time (a process in which there may be macroeconomic phenomena that affect
the price), the form and the time of collection, the entry in the land registry, among others. (Clichevsky,
2006b)
In Brazil, there is no specific legislation related to getting hold of the valorization of private land for pub-
lic investments. But they have applied instruments that resemble the capture of such valorization, such
as payments made by private actors in the Urban Operations(Sandroni, 2001). For the local or district
government to develop these policies, it is necessary that they have updated cadastres, as mentioned below
(Erba, 2007; 2008).
In Argentina, the “Plan Urbano Ambiental” --PUA- (Urban Environmental Plan), developed between
1997 and 2000 for the city of Buenos Aires and submitted to Parliament incorporates economic instru-
ments as part of the urban environmental policy, with the intention of coordinating them with the tax
policies of the city. After a long time (the first project dates back to 1963) it has been possible to formulate
proposals, but due to relatively small power of urban policy, they haven’t been implemented yet.
7. IN RELATION TO THE CAMPS: CONFLICT, RESETTLEMENT, POST-CONFLICT, WOMEN

SITUATION
The treatment of refugee camps -- camps Kubapaten and Kota; spontaneous camps and / or organized by
any governmental authority or NGO: between resettlement and regulation in place. This depends on the
status of the territory, the environment in which they are settled (with some kind of risk or not), as well as
economic aspects -- financial and political. It depends, also, of the type and the location of the land that
camps have occupied (for example, lands wanted by both national and foreign investors to do “business”
(locating shopping centers, driven agriculture, and so one).49
Resettlement should be performed in areas close to the previous locations, so that families have the mini-
mum problems of adaptation to the new place and can have the same access to their jobs, schools, health.
Related to the role of women respect to the owner´s land, it´s different in Latin American countries, worse
in recent years have achieved recognition as owners, like the man (see Box 12).
BOX 12. THE ROLE OF WOMEN
In Latin America, since 1980, most countries and the civil codes, particularly those dealing
have reformed their land laws, their civil with family matters such as inheritance and
and family codes, and passed legislation that marital or patrimonial property, were modified
recognizes equal rights between men and women, to specifically mention equal rights for men and
including property rights. The constitutions women , both between married couples and de
49. In several of the resettlements visited, located in Timor, Ambon and Poso, the conditions of the land where the State
ordered the construction of houses present problems related to the domain and to the environment. A very illustrative
case occurred in Ambon, where the local BAPPEDA is planning works to mitigate the risk of landslides in a post-conflict
resettlement that the provincial government implemented without considering the conditions of that land (Vein Kewun local
BAPPEDA, Ambon).
47
facto marital unions. have little power in making decisions related to

the “ejido”, its activities and the welfare of its
Nicaragua was one of the first countries (in members, including decisions about the land
1981) to establish that the land of the reformed and how to use it.
sector would benefit both women and men.
Then, in 1995, it required that the property With the 1992 Farm Bill, the “ejidos” could
titles for the plots of the reformed sector were privatize their land and most of the titles were
issued to the couple, that is, in the name of the given to men (Azuela, 2001). In 2007, only
man and the woman. However, joint titling 20% of the communal landholders were women
was initially sabotaged by men who refused with land rights, but among the residents,
to include their wives in the title, or titled the women had 42% of the land. This indicates
lands together with their children or siblings that in some cases where the communal system,
(Lastarria -- Cornhiel Aubrey et al., 2003). by its rules, limits the right of women to own
land, the market offers them the opportunity to
In Costa Rica, in 1990, the Law for the have access to land. When collective titles are
Promotion of Social Equality of Women granted, the distribution of land rights within
established joint titling of real-estate property, the community is usually decided according to
and they immediately started giving titles to the customary rules of the moment.
wives and allocating lands to women in de facto
marital unions. The negative response from The practices related to inheritance also follow
men and a lawsuit to stop the titling for women customary rules. In patrilineal communities,
were overcome in 1994, and the joint titling for children and male relatives are the primary
married couples continued. heirs and, therefore, the principal landholders
(Montoya Ruiz, 2013).
In Mexico, the “ejidos” (communal landholding
areas) are groups of rural families that received Although the distribution of land in both
land from the State as collective property. Guatemala and Bolivia is highly concentrated,
Farming plots were allocated to the heads of the fact that Bolivia had a relatively effective
households. They also had access to communal land reform in the 1950s and 1960s led to
lands such as grasslands and forests, and to the distribution of land among the rural
collective resources, like water. These heads of population, in the mountains as well as in the
households were the official members of the lowlands. However, the distribution of land in
“ejido” and were considered the “owners” of both countries is highly biased, with the result
the assigned plots. From the start, communal that farmer families, both women and men, do
landholders were mostly men; only women who not have enough land to live on.
were single mothers or widows with under-
aged children could receive land and become In Guatemala, in the past, neither the law nor
communal landholders. the government’s actions protected the rights
of women to have land. Legislative reforms in
In 1971, the same land rights were accorded the years 1980 and 1990 strengthened those
to women and they were therefore granted the property rights, explicitly recognizing the
right to speak out and vote at the meetings equality of women and men, married women
of the “ejido”. In 1970, only one in 100 included. Thus, the Family Code recognizes
communal landholders was a woman. By the the right of the wife to the family patrimony,
year 2000, women controlled nearly 18% of the and since 1999 the Civil Code (Article 131)
communal plots and represented 27% of the no longer discriminates the wife and recognizes
people with farmland rights. But although they both spouses as administrators of marital
have improved their access to the land, they still property (and as heads of the family).
48
8. REGULATE OR RELOCATE?
Finally, during the field work there were some situations of occupations or camps that came up and about
which some important political decisions must be made. Firstly: will the population be resettled or regu-
larized in its present location? Here, we only want to mention the following: the general population feels
better being regularized in their place that resettled. But that depends on the location of the site in terms
of environmental risks, access to employment, education, health, etc., as well as on the size of the lots they
have, the higher or lower densification.
It also depends on what is defined as “regularization”: from granting only the property title, as was done
mainly in Peru, Panama, Venezuela and currently in other Central American countries, to implementing
what is called the domain regularization (i.e., granting the deed) and make improvements in the houses
and the urban space, and even some “comprehensive” programs that have generated employment, labor
cooperatives, etc. (as in Brazil and partly, in Ecuador and Argentina). According to the assessments made,
we can ascertain that by only having the property title, the family does not improve their urban living
conditions, though this depends on several factors to be discussed in the next stage of the work.
Resettlement is generally resisted by the population, but there are cases where, due to the environmental
conditions of the settlements, it is impossible to regularize the people in the place where they are. There
are examples of this situation in Latin American countries as different, in relation to their per capita in-
come, as Costa Rica, Honduras, Ecuador, and Argentina.
A special case is the communal lands, as shown in Box 13.
BOX 13. COMMUNAL LANDS
Communal land in Latin America is found in over grazing land and forest land. With the
different settings, such as rural communities commercialization of agriculture and the titling
and native territories. In the rural communities, projects, communal ownership is changing or
farming land usually belongs to private turning into private and individual property.
landowners (rural families) and is often titled, Native groups also control large extensions of
while the grasslands are generally registered land, often forest areas.
in the name of the community. In most Latin
American countries, the State recognizes the Several countries --for example, Bolivia and
rural communities. The land under the control Ecuador- explicitly recognize the ancestral
of native groups is mostly collectively owned, rights of native groups by granting them
with small areas used by the member families to rights over their territory (Lastarria, 2011).
grow food products. If that land is titled, it is in The State usually leaves the management of
the name of the group. But only a few countries, these lands under the control of the native
such as Bolivia, Ecuador and Peru, recognize group. Tenure is also undergoing changes
native territories. as a result of the commercialization of the
agricultural production and other factors, such
Communal lands in the hands of rural and native as the influence of agricultural exporters, oil and
communities usually follow a pattern of use that logging companies authorized to operate in or
combines the individual exploitation of farming near the native territory.
land with some kind of communal control
9. BY WAY OF CONCLUSION: THE MOST RELEVANT RECOMMENDATIONS

As pointed out by Payne and Lasserve, 2012, a land policy aimed at improving the conditions of access to
land by the poorest families (former refugees) should be defined in the context of: i. high and sustainable
rate of economic development, ii. equitable distribution of wealth and resources, iii. political will and
continuity, and, iv. a land governance system that is based on transparent land administration and that
recognizes the diversity and legitimacy of diverse tenure situations (Payne and Lasserve, 2012).50
50. As shown by Clifford Bell & Srinivas: All land in Indonesia falls into one of two categories: i. forest estate, and, ii.non-
forest. As such, the land is under a dual system through two different government agencies, the Ministry of Forestry (MoFor)
and the National Land Agency (BPN) responsible for forestry and non-forest land, respectively. This is further complicated by
49
9.1 IN RELATION TO THE INSTITUTIONS:
• BPN needs a “restructuring” and “rethinking” of its role and function. For example, registration
office is not distributed by the city/district administration but by demographic distribution. Or
the office only deals with policy making, not doing a service for land registration and certification.
It hast to be a more efficient organization, for which it must define its specific actions and the
tasks to delegate to the BPN local offices.
• BPN must coordinate its policies with BAPPENAS and other national agencies that deal with
environmental issues, as well as with the Ministry of Forestry.
• Land policies may have a nationwide scope, provided a distinction is made between big cities/
metropolitan areas and smaller cities, peri-urban and farming areas.
• Implementation of such policies must be made by the local governments, where possible in
coordination with regional/local offices of national agencies such as BPN.
• If national land policies are defined at a macro level, only as broad guidelines, local governments
should have enough autonomy to prepare and implement the more specific policies for the
territory they rule.
• There must also be, at the local level, coordination among the agencies specifically dedicated to
land (Ministry, Secretary, Direction or other categories) and, at least, with the agencies involved
in spatial planning, tax policy and environmental policy.
• An essential item is the participation of the population in the definition of policies to be
implemented at a local level, considering the different actors involved, from the clans, through
the former refugees, to the NGOs.
9.2. IN RELATION TO POLICIES
Regarding the policies and the instruments used to implement them, we have mentioned those that, in
our opinion, may be the most significant for Indonesia today, especially for the cases discussed in this
report: West Timor, Ambon and Poso, and that have been illustrated through the Latin American cases
summarized in Table 2:
Security of tenure:
‐‐ Deeds
‐‐ Supplementary title
‐‐ Antichresis
‐‐ Certificate of Comfort
‐‐ Concession of Real Right of Use
Accessibility to land
Improve accessibility to land by the population with higher needs (former refugees and lowest‐income
population)
• Regularization (legalization) of possession, which requires knowing the registration
status of the land in question (public or private owner, unknown owner). Study of
the instruments that can be used to legalize property: usocapio (prescription according to the
the indeterminate rights to land, lack of recognition of customary (Adat) land rights, lack of processes that allow, prior and
informed access, excessive application of state power of eminent domain and a policy for the allocation of land concessions
that ignores or nullifies the rights and interests of other holders of rights. (Clifford Bell & Srinivas, 2013).
50
number of years established by the corresponding agency: 30, 20, 10 or 5 years, as the most
commonly used periods)
• Titling. Individual/cooperative/ collective titling, costs
• The real estate consortium
• Land reserves (or land banks)
• The dynamization of vacant (or abandoned) land: Progressive Real estate tax and compulsory
building; AIES & ZEIZ
• Production of urban land in public‐private partnership
• Implementation of cadastres where they don’t yet exist, permanent updating of existing
cadastres. Unification of local and national cadastres. Digitized cadastres can be accessed by
the population, by organized cooperatives, or by clans/tribes
• Taxation and access to land
• The transfer of building rights
• Recovery of capital gains
• Regulate or relocate
The following Table 2 shows the main tools of the policies implemented in Latin America that can be
developed and implemented in Indonesia
51
TABLE 2. Policies and instruments to facilitate the population’s access to land in Latin-American countries and their possible use in Indonesia
52
55. There are Program of massive titling

56. There are Program of massive titling
57. The procedures are determined by the land registration committee who conducts the investigation and make
recommendation on the status of the land based on witnesses, history, available document, etc
58 In some period of time, was necessary 30 years, like in other countries. But in general, is necessary only 20 years of
occupied de lot.
59 Or, if a certificate has been issued and for the next 5 years after there is no complaint, claim or other petition to the court
53
or land registration office then the certificate can no longer be claimed or revoked
54
60. Disputes happened with the public body changes its policy on the use of land during the time of contract agreement,
which one has higher authority by law? the contract agreement (which should be honored) or the fundamental right of
public body/institution to apply its policy (stipulated in other laws/regulation about the role and function of public body who
55
manages public land).

56
61. Market (or negotiated) price is left to the contractual parties
57
58
Source: Own elaboration based on the bibliography and data provided by Kemal Taruc and Erna Heryani
62. Other social interests are land for social rights given by the original landowner which is not allowed to be transferred or
sold. Mostly use for religious property (mosques, churches, cemetery, schools, and similar uses).
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http://www.laohamutuk.org/misc/ParlInq/sub013RobertKing.pdf http://www.lombokrealestate.com/AdvisoryServices/
LegalInformation.html
http://www.opinandoenelsalvador.com/wp‐content/uploads/2010/10/Derecho‐al‐Suelo‐y‐la‐ Ciuidad‐AL.pdf#page=66
http://www.pa.gob.mx/publica/rev_52/analisis/las_mujeres_y_el_acceso.pdf http://www.plataformademocratica.
65
org/Publicacoes/14264.pdf#page=117http://w w w.preventionweb.net/english/hyogo/gar/2011/en/bgdocs/
Mansilla_2010.pdf http://revistas.urosario.edu.co/index.php/sociojuridicos/article/viewFile/2523/2113 http://www.
royalhouseofkupang.org/ http://saber.ucv.ve/ojs/index.php/rev_cc/article/viewFile/3994/3820 http://www.scielo.cl/
pdf/invi/v25n68/art05.pdf
http://scholar.google.es/scholar?start=10&q=ACCESO+A+LA+TENENCIA+SEGURA&hl=es&as_sdt=0,5http://www.
theseedcompany.org/files/Tetun‐Belu‐profile.pdf http://unjobs.org/duty_stations/indonesia/nusa‐tenggara‐timur/
belu http://www.urbanknowledge.org/ur/docs/Indonesia_Report.pdf
http://usaidlandtenure.net/sites/default/files/country‐profiles/full‐reports/ USAID_Land_Tenure_Indonesia_Profile_0.pdf
http://www.vwl.uni‐freiburg.de/iwipol/discussion_papers/ DP15_luebke_democracy_in_progress.pdf
https://openaccess.leidenuniv.nl/bitstream/handle/1887/18325/Nieuwste%20pdf%20Tenure%20Security%20bijdruk%20
binnenwerk%20met%20omslag.pdf?sequence=1 https://www.osac.gov/Pages/ContentReportDetails.aspx?cid=13176
www.tierras.gob.ar
http://www.1000peacewomen.org/eng/friedensfrauen_biographien_gefunden.php?WomenID=1262
66
ANNEXES
ANNEXES
ANNEX I
GLOSSARY
1
1. LAND MARKETS
The land market is the place where private agents carry out operations of buying, selling or renting rural
land (which also has a specific market, the tenancy agreement) and urban or peri-urban land. Land mar-
kets are regulated by instruments of urban policy (national, provincial/state, local or district), in particular
those of subdivision, use and occupation of the land. It has distinctive characteristics because land itself
has specificities that other assets commercialized in specialized markets do not have.
Within the market of rural land, there is a distinction between submarkets of land for farming (and the
different types of crops that can be grown in it) and for livestock (cattle grazing, breeding, fattening). In
the urban land market, there are submarkets differentiated by the type of use that can be given to the
land: 1. residential (comprising sub-submarkets according to the socio-economic sector the land is offered
to, which determines different characteristics, especially in size and location), 2. commercial (also with
sub-submarkets depending on the type and scope of the businesses that can be installed in the land, from
a small neighborhood retail store to large shopping centers and commercial compounds that conduct
wholesale trade), 3. industrial, 4. for collective services (health, and education, recreational facilities such
as cinemas, theaters, museums, amusement parks, etc.). There is also a submarket intended for logistics
functions. The peri-urban submarket is defined according to each situation analyzed, in relation to the
existing regulations on location and dimensions.
2.URBAN POLICY
Urban policy is a decision-making tool, so it is part of the technical and political urban management
processes which, in turn, follow the general guidance provided by the local government for the territory
under its jurisdiction. (Pírez, 1994). An urban policy can be directed towards the production of goods and
services for collective consumption (for example, a housing policy) or of instruments that conduct and
regulate the construction of the territory and the significant elements of the urban setting.2
The fact that the Municipality is the State agency primarily in charge of the implementation of urban
policy does not mean that the National Government should waive its responsibility of strengthening
territorial autonomy and giving coherence and completeness to local and departmental initiatives3. The
imperative of integration to the global market must not lead to the false notion that this is a spontaneous
and harmonic process; all to the contrary, it requires careful guidance and follow-up to enable regulating
the permanent conflicts and strategic options that arise. It is a collective responsibility, in which one of
the agents involved puts forward policies to be discussed, agreed on and improved.
3.LAND POLICY
Land policies are carried out both by the State (at its different levels: national, provincial/state, local or
district, according to the legal-administrative organization of the country), and agents operating in the
private sector.
The State acts as: 1. market regulating agent, through instruments such as laws, decrees and/or regulations
concerning the production on the land (transference of rural land into urban land), and land subdivision,
use and occupancy. 2. urban land production agent, acting in the process of transference of rural land
1. This Glossary has been prepared specifically for this Working Paper by Nora Clichevsky
2. The key realm of urban policies includes the following fields of public actions and management of the urban territory:
location and economic re-structuring of the territory, regulation of its uses through the urban zoning, housing in all its aspects,
public transportation and facilities and infrastructure connected to the supply of public services.
3. The principle of promoting and respective private initiatives does not mean that the State may overlook market flaws, nor
the dysfunctionalities generated within cities and territories.
69
into urban public land for private use, according to the corresponding regulations; this means to provide
the rural land with basic services that turn it into urban land. 3. marketing agent of the land it produces
or of land that has no specific use, so it can be declared unnecessary for private use by the State and then
be sold (this has been done in Latin America since the 90 ‘s of the last century, when State reforms and
fiscal adjustments were implemented). 4. investments agent in major infrastructure, such as motorways
or urban subway construction, which means an intervention in the land market that causes an increase or
a decrease of the land prices, depending on whether it has “positive” or “negative” impacts. 5. legal agent,
in charge of legalizing land that has been illegally occupied by low-income population (there are also il-
legal occupations among the higher-income sectors, but they get legalized in other ways, such as paying
fines, for example).
The private agent also defines its policies of land, both in the urban and in the rural and peri-urban
markets, but, of course, within the space accorded by the State regarding its regulations (except in cases of
agents acting illegally). The most important policies that the private agents determine are: 1. when to put
their land in the market; 2. whether to do it by parts (if it is a large subdivision, for example, 100 hect-
ares or more) and if so, what parts to put up for sale first, 3. how much land they withhold and for how
long, also according to regulations. In some countries, withholding can last indefinitely, and in others,
progressive real estate tax and compulsory construction are applied, so withholding terms shorter, 4. what
changes to make as regards the characteristics of the land, for example, deforestation, filling in wetlands
or other floodplains.
4.MANAGEMENT OF (URBAN AND RURAL) LAND

Land management is the group of initiatives, instruments and mechanisms used by the State to normal-
ize the occupation and use of urban and rural land (Territorial management), in coordination with the
local society’s political forces and initiatives (Policy management), with the goal of generating processes of
urban and territorial planning to ensure the protection of public interest over private interests. It consists
in carrying out intra-sectorial, inter-sectorial and local actions that promote urban and rural development
through specific tools (laws, decrees, resolutions, agreements). In this respect, decentralization plays an
important role by giving municipalities competence to manage their territory in coordination with the
local governments. This doesn’t often happen, though, and the management conducted by a local govern-
ment differs from the one applied in the adjoining municipality.
The connections among urban agents, which used to be simple, between the center and the periphery
(National and Local Government), are becoming more complex with the participation of a myriad of new
public and private actors: entrepreneurs, owners, real estate agents, academic associations, community
organizations, national and international agencies, private and joint enterprises. This situation makes it
necessary to facilitate instances of coordination and institutionalization of partnerships, and of negotia-
tions to apply a proper management of the territory and of urban and rural land in particular.
5. PRESCRIPTION (5. 10, 20 OR 30 YEARS)

The prescription4 is a legal construct by which over time has the effect of consolidating the factual situa-
tions, in our case, the acquisition of land.
To be able to apply the prescription, you must follow these requirements:
• Have begun to occupy (land or property), non-violently.
• Be continuous and uninterrupted for 5, 10, 20 or 30 years, depending on the country and the
particular situation of the applicant. In Brazil, for example, to the “favela” population, the time
elapsed is 5 years, as amended in the 1988 Constitution
• Peaceful and recover it if it is disturbed by the appropriate legal means, once recovered through
the courts is understood as that was not interrupted.
• Public, ie that can be known by third parties and not the owner regarding illegal.
4. Acts of business may be varied, for example, payment of the Real Estate and Tax Contribution of Primary, build, restore,
expand, recycling, fencing, planting, keep in good condition, regularly clean up a vacant lot, renting property among others.
70
ANNEXES
• No misleading, clear, no doubt

• Act as if it were the owner
It´s necessary be processed before the Magistrate’s Court or competent Counsel’s judgment adverse pos-
session. By the same must prove possession with all the aforementioned features required by Law and
practiced for 30/20/10/5 years. If there was transfer of possession, it must prove that both the current
and the previous owner did with all the features required by law and that among them were completed
the necessary years. To start the trial, in addition to present all the evidence, you should make a cadastral
survey by Engineer Surveyor of the total area to be prescribed; this plane must be enrolled in the National
Cadastre.
6. USOCAPIO
The usucapio also called purchasing or positive prescription is a mode of acquiring ownership of property.
Acquisitive prescription is up to the person who through the course of time and under the conditions
established by law has owned a property, perpetrated against who appears as the owner of such property at
the Public Registry of Property, in order to declaration that has been accomplished and that the prescrip-
tion has acquired ownership of the property claimed.
The basis of adverse possession, from the point of view of the perpetrator, responds to the need to end a
state of uncertainty rights (those generated by usucapir for possession, and property to assist the owner of
the domain), while focusing attention on the taxpayer, adverse possession rests on the inertia of the real
owner of the property, who abandoned or left in the hands of another owner, inertia resulting in adverse
possession, which constitute the penalty imposed negligent owner.
This is the case who after having “encourage owning “it some time, and has kept and treated as his own,
has been the clear revealed his intimate desire possess. For this then, is valued through the Usucaption
judgment, this person has done to deserve to be granted such a character on same owner.
7. ADAT LAND AND ULAYAT LAND5

Adat land in BPN nomenclature is known as non‐state land, any land which does not belong to
the state land. In this regard its certification process can be given through the conversion of right.
Adat land in general public perception is commonly understood as any land which belongs to the indig-
enous or native communities in a particular (usually remote) location such as the indigenous Kubu or
Baduy tribes. For those lands, in BPN is understood as the Ulayat land.
8. KADASTER (CADASTRE) AND LAND REGISTRATION6

Kadaster (or cadastre in English) is generally used in many parts of the world with a similar
meaning of what is known as Land Registration (pendaftaran tanah) in Indonesia.
A cadastre commonly includes details of the ownership, the tenure, the precise location (some include
GPS coordinates), the dimensions (and area), the cultivations if rural, and the value of individual par-
cels of land. Cadastres are used by many nations around the world, some in conjunction with other
records, such as a title register.7
Whereas land registration generally describes systems by which matters concerning ownership, possession
or other rights in land can be recorded (usually with a government agency or department) to provide evi-
dence of title, facilitate transactions and to prevent unlawful disposal. The information recorded and the
protection provided will vary by jurisdiction.8
5. Original notes from Erna Heryani.

6. Original notes from Erna Heryani.
7. http://en.wikipedia.org/wiki/Cadastre
8. http://en.wikipedia.org/wiki/Land_registration
71
ANNEX II
LIST OF PEOPLE MET

INTERVIEWS IN KUPANG
(7- 9/10/2013)
• Arthur Ximenes (Kepala Desa Manusak)
• Francisco Ximenes (leader Naibonat camp)
• Tio Keban (Director of Porja -- PKP Nusa Tengara)
• Marthen Rahakbauw (Director of BAPPEDA Kabupaten Kupang)
• María Bello (Dinas Sosial Kabupaten Kupang)
• Ex BPN director (at local and provincial level)
• Yustin Ceunfin, Jon Sula y Luis Neno (DPP Kabupaten Kupang)
• Tri Utomo,(BPN Kabupaten Kupang)
• NGOs meeting:
• Torry Kuswardono (PIKUL)
• Elfrid Saneh (CIS-Timor)
• Arianto Andrian (CARE)
• Yaret Nenobesi (CARE)
INTERVIEWS IN BELU
• Magdalena Tiwu (president of parliament Belu)

• Yovita Un (coordinator of Joint Secretary /BAPPEDA Belu)
• Goncalo Antonio (BPN Secretary Belu)
• María Agustina Anok (Kepala Desa – Belu’s border)
• Mateus B. C. Guedes (WB leader)
• Wendelinus INTA (UN-Habitat Belu; ex CIS-Timor member)
72
ANNEXES
INTERVIEWS IN JAKARTA
• Pak Heru (BPN)

• Jedi Satriadi y Ariaf Sefiabudhi (Ministry of Housing)
• - Mas Achmad Santosa (UKP4 –Deputy VI)
• Osward Mungkasa and Uke Mohamad Hussein (BAPPENAS)
• Pak Sony (AK3 – NGO)
• Iwan Nurdin (General Secretary of the KPA)
• Ashari Cahyo Edi, Borni Kurniawan and Oina Mariana (IRE, Yogyakarta)
INTERVIEWS IN AMBON
• Ibu J. Matulessy and Pak Toga (BPN Ambon)

• Vein Kewun (BAPPEDA local / Kota Ambon)
• Elpido Soplantila (Mercy Corps)
• Nia Rahantoknam, Junus Matakena andBerty Lewerissa (BAPPEDA provincial / Maluku)
• Jan Lunulima (RT leader, Kayu Tiga resettlement)
INTERVIEWS IN POSO
• Yery Agung Nugroho (BPN Poso)

• Purnama Megati (Director of BAPPEDA)
• NGO’s meeting:
• Jopy Hauy (YPAL – Poso)
• Moh. Tafiu D.Umar (LBH – Poso)
• Moh. Hasan Ahmad (LBH – Poso)
• Gilang G.A. Marjono (FP AUP Project – LPMS)
• Ronald Mosiangi (FP AUP Project – LPMS)
• Abdul Kadir Abjdul (CEWERS – Poso)
• Muh. Irfan (Fobar)
• Nurdin Bande (Cidep)
• Darwis Waru (LP3M)
• Husna Hamid. M. (KPPA)
73
ANNEX III
LEGAL FRAMEWORK
1. MPR Decree No. IX of 2001 on Agrarian Reform
2. Basic Agrarian Law No. 5 of 1960
3. Law no. 6 of 1953 on The Importance of the Reconversion of Private Land to State Land.
4. Law no. 1 In 1952 Emergency Law on Displacement and Land Use and Other Fixed Goods under
the Dutch Legal Title.
5. Law no. 24 Year 1954 Emergency Law on Transfer of Land Rights and Other Variable Goods
6. Law no. 29, 1956 on Regulations and Measures Concerning Land Estates
7. Law no. 1 of 1958 on the Elimination of private land
8. Law no. 7 of 1958 concerning: Duties and Powers of Agrarian Transition
9. Law no. 86 of 1958 on -- Nationalization of Dutch Companies
10. Law no. 28 of 1956 on the Transfer of Control of Land Rights -- Estate Land
11. Law No. 41 of 2009 on the Protection of Agricultural Land Sustainable Food
12. Law no. 41 of 1999 on Forestry
13. Law no. 19 of 2004 concerning Stipulation of Government Regulation in Lieu of Law No. 1 of 2004
on the Amendment of Law. 41 of 1999 concerning Forestry Become Law
14. Law no. 25 of 2007 on Investment
15. Law no. 26 of 2007 on Spatial Planning
16. Law no. 27 of 2007 on the Management of Coastal Areas and Small Islands
17. Law no. 2 of 2012 on Land Procurement for Development for Public Interest
18. Law no 7 of 2012 on the Handling of Social Conflict
19. Law No. 18 of 2013 on the Prevention and Eradication of Deforestation
20. Law No. 19 of 2013 on Protection and Empowerment of Farmers
21. Government Regulation No. 10 of 1961 on Land Registration
22. Government Regulation No.. 12 of 1964 on the Provision and Use of Land for Railway Crossing in
Greater Jakarta Raya
23. Government Regulation No. 2 of 1959 on Implementation of the Principles of the Law Nationalization
of Dutch Companies
24. Government Regulation No. 15 of 1984 on Management of Natural Resources in the Indonesia
Exclusive Economic Zone
25. Government Regulation No. 9 of 1987 on the Provision and Use of Land for Cemetery Purposes
26. Government Regulation No. 11 of 2010 on Derelict Land
27. Government Regulation No. 68 of 2002 on Food Security
28. Government Regulation No. 24 of 1997 on Land Registration
29. Head of National Land Agency Regulation No. 4 of 2007 on the Organizational Structure Management
Agency and the National Agrarian Reform Funding
30. Head of National Land Agency Regulation No. 2 of 2010 on the Handling of Public Complaints
31. Draft Bill on Land, http://www.dpr.go.id/id/ruu/Korpolkam/Komisi2/175/RUU-tentang-Pertanahan
74
ANNEXES
ANNEX IV
NUMBERS OF “NEW CITIZENS” IN
KUPANG DISTRICT 2013
NUMBERS OF “NEW
Annex CITIZENS”
IV. Numbers ofEX REFUGEES
"New FROM from
Citizens" ex refugees EAST TIMOR
East Timor inIN KUPANG
Kupang DistrictDISTRICT 2013
2013
Land for Settlement Status Housing grants

Number Number of Remarks
No Sub District / Villages
of HH Population Received and Received and
Owned land Other Status Never
Occupied Not Occupied
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)
A Verified
1. the land with "owned land" category
including the unfinished payments; still
1. KUPANG TIMUR on installement process
2. the land with "other category "
1 NAIBONAT 990 4.796 228 762 300 92 598 consist of:
2 MANUSAK 467 2.368 369 98 349 23 95 a, Using the government land/army
3 TUAPUKAN 213 930 51 162 48 23 142 b. Using the Camp
4 MERDEKA 117 436 62 55 94 0 23
5 BAUBAU 12 65 3 9 1 0 11 c. Using the neighbour land
6 OEFAFI 154 607 69 85 132 6 16 d. The land not pay yet
7 NUNKURUS 0 0 0 0 0 0 0 e. Using the private company land/local
gevernment units
8 PUKDALE 0 0 0 0 0 0 0
Sub Total 1.953 9.202 782 1.171 924 144 885
2. KUPANG TENGAH The reasons for not using the housing
9 NOELBAKI 398 1.731 5 393 1 14 383 grant:
10 TANAH MERAH 50 187 45 5 48 0 2 1. too small and unadequate for living

11 OEBELO 558 2.428 236 322 410 54 94
Sub Total 1.006 4.346 286 720 459 68 479 2. bad quality and almost go down.
3. KUPANG BARAT 3. Unclear status
12 OEMATNUNU 83 422 72 11 69 0 14 4. Using by relatives
Sub Total 83 422 72 11 69 0 14
4. FATULEU
13 NAUNU 163 747 22 141 99 14 50
14 CAMPLONG 1 0 0 0 0
Sub Total 163 747 22 141 99 14 50
5. AMABI OEFETO
15 RAKNAMO 202 921 61 141 134 5 63
16 OEFETO 15 79 0 15 15 0 0
Sub Total 217 1.000 61 156 149 5 63
6. TAKARI
17 TAKARI 37 150 16 21 0 0 37
18 NOELMINA 10 49 8 2 0 1 9
19 OESUSU 6 31 4 2 0 0 6
20 FATUKONA 1 7 0 1 0 0 1
Sub Total 54 237 28 26 0 1 53
7. SULAMO
21 SULAMO 45 196 4 41 11 1 33
22 PANTULAN 40 156 12 28 30 2 8
Sub Total 85 352 16 69 41 3 41
8. AMFOANG TIMUR
23 NETEMNANU UTARA 60 274 39 21 17 3 40
24 NETEMNANU SELATAN 124 507 81 43 78 9 37
25 KIEFU 7 33 4 3 0 0 7
26 NETEMNANU 8 38 2 6 3 0 5
Sub Total 199 852 126 73 98 12 89
9. AMFOANG UTARA
27 NAIKLIU 5 28 1 4 0 0 5
28 AFOAN 4 12 4 0 0 0 4
Sub Total 9 40 5 4 0 0 9
Total 3.769 17.198 1.398 2.371 1.839 247 1.683
Source: Report on the census of the “New Citizens” in Kabupaten Kupang, by Pemda Kab. Kupang
2013
75
NUMBERS OF “NEW CITIZENS”

Annex IV. Numbers of EX REFUGEES
"New FROMfrom
Citizens" ex refugees EAST
EastTIMOR IN KUPANG
Timor in Kupang District DISTRICT 2013
2013
Land for Settlement Status Housing grants

Number Number of Remarks
No Sub District / Villages
of HH Population Received and Received and
Owned land Other Status Never
Occupied Not Occupied
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)
B Not Verified yet

The reasons for not joint the
1. KUPANG TIMUR verifications process at the first batch:
1 NAIBONAT 72 290 12 60 9 5 58
2 MANUSAK 49 174 32 17 18 1 30
3 TUAPUKAN 0 0 0 0 0 0 0 1. still out of house, when the cencus
4 MERDEKA 14 39 5 9 7 0 7 tim visit
5 BAUBAU 4 17 1 3 0 0 4
6 OEFAFI 11 41 2 9 4 0 7 2. Just have a willingness to be counted
7 NUNKURUS 3 15 2 1 0 0 3 3. late to collect and shows the
8 PUKDALE 0 0 0 0 0 0 0 requirement documents
9 OESAO 12 64 1 11 0 0 12
Sub Total 165 640 55 110 38 6 121
2. KUPANG TENGAH
10 NOELBAKI 19 94 4 15 5 0 14
11 TANAH MERAH 5 27 2 3 3 0 2
12 OEBLEO 26 117 13 13 12 1 13
13 OELNASI 6 36 5 1 0 0 6
14 PENFUI TIMUR 1 3 0 1 0 0 1
15 TARUS 3 20 0 3 0 1 2
Sub Total 60 297 24 36 20 2 38
3. KUPANG BARAT
16 OEMATNUNU 0 0 0 0 0 0 0
Sub Total 0 0 0 0 0 0 0
4. FATULEU
17 NAUNU 7 26 0 7 4 1 2
18 CAMPLONG 1 9 49 5 4 3 6 0
Sub Total 16 75 5 11 7 7 2
5. AMABI OEFETO
19 RAKNAMO 3 13 0 3 1 1 1
6. TAKARI
21 TAKARI 0 0 0 0 0 0 0
22 NOELMINA 0 0 0 0 0 0 0
23 OESUSU 0 0 0 0 0 0 0
24 FATUKONA 0 0 0 0 0 0 0
Sub Total 0 0 0 0 0 0 0
7. SULAMO
25 SULAMO 6 18 0 6 0 0 6
26 PANTULAN 0 0 0 0 0 0 0
27 OETETA 3 13 1 2 0 0 3
28 PITAY 1 3 0 1 0 0 1
Sub Total 10 34 1 9 0 0 10
8. AMFOANG TIMUR 0 0 0 0
27 NETEMNANU UTARA 0 0 0 0 0 0 0
28 NETEMNANU SELATAN 0 0 0 0 0 0 0
29 KIEFU 0 0 0 0 0 0 0
30 NENTEMNANU 0 0 0 0 0 0 0
Sub Total 0 0 0 0 0 0 0
9. AMFOANG UTARA
31 NAIKLIU 1 6 0 1 0 0 1
32 AFOAN 0 0 0 0 0 0 0
Sub Total 1 6 0 1 0 0 1
10. AMARASI
32 NONBES 5 39 3 2 0 0 5
JUMLAH 5 39 3 2 0 0 5
Total B 260 1.104 88 172 66 16 178
Source: Report on the census of the “New Citizens” in Kabupaten Kupang, by Pemda Kab. Kupang
2013
76
ANNEXES
ANNEX V
REGULATION OF THE GOVERNMENT OF

THE REPUBLIC OF INDONESIA RE LAND
REGISTRATION N0 24/1997 . 9
ARTICLE 110
In this Government Regulation, the following terms have the following meanings:
1. Land registration is a series of activities conducted by the Government on an on-going basis and
in an orderly manner which comprise the collection, processing, recording, presentation, and
maintenance of physical and juridical data in the form of maps and registers concerning land
parcels and apartments, including the issuance of right-evidencing documents for land parcels
on which rights have been established and for apartment ownership rights as well as for the
encumbrances thereon.
2. A land parcel is a part of the surface of the earth which is a parcel with boundaries.
3. State land or land directly controlled by the State is land which is not possessed under a certain
land right.
4. Hak pengelolaan (the right of management) is the State’s right to control, the authority to exercise
which is partially delegated to the holder.
5. Land rights are rights as meant in Article 16 of Act No. 5 of 1960 re the Basic Provisions concerning
the Fundamentals of Agrarian Affairs, which is hereinafter to be referred to as UUPA.
6. Physical data are information about the location, boundaries, and area of a certain registered land
parcel or apartment and about the structures or parts of structures standing thereon.
7. Juridical data are information about the legal status of a registered land parcel or apartment, about
the right holder, about the rights of other parties on it, and about the other encumbrances thereon.
8. Adjudication is an activity within the context of the implementation of first-time land registration,
which comprises the collection and verification of physical data and juridical data concerning one
land-registration object or more for purposes related to its/their registration.
9. First-time land registration is the activity of land registration which is conducted on land-
registration objects which have not been registered under Government Regulation No. 10 of 1961
re Land Registration or under this Government Regulation.
10. Systematic land registration is the activity of first-time land registration which is conducted
simultaneously and which covers all unregistered land-registration objects existing in all or part of
the territory of a village/kelurahan.
9. STATE GAZETTE OF THE REPUBLIC OF INDONESIA NO. 59 OF 1997

10. Selection of major articles in relation to this report
77
ARTICLE 2
Land registration shall be implemented on the basis of the following principles: simplicity, safety, afford-
ability, currency, and transparency.
ARTICLE 3
Land registration has the following purposes:

a. to provide legal certainties and legal protection for the holders of rights on land parcels and on
apartments and for the holders of other registered rights so as to enable them to prove easily that
they are the true holders of the rights in question;
b. to provide information to interested parties, including the Government, so as to enable them to
obtain easily the necessary data which they require to be able to take legal acts on registered land
parcels and apartments;
c. to keep in operations orderly land administrative procedures.
ARTICLE 5
Land registration is to be organized by Badan Pertanahan Nasional (the National Land Agency).
ARTICLE 9
The objects of land registration are as follows:

a. Land parcels having the status of hak milik (right of ownership), hak guna usaha (right to cultivate),
hak guna bangunan (right of use of structures), and hak pakai (right of use);
b. Land having the status of hak pengelolaan (right of management);
c. Wakaf land (edified land/land donated for religious purposes);
d. An apartment ownership right;
e. Hak tanggungan (security title);
f. State land.
ARTICLE 10
1. The territory of land registration administration is the village/kelurahan.

2. In particular with regard to Hak Guna Usaha (Right to Cultivate), Hak Pengelolaan (Right of
Management), Hak Tanggungan (Security Title), and Tanah Negara (State Land), the territory of
their registration administration is the District/ Municipality.
78
ANNEXES
ARTICLE 11
The implementation of land registration comprises the activity of first-time land registration and that of
land registration data maintenance.
ARTICLE 12
1. The activity of first-time land registration shall comprise the following:

a. collecting and processing physical data;
b. verifying rights and recording them;
c. issuing certificates;
d. presenting physical data and juridical data;
e. storing public registers and documents.
2. The activity of maintaining land registration data shall comprise the following:
a. registering transfers and encumbrances;
b. registering other changes in land registration data
ARTICLE 13
1. First-time land registration shall be implemented through systematic land registration and sporadic
land registration.
2. Systematic land registration shall be based on an action plan and implemented in areas which are to
be determined by the Minister.
3. In villages/kelurahans which have not been designated as areas of systematic land registration as meant
in paragraph 2, land registration shall be implemented using the sporadic approach.
4. Sporadic land registration shall be implemented upon request of interested parties.
79
80
MAP 1. INDONESIA. ADMINISTRATIVE DIVISIONS
MAPS
ANNEX VI
Source: http://maps.nationmaster.com/country/id/1
MAP 2. INDONESIA. CASE STUDIES
81
ANNEXES
Source: Own elaboration based on GoogleEarth

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WORKING PAPER

Capacity Building to Sustain Peace and Integration

ACCESS TO LAND IN INDONESIA

Capacity Building to Sustain Peace and Integration (CBSPI).

EUROPEAN UNION’S AID TO UPROOTED PEOPLE PROGRAMME

institutions or of its authority, or concerning the delimitation of its frontiers or

boundaries, or regarding its social, economic or administrative systems, legal status,

official nomenclatures of any terms used. The analysis, conclusion or recommendations in

and donor member states.

Lead Consultant and Principal Writer: Nora Clichevsky

Co‐writer and Editor: Kemal Taruc

National Land Consultant: Erna Heryani

Research Consultant: Pablo Vitale

that attribution is given to authors and the organisations.

LIST OF ABBREVIATIONS iii

5.3. The dynamization of vacant (or abandoned) land 36

FONVIVIENDA Fondo Nacional de Vivienda, Colombia (National Housing Fund)

THE OBJECTIVES OF THIS PAPER ARE:

ACCESS TO LAND IN INDONESIA: REFLECTIONS ON SOME CASES

2.3. SECONDARY SOURCES OF INFORMATION

2.4. THE PROBLEMS OF LACK OF INFORMATION

3. ORGANIZATION OF THE REPORT

1.1.POPULATION DISTRIBUTION IN A COMPLEX GEOGRAPHY

1.2. BRIEF DESCRIPTIONS OF THE CASE STUDIES

Kupang and Belu

Ambon and Poso

2.1. ADAT LAND: TRADITION AND RISKS

2.2. LAND TENURE: CHARACTERISTICS AND CONFLICTS

4.1. LEGAL FRAMEWORK

4.2. LAND TITLING

4.3. LAND AND PLANNING

4.4. THE SUPERPOSITION OF LAWS AND RULES AND STATE ACTIONS

5. CONFLICTS OVER LAND

A CLASSIFICATION OF THE CONFLICTS OVER LAND

1. IN RELATION OF SECURITY OF TENURE

Figure 1: A continuum of tenure types

Source: Payne & Durand-Lasserve, 2012, pp.19

1.1 SOME EXAMPLES OF ALTERNATIVES TO FULL OWNERSHIP (OR RECORDED DEED)25

BOX 1 : THE THE SUPPLEMENTARY TITLE

BOX 2 : THE CASE OF TRINIDAD - TOBAGO

1.2 THE COSTS OF LEGALIZATION AND RESOURCES OF THE STATE

THE COSTS OF LEGALIZATION FOR THE POPULATION

PUBLIC REGISTRATION AND LOANS

2. IN RELATION TO THE INSTITUTIONAL ORGANIZATION

2.1. IN RELATION TO THE NATIONAL AND THE LOCAL LEVEL

BOX 3. PROJECT: IMPROVEMENT OF THE MANAGEMENT CAPACITY OF THE MUNICIPALITY OF MORENO

2.2. ON THE RESPONSIBILITIES OF LOCAL / DISTRICT GOVERNMENTS

BOX 5. A NATIONAL POLICY: ESTATUTO DA CIDADE-EC-, BRAZIL (CITY STATUTE).

THE REAL ESTATE CONSORTIUM

3. IN RELATION TO THE ORGANIZATION OF THE INDONESIAN TERRITORY AND DEVELOPMENT

BOX 6. COLOMBIA: COORDINATION OF TERRITORIAL PLANNING,URBAN AND LAND-TITLE REGULARIZATION.

4. IN RELATION TO THE PARTICIPATION AND TRAINING OF THE POPULATION IN THE SUBJECT

BOX 7. PEOPLE´S PARTICIPATION. THE CASE OF ARGENTINA

5. IN RELATION TO LAND MANAGEMENT AND LAND MARKET PROCEDURES (COSTS, TAX

5.1. LAND MANAGEMENT

As in Eastern Indonesia no price data exist on earth, is necessary:

5.2. LAND RESERVES (OR LAND BANKS)

5.3. THE DYNAMIZATION OF VACANT (OR ABANDONED) LAND

PROGRESSIVE REAL ESTATE TAX AND COMPULSORY BUILDING

b) Reuse of unnecessary assets

PRODUCTION OF URBAN LAND IN PUBLIC-PRIVATE PARTNERSHIP

5.4. IN RELATION TO TITLING. INDIVIDUAL/COOPERATIVE/COLLECTIVE TITLING, COSTS

BOX 8. THE PERUVIAN CASE