Land Regularization and Upgrading Programs Revisited

Over the last two decades, and especially in the last few years, land regularization and upgrading programs have been implemented in informal settlements by central, regional and local governments in several Latin American countries. Important lessons must be learned from this incipient practice of urban policy making, not only to contribute toward improving existing experiences, but also to guide those governments that are confronting the phenomenon for the first time, or more likely are confronting the need to design policies to deal with significant increases in informal urban development.

To address this need, the Lincoln Institute sponsored its third offering of the course Informal Markets and Land Regularization Programs in Urban Areas, in November 2003. It was held in Recife, Brazil because of the city’s historic tradition of urban policy making, including its regularization program (PREZEIS), which for the past 20 years has been a pioneering instrument, despite its many shortcomings. The course brought together about 35 people with varied academic backgrounds and institutional positions representing 10 Latin American countries: Argentina, Brazil, Colombia, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay and Venezuela.

The 13 intertwined lessons offered here draw on the papers presented in Recife and on experiences discussed in the two previous courses in 2001 and 2002, as well as ideas generated in the meeting of the Institute’s Latin American Network on Land Regularization in Brasília, Brazil, in July 2003. This brief, critical analysis of land regularization programs reflects contributions from many people, but the authors take full responsibility for any misrepresentations that a general synthesis like this one may produce (see Figure 1).

1. The Process of Favelización

The process of informal production of urban space is increasing at a significant pace in Latin America, despite the fact that, unlike Africa and Asia, the region has been solidly urbanized for many decades. Occupied areas are becoming denser, and new settlements are being formed daily. Increasingly, these occupations encroach on environmentally sensitive areas, near protected water reservoirs, on public land, and in other areas not suitable for human occupation or economically feasible in the formal land market. This process has created all sorts of harmful repercussions—socio-environmental, legal, economic, political and cultural—not only for the millions of residents living in informal settlements, but also for city governments and the entire urban population. Despite the many regularization and upgrading programs implemented in the last few decades, the development rate of new informal settlements has been twice and even three times that of urban population growth. Thus, increasing informality is not exclusively the result of demographic change or even the increase in urban poverty, which also has been growing but at a much lower rate.

2. The Vicious Cycle of Informality

Multiple factors are responsible for the establishment of informal settlements. Over and above demographics and macroeconomic factors affecting urban poverty (employment and income policies), local variables contribute to the “unexplained variance” of increasing informality. By acting or failing to act, local authorities have fomented the growth of the phenomenon through exclusionary land use regulation, favoring wealthy neighborhoods in the spatial allocation of public investments, outright complicity with the delinquent practices of land subdividers, and inadequate local fiscal policies.

The corollary of this tolerance of informality is of great importance for land pricing policy. The informal market values and benefits from greater regulatory freedom and from the social values associated with traditional networks among residents within the settlements. Both of these dynamics affect prices in the informal market, which are reaching absurd levels. For example, a 6-square-meter (60-square-foot) wooden shack on a mangrove swamp in Recife has been valued at US$1,300. Such extremes and variations in prices reflect the diversity of informal processes at work in the access to urban land and housing, both among different settlements and within each settlement. Attacking the factors responsible for the vicious cycle of price formation should be an indispensable ingredient of any policy seeking to mitigate the consequences of informality.

3. A World of Diversity

Far from being a homogeneous phenomenon, informality manifests itself in many forms, contexts and places. Enormous differences may be found within and between settlements in the same city, not to mention among cities within a country and among cities in different countries. Each informal area has good and bad neighborhoods; relatively high-valued and low-valued areas; an uneven distribution of whatever services are available; and properties with different types of tenure rights. The income levels of many families in informal areas also are variable and in some cases are well above those of families in formal areas who are typically expected to pay for certain publicly provided services and benefits.

In comparing the archipelago of informal settlements distributed within formal neighborhoods in Latin America, property price gradients have been found to be uncorrelated, revealing altogether different market forces. Although both formal and informal areas are subject to vigorous land markets, the intervening price determinants are of different orders of magnitude. As mentioned above, regulatory freedoms, as well as longstanding informal networks that support the exchange of intangible benefits, affect property values. These realities must be taken into account when designing regularization programs that can offer positive reform of traditional practices.

There is also a need to adjust the programs to the different conditions of newly occupied areas and long-established settlements in consolidated areas. A clearer chain of market transactions can be traced in the newer occupations, whereas there is usually no linear succession of transactions in older areas. Furthermore, established settlements reflect a complex overlay of informally defined rights and transactions, such as rooftops sold to a third party as buildable “land,” which in turn may give rise to an additional living space. It is by no means clear whether regularization programs should start with recent occupations, where the costs of upgrading are lower and degrees of freedom are greater, or with older, consolidated areas that present more pressing social consequences, but where some legal rights may already exist.

4. Tolerance of Informality

Despite all the negative implications, public authorities have tolerated informal urban development processes, whether because of neglect, political convenience, ambiguous actions or even direct promotion of informal occupations. There is, however, little understanding that such tolerance generates rights over time and little information about the extremely high costs, both absolute and relative, of what is involved in upgrading programs. At the same time, tolerance of informal occupations is accompanied by a growing acceptance by both public authorities and public opinion that consolidated settlements should be upgraded with services, equipment and infrastructure. A recent study conducted by Cities Alliance in Brazil shows that the decision to regularize an irregular settlement is often made more quickly than the decision to approve a new regular settlement (six months versus two or three years).

This official tolerance also applies to the acceptance of “second-class solutions” for “second-class citizens” and often results in the early deterioration of upgraded areas. The combination of poor-quality materials and low-cost, unconventional techniques used in upgraded areas, as well as greater pressure on the existing infrastructure because of increased densification, renders the infrastructure obsolete and incurs high maintenance costs. Moreover, upgraded areas usually are not properly integrated into the municipal fiscal system. Throughout the region, the fiscal irresponsibility of municipal administrators is aggravated further by their failure to take responsibility for the broader scope of territorial development, as well as for their negligence or at best paternalistic attitude toward these regularized settlements.

5. Expectations and Land Values

Regularization programs to date have addressed a very small percentage of existing informal settlements, and as a result the vast majority of people living informally have not benefited from any type of public intervention. Furthermore, many regularization programs have been formulated without a proper understanding of the causes of informality, and they often deliver counterproductive results that contribute to the process of increasing socio-spatial segregation.

The mere expectation of upgrading puts a premium value on the land designated for improvements, thus significantly impacting prices in the informal market. The higher the expectation that an area will be regularized in the future, the higher the premium on that land and the higher the market demand for lower-priced subdivisions elsewhere. This suggests two approaches to upgrading: comprehensive programs for everyone in a few places coordinated with policies to change future expectations about cost recovery schemes; or partial upgrading in all informal areas of the city so expectations about market activity will be more balanced and consistent. The importance of integrating upgraded areas into municipal fiscal systems is not yet properly understood.

6. Isolated and Fragmented Policies

Public intervention in informal settlements through regularization programs has been promoted in an isolated, sectoral way without the necessary integration between such programs and the wider context of urban land management policies that have a direct bearing on such settlements. These policies include construction of social housing; rehabilitation of dilapidated urban centers; occupation of vacant areas and buildings; broader spatial allocation of public investments in urban infrastructure and services; modernization of tax collections and cadastres; and public-private partnerships. Moreover, most regularization programs have been limited to residential areas and have rarely been extended to informal industrial and commercial businesses, vacant public buildings and land in central areas, or informal settlements in rural areas.

At all levels of government, regularization programs have been marked by structural fragmentation— within programs, between secretariats and ministries, and among national, state and local levels—and as a result existing resources are often misspent or fail to reach all intended beneficiaries. The programs also have suffered from a lack of administrative continuity due mostly to changes in local political contexts. Rather than supplementing other initiatives, regularization programs often absorb much of the (limited) financial capacity of local municipalities, causing other social housing programs to be sacrificed or neglected. This problem has its origins in both the broad credit lines opened by national and international multilateral agencies and the absence of a requirement that local administrations match the financial burden of the program with efforts to expand their own revenue sources. In general, credit lines for regularization programs have been established without careful consideration of the financial capabilities of municipalities.

7. Lack of Financial Resources

As if the above problems were not enough, regularization programs have not been supported by adequate financial resources. The budgetary provisions are not compatible with the proposed and sometimes ambitious objectives, and often there are no specific funds for the programs. Revenues resulting from urban planning operations (such as earmarking resources from the sale of building rights in formal and high-income areas) have not been properly used to support upgrading. Resources from international agencies have been poorly spent, especially because there has not been a rigorous evaluation of the programs, nor a firm demand that their targets or objectives are fully accomplished. In addition, there are no adequate micro-credit policies in place to support or encourage community organizations.

8. Dissociation Between Upgrading and Legalization

Although it could be argued that illegality is a consequence of the insufficient supply of serviced land at affordable prices, in the vast majority of regularization programs the greater emphasis on upgrading has been dissociated from housing improvement and socioeconomic programs aimed at integrating communities, as well as from specific policies to legalize areas and plots. The components of upgrading and legalization have been conceived as if they were separate processes, or, frequently, as if legalization were an automatic result of the upgrading process. Most upgrading programs seem to fall short of what is required for land occupations to be legalized in the first place. As a result, those few programs that have reached the legalization stage have had to invent legal-political solutions, which often do not reflect the urban conditions actually in force in the area.

Despite the publicity given to regularization programs, the number of titles that actually result in a document issued by the property registration office is disappointingly low. The complexities imposed by law and the resistance and conservative attitudes of notaries and registration offices have been identified as some of the most critical bottlenecks to overcome. It should be added that most families, once they receive a title recognizing their legitimate right to their property, simply do not bother to complete the registration process, often because they do not understand its legal overtones or because it is too expensive or cumbersome. This situation has led to an outcry for the simplification of titling and registration systems and an associated need to disempower the existing bureaucratic entities.

9.The Importance of Titling

Given these problems, few programs have reached the legalization stage, and even fewer have achieved the registration of legalized plots. Perhaps because of that failure, many analysts have come to believe that titles are not important, that the mere perception of security of tenure would suffice. Although it is true that such a perception is indeed the main factor that encourages people to start investing in their houses, titling is important for two reasons: the personal interests of the occupiers (security of tenure, protection against forced eviction, domestic conflicts, marital separation, inheritance, problems with neighbors, access to an address and to forms of credit); and the interest of the city as a whole, since legal titling can contribute to the stabilization of land markets and allow for more rational and better articulated forms of public intervention.

There is still great resistance to land titling programs, especially on the part of the judiciary and the general public. However, it is important to note that individual beneficiaries of titling programs often do not have a full understanding of the protections and limitations of their title—What is it good for? Why does one need to actually register the title? All this suggests that educational programs for both city officials and residents should accompany the introduction of any regularization programs.

In addition, there has been little reflection on the implications of the kinds of instruments used to legalize plots. The emphasis placed on individual freehold titles has ignored the need for collective legal solutions for collective social problems; whenever such legal instruments have been used, they have not been introduced in a way that renders the new legal order compatible with the existing urban order and with the legal implications of the instruments. Most existing legal options have not been fully explored and generally lack creativity. Moreover, a consistent effort has yet to be made to have the new legal instruments fully validated by credit agencies, and by society at large.

10. The Fallacy of Popular Participation

The political quality of regularization programs has varied enormously, but in general the processes of popular participation in formulating and implementing the programs have been of little significance. This situation has been further aggravated by the creation of artificial forms of participation as a result of demands from financing agencies. The designed mechanisms for popular participation are in general a sheer formality, if not a farce from the outset. Very few programs have assimilated solutions proposed by the affected community. The political-institutional and cultural framework within which most regularization programs have been formed, along with the constraints imposed by the way these programs are financed, virtually eliminates any room for a truly effective public role, since public participation normally implies major challenges to the status quo. Regularization programs are more often perceived as solutions from or for the establishment than as a response to the real needs of the majority of the low-income population.

11. Compatible Scale, Patterns and Rights

Perhaps the main problem with regularization programs is the difficulty in making the scale of the interventions compatible with the technical, urban and environmental patterns proposed for the settlements, as well as with the nature of the rights to be recognized for the occupiers. These factors of scale, patterns and rights have to be discussed together to guarantee the sustainability of the programs and their impact on reality.

12. The After-effects of Regularization Programs

After an area is upgraded or a settlement is legalized, the public authorities normally do not maintain their presence in the areas. They should perform many important functions, from monitoring and evaluating the maintenance of installed equipment (notably water and sewage systems) to creating new guidelines or rules governing new occupations. As a result of the absence of official oversight and intervention, many areas rapidly begin to deteriorate. Moreover, the legitimization provided by the regularization program may make neighboring (originally formal) areas more prone to being “contaminated” by new informal land use practices. In general, regularization programs have not led to the promised urban, social and cultural integration of upgraded areas, and the informal areas remain stigmatized as second-rate long after they have been upgraded. The idea that regularized areas are placed in a new, virtuous trajectory rarely survives beyond the original documents setting the justifications for the program.

13. Balancing Individual Freedoms and Public Functions

In spite of their concern with the need to guarantee that the beneficiaries of public intervention are indeed the occupiers of informal settlements, regularization programs have not met a proper balance between respect for individual rights and freedoms and the programs’ public functions (the recognition of the social right to housing and the need to set aside urban areas for that purpose). Frequently the adopted legal solutions embed restrictions intending to freeze the mobility process within the areas (affecting terms of sale, acquisition, rent and so forth), which only helps to generate more informality.

The strategy of focusing on an area or social group seems to ignore the very nature and origins of informality, which is in fact a Catch-22 situation. The lack of sufficient finances in most programs would, on one hand, suggest that beneficiaries should not be able to cash in their benefits and move on to a new informal occupation to be similarly regularized in the future. On the other hand, the cost of monitoring and controlling such practices may be too high, if not unfeasible. Restrictions on transactions would simply generate new kinds of informal arrangements.

Interestingly, very few regularization programs actually accommodate or adjust to the potential upward and downward mobility of the affected occupants. They are formulated with a static community in mind. Intra-urban mobility, particularly among informal settlements and between formal and informal areas, is not well understood and thus is largely ignored. A possible way out of this conundrum would be to establish a cost-recovery scheme or value capture mechanism at the very beginning of planning for a new regularization program.

Conclusion

Regularization programs are typically not formulated with well-defined goals and timetables, and the problem is made worse by the lack of suitable evaluation indicators. In short, the declared objectives of regularization programs in Latin America (promotion of security of tenure and socio-spatial integration) have not been translated into an adequate combination of a comprehensive diagnosis, effective instruments and a clear implementation strategy, not to mention deficiencies in management capacity. As a result, the Latin American experience with regularization so far can not be considered fully successful.

It may be said, however, that regularization programs have shown merit in raising public awareness about the legitimacy of claims for more effective and comprehensive responses to the needs of a significant and growing group of citizens now excluded from the formal socioeconomic system. These programs have enabled some of the urban poor to remain in central, serviced areas of Latin American cities and have improved the livelihood and conditions of those living in regularized settlements, notwithstanding this discussion of their shortcomings. Given the cruel dynamics of socio-spatial segregation in the region, this fact is in itself of great importance.

Edésio Fernandes is a part-time lecturer in the Development Planning Unit of University College London.

Martim O. Smolka is senior fellow and director of the Lincoln Institute’s Program on Latin America and the Caribbean.

Related Land Lines Articles

Angel, Shlomo, and Douglas Keare. 2002. Housing policy reform in global perspective. April: 8–11.

Calderon, Julio. 2002. The mystery of credit. April: 5–8.

Fernandes, Edésio. 2002. The influence of de Soto’s The Mystery of Capital. January: 5–8.

———. 2002. Faculty profile. July: 12–13.

Smolka, Martim O. 2003. Informality, urban poverty and land market prices. January: 4–7.

Smolka, Martim O., and Laura Mullahy. 2003. A decade of changes: A retrospective of the Latin America program. October: 8–12.

Figure 1:

Dos and Don’ts of Regularization Programs

Dos

• Understand and plan the city as a whole before designing a regularization strategy, which should be central to the overall urban policy
• Involve all stakeholders in deciding where and how to insert regularization programs
• Consider regularization programs as part of a broader social policy aimed at promoting social integration
• Maintain a state presence after the regularization program is concluded, by incorporating the regularized areas into the city’s cadastres and taxation system
• Disseminate from the outset the objectives and goals of the program and interventions, and translate them into corresponding legal rights
• Admit from the outset that there may be more than one way of doing things
• Design and provide vigorous preventive programs alongside the regularization programs, which are essentially curative
• Recognize the right to be different
• Recognize that the cost of not accessing a service is often higher than providing it
• Recognize that occupants of informal areas have legitimate rights to the city
• Be sensitive to issues of gender (woman-headed households are more permanent)
• Contemplate the existence of more than one mode of tenure regularization, including collective legal solutions to collective social problems
• Maintain unity across projects, programs and strategies
• Include the cost of not regularizing when evaluating the effectiveness of programs
• Intervene with the support of geo-referenced information monitoring systems

Don’ts

• Treat informality as an exception or formulate regularization programs as isolated or sectoral policies in a single branch of public administration
• Glorify informality as a solution for an allegedly marginal social group
• Provide titles but not services
• Ignore the existence of a vibrant market in pricing all benefits provided
• Create false expectations in the context of unavailable funds and resources
• Restrain the mobility of families
• Fail to prevent and repress new illegal activities
• Ignore irregularities in high-income areas or housing
• Ignore the payment capacity of occupants in informal settlements or the need for public-private partnerships to fund regularization programs
• Make urbanistic norms and regulations too flexible without proper legal support
• Contain market demand or supply pressures artificially
• Fail to recognize that upgrading and legalization programs must be conceived together
• Disseminate the notion that all existing situations can be regularized and fail to make clear that regularization necessarily lives together with removal in some cases
• Consider regularization programs as economically unfeasible
• Start monitoring after most upgrading work is done to magnify positive improvements