Antonio Azuela, a fellow of the Institute for Social Research at Mexico’s National University, holds law degrees from the Universidad Iberoamericana (Mexico) and the University of Warwick (England), as well as a Ph.D. in sociology from Mexico’s National University (UNAM). Since the late 1970s, he has been engaged in research and teaching on urban and environmental law from a sociolegal perspective. His book Visionarios y pragmáticos: Una aproximación sociológica al derecho ambiental (Visionaries and Pragmatists: A Sociological Approach to Environmental Law), Mexico: UNAM, 2006, is a sociological reconstruction of his experience as General Attorney for the Environment in the Mexican Federal Government, from 1994 to 2000. He has recently edited the book Expropiación y conflicto social en cinco metrópolis latinoamericanas (Expropriations and Social Conflict in Five Latin American Metropolises), published by UNAM and the Lincoln Institute of Land Policy in 2013.

Land Lines: How did you get involved with the Lincoln Institute of Land Policy?

Antonio Azuela: In 1991, I met several of the Institute’s officers while they were on an exploratory trip to Mexico. I stayed in touch, because I was interested in the Institute’s approach to urban policy. My relationship grew stronger in 1998 through a meeting in Cairo organized by the International Research Group on Law and Urban Space (IRGLUS), where the Institute expressed interest in a sociolegal approach to urban land problems. In 2000, I was honored with an invitation to join the Institute’s Board of Directors. Since then, I have been in permanent contact with the Lincoln Institute staff and programs.

Land Lines: Why has the public acquisition of land become such a critical issue, particularly in Latin America?

Antonio Azuela: Expropriation, also known as eminent domain (i.e., the compulsory acquisition of land by the state) is an important subject all over the world, because it is a way of procuring land for public urban projects. But in Latin America it is even more critical, due to the weak nature of the state regarding urban matters. Before the democratic transition in the region, it was easier for governments to procure land using mechanisms that would be questionable in a democracy. But the transition has strengthened the judicial branch, which is generally unsympathetic to government interventions in the marketplace. Now, it’s increasingly possible for private owners to interfere with the public acquisition of land in the region (with the notable exception of Colombia, where a wide-ranging coalition of professionals, judges, and social organizations supports the doctrine of the social function of property). This trend can be seen, for example, in the exorbitant compensation that some courts have granted for land expropriations in Mexico City and São Paulo.

Land Lines: What are the main watershed issues?

Antonio Azuela: The first is the adoption of economic policies that advocate a lesser role for the state. The second pertains to the legal status of property rights. When constitutional reforms empower judges to limit the power of eminent domain, this restriction is not necessarily bad, because it can lead to higher quality public administration, but in the short term it has interfered with government power to purchase urban land for public projects. There are two notable exceptions: In Brazil and Colombia, constitutional reforms have established urban policies inspired by ideas of social justice—though only in Colombia do we find a new generation of judges who act in accordance with these principles. In Brazil, the courts are dominated by the classic liberal view of private property, which interferes with the ability to implement the social function of property—an idea that has been circulating in Latin America for almost a century.

Land Lines: Many jurisdictions prefer to acquire land in the open market instead of using instruments such as eminent domain.

Antonio Azuela: Eminent domain should not be the first option for acquiring land. The challenge is for governments to regulate a variety of instruments in order to achieve a general goal, which is to reduce the land component of the total cost of urban development. The use of eminent domain must be guaranteed by a strong legal framework that can establish an adequate balance between the power of the state and the power of the landowners, and it should be the last option when acquiring land for public urban projects.

The big problem is the cost of land, but the mechanisms of government intervention can inflate prices. For example, if the use of eminent domain is not expected to increase land value, and the judges determine it’s the right approach, it can have a positive impact on land markets. At the very least, we can expect from governments that their acquisition of land does not raise prices.

Land Lines: What are the main outcomes of your research on the use of eminent domain for urban development in the region?

Antonio Azuela: While there is a general trend to strengthen property rights, which interferes with the power of eminent domain, this trend shows several variations, depending on the relationship between the judicial and executive branches in the post-authoritarian governments of the region. The process of institutional change depends less on global trends than on domestic and even local forces, as certain cities follow different paths from others in the same country. Even if all local governments were to adopt the same strategy, the courts in one region will protect landowners more than the courts in other regions. The metropolitan area of Buenos Aires, for example, illustrates how the institutional system of eminent domain is not homogeneous, even within the same metropolitan area. In the Autonomous City of Buenos Aires, for example, people who live in informal settlements (villas miseria) have gone to court and prevented evictions. In the Province of Buenos Aires, however, the political climate is such that there is no threat of eviction; eminent domain is used to ensure that settlers can remain where they are.

Another important lesson is that there is no authentic dialog in Latin America on the significance of eminent domain or on the various ways the courts have tackled the dilemmas it presents. While the constitutional thinking in the region is very rich in ideas about certain legal issues, such as the rights of indigenous people and the elderly, urban policies—in particular, eminent domain—have not triggered deep discussions among legal scholars. Unfortunately, these issues seem to be viewed as exceptions, despite the enormous number of people who live (suffering or enjoying) in large urban centers.

Land Lines: Are eminent domain compensations arbitrary or unfair? If so, for whom?

Antonio Azuela: Inadequate compensation is, no doubt, one of the great challenges for the future development of eminent domain as a land policy instrument. In some cases, governments may take advantage of the powerlessness of certain social groups and offer them ridiculously low compensation for their land or homes. In other cases, however, the landowner’s economic power and influence can result in exorbitant compensations. Beyond these two extremes, in which the affected landowner is either very vulnerable or very powerful, it is difficult to discern a dominant trend.

A precise answer to your question would require a market study of a large number of eminent domain cases in order to determine if the compensation is high or low when compared to preestablished criteria. The existing research has shown, however, that in general the courts do not possess clear and widely shared criteria for determining whether compensations are fair. Moreover, courts lack the capacity to understand what is at stake during the process of urban transformation in which eminent domain is used. Consider, for instance, the case of a prominent family from Ecuador that received a very high compensation for the expropriation of agricultural land on the periphery of Quito. What is remarkable is that this case was decided by the Inter-American Court of Human Rights, and it was obvious that the court did not establish clear criteria to determine the amount of compensation; it simply averaged the assessments submitted by the different parties. The compensation was the highest ever awarded by this high court, which was created to address violations of human rights committed by dictatorships yet ended up benefiting private property owners at the expense of the public interest. The fact that this case did not create a scandal among constitutionalists in the region indicates how marginalized urban legal issues are in Latin America.

Land Lines: What are some changing trends you have observed?

Antonio Azuela: I observe, with some optimism, that many courts and local governments in the region are undergoing a learning process, trying not to repeat prior judicial mistakes. Unfortunately, these lessons rarely transcend the affected local area and become incorporated into the common regional juridical knowledge.

Land Lines: What sort of education or training would you recommend?

Antonio Azuela: Logically, we need to intensify exchanges among different disciplines and countries, placing the courts at the center of the discussion, as they will make the final decisions. These decisions should express the best possible synthesis of a body of knowledge that we need to build around the urban dynamics of the region. In the contact we have had with the courts, with the support of the Lincoln Institute, we have found that once a dialog is established, judges understand the need to learn more in order to grasp the effects of their decisions. In other words, while the courts do not seem to show a great interest in urban problems, as evidenced by the routine attitude shown in their day-to-day decisions, they can see new perspectives for their own professional development in the context of a critical analysis of urban issues.

Land Lines: What are the critical issues that need to be investigated more deeply? What is it that we do not yet know?

Antonio Azuela: We should try to understand the logic of court decisions in the region. We frequently make a simplistic interpretation of the actions taken by the courts, because the media tend to amplify the worst cases. However, many judges make an effort to find the best possible solution to each case. Under what conditions do they operate? One of the challenges of investigating these issues in Latin America is to understand the real world in which these decisions are made, apart from the common but always relevant themes of corruption and incompetence. We need to analyze statistical information to observe general trends, combined with an ethnographic approach to the functioning of the courts. Only then will we be able to understand what needs to be reformed in order to improve the court performance in urban conflicts. While it is important to ascertain who is being favored by the court decisions—which can be done by analyzing the contents of judicial decisions—we need better understanding of the conditions under which these decisions are made. In order to do that, we need to get closer to the courts themselves.

Almost 30 years ago, Amalia Reátegui and her husband, Eusebio, packed up their possessions, wrestled together their eight children, and moved to their new home: a dusty plot of land on the barren outskirts of the Peruvian capital, Lima. At first, life wasn’t easy there. Basic services, like running water and electricity, weren’t available. Roads were unpaved, and public transportation was nonexistent. Quality schools and health clinics were far away, in the more established and wealthier neighborhoods.

But even though conditions were tough, moving to San Juan de Lurigancho, one of Lima’s earliest informal settlements, offered the couple a rare chance to become homeowners, which would have been out of their reach in the city’s traditional districts.

Little by little, things improved. They built a sturdy house made of concrete, got electricity and, years later, running water and sewage. Buses arrived, and even a metro connecting San Juan de Lurigancho to the rest of the city. Their children went off to postsecondary education, and later landed jobs in hospitals, the municipality, and the navy.

Just as important for Amalia and Eusebio was a piece of paper from the government—the title recognizing their formal ownership of the 120-square-meter plot of land where they lived.

Today, the couple still lives in the same peach-colored house, but their family home, like their neighborhood, has been transformed over the years. The one-story house is now a four-story building with eight two-bedroom apartments, one for each of their adult children.

For Amalia, a 71-year-old soft-spoken grandmother with shoulder-length black hair, this was all part of the plan. “When we first built our home, I always thought it would be for my children,” she said. “It is my house, and it is for them.”

But for her children, who spent the equivalent of tens-of-thousands of dollars to build the upper floors, the current living situation leaves them in a legal limbo, where the ownership of their apartments is based solely on a verbal agreement with their parents rather than legal paperwork.

Reverting to Informality

The case highlights a new trend that is puzzling experts of urban development and property rights in Peru. After years of demanding legal titles for their homes, residents are allowing their properties to become deregularized by failing to use the national registry, known as Sunarp, to document property transactions such as real estate sales, change of ownership within families, or the construction of additional floors subdivided into apartments. As a result, properties revert to informality, and the government registry does not accurately reflect the actual owners.

The issue is a growing concern for policy experts, who say it could have major social, economic, and legal costs. Without legal registration, disputes can quickly arise among siblings over ownership of a family home after the parents die. Resolving the dispute can lead to high legal costs in Peru’s already overburdened and slow courts. Informal owners can’t use their property as collateral for formal bank financing, and they face lower resale value if they decide to put their home on the market. It also risks undermining the sustainability of Peru’s pioneering titling program, a popular tool aimed at promoting economic development that was later emulated around the world.

“The children are now living in the same situation that their parents were living in 40 years ago. They’ve become informal again,” said Julio Calderón, a Peruvian sociologist, Lincoln Institute researcher, and expert on property rights. “Urbanistically, this is a time bomb.”

The Rise of Informal Settlements in Peru

Like other Latin American capitals, Lima experienced a population explosion during the second half of the last century, as migrants from across Peru flooded into the arid coastal city seeking a better life.

In 1950, fewer than a million people lived in Lima. By 2000, that number had ballooned to 7.4 million, according to the United Nations Population Division. Today, the Peruvian capital is home to more than 9 million people, representing almost a third of the country’s total population. The drivers of Peru’s internal migration are varied, but it’s mainly a result of political and economic hardships in the countryside. In the 1970s, the rural economy crashed following a failed agrarian reform by General Juan Velasco, a leftwing military dictator.

The economy was battered again in the early 1980s during one of the worst El Niño weather events on record, causing damaging floods and collapse of the fisheries. At around the same time, the leftist Shining Path rebels launched a violent insurgency in the southern highlands, forcing many residents there to flee to Lima to escape a bloody conflict that would claim about 70,000 lives.

In Lima, the government wasn’t prepared for the wave of migrants. With nowhere to live, new residents began to take over vacant land on the city’s outskirts, sometimes clashing with police. One of those informal developments eventually became San Juan de Lurigancho. Hector Nicho, a community leader there, remembers the authorities as being powerless to stop the flood of people who seized land, hoping to make it their own.

“The first day of the invasion, there were 15 or 20 people. The following day, we were 500. The day after that, we were 1,500. It just kept growing. They couldn’t stop it, even though the state had sent police,” said Nicho, who was just a boy when he participated in the land invasion some four decades ago.

Land grabs occurred throughout Lima, eventually leading to the creation of districts like Villa El Salvador on the city’s southern edge and San Martin de Porres in the north. The squatters were some of the city’s most impoverished residents, living in areas noticeable for the lack of state presence and vast informal economy.

By the late 1980s, things were only getting worse. Peru’s economy had spiraled into hyperinflation. The Shining Path, once confined to the rural highlands, was fast encroaching on Lima, threatening to overthrow the government and install a Maoist-inspired regime.

De Soto’s Titling Program

Around this time, Hernando de Soto, a Peruvian economist, proposed a way out of the mess. De Soto argued that providing legal ownership to property would trigger development by allowing the poor to leverage their individual assets in the formal economy and access financing. But complex and expensive bureaucratic barriers were preventing that from happening, De Soto said.

“They realized that one of the biggest obstacles to registering property in Peru was their own public registry,” said Angel Ayala, a lawyer and expert on property registration. “The problem wasn’t the informality. The problem was that the formal sector wouldn’t allow you to enter it,” he said, referring to the government’s then-complex and costly regulations for property registration.

De Soto’s ideas were embraced by Peru, which created a new legal framework to provide property titles for people like the Reáteguis, living in informal settlements in places like San Juan de Lurigancho.

In 1996, the government created the Commission for the Official Registration of Informal Property (COFOPRI) to lead a nationwide urban titling program. It also created a parallel registry, known in Spanish as the Registro Predial Urbano. The registry, which focused only on Lima’s informal settlements, slashed the requirements for property registration, making it faster and cheaper for poor land owners to get titles.

The results were impressive. According to Regularization of Informal Settlements in Latin America, a Lincoln Institute report by Brazilian lawyer Edésio Fernandes, COFOPRI reduced the time to obtain a title from 7 years to 45 days. It cut the number of steps from 2,007 to 4. The cost of registering declined from US$2,156 to almost nothing.

Since its creation, COFOPRI has issued about two million property titles, making it one of the largest programs of its kind in the world.

“The people who worked there worked 24 hours a day,” said Jorge Ortiz, a former COFOPRI employee who later became the superintendent of Peru’s traditional public registry, known as Sunarp. “They really identified with what they were doing.”

De Soto’s titling policy became the preeminent approach for land regularization around the world. It won praise from development organizations like the World Bank and the Inter-American Development Bank, and from politicians like former U.S. President Bill Clinton. Peru, as a pioneer of the program, became a model for other countries in Latin America, Africa, and Asia that were also grappling with widespread informality and poverty.

Almost 20 years since the creation of COFOPRI, academics have identified several social and economic benefits from titling. Families with formal title, for example, invest more in their homes and their children’s education, studies show. They also have fewer children.

Critics of the program, however, argue that De Soto’s main hypothesis—that titles will increase the poor’s access to formal credit—has simply not materialized as he envisioned.

They also point to unintended consequences of large land-titling programs, such as political manipulation and incentive for squatters to continue invading land, creating new informal developments without services, in the hope of being registered one day.

The Risks of Deregularization

In Peru, one of the main concerns is the sustainability of the titling, as more and more properties are becoming deregularized. Years after they seized land, the original property owners are retiring or passing away. Their property, often given to their children, is slipping back into informality.

“What we have seen happening is that the second and third property transactions are no longer registered. For a number of reasons, people simply fail to keep their properties fully legal,” said Fernandes. “So in a few years’ time, you are back to square one in terms of the legalities of the area.”

Unless the trend changes, policy experts say, the government’s aggressive titling program could unravel, along with its benefits.

Informal property owners risk losing the most basic benefit of titling: tenure security and legal protection against eviction and fraud. They could face other costs, like legal expenditures to resolve disputes over ownership.

There are also opportunity costs. Informal homeowners can’t use their property to access formal credit. They’d also miss out on receiving fair market compensation if they decided to sell their home.

The extent of the deregularization is difficult to gauge, but a recent Lincoln Institute study by Oswaldo Molina, an Oxford-trained economist, found that just 21 percent of second property transactions in Peru’s recently titled areas were being formally registered (Molina 2014).

“When the reform started, it wasn’t just an issue of providing titles to the people, but maintaining them formal,” said Molina. “So what happened with the other 79 percent?”

“We are now going to have numerous properties with titles, but in the name of someone else,” he added.

Causes for the Failure to Register

During his time as the head of Sunarp, Ortiz said it was extremely rare to see individuals registering second property transactions. For Ortiz, this has been a disappointment.

“I believed in the model from the 1990s,” said Ortiz, who was the head of Sunarp during the start of President Ollanta Humala’s administration in 2011. “And now, some 30 years later, I’m seeing that it could go to waste.”

The causes of deregularization are obscure, but experts point to cultural issues and changes in public policy as important drivers.

In many places in Peru, there is a strong respect for the verbal decisions of parents, even concerning important legal issues like property registration. In cases where a family home is subdivided, children rely on their parents, the property owners, to sign off on the transaction in order to provide them with a formal title.

Experts say that many parents are happy to let their children pay for the subdivision, but they don’t consider providing formal title, believing that a verbal agreement is sufficient to split up the property. In other cases, parents refuse to provide title over concerns that they could lose control over their home.

“There is still a culture where you respect the decision and the word of the parents,” said Jesus Quispe, the director of Cenca, a Lima-based urban development institute, which works in San Juan de Lurigancho. “Few transactions go through the legal system. There is a culture of informality.”

Ramiro García, the head of the urban program at the Peruvian development organization Desco, says many families ignore the public registry until they confront a problem, like a legal dispute over ownership.

“It is bureaucratic, expensive, and families don’t consider it necessary,” he said from his office in Villa El Salvador.

Before Lima’s population boom, families that couldn’t afford to buy a home could move to the outskirts, grab a piece of land, and build a house. Today, most of the vacant land is gone. What remains is located on the edge of mountains, often unstable for living.

As land has become scarcer, demand for housing has remained robust. As a result, the city has started to expand upward, with apartment buildings replacing houses.

Real estate prices have also skyrocketed, driven by Peru’s strong economic growth over the past decade. For young families from lower-middle class backgrounds, escalating costs have made it increasingly difficult to acquire their first home.

To help their children, parents who settled Lima’s outskirts a few decades ago are now adding two or three floors to their homes, and subdividing them into apartments.

In San Juan de Lurigancho, Melly Rosas, a 53-year-old secretary at a church, decided to add three more floors to her house after watching her married children struggle to save up enough money to buy a property.

“At first, this wasn’t our plan,” she said. “But it was too expensive for them to buy land while paying rent.”

“We are growing upward because there isn’t any more space,” Rosas added, referring to the increasing number of buildings in her neighborhood.

Rosas and her husband, Ricardo, haven’t looked into providing titles for their children’s apartments, but they plan to. “We know we have to do so, because it will reduce a lot of problems they could have,” she said. “Right now, everything is verbal.”

A short drive away, on a quiet, residential street, Marcelo Nuñez, a 52-year-old shoemaker, lives in a spacious house with high ceilings that help to keep it cool during Lima’s hot summer days. Attached to the house is a small store, where his wife sells soft drinks and potato chips.

Like their neighbors, Nuñez and his family slowly built their home over the last 30 years, one wall at a time. Now his 28-year-old daughter is building a second floor, where she plans to live with her baby boy. Nuñez’s son, 25, will likely live on the third floor.

Nuñez said he hadn’t planned to register the upper floors, even though they will be owned by his children. “For my part, I hadn’t thought about doing it legally, because we are family,” he said. “It’s pretty strange to do a subdivision legally. Normally it is just by word.”

But, like Rosas, Nuñez agrees that leaving his children without formal titles could create future problems. “If they’re in agreement, I wouldn’t have a problem with doing it legally,” he said.

But cultural factors aren’t the only impediment to property registration. Policy experts say that people like Rosas and Nuñez will run into several costly regulatory requirements if they eventually decide to formalize their properties.

The obstacles arose, experts say, due to the government’s decision to eliminate the Registro Predial Urbano, the parallel registry created to speed up formal registration in Lima’s informal settlements.

In 2004, Peru merged the Registro Predial Urbano into Sunarp, the traditional public registry that was seen as too costly and bureaucratic. The Registro’s simpler procedures for second and third property transactions were replaced by Sunarp’s more complicated and costly requirements.

Critics of the decision say the government made the change due to lobbying from powerful groups representing public notaries, who were concerned about losing lucrative business due to the Registro Predial Urbano. Unlike the traditional registry, the Registro allowed property owners to hire any lawyer, not just notaries, to legalize their transactions.

“By returning to the previous system, the costs multiplied by five. People said, ‘No, I’m not going to do that,’” said Ayala, the lawyer and expert on titling. “The issue isn’t cultural. It is about how to maintain the titling process in the formal system.”

Deregularization in Peru has far-reaching consequences for other countries that established their own titling programs based on the Peruvian model.

Argentine economists and Lincoln Institute researchers Sebastian Galiani, of the University of Maryland, and Ernesto Schargrodsky, of the Universidad Torcuato Di Tella, found that in a recently titled suburb of Buenos Aires a significant portion of households were falling back into informality. In a 2013 study, the authors concluded that deregularization was likely due to the unaffordable cost of keeping the properties formal (Galiani and Schargrodsky 2013).

“This isn’t just a Peruvian issue, but something that is much larger in the region,” said Molina, the economist who studied deregularization in Peru. “It is a problem with the short-term view of the reform.”

Potential Solutions

To stem the tide of deregularization, policy experts say authorities will need to intervene now to prevent the need for costly retitling programs in the future.

Some small steps have been taken. In 2007, the government issued legislation to provide lower-income title holders with funds to formalize subdivisions, a process that first requires them to register construction of the house. (Peru’s registration program gave residents titles to the land, but not the house built on top.) However, registration experts say the 2007 program was never fully implemented.

More importantly, experts say the government should reinstate simpler procedures, like those that were discarded when the Registro Predial Urbano was integrated into Sunarp. “The concrete thing to do would be to reconsider mechanisms that were used before,” said Molina. “The Registro was created so that the poor could correctly receive titles.”

Regulatory changes may not be enough on their own. Many experts insist that the problem requires authorities to tackle Peru’s broader culture of informality as well. To do so, they say, the government should launch a campaign to educate residents about the importance of maintaining their properties formal.

“This is a problem that the government has to address,” said Gustavo Riofrio, a sociologist and Lincoln Institute researcher who has spent his career studying property rights. “You have an entire city that was made by these people who are facing the same problem. It is now a social problem, not an individual one.”

Officials at Sunarp say they are working to simplify procedures for property transactions, without jeopardizing the legal security that the current system provides. Sunarp says it is also working to educate people about the importance of using the registry, but acknowledges that the government “hasn’t been able to instill in the population the importance of formalization.”

Until there is a greater acceptance of the regulatory system, some lawyers say Peru should make registration compulsory. Unlike many other countries, Peru does not require registration of property transactions; it’s voluntary.

“We have to educate people so they understand that registration doesn’t just provide security. It’s important to create value as well,” said Ortiz. “But until we have a new culture, we need to require people to register by modifying the civil code.”

At the home of Amalia and Eusebio, in San Juan de Lurigancho, their 40-year-old daughter Emma is eager to discuss property titles.

Emma, who lives in a third-floor apartment with her son, says the subdivision of her childhood home is working out nicely so far. The family members respect each other’s space, but they still get together for a lunch on Sunday. The children also help their aging parents with expenses such as food.

But Emma says she knows it’s important to define ownership legally, especially after seeing cases where other families get mired in legal conflicts over their home. She thinks her parents will eventually start the process to provide their children with titles.

“My mom and dad still feel physically well. When that changes, I think they’ll let it go,” she said. “But for the moment, they are still keeping it tied up. For me, that’s OK.”

Ryan Dubé is a Canadian journalist based in Lima, Peru. His articles have been published in The Wall Street Journal, The Globe & Mail, and Latin Trade. He has also worked on projects for the Economist Intelligence Unit.

References

Fernandes, Edesio. 2011. Regularization of Informal Settlements in Latin America. Cambridge, MA: Lincoln Institute of Land Policy. www.lincolninst.edu/pubs/dl/1906_1225_Regularization%20PFR%20Rev%202012.pdf

Galiani, Sebastian and Ernesto Schargrodsky. 2013. “Land De-Regularization.” Working paper. www.utdt.edu/ver_contenido.php?id_contenido=2674&id_item_menu=4526

Molina, Oswaldo. 2014. “Loss of Plot Formality through Unregistered Transactions: Evidence from a Natural Experiment in Peru.” Working paper. Cambridge, MA: Lincoln Institute of Land Policy. www.lincolninst.edu/pubs/2447_Loss-of-plot-formality-through-unregistered-transactions

Una versión más actualizada de este artículo está disponible como parte del capítulo 2 del libro Perspectivas urbanas; Temas críticos en políticas de suelo de América Latina.

Mi experiencia al asistir a la conferencia “Who Owns America? II” [¿A quién pertenecen los Estados Unidos?] celebrada en Madison, Wisconsin en junio pasado fue como contemplar un panorama formado por ideas acerca de la tierra y la gente. Desde mi punto de vista, este panorama tenía cuatro características dominantes:

• la expansión de los derechos de propiedad;
• el desafío de la dicotomía de lo privado/lo público;
• la creciente complejidad del mundo físico, que constituye el ‘objeto’ de los derechos de propiedad;
• y el enfoque narrativo como herramienta metodológica para lograr una mayor comprensión de la propiedad como una relación social.

La característica más sobresaliente del pensamiento jurídico estadounidense con respecto a la tierra es la gran importancia de los derechos de propiedad. La tradición jurídica de América Latina, según la doctrina de la función social de la propiedad planteada por el jurista francés Leon Duguit, tiende a considerar los derechos de propiedad como una materia a ser limitada por el gobierno y las leyes a fin de satisfacer las necesidades sociales. Por lo tanto, para mí fue un choque cultural descubrir la popularidad de la teoría de Charles Reich sobre la propiedad, en la que se promueven las ideas igualitarias mediante la defensa de los derechos de propiedad individuales.

En la conferencia se plantearon numerosas maneras distintas de ampliar la noción de propiedad para dar cabida a nuevas demandas sociales. Un ejemplo de ello fue el planteamiento de Eric Freyfogle de que la propiedad debiera tener un lugar privilegiado en la sociedad. Por supuesto, no hace falta que una idea sea aceptada por unanimidad en el razonamiento jurídico estadounidense para que pase a ser un aspecto importante del panorama actual de ideas sobre la propiedad.

La segunda característica se refiere a la distinción entre lo público y lo privado –una distinción que resulta esencial para las sociedades modernas y que suele darse por descontada–. Estamos acostumbrados a reconocer la coexistencia de dos formas separadas de control social sobre la misma extensión de tierra: el del propietario privado y el de las entidades gubernamentales públicas. Sin embargo, debemos recordar que esta separación no es eterna ni universal; es producto de la historia.

Los estudios urbanos han demostrado repetidas veces que las regulaciones de la tierra afectan constantemente las relaciones entre el control privado y el público. Los poderes de planificación y los derechos de propiedad han venido reduciéndose y ampliándose desde los inicios de la gestión urbana moderna, y ese proceso ahora se presenta como normal. Un desafío más marcado para la separación de las categorías pública y privada fue planteado en la conferencia por los reclamos que hacen las poblaciones indígenas sobre sus territorios en los Estados Unidos.

Tales reclamos se refieren a una tercera forma, aún sin codificar del todo, de control sobre la tierra. En general, los pueblos indígenas no buscan controlar los gobiernos locales, es decir, gobernar un territorio por medios convencionales. Igualmente rechazan ser tratados meramente como corporaciones que poseen tierras. Hablan de derechos de índole distinta, con elementos antiguos y nuevos, y lo hacen cuestionando una serie de tratados entre el pueblo y el estado. Un tratado es la forma usual que toma la relación jurídica entre una nación-estado y una fuerza externa. Al parecer los tratados pasados debían ‘resolver’ el problema territorial. Hoy en día esos tratados están siendo cuestionados tanto en términos de la dicotomía de lo público/lo privado como por la formación de una nación-estado que no se concretó.

Asimismo debemos reconocer que el razonamiento jurídico clásico no cuenta con los mecanismos para darle sentido a estos desarrollos, puesto que son los fundamentos mismos de ese razonamiento lo que está en tela de juicio. Es obvio que estas inquietudes también se presentan en Canadá y México, aunque con formas y resultados diferentes. Los estudiosos y profesionales de la teoría jurídica, y especialmente de la teoría constitucional, de estos tres países norteamericanos pueden aprender mucho unos de otros en este proceso.

No debería sorprendernos que surjan nuevas formas de control territorial cuando ha habido tantos cambios en la tierra misma. Se han escrito miles de libros acerca de la transformación de la tierra, sobre todo desde el punto de vista que ahora llamamos perspectiva ambiental. La tierra como ‘objeto’ de las relaciones de la propiedad se ha convertido en un asunto bastante complejo y esa complejidad es la tercera característica que encuentro en este panorama de ideas. Los territorios han pasado a ser un concepto difícil de entender y tal vez el fenómeno más significativo es la disolución de la distinción entre lo urbano y lo rural. No tenemos ciudades en el sentido tradicional de la palabra, sino un conjunto de procesos urbanísticos.

Los mensajeros del ciberespacio nos dicen que las distancias se acortan gracias a las nuevas tecnologías; el espacio y la distancia han perdido relevancia. La verdad es que el cambio tecnológico, aunado al cambio demográfico y social, solamente ha hecho la tierra más compleja. Esto queda claro cuando vemos, como lo demostraron las ponencias presentadas en la conferencia, las numerosísimas disciplinas que describen, analizan y hasta alaban con cantos la tierra. No existe disciplina alguna que pueda englobar la tierra en una única forma de discurso.

Tal vez la más interesante de las nuevas maneras de ver la tierra sea el enfoque narrativo, la cuarta característica en nuestro panorama. El relato de historias acerca de la tierra aclara las relaciones de la propiedad mucho mejor de lo que lo hacen tantos otros métodos empíricos porque nos permite reconocer los aspectos subjetivos sin alejarnos demasiado de las ciencias sociales empíricas. En comparación con la rigidez de los enfoques jurídicos y económicos, los relatos personales nos transmiten la fluidez de la propiedad como una relación social, los cambios que suceden en esa relación como resultado de muchas interacciones y los diferentes significados que puede adquirir una parcela de tierra o un vecindario para sus moradores, habitantes nuevos, visitantes y demás.

Reconocer la riqueza e intensidad de las historias de la gente y contrastar esta riqueza con la rigidez de las categorías jurídicas no implica abandonar estas últimas. Tan es así que este enfoque más subjetivo puede constituir una nueva forma de tomar la ley con seriedad. Apenas si existe un discurso social sobre la tierra, ni siquiera en la modalidad más vernácula, que no tenga una connotación normativa. Cuando alguien dice ‘esta tierra me pertenece (me pertenecía o debiera pertenecerme)’, está haciendo un reclamo legal. Las categorías jurídicas son importantes fuera de los círculos profesionales de los abogados, jueces y agentes inmobiliarios porque son parte de las historias personales; más aún, su función es darle significado a las experiencias de la gente.

Cuando las categorías jurídicas no logran abarcar las representaciones normativas que hace un pueblo de la tierra, la ley pierde su significado. Si el razonamiento jurídico tradicional define la propiedad como un cúmulo de derechos, el enfoque narrativo puede enseñarnos a ver la propiedad como cúmulos de representaciones que permitirían ayudar a la gente a darle significado a su relación con la tierra. Quizás es esta la mayor lección que he aprendido de la conferencia “Who owns America?”: usar muchos lentes para observar el panorama y explorar las ideas comparativas acerca del carácter individual y comunitario de la propiedad, de los asentamientos informales y de los marcos jurídicos en todos los Estados Unidos.

Antonio Azuela es el Procurador Federal de Protección al Ambiente del gobierno de México. Es egresado de la Universidad Iberoamericana (Ciudad de México) y la Escuela de Leyes de la Universidad de Warwick (Inglaterra) y se ha desempeñado como asesor jurídico de varios gobiernos estatales y dependencias del gobierno federal en materia de legislación de la planificación urbana. El Dr. Azuela es autor del libro La ciudad, la propiedad y el derecho (El Colegio de México, 1989) y muchas otras publicaciones sobre legislación urbana y ambiental desde una perspectiva sociológica.

My experience in attending the “Who Owns America? II” conference in Madison, Wisconsin, last June was like contemplating a landscape of ideas about land and people. From my perspective, this landscape had four salient features:

• the expansion of property rights;
• the challenge of the private/public dichotomy;
• the growing complexity of the physical world, which constitutes the ‘object’ of property rights;
• and the narrative approach as a methodological tool for better understanding property as a social relationship.

The most noticeable feature in U.S. legal thinking about land is the great importance of property rights. Latin American legal tradition, following French jurist Leon Duguit’s doctrine of the social function of property, tends to see property rights as something to be limited by government and law in order to meet social needs. So, it was a cultural shock for me to discover the popularity of Charles Reich’s theory about property, where egalitarian ideas are advanced by means of asserting individual property rights.

At the conference, one could see many different ways in which the notion of property rights was expanded to accommodate new social demands. Eric Freyfogle’s contention that property should have an honored place in society is one example. Of course, an idea does not have to be accepted unanimously in American legal thinking for it to be an important aspect of today’s landscape of ideas about property.

The second feature refers to the distinction between public and private-a distinction that is so essential to modern societies that it is usually taken for granted. We are used to recognizing the coexistence of two separate forms of social control over the same piece of land: that of private landowners and that of public government organizations. However, one has to remember that this separation is not eternal or universal; it is a historical product.

Urban studies have long shown that land use regulations constantly affect the relationships between public and private control. Planning powers and development rights have been shrinking and expanding since the inception of modern urban management, and that process is now seen as normal. A more profound challenge to the separation of public and private categories was raised at the conference by indigenous peoples’ claims to their territories in the United States.

Those claims refer to a third, not yet fully codified, form of social control over land. In general, indigenous peoples do not aim at controlling local governments, i.e. governing a territory through conventional means. They also reject being treated simply as private corporations who own land. They talk about rights of a different nature, with old and new elements, and they do so by challenging a series of treaties between the people and the state. A treaty is the typical form of legal relationship between a nation-state and an external force. Apparently, past treaties were supposed to ‘settle’ the territorial question. But those treaties are now being questioned both in terms of the public/private dichotomy and because the formation of a nation-state was not completed.

We must also recognize that classical legal thinking does not have the tools to give meaning to these developments, because it is the very foundation of that thinking that is being shaken. Clearly, these concerns are also being raised in Canada and Mexico, although under different forms and with different outcomes. Scholars and practitioners in legal theory, and particularly constitutional theory, in all three countries of North America can learn a lot from each other in this process.

We should not be surprised to see new forms of territorial control when there have been so many changes in the land itself. Thousands of books have been written about the transformation of the land, mainly from what we now call an environmental perspective. Land as the ‘object’ of property relations has become extremely complex, and this complexity is the third feature I see in this landscape of ideas. Territories have become very difficult to understand, and perhaps the most relevant development is the blurring of the urban/rural distinction. We do not have cities in the traditional sense of the word; what we have is a set of urbanization processes.

The heralds of cyberspace tell us that as distances are shortened through new technologies, space and distance have become irrelevant. The truth is that technological change, combined with demographic and social change, has only made land more complex. This is clear when we see, as in the papers presented at the conference, the great number of disciplines that describe, analyze and even sing about land. There is not a single discipline that can embrace land into one form of discourse.

Maybe the most interesting new way of looking at land is the narrative approach, the fourth feature in our landscape. Listening to stories about land throws more light on property relationships than many other empirical methods because it allows us to recognize the subjective aspects without getting too far from empirical social sciences. Compared to the rigidity of legal and economic approaches, personal accounts give us the fluidity of property as a social relationship, the changes that occur in that relationship as a result of many interactions, and the different meanings that a piece of land or a neighborhood can have for its dwellers, new settlers, visitors or others.

Recognizing the richness and vividness of people’s stories and contrasting this richness against the rigidity of legal categories does not require neglecting those categories. Indeed, this more subjective approach can be another way of taking the law seriously. There is hardly any social discourse about land, even in its most vernacular form, which does not have a normative connotation. When someone says ‘this land is (was or should be) mine,’ he or she is making a legal claim. Legal categories are important outside the professional circles of lawyers, judges and realtors precisely because they are part of people’s stories; moreover, their function is to give meaning to people’s experiences.

When legal categories are not able to embrace a people’s normative representations about land, the law has lost its meaning. If traditional legal thinking defines property as a bundle of rights, the narrative approach can teach us to see property rights as bundles of representations that can be used to help people give meaning to their relationship to the land. Maybe this is the main lesson I have learned from “Who Owns America?”: to use many lenses to look at the landscape and to explore comparative ideas about individual and community ownership, informal settlements and legal systems throughout North America.

Antonio Azuela is the Attorney General for Environmental Protection in the federal government of Mexico. A graduate of Universidad Iberoamericana (Mexico City) and the School of Law, University of Warwick (England), he has been the legal advisor to several state governments and federal government agencies on planning law. Mr. Azuela is author of La Ciudad la Propiedad. Privada y el Derecho-The City: Private Property and the Law (El Colegio de Mexico, 1989) and numerous other publications on urban and environmental law from a sociological perspective.

Editor’s Note: The “Who Owns America? II” conference in June 1998 was cosponsored by the Lincoln Institute and the North American Program of the Land Tenure Center at the University of Wisconsin-Madison.

The University of Wisconsin Press has recently published Who Owns America? Social Conflict over Property Rights, edited by Harvey M. Jacobs, and based on the first conference in 1995. Contact: www.wisc.edu/wisconsinpress