Escolar Documentos
Profissional Documentos
Cultura Documentos
By MANIRAGABA Abias
Environmental Scientist
Contents
Chapter 1: INTRODUCTION.................................................................................................... 2
1.1 Land as a property and its classification .......................................................................... 2
1.2 What is land?.................................................................................................................... 2
1.3 Interests in land ................................................................................................................ 3
Chapter 2: LAND AS A RESOURCE THAT NEEDS MANAGEMENT ............................... 4
2.1 Land management issues in Rwanda ............................................................................... 5
2.2 What is land management? .............................................................................................. 6
2.2.1. Land management complexity ................................................................................. 6
2.3 Land administration ......................................................................................................... 8
2.3.1. What is land administration? ................................................................................... 8
2.4. Land management social and economic aspects ............................................................. 9
2.4.1 Land management and local economic development ............................................... 9
2.4.2 Land management and food security ...................................................................... 10
2.4.3 Sustainable land management ................................................................................. 10
2.5 Adapted land management glossary definitions ........................................................ 11
Chapter 3: RWANDA LAND POLICY .................................................................................. 22
3.1. Land management issues before the National Land Policy .......................................... 22
3.1.1. Very High Population density and high pressure on land...................................... 22
3.1.2. Excessive land fragmentation ................................................................................ 23
3.1.3. Loss and degradation of soils ................................................................................. 23
3.1.4. Lack of adequate land legislation .......................................................................... 23
3.1.5. Unfavourable land tenure systems to women ........................................................ 24
3.2 Land policy framework and principles .......................................................................... 24
3.2.1. Objectives .............................................................................................................. 24
3.2.2. General Principles .................................................................................................. 25
3.3. Institutional framework ................................................................................................. 27
3.4. Rwanda land Policy in the international scene ............................................................. 29
3.4.1. Africa Land Policy Framework and Guidelines (ALPFG) .................................... 29
3.4.2. Voluntary Guidelines on the Responsible Governance of Tenure of Land,
Fisheries and Forests in the Context of National Food Security (FAO) .......................... 30
Chapter 4: LAND ADMINISTRATION ................................................................................. 31
4.1. Introduction ................................................................................................................... 31
4.2. Land registration and ownership ................................................................................... 31
4.2.1. Land acquisition ......................................................................................................... 31
4.2.2. Land tenure typology and classification as per the land law and secondary ......... 32
4.2.3. Why is land registration important? ....................................................................... 34
4.2.4. Who must register? ................................................................................................ 34
4.2.5. Basic legal principles for land registration ............................................................ 35
4.2.6. Land registration and cadastre ............................................................................... 38
4.2.7. Land registration maintenance and up date ........................................................... 39
4.2.8. Cadastral developments and land management ..................................................... 49
Chapter 5. GENERAL CONCLUSION .................................................................................. 58
Reference ................................................................................................................................. 59
2
Chapter 1: INTRODUCTION
According to Ministry of natural resource 2012, Land remains a highly complex and
contentious issue, involving economic, social, political and cultural systems. As spelled out in
Article 75 of the Habitat Agenda, stating that "legal access to land is a strategic prerequisite
for the provision of adequate shelter for all and the development of sustainable human
settlements affecting both urban and rural areas. The failure to adopt, at all levels, appropriate
rural and urban land policies and land management practices remains a primary case of
inequity and poverty" [UN-Habitat, 2003], there is a strong link between land and poverty.
Access to land is a fundamental basis for human shelter, food production and other economic
activity, including by businesses and natural resource users of all kinds.
As for the airspace above the surface of the earth, it used to be assumed that the landowner
owned the space up to the heavens. The law determine the spatial limits of landowner above
the land as is reasonably necessary for ordinary use or enjoyment of the land.
It is clear that the law now sees some limit on the extent to which land extends into the air.
The precise limit will depend on the type of land and the sort of use to which it could be
reasonably expected to be put. An owner of a grouse moor may need a considerably greater
height of air than the owner of a suburban bungalow, where the only likely use for airspace
will be for the erection of a TV aerial.
On the surface of land there are likely to be structures such as houses or factories. Buildings
form part of the land, and so do fixtures. A fixture is something on or attached to the land for
its improvement, which is regarded as forming part of it, e.g. a garden gate, rose bushes or a
dry-stone wall. A chattel is an item of personal property which does not form part of land,
e.g. a watch or a pen. The same items may, in different contexts, be either fixtures or chattels.
Thus, a pile of stones in a builder’s yard is personal property, but the same stones in the form
of a dry-stone wall would be a fixture.
Traditionally, the essential difference between a legal interest and an equitable interest is that
a purchaser of land is bound by all legal interests in the land but will not necessarily be bound
by all equitable interests in it.
From a legal perspective, land extends from the centre of the Earth to the infinite in the sky.
In the present presentations, however, the focus will be on that volume of space that
encompasses the surface of the Earth, all things that are attached to it, and the rocks and
minerals that are just below it. Land includes areas covered by water such as seas and lakes,
all building and construction, and all natural vegetation.
Objects that are not attached to the soil, such as motor cars, animals and human beings, are
not part of the land, although they will be subject to the rights that control the use of the space
that they occupy.
Land and its use may be examined from many different points of view. From an ecological
perspective, land plays a vital role in the breeding and survival strategies of many living
species. The history of human settlement has been dominated by national and international
conflicts-men and women may kill or may be killed in fights over the boundaries of their
nations or of their individual properties.
This manual focuses on land as something over which individuals or communities have rights
of ownership and use, that can be bought and sold and be subject to tax, and that is the basis
of economic production.
In many countries the term “real estate” is used to describe land. Some differentiate between
the land and the buildings attached to it, referring to the latter as “property”.
In this course, unless otherwise stated, the term “land” will be treated as all embracing, while
real property refers to man-made constructions.
There is a need to manage the wealth of every nation, to the extent that a given portion
(percentage) of the gross domestic product (GDP) can come from land, property and
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construction. All countries need to determine the ownership and value of land and property,
and to monitor and manage their use so that the value of these assets may be enhanced.
Although the situation above, the Government of Rwanda, through the Vision 2020, PRSP,
EDPRS I and now II, the investment strategy, and other Government programs has
recognized land as a key priority for economic development and poverty reduction.
To this end, the National Land Policy (NLP) was developed and adopted by the Cabinet in
2004, in order to be a framework to establish broad norms and guidelines for land use
planning, effective and responsive land use management and client-friendly oriented to land
administration services. Thus, the main objectives of the NLP are:
• To establish a security of tenure for all in equitable manner;
• To put in place a system of land management that will support sustainable land use
patterns for national development.
Following the adoption of the land policy, the Government put in place the implementing
legislation, including the Organic law N°43/2013 of 16/06/2013 determining the use and
management of land in Rwanda. In parallel, a comprehensive institutional framework for the
land management and governance was developed, and mandates defined.
Another critical development has been the Land Tenure Regularization Support Program
(LTRSP) that started in 2005 and is ending up with next June. The program has for objectives
6
that all rightful landholders in Rwanda receive legally valid land title documents and to
minimize disputes preventing the issue of land titles. The LTRSP has been a very ambitious
but also very successful systematic land registration program. In line with the land tenure
security, the Land Administration System (LAS) has been developed to deal with
maintenance and update in terms of the information on parcels, rights and right owners that is
regularly changing due to transactions on land.
At the same time, a national land use and development master plan (NLUDMP) was
developed and adopted by the Parliament through the Law n° 24/2012 of 15/06/2012 relating
to the planning of land use and development in Rwanda.
As regard to land values, the Law n°17/2010 of 12/05/2010 establishing and organizing the
real property valuation profession in Rwanda was passed by the Parliament and the Institute
of Real Property Valuers (IRPV) set up.
In relation to land development, the only legal instruments in place are related to human
habitation organized by law n°20/2011 of 21/06/2011 governing human habitation in Rwanda
and urban planning and urban planning and building organized by law n°10/2012 of
02/05/2012 governing urban planning and building in Rwanda.
In terms of land information infrastructures, a national geodetic network and the national geo-
database are also under establishment.
Coming back to land management institutions, it is relevant to point out that they were set up
in the spirit of the decentralization policy. There are national institutions at the Central
Government level in charge of the overall land management, and decentralized land
management institutions at the District and Sector level. The later need a very strong special
attention in terms capacity building at all levels.
• The organizational structures for land management differ widely between countries
and regions throughout the world, and reflect local cultural and judicial settings.
• The institutional arrangements may change over time to better support the
implementation of land policies and good governance.
• Within this country context, the land management activities may be described by the
three components: Land Policies, Land Information Infrastructures, and Land
Administration Functions in support of Sustainable Development.
• Land policy is part of the national policy on promoting objectives including economic
development, social justice and equity, and political stability. Land policies may be
associated with: security of tenure; land markets (particularly land transactions and
access to credit); real property taxation; sustainable management and control of land
use, natural resources and the environment; the provision of land for the poor, ethnic
minorities and women; and measures to prevent land speculation and to manage land
disputes.
Land administration systems (LAS) and particularly their core cadastral components, are
important infrastructures which facilitate the implementation of land policies in both
developed and developing countries. LAS are concerned with the social, legal, economic and
technical framework within which land managers and administrators must operate (UNECEF
2005). These systems support efficient land markets and are, at the same time, concerned
with the administration of land as a natural resource to ensure its sustainable development.
These systems are interrelated. The actual economic and physical use of land and properties
influence land value. Land value is also influenced by the possible future use of land as
determined through zoning, land use planning regulations and permit granting processes. And
9
the land use planning and policies will, of course, determine and regulate future land
development.
The design of adequate systems in the area of land tenure and land value should lead to the
establishment of an efficient land market capable of supporting trading in complex
commodities. The design of adequate systems in the areas of land use control and land
development should lead to effective land-use management. The combination of an efficient
land market and effective land-use management should then form the basis for a sustainable
approach to economic, social and environmental development.
10
It is against this background that a wide ranging reform of land tenure and land management,
in Rwanda, forms a central part of Vision 2020 and EDPRS. Indeed, four of the six pillars of
Vision 2020 are underpinned by land reforms:
• Pillar 1-Social Capital. Land titles, and the legal status that goes with them, have been
key elements in the development of social capital in modern economies
• Pillar 2- Agricultural Transformation. In 2000, 90% of Rwandans worked in
agriculture. By 2020, urban development and the creation of non-agricultural
livelihoods is expected to reduce this to 50%. Simple and economic ways to change
land holdings and land use will be fundamental to this process.
• Pillar 3- Private Sector Development. In many sectors this will depend on access to
land. Just as important, entrepreneurs will need to be able to move capital both into
and out of land, as quickly and easily as possible as they respond to markets and
changing economic conditions
• Pillar 4-Infrastructure Development. Land is needed to build roads, bridges and other
infrastructure. At the same time, new infrastructure stimulates development and
changes in land use. In many cases, land taxes contribute to financing of infrastructure
development.
Land use plan : A plan that identifies areas for a designated use for the
purpose of land management. Used for classification, resource
management planning, identification of areas for future
development uses, including road widening.
Lease : A lease is a contractual agreement between a landlord and a
tenant for the tenancy of land.
Legal framework : Judicial, statutory and administrative systems such as court
decisions, laws, regulations, bylaws, directions and instructions
that regulate society and set enforcement processes.
Mortgage : A transfer in the interest of land for the security of a debt.
Notary : Legal attester of documents.
Operating costs (of the registry)
: For the purposes of the LGAF, total operating costs
include all non-capital investment costs (i.e. salaries and
wages, materials, transportation, etc.) associated with
registry operation. Registry operating costs do not
include long-term capital investment or associated
depreciation expense.
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Parcel (of land) : A parcel is a defined area of land with a unique record
of ownership, use, or other characteristics
Potential (property) tax : Tax that could be collected based on existing tax
policies.
Private state land Public approval
: all the land that is not included in the public domain
like: Vacant land which includes land that has no owner
and the land that was retaken by the state in respect to
confiscation mentioned in article 75 of the land law;
State land previously occupied by public activities but
which was excluded in that category according to law;
Land purchased by the state, donation or land acquired
through expropriation due to public use; swamps that
may be productive in terms of agriculture; Land
occupied by state owned forests.
Public approval : Approval of a decision or instrument such as a land
use plan through some participatory process that
involves public display and consultation.
Public good : An asset, facility, resource or infrastructure provided
for the benefit of the public.
Public information : Public access to information is a feature of public
policy by which each society defines what information,
particularly about private citizens and corporate entities
should be available to the public.
Public State land : Is the land in the public custodianship of the State or
public domain of the State, municipality or district, as
opposed to private State land. State land which makes
up the public domain consists of all the land meant to be
used by public or land reserved for public institution
services as well as land reserved for environmental
protection: Land on which lay lakes and rivers as listed
by an order of the Minister having water in his or her
attributions; Shores of lakes and rivers up to the length
of 50 m and 15 m successively determined by an order
19
The population growth and increase in population density went hand in hand with heavy
pressure on land because there are no off-farm jobs that were created to cater for the
increasing population. Natural reserves and forests were encroached to create new arable land
and excessive populations were cramming in one area of the country with most arable land.
This was aggravated by the lack of proper housing and settlement in the country which was
characterized by scattered settlement and unplanned settlement in rural area and urban areas
respectively.
23
The 11th July 1960 decree related to land use and management and the 4th March 1976
decree-law concerning the purchase and sale of customary law regulated land were not
addressing the issue of tenure of land in Rwanda. They favored the ownership of land by elite
and put aside the big part of the population. Moreover, there was no comprehensive land use
24
planning law apart from the 29th January 1981 decree concerning town planning and land use
which was never implemented due to various reasons including the lack of political will.
3.2.1. Objectives
• To establish order and discipline in the allocation of land and land transactions in
order to control and/or curb pressure on land, inappropriate development, land
speculation and land trafficking.
• To promote the involvement and sensitization of the public at all levels in order to
infuse land use practices that are favourable to environmental protection and good
land management.
• To promote conservation and sustainable use of wetlands.
land is such that it is essential to record this relationship in conformity with public,
communal and individual rights. Large-scale plans and maps in a graphic or digitized
form constitute the only likely basis for such a recording. Large-scale plans are
essential for good planning and for the execution of land use programs.
• An appropriate cadastral system is an essential basis for really understanding the land
situation of a country, and thus for planning any land reform action.
Such a system is very important in the implementation of a reform plan that entails all
types of interventions or some changes in the existing land systems. Cadastral maps
and land rights registers are very vital in ensuring the security of the landowner,
facilitate land transactions and monitor the use of conceded and ceded land. The
registration of land rights facilitates greatly the operations of any programme aimed at
granting agricultural loans, especially for small farmers.
• A well-defined legal and institutional framework is an indispensable tool for the
establishment of a national land policy. Decentralized institutional framework putting
alongside land registration and geo-information services In order to lay a solid
foundation for the new land policy, the land law will assist in putting in place the
necessary administrative structure for finalizing the land reforms.
• Individual land as opposed to public land
• Public land is composed of State land, para-statal institutions land and local
government institutions land
• Public land may be in the public domain or in the private domain of the concerned
institution.
between land management with other natural resources especially the protection of
environment.
Rwanda Natural Resources Authority was established in 2011 after the merger of the then
National Land Centre, National Forestry Authority, Office of Geology and Mining and a
Department of Water Resources from the Ministry. Through its department of lands and
mapping, Rwanda Natural Resources (RNRA) is the key institution in charge of
implementation of the land policy, it is vested to carry out land registration, keep the land
registry, national land use planning, surveying and mapping hence the general management
of all lands in Rwanda.
The Office of the Registrar of Land Titles established within RNRA was prescribed in the
former Organic Land Law and established by a Presidential Order in 2006. It has the
responsibility for issuance of land titles (Leaseholds or freeholds) and perform all
transactions related to land. It is headed by the Registrar who is supported by five deputy
zonal registrars covering each of the four provinces of Rwanda and Kigali City.
Technically, this office issues instructions to District land office and coordinate the work
related to land registration and maintenance of the land registry.
District Land Bureaus (DLB) are found at district level with responsibilities of land use
planning and land administration at the district levels, they were established by the former
Organic Land Law of 2005 (and later on provided by the Law Governing Land in Rwanda of
16 June 2013) and their responsibilities and functioning were established by a Ministerial
Order of 2006. Administratively answerable to the District authority, the DLBs are the public
notary in all matters related to land and perform tasks related to approval of cadastral plan,
receive and process transaction related to land and convey them to the Office of Registrar of
Land Titles for approval.
The One Stop Centre (OSC), this is a new concept of putting together services related units
at district level and City of Kigali in order to improve the quality of service delivery in local
governments. It is a Centre that combines the land bureau, housing bureau, infrastructure
bureau and environment bureau for better and timely delivery of services related to housing,
land management, infrastructure and environment.
Sector Land Manager, current sector organization structure has at least one sector land
manager who is in charge of land management in general but specifically they assist in land
use planning especially for rural settlement, issuance of repair permit for housing and orient
the population in all matters related to land transactions. In the near future, the land manager
will have the responsibility of providing the necessary information for land maintenance, and
29
collection of land documents (titles), shall be done from his office. It is also to be noted that,
the public officer in charge of the civil status at the Sector level shall will be given powers of
public notary in all matters related to land in order to further decentralize land management
services.
The Mediators (Abunzi), even though they are not a land management institution per se,
mediators play a key role in the resolution of land conflicts especially those involving
boundary disputes and intra-family conflicts
Land policy development and implementation is one critical area in which domestic
legislation and institutions must provide avenues to facilitate the convergence of such
30
interests and needs. The implementation of the framework and guidelines is monitored and
conducted by the Land Policy Initiative (LPI) hosted by UNECA.
Looking at the National Land Policy of 2004 that was passed by Rwanda, it is clear that all
provisions of the framework and guidelines were taken into consideration. Rwanda is among
few African countries that went through a very participatory process to produce a
comprehensive national land policy. More importantly, Rwanda is recognised by the high
political will to implement the policy through legal and institutional framework and
programmes such as systematic land registration through land tenure regularisation.
Executive Committee of the District shall be especially responsible for promoting land use
and organization and allotting plots in the District.
4.2.2. Land tenure typology and classification as per the land law and secondary
Existing tenure typology before the OLL:
• Freehold Title (certificate of freehold title/Titre de Propriete): Title of full ownership
given to land owner after they have developed their land by putting on buildings.
• Contrats de Location: this tenure type was granted for undeveloped land (urban and
peri-urban) after a deed plan is issued for parcel but before land is developed. Initial
contract was for 3 years but could be extended in 3 or 4 year terms up to 10 years
maximum. For now, the “contrat de location” was replaced by an emphyteutic lease
of 20 or 30 years according to usage or land use types in urban areas. This
emphyteutic lease is accompanied by a certificate of emphyteutic lease. It falls under
the category of individual private owned land in urban area.
• Emphyteutic lease: long term lease (20, 30, 49, 99 years according to land category
and land use) that gives real right to the land owner.
• Acte de Notoriete: occupancy permit primarily in urban areas with no fixed term, but
annual rent must be paid at 6% tax on value of land to government on registration. It
is a preliminary requirement to obtain emphyteutic lease during the process of
systematic registration (LTR) or even for sporadic registration. It falls under the
category of individual customary land in urban and rural areas
• Certificate of occupancy for Paysannat Land: considered as individual customary
land (land category) with Occupancy permit (or an acte de notoriete). During
systematic registration, this tenure typology changed and became Emphyteutic lease
of 99 years with Certificate of 99 years emphyteutic lease.
• “Cession gratuite” granted to religious confessions.
33
The following table shows different categories of land with their correspondent typology of
tenure and the bundles of rights attached onto.
Category of land Typology of tenure Bundles of rights
Individual private Freehold title (certificate of full Absolute right to occupy; to use; to rent; to
owned land ownership) on real property transfer trough inheritance, sale, gift,
mortgage; to use as collateral for loan
Where members of the community are particularly vulnerable (poor, widowed, orphaned,
elderly, illiterate, etc.), other community members should assist in ensuring that their rights to
land are also registered.
a) The booking principle implies that a change in real rights on an immovable property,
especially by transfer, is not legally effectuated until the change or the expected right is
booked or registered in the land register.
b) The consent principle implies that the real entitled person who is booked as such in the
register must give his consent for a change of the inscription in the land register;
c) The principle of publicity implies that the legal registers are open for public inspection,
and also that the published facts can be upheld as being more or less correct by third parties
in good faith, so that they can be protected by law.
Concerning the public inspection, it can be remarked that in various countries the land
register is open for inspection whether by anybody who wishes to do so (The Netherlands,
Belgium, France), or by anybody who has a legally recognized interest in what is published
(Germany), or by the registered owner or anybody who has a permission of the registered
owner (in England, until 1991). In the last case the privacy element is very dominant.
There is a need to open the registers, which were up to now more or less "closed" for
inspection by anybody. The register thus can not only assist in the simplification of
conveyancing but will also help in identifying the ownership of properties for other purposes,
such as conservation and development. Therefore the land register will be an important
component of a concept of a broad land information system. Evidence of this need can be
found in England, where the Land Registration Act of 1988 heralds the end of the privacy of
the register. This Act was brought into force in 1991.
36
d) The principle of specialty implies that in land registration, and consequently in the
documents submitted for registration, the concerned subject (man) and object (i.e. real
property) must be unambiguously identified.
Depending on the nature and extend of involvement of the state in the conveyancing process,
which appears in activity or passivity of the state and which has the root in the "legal" history
(in Continental Europe Roman law and Germanic law), there exist two recognized systems of
land registration, the deed and the title registration system.
A deed registration system means that the deed itself, being a document which describes an
isolated transaction, is registered. This deed is evidence that a particular transaction took
place, but it is in principle not in itself proof of the legal rights of the involved parties and,
consequently, it is not evidence of its legality. Thus before any dealing can be safely
effectuated, the ostensible owner must trace his ownership back to a good root of title.
Deed registration, whether the "basic" or the "improved" one (=based on a survey and on
documents of competent notaries as well as on an active role of the register) is usually
applied in countries which are mainly based on the Roman law (in Europe: France, Spain,
Italy, Belgium, The Netherlands) and also in countries that were influenced by the former
ones in earlier times (South-America, parts of North-America, some African and Asian
countries).
A title registration system means that not the deed, describing e.g. the transfer of rights is
registered but the legal consequence of that transaction i.e. the right itself (=title). So the right
itself together with the name of the rightful claimant and the object of that right with its
restrictions and charges are registered. With this registration the title or right is created.
So one could say that deed registration is concerned with the registration of the legal fact
itself and title registration with the legal consequence of that fact. In other words, the relation
between deed and title registration is similar to the relation between legal facts and legal
consequences.
Concerning the effect of a land registration system, especially a title registration, three
principles are sometimes upheld namely the mirror principle, which means that the register
is supposed to reflect the correct legal situation; the curtain principle, which means that no
37
further (historical) investigation beyond the register is necessary except overriding interests;
and the insurance or guarantee principle, which means that the state guarantees that what
is registered is true for third parties in good faith and that a bona fide rightful claimant who is
contradicted by the register is reimbursed from an insurance fund of the state.
This classification is rather arbitrary, but it is largely geographical and tends to reflect
differences in land law rather than differences in registration principles.
The cartographic/mapping/surveying aspect differs between the 3 groups i.e. the English
group makes use of large scale ordnance survey maps, the German group of parcel-based
cadastral maps, and the Torrens group makes use in principle of incidental survey plans.
A better attempt to categorize title registration systems on more realistic points would be:
• Whether or not registration carries a state guarantee;
• Whether rectification of the registration on ground of error, fraud or adverse
possession is allowable;
• On differences in maps and survey and in the methods of initial compilation.
Regarding the Torrens system, it can be remarked that Sir Robert Richard Torrens introduced
it in 1858 in South Australia. Under his name, this system was spread throughout Australia
and to some other parts of the world. Robert Torrens appears to be influenced by the German
land registration in Hamburg and by the German shipping registration. Referring to the book
"Transfer of Land in Victoria" by S.
Robinson 1979, he chartered Dr. Hübbe from Hamburg to assist in developing the Torrens
system in South Australia.
Usually in a deed registration system recording does not automatically guarantee the
concerned right. Such a system is negative and as a consequence passive in analysing the
documents. A title registration, as we have seen, guarantees the title, gives positive legal
force, and as a consequence the state has to be active in analysing the documents in order to
38
avoid damages and compensations. The more guarantee by the state there is, the more
investigation has to be done by the state, or, in other words: the more positive a system is, the
more state activity is required.
Besides the map or the geometrical part there exists also a descriptive or alphanumeric part of
the cadastre: a register which contains physical attributes of the parcel i.e. identifier, local
location, area, kind of use and abstract attributes like data for land tax such as value,
proprietor and/or taxpayer. Usually there exists also a reference to the land register. One can
say that the task of a cadastre is mainly geometrically oriented i.e. fixing and representing the
parcel.
As the heart of a cadastre is the parcel, it is necessary in this context to pay attention to some
relevant aspects:
a) Generally - whether for legal use or for ecological applications - a land parcel can
be defined as a continuous area of land within which unique and homogeneous
interests are recognized.
On behalf of legal cadastral purposes such a parcel reflects a homogeneity in legal
interest and on behalf of land use purposes such a parcel reflects a homogeneity in
use.
Usually these parcels are surveyed and mapped by a closed line and indicated by a
number (parcel identifier) on the map.
b) In relation to the parcel boundaries the question on what data can be relied on plays
a role. The English system relies mainly on physical boundary features, man-made or
natural. The precise position of the boundary within these physical boundary systems
39
is known as a "general boundary system". The system provides, however, for the
precise surveyed boundaries to be "fixed" if desired by the owners. After entering the
precise survey data in the land register the boundary is "legally" fixed for everybody
and guaranteed. Without registering the precise survey data, these boundaries are not
legally fixed and have the legal effect of "general boundaries". The term "general
boundaries" originates from the English land recording system.
The choice between "general" and "fixed" boundaries depends on the pace of creating
or updating the system, the existence of physical features, disputes to be expected, the
amount of necessary security and the costs. A cost/benefit analysis is of course
necessary.
c) Concerning the identification of the parcel is remarked that this has to be simple
and easy to understand, unambiguous, reliable and flexible (compatible with various
parcel oriented information systems). There is a tendency towards using also
identification by coordinates. This is done on behalf of coupling with other systems
and of cartographic representation of various land recording data.
4.2.7.1. Land Tenure Regularisation (LTR) and Land Tenure Regularisation Support
System (LTRSS)
Rwanda has been working on a Land Tenure Regularisation (LTR) programme since 2005
(with trials till 2008 and full implementation since 2008) with the objective of all rightful
landholders in Rwanda receiving legally valid land title documents and minimising disputes
preventing the issue of land titles.
The Land Tenure Regularisation (LTR) programme has been using general boundaries
demarcation, marked on ortho-photos (ortho rectified aerial photographs) or enlarged satellite
images, with claims being assessed in the field in a highly participatory system.
It has been a very ambitious but also very successful systematic land registration programme.
Indeed, by end March 2012, 10 million parcels had been demarcated and 2.8 million
certificates of title had been provided; less than 100,000 parcels have yet to be demarcated
and the deadline for terminating the LTR operations is still December 2013.
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To support the programme, two computer systems were developed to record and process the
land claims information. The Land Tenure Regularisation Support System (LTRSS) contains
textual details of land parcels and the Geographic Information System (GIS) maintains the
spatial details of land parcels. The two systems are linked through a Unique Parcel Identifier
(UPI).
Although the LTR has been a success, there is a need to maintain the system in terms of the
information on parcels, rights and right owners that is regularly changing due to different
types of transaction on land (sale, inheritance, sub-division/merge of parcels, servitudes,
expropriation, corrections, etc.). Without a fully functioning maintenance system, with time
the information collected by the LTR will becomes more and more out of date, until
eventually it will become a not accurate and not useful record of land, rights and right
owners.
The core of the LAIS, comprising the data store and the main processing capacity, are held
centrally with the users being able to interface with the core using the web browsers over the
internet. Changes to land rights will be notified to the system through administrative
documents. Administrative documents will be received at district offices, checked and details
entered to the database via an intranet using a web browser. Deputy Registrars located in
zone’s offices will check and approve the work undertaken by district officers. The spatial
component (GIS) of the LAIS will soon be incorporated into the system.
LAIS has been introduced as a way of moving from analogue to digital way of dealing with
various land transactions but most importantly to create a more efficient, cost effective, quick
and transparent land registration processes.
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Only the first and the third regime do have an impact of land ownership.
b. Inheritance without a will
• The principle: succession order
The following chart sets out the order in terms of who will inherit your property when you
die without a Will:
1. Your children recognized by you. If one or more of your children
are dead, their share is inherited by any living children they have.
2. If you have no children or grandchildren who are still alive, then your
parents inherit your property.
3. If your parents are not still alive, then your full sisters and brothers
inherit your property. If one or more of your full sisters or brothers are
dead, their share is inherited by any living children they have.
6. If none of the people above is still alive, your assets go to the state.
Details
If you have no Will, how the things you own will be distributed upon your death will depend
on whether or not you are legally married, whether your legal husband/wife is still alive, and
whether you have children. The most common types of scenarios are set out below:
o You are legally married
For the following examples, it is presumed that the community of property regime, which is
the most common regime, has been chosen. If you have not chosen the community of
property regime, you should ask a legal expert how your regime will apply to you.
Example 1: You are legally married, you die (husband or wife), and you have biological
and/or legally adopted children together
Example 2: You are legally married, you die (husband or wife), and you have no
children
o Your spouse will have the right to remain in your home and on
your land which you shared together and use the land and its
contents until s/he dies or remarries.
o However, everything you own when you die, including your
land, will be divided into two equal parts.
o Your spouse will own ½ (50%).
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o Your heirs will inherit the remaining ½ (50%). Your heirs are
those people shown on the Inheritance by Law chart, above.
Example 3: You are legally married, you die, you have children, and your spouse
remarries (legal marriage) after your death
Example 5: You were legally married, both you and your spouse have died, and you
have no children
• Everything you and your spouse own will be divided into two equal
parts.
• Your heirs will inherit ½ (50%) and your spouse’s heirs will inherit the
remaining ½ (50%) according to the law on separate property: your
parents; failing that, your full brothers/sisters; failing that, your full
nephews/nieces; failing that, your half brothers/sisters; failing that,
your half nephews/nieces; failing that, your aunties/uncles of your
father/mother; failing that, your cousins who are children your
aunties/uncles; or in the absence of all the above, it will go to the State.
Example 6: You were legally married, both you and your spouse have died, and
you each have children but you did not have those children together
• Everything you and your spouse own will be divided into two equal parts.
• Your children (or your grandchildren if your children die first) will inherit ½ (50%)
of everything you owned.
• The remaining ½ (50%) will go to the children of your spouse.
Everything you own with your spouse will be divided into two
equal parts.
½ (50%) of your property will go to your children and ½ (50%) will
go to your spouse’s children.
Where the children have both you and your spouse as their
biological or legal parents, they will inherit from both of you. In
this way, they will end up having a bigger share than the children
who inherit from only one parent outside the legal marriage.
In this example, there are three children from the legal marriage,
and the husband and wife each have two other children of their
own.
The assets will be divided into two, so that ½ (50%) goes to the
wife’s five children, ½ (50%) goes to the husband’s five children.
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The four children born outside the legal marriage will receive 1/5
(20%) of their single parent’s 50% share, amounting to 10% of the
combined estate. The three children from the legal marriage will
each receive 20% of the total estate (1/5 from the mother’s 50%
share and 1/5 from the father’s).
• You are informally married
The following examples apply if you are not legally married but you and your partner live
together informally.
Example 8: You are informally married or in a relationship with someone (man or
woman), you die, and you have children recognized by you
o Your partner does not inherit anything from you on your death
since you are not legally married.
o Your children will inherit everything you own in equal shares.
o If you and your partner have children together, and those
children are below the age of 21, your partner will have a
parental authority over them. Your partner will have a duty to
administer your children’s inheritance, and so will be able to
use your land and property, but only for the benefit and in the
best interests of the children.
o If your partner has children who are not recognized by you as
your children, those children will not inherit anything on your
death.
Example 9: You are informally married or in a relationship with someone (man or
woman), you die, and you do not have children
o Your partner does not inherit anything from you on your death
since you are not legally married. S/he will not be able to
continue living in your house or using your land.
o Everything you own goes to your heirs, according to the law on
separate property: your parents; failing that, your full
brothers/sisters; failing that, your full nephews/nieces; failing
that, your half brothers/sisters; failing that, your half
nephews/nieces; failing that, your aunties/uncles of your
father/mother; failing that, your cousins who are children your
aunties/uncles; or in the absence of all the above, it will go to
the State.
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c. Donations/gifts
A gift or donation is an act by which a person transfers property to another while still alive
for no payment. You have the right to give away your property so long as it is not more than
you actually own (for example, if you co-own any land, you cannot give away more than
your share of that land). If you jointly own property (for example if you are married under
community of property regime) you will need to get the written consent of the person with
whom you jointly own the property. Again, you may not give away more than 1/5 of your net
assets (value of all your assets minus your debts) if you have children, or 1/3 of your net
assets if you do not have any children.
• How do I make a gift or donation?
You can give away your assets in four different ways:
by inter vivos gift;
by ascending partition;
by legacy; and
by promised gift.
In all cases, you can make your donation by written contract, by agreement, or simply by
handing the property over to the recipient.
However, if it is land that you want to give away to someone, you must do this by authentic
deed. This transfer of land must then be registered at the District Land Bureau in order for it
to have legal effect.
• Inter vivos gift
This is the most common type of gift. You can give your property to another person who
accepts it. Once you have given away your land or property through inter vivos gift, you
cannot take it back unless that person: tries to take your life; has been found guilty of
physically injuring you or insulting you; or refuses to help you when in need.
• Ascending partition
An ascending partition is slightly different from the traditional Rwandan umunani. To be a
valid ascending partition, you must distribute assets to all of your children (both sons and
daughters) equally. Distributions must be made in equal value, which may not necessarily be
equal in quantity. The ascending partition allows you to transfer and distribute some of your
land or other property to your children or descendants when you are still alive. This donation
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is irrevocable. If you give away your land or property in this manner, you may not take it
back.
• Legacy
A legacy means you can make a gift while you are alive, but it will not change hands until
your death.
• Promised gift
Promised gifts are gifts that you promise for the future (though are not dependent on you
dying) but are only allowed between you and your spouse, you and your future spouse, or
between you and your children or their descendants. Such gifts will be valid even after you
die.
• How can I donate my land, or part of my land to my informal spouse?
Where you have not had a civil ceremony, you will not be recognized under the law as having
had a legal marriage. Your informal spouse will have no rights to your land or anything else
you own. If you are unable to have a civil ceremony, the only way of granting him or her
rights to your land is by donation (by authentic deed).
If you jointly own your land with your legal spouse, you must first get her consent, which
must be notarized under oath, before making a donation. If the donated property is part of an
existing land parcel then it will be necessary to demarcate the portion of land that your
informal wife will take. She will then be the legal owner of that piece of land and her legal
title should be registered at the Office of the Registrar of Land Titles. The changes to the size
of your smaller piece of land that you own with your legal wife should be given to the
District Land Bureau. If the land cannot be demarcated (most likely because splitting the
parcel would be contrary to the law which states that agricultural land cannot be divided into
parcels of less than one hectare), then your informal wife will have a legal interest in the land
and this interest should be added to the Land Title and registered at the Office of the
Registrar of Land Titles. This will allow her to use and enjoy the portion of land and her
consent will have to be obtained before the land is sold or leased.
You should seek assistance from a lawyer to help you write the contract. A lease will expire
at the end of the term set by you. However, if your tenant remains on the land after the lease
has expired and you do not oppose this or serve him with an eviction notice, the lease will be
automatically renewed. As the landowner, you can end the lease early by giving your tenant
written notice, but you must give the tenant enough time for him/her to harvest the crops, or
you must compensate the tenant for the value of the crops s/he would have harvested.
Your tenant is not allowed to sublet the land to another person without your consent.
He will also be responsible for conservation of your land and informing you about the
security of your land (for example, your tenant will have a duty to inform you if someone
tells him that he disputes your ownership rights, although it will be your responsibility to
resolve any such disputes). If your tenant fails to inform you of these issues and you suffer
financial loss, or your land is destroyed, the tenant will have to compensate you.
If your tenant dies, the lease will pass to the tenant’s heirs, and you will not be able to end the
lease early unless you have expressly agreed to this in the written lease.
However, the heirs of the tenant can terminate the lease within one year, by giving three
months’ notice.
Today, most cadastral registers around the world are linked to both the land value/taxation
area and the area of securing legal rights in land.
Therefore, it makes sense to talk about Cadastral Systems or Cadastral Infrastructures rather
than just Cadastre. These systems or infrastructures include the interaction between the
identification of land parcels, the registration of land rights, the valuation and taxation of land
and property, and the control of present and possible future use of land. This is shown in the
figures below (Enemark, 2004).
Figure 4.2: Cadastral systems provide a basic land information infrastructure for
running the interrelated systems within the areas of Land Tenure, Land Value, and
Land Use
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Even though cadastral systems around the world are clearly different in terms of structure,
processes, and actors, they are increasingly merging into a unified global model: the multi-
purpose cadastre.
This is due to some global drivers: globalization and technology development. These trends
supports establishment of multifunctional information systems with regard to land rights and
land-use regulations. A third global driver is sustainable development with its demand for
comprehensive information on the environmental conditions in combination with other land
and property related data. The identification of land parcels in the cadastral system provides
the basic infrastructure for running the interrelated systems within the areas of Land Tenure,
Land Value, and Land-Use. As a result, the traditional surveying, mapping and land
registration focus has moved away from being primarily provider-driven to now being clearly
user-driven. However, each of those systems includes tasks and processes that impose quite
different demands on the cadastral system. The success of a cadastral system is a function of
how well it internalizes these influences and achieves these broad social, economic and
environmental objectives.
4.2.8.2. In Rwanda
a. Traditional cadastre
• Individualization boundaries using trees and plants, stones, trenches, ect, ….
• Defining size by tape measures…
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Figure 4.7: Once demarcated, plots are digitized and put into the national spatial
database
Comprehensive land management in Rwanda is still at young stage, it is important that judges
from all levels are equipped with basic knowledge in land management since most of
developmental activities happen somewhere on land parcel which is administered, managed
and planned for.
While Rwanda wants to achieve its Vision 2020, this manual should contribute to good
service delivery that is paramount to have a good performance in GDP growth rate of 11.5%
as stated in EDPRS II.
Rwanda has clear national land policy which has set, on one side, institutions in charge of
land management, those institutions are being strengthened and capacity building is one of
the priority for those institutions. On another side, there is a set of comprehensive legal
instruments related to land management and administration. A systematic land registration
programme was conducted through land tenure regularisation and 10.3 million parcels were
demarcated with 8.4million land titles issued. A national land use and development master
plan has been prepared and adopted which lead to the ongoing preparation of District land
use plans. Rwanda has put in place a modern geodetic reference network (CORS –
Continuous Operation Reference Stations) and has a new digital base-map. All these
endeavours are to enable good land management and administration, which lead to argue that
Rwanda is the most prepared country in Sub-Saharan Africa to deal with challenges of land
issues.
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Reference
National Land Policy, Rwanda Ministry of Lands, Environment, Forests, Water and Mines
(MINITERE), February 2004
MINECOFIN, Economic Development and Poverty Reduction Strategy 2013 –2018, April
2013
Vision 2020, Rwanda Ministry of Finances and Economic Planning, July 2000
Procedures and Process Manual, Land Administration Information System, V0.6, RNRA, 22-
11-2011.