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Compulsory acquisition of land and compensation

ISSN 1020-311710 Compulsoryacquisition of landand compensationLAND TENURE STUDIESFAOLAND TENURE STUDIES10 Compulsoryacquisition of landand compensationFOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONSRome 2008 FAOLand Tenure StudiesFAO s Land Tenure Studies are concise presentations on theoften complicated and controversial subject of land tenure,especially as it relates to food security, poverty alleviation andrural development. These studies do not seek to be exhaustivebut instead reflect what FAO and its many international collab-orators have discovered are good practices for a particularaspect of land tenure and its administration. The studies cover various aspects of improving access to landand other natural resources and increasing tenure address the role of land tenure in rural development, gen-der and access to land, improved access to land through leasingarrangements, rural property taxation systems, land consolida-tion, land access and administration after violent conflicts,good governance in land tenure and administration, and com-pulsory acquisition of land and information on the Land Tenure Studies, and on FAO swork in land tenure, is available at: AcknowledgementsGuide pr

is a crucial factor for reducing poverty and hunger,for increasing agricultural productivity, and for improving rural conditions. Effective land tenure institutions are needed to administer who has rights to which natural resources for which purposes,for how long, and under what conditions. Countries retain powers of compulsory acquisition in ...

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Transcription of Compulsory acquisition of land and compensation

1 ISSN 1020-311710 Compulsoryacquisition of landand compensationLAND TENURE STUDIESFAOLAND TENURE STUDIES10 Compulsoryacquisition of landand compensationFOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONSRome 2008 FAOLand Tenure StudiesFAO s Land Tenure Studies are concise presentations on theoften complicated and controversial subject of land tenure,especially as it relates to food security, poverty alleviation andrural development. These studies do not seek to be exhaustivebut instead reflect what FAO and its many international collab-orators have discovered are good practices for a particularaspect of land tenure and its administration. The studies cover various aspects of improving access to landand other natural resources and increasing tenure address the role of land tenure in rural development, gen-der and access to land, improved access to land through leasingarrangements, rural property taxation systems, land consolida-tion, land access and administration after violent conflicts,good governance in land tenure and administration, and com-pulsory acquisition of land and information on the Land Tenure Studies, and on FAO swork in land tenure, is available at: AcknowledgementsGuide prepared by: Simon Keith, Patrick McAuslan, RachaelKnight, Jonathon Lindsay, Paul Munro-Faure and David panel.

2 Erik Blaabjerg, David Callies, Lorenzo Cotula,Allen Crawford, Richard Grover, Morten Hartvigsen, AndrewHilton, Trevor Knowles, Malcolm Langford, Li Ping, HamishMcDonald, Sofia Monsalve Suarez, Opiata Odindo, AlexeiOverchuk, Jean du Plessis, Frances Plimmer, Remy Seitchiping,John Sheehan, Mika Torhonen and Hel ne guide was prepared as part of FAO s Regular Programmework in land tenure and was undertaken with support from theWorld Bank Thematic Group on Land Policy and Administrationand in co-operation with the International Federation of Surveyors(FIG) and UN-Habitat s Land, Tenure and Property INTRODUCTION12. WHAT IS Compulsory acquisition ?5 What are the sources of the power of Compulsory acquisition ?7 What are the limits of the power?8 For what purposes may the power be used?10 Who has the power to compulsorily acquire land?

3 12 What is considered to be Compulsory acquisition and what rights should be compensated?14 The process of Compulsory acquisition153. PLANNING AND PUBLICITY19 Planning19 Notice20 Public meetings and review214. VALUATION, compensation AND TAKING POSSESSION23 Procedures for valuation and compensation24 Determining valuation and compensation27 Valuation and compensation for the partial acquisition of land31 Valuation and compensation for partial rights32 Valuation and compensation of religious sites33 Valuation and compensation of land owned by extended families33 Valuation and compensation of customary land34 Valuation and compensation of informal rights and for illegal uses37 Alternative land as compensation38 Taking possession of the land445. APPEALS45 The need for opportunities to appeal45 Reasons for appeals46 Mechanisms for reviewing the appeal476.

4 ADVOCACY AND ASSISTANCE497. FINAL COMMENTS53 ForewordThis volume is part of a series of Land Tenure Studies producedby FAO s Land Tenure and Management Unit of the Land andWater Division. Land tenure arrangements are a key factor inachieving food security and sustainable rural and secure access to land, especially for the rural poor,is a crucial factor for reducing poverty and hunger, for increasingagricultural productivity, and for improving rural land tenure institutions are needed to administer whohas rights to which natural resources for which purposes, for howlong, and under what retain powers of Compulsory acquisition in order toenable governments to acquire land for specific purposes. Thenature of these powers and the ways in which they are used areinvariably sensitive and have wide implications, including fromthe perspective of international agreements on human rights andtheir national expressions.

5 Compulsory acquisition is disruptivefor those who are affected and whose land is taken and, if donepoorly, will have serious negative impacts on people and is important, therefore, that satisfactory approaches are inplace and effectively implemented to ensure that communitiesand people are placed in at least equivalent positions to thosebefore the land acquisition . Prerequisites for this are appropriatelegal frameworks and capacities for implementation, and goodgovernance and adherence to the rule of law (see FAO Land TenureStudy 9: Good governance in land tenure and administration.)FAO has been working since 2004 on raising awareness of theimportance of Compulsory acquisition and prepared this guideand related publications and policy materials with partners,including the World Bank, UN-Habitat and the InternationalFederation of Surveyors (FIG).

6 This guide is intended to support land tenure and landadministration officials, valuers and civil society partners whoare involved where policies, legal frameworks and capacitiesare being developed, and where Compulsory acquisitions arebeing implemented. The guide, like others in the series, doesnot seek to be exhaustive but rather reflects what FAO and itsmany collaborators have discovered are good practices .FAO s Land Tenure and Management Unit looks forward tocontinuing collaboration with its larger Munro-Faure ChiefLand Tenure and Management Unit1. IntroductionSustainable development requires governments to provide public facilitiesand infrastructure that ensure safety and security, health and welfare, socialand economic enhancement, and protection and restoration of the naturalenvironment. An early step in the process of providing such facilities andinfrastructure is the acquisition of appropriate land.

7 In some cases, severallocations could be suitable for a facility such as a new government office, andthe government may be able to purchase land at one of the locations throughthe land market. In other cases, specific land parcels are required, for example,in order to accommodate the route of a new road, the protection of certainareas from flooding, or the fulfilment of requirements of redistributive landreform legislation. That land may not be on sale at the time it is required. Inorder to obtain land when and where it is needed, governments have the powerof Compulsory acquisition of land: they can compel owners to sell their landin order for it to be used for specific purposes. The power, discussed in thisguide as the Compulsory acquisition of land, is also referred to as expropriation,eminent domain, Compulsory purchase, land acquisition and resumption.

8 The Compulsory acquisition of land has always been a delicate issue and isincreasingly so nowadays in the context of rapid growth and changes in landuse. Governments are under increasing pressure to deliver public services inthe face of an already high and growing demand for land. Many recent policydialogues on land have highlighted Compulsory acquisition as an area filledwith tension. From the perspective of government and other economic actors,the often conflictual and inefficient aspects of the process are seen as aconstraint to economic growth and rational process also brings tension for people who are threatened with Compulsory acquisition of land for development purposes may ultimatelybring benefits to society but it is disruptive to people whose land is acquired. Itdisplaces families from their homes, farmers from their fields, and businessesfrom their neighbourhoods.

9 It may separate families,interfere with livelihoods,1 Compulsory acquisition of land and communities of important religious or cultural sites, and destroynetworks of social relations. If Compulsory acquisition is done poorly, it mayleave people homeless and landless, with no way of earning a livelihood,without access to necessary resources or community support, and with thefeeling that they have suffered a grave injustice. If, on the other hand,governments carry out Compulsory acquisition satisfactorily, they leavecommunities and people in equivalent situations while at the same timeproviding the intended benefits to power of Compulsory acquisition can be abused. Unfair procedures for thecompulsory acquisition of land and inequitable compensation for its loss canreduce land tenure security, increase tensions between the government andcitizens, and reduce public confidence in the rule of law.

10 Unclear, unpredictableand unenforceable procedures create opportunities for corruption. Goodgovernance is necessary to provide a balance between the need of the governmentto acquire land rapidly, and the need to protect the rights of people whose landis to be acquired. Conflict is reduced when there are clear policies that definethe specific purposes for which the government may acquire land, and whenthere are transparent, fair procedures for acquiring land and for providingequitable compensation . Effective and fair Compulsory acquisition cannot existwithout good governance and adherence to the rule of law (see FAO Land TenureStudies 9: Good governance in land tenure and administration).This guide provides advice on how countries can equitably and efficiently acquireland necessary for development.


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