Land Tenure and Property Rights in Haiti

The earthquake has given rise to hundreds of thousands of homeless people from poor neighborhoods, including those located in flood plains, and the departure of thousands of urban residents for other areas of Haiti. The sudden arrival of large numbers of Port-au-Prince residents in provincial towns and rural areas may stress local economies and property arrangements. Latent land tenure conflicts hidden from view due to previous out-migration of rural people to the cities and overseas may resurface as urban-dwellers return to the countryside. The damage to buildings in urban areas by the earthquake has created an unprecedented opportunity to relocate urban populations away from risk-prone areas like fault lines and flood plains in the metropolitan area. This process is already underway as the government and disaster response agencies clear land in the area of Croix des Bouquets for tent cities. These tent cities are likely to evolve into long-term housing arrangements for poor families. These trends create opportunity for the assertion of zoned control over lowland flood plains along the coastal littoral and the Cul de Sac plains.

A special focus of interest should be the fragile slopes of Morne l’Hôpital and peri-urban areas along the east- west ridge from Pétionville through Port-au-Prince and Carrefour. The steeply sloped Morne l’Hôpital benefits, at least theoretically, from its special legal status as a “public utility,” a protected area off limits to construction due to the high risk of erosion and its importance as a source of spring-fed water for CAMEP (Centrale Autonome Métropolitaine d’Eau Potable), the public water utility of Port-au-Prince. Legally, all construction on the slopes of Morne l’Hôpital is illegal in the absence of a formal waiver of building restrictions. This special zone is also formally protected by a special planning and enforcement mechanism, OSAMH, an agency linked to the Ministry of Interior. OSAMH has been active pre-earthquake and worked closely with USAID-funded initiatives to protect the slopes of Morne l’Hôpital, and is an essential stakeholder and partner for initial rapid assessment of property and current post-earthquake efforts to build houses on the slopes of Morne l’Hôpital. The post- earthquake period provides an unprecedented opportunity to assert control over Morne l’Hôpital as a legally protected zone and prevent new housing construction on fragile slopes essential to flood control and the metropolitan water supply.

Haiti does not have an effective national cadastre and lacks a comprehensive, functional system for recording land ownership. Prior to the earthquake, customary arrangements and knowledge characterized the tenure of Haiti with only 40% of landowners possessing documentation such as a legal title or transaction receipt. Registration was more common in Port-au-Prince and other rural areas. Some areas of highly productive land, such as the irrigated zones of the Artibonite Valley and Gonaives Plains, created local cadastres, but they have not been maintained and records are not current.4 In Haiti, the Direction Generale des Impôts (DGI) has been responsible for maintaining and updating registration records. However, the veracity and accuracy of land records is suspect, and there is widespread distrust of government institutions, including those responsible for documenting, maintaining, and upholding land claims. The current status of documents related to land ownership is unknown. However, the DGI building has been severely damaged, and the current status of land records or efforts to secure them is unknown. Many advocate as a priority the recovery and protection of land records held at the DGI.

Coordinated, long-term recovery and rebuilding will require planning and land use zoning. A long history of poorly regulated urban construction contributed heavily to earthquake damages. Efforts to rebuild Port-au-Prince will require an adequate system of building codes, urban planning, and enforcement mechanisms for land-use and construction standards including zoned restrictions on multi-story buildings. Long-term resettlement may entail expropriation of land by government. Best practices for zoning, land-use, and expropriation will require due process, public education, and extensive consultation to ensure that people know their rights and are informed of actions that could affect their claims and use of lands.

Zoning and the property census (recensement général des propriétés baties) undertaken by local governments, property tax collection (CFPB), and the issue of construction permits are legal points of entry for post-earthquake assessments, urban planning, and rebuilding. Secondly, property tax rolls and construction permits are high-value databases that should be rapidly identified, inventoried, and immediately protected. Additionally, early assessment should also identify and inventory the condition of notary data: how many notaries are there in affected areas, where are they now, and can their data be located and secured? Lastly, municipal administrations also manage state lands leased to private citizens (domaine privé de l’état) within municipal jurisdictions, although the central government DGI tax office retains overall authority for such leaseholds. Therefore, both DGI and municipal records of these leased state lands should also be identified, assessed, and secured.

In the aftermath of the 2005 earthquake in South Asia, buildings that were only partially destroyed were used by their owners as evidence of their claims to the underlying land. It may be that some people will resist the full demolition of their homes if it erases the only tangible evidence of their claim to the land, particularly in view of the historical importance in Haiti of physical presence as a basis for asserting claims to land ownership.

The earthquake debris includes staggering amount of materials that can be used for reconstruction, including cinder blocks, wood, steel bars, piping, and wiring. Such movable material presumably belongs to the owner of the damaged buildings, and any attempt to remove such material without the owner’s permission will undoubtedly be construed as “looting.” In many cases, ownership of the rubble will be extremely difficult to establish due to the massive amounts of such material to be removed in this densely settled urban environment. Therefore, clearly defined rules for the management and disposal of these materials need to be created, publicized, and enforced.

The return of urban people to the countryside may lead to severe land conflicts. Urban returnees will seek land from relatives to settle and farm. As much rural land is owned by those who migrated to cities and the United States, the sudden return of urban dwellers will exacerbate an already complex land tenure situation. Latent tenure conflicts related to contentious inheritance claims may suddenly resurface as prime lands become at once more valuable but also more scarce. As in urban municipalities, the earthquake crisis may open up an opportunity to respond actively to the land tenure ambiguities of rural areas.

Provision of loans to individuals will be essential for reconstruction. However, high interest rates (approximately 33%) and the widespread lack of documentation for proof of ownership may limit the willingness of banks to provide credit and people’s ability to acquire it. Given the limited extent of formal titling and concerns regarding the accuracy of existing records, those without formal documentation risk loss of their land or property. Government and aid organizations may not readily extend loans and other reconstruction assistance to those unable to document their claims, further marginalizing those informal settlements or claiming land under customary arrangements. Relief organizations, donors, and the government should establish a plan and procedures for documenting, registering, and adjudicating both formal and informal property claims. This will provide the basis for compensation and reconstruction aid. Community legal assistance will be an important service to guide people through any claims process. The return of urban people to the countryside presently underway increases pressures on rural land use and may generate severe land conflicts. Urban returnees will seek land from relatives for house construction and agricultural use. There will also be intense pressures on absentee landholdings, including land owned by those who have emigrated to urban areas and abroad. Latent tenure conflicts related to competing inheritance claims will undoubtedly resurface as prime lands become at once more valuable but also more scarce. As in urban municipalities, the earthquake crisis may require rapid response to increased land tenure conflict in Haiti’s smaller cities and rural areas.