Case Study Results

short impression of the cases

The two so-called Western countries have effective systems of land registration, which support quite active land markets. But they do not bring us to the ideal system. The Netherlands have a rather efficient system, which does not strive for 100% solutions in its laws. But the fact that it is working well is grown out of a long history, which had its ups and downs. The Austrian system might be very safe from a purely legal perspective, it is overburdened by bureaucratic procedures and many, often small offices. Both do, however, make good use of modern (information) technology, which makes it possible for the different players to co-operate even better than before. For both countries the fact that the main functions are combined or closely coordinated makes the system work well.

The two developing countries are only partly covered by systems of land registration, which do not work very well. In areas where the customary laws are dominant, there usually is little problem with (internal) tenure security for those acknowledged as part of that community. This changes when so-called development overruns such an area. Often the customary system breaks then down, partly because of the interference of the (national) statutory system, and partly due to the increased pressures of the higher scarcity and/or value of the land.

The impact of the land tenure systems on the legal security for owner and purchaser in these countries turned out to be underestimated in the case design of this study. The existing dualism of the land tenure system, as well as the ongoing struggle on how to deal with it92_{, causes so much complications and insecurity in countries such as Indonesia and} Ghana, that this overshadows the data on the rather ‘technocratic’ approach of studying technical, legal, and organizational aspects of systems of land registration there. Based on this it is recommended that multiple case studies with study’s questions of a related kind should be primarily confined to more comparable jurisdictions.

strong interrelations

As mentioned and explained in § 6.5, the interrelations between the studied aspects turned out to be even stronger than expected beforehand. Furthermore too many distinct aspects were classified under ‘organizational aspects’.

This made it very hard to qualify each type of aspects separately and without taking the overall success into account. This re-iterated the need to study a system of land registration as a whole, giving an overall qualification through the emergent property of its trustwor- thiness.

This made it also not really possible to formally accept or reject the preliminary hypotheses. Nevertheless the following lessons can be read into the cases studied:

• with good organizational aspects (both regarding institutional arrangements and administrative practices) and good technical aspects (index maps and use of

93 _{It seems save to assume that this also holds for the related and partly overlapping field}

of cadastre and the field of land administration.

technology), some (theoretical) legal weaknesses can be overcome (the Netherlands);

• with good levels of cooperation and sound administrative practices the number of organizations involved is no real issue (Austria);

• good index mapping, even with limited surveying accuracy, is essential when

introducing a system through sporadic adjudication (Indonesia and Ghana);

• all transfers need to go into the system, and therefore there have to be enough incentives and not too much disincentives (overall).

Therefore it can be concluded that to a certain level all three types of aspects have to be tackled adequately to have a well functioning system of land registration.

‘political market’

It was also noted that once the system of land registration reaches a certain level of trustworthiness, there is little chance of major improvements, at least with regard to legal and organizational aspects. Introduction of new technology usually is a more or less ongoing process. This is in line with what can be expected at North’s second level of markets, being the ‘political markets’ (see § 1.2.3). There will be less incentive in that market to change (further improve) the system, when the present system does not really cause serious problems. With such a level of trustworthiness, the chances for introducing legal intricacies are small.

evasive action

When a difficult and bureaucratic formal procedure can be avoided by using a lighter, but still formal, procedure, the latter will be used in most cases (even in Austria). In many countries even when no lighter formal procedure exists people avoid the difficult one by informally transacting.

never confine case study to the capital

Systems of land registration virtually always encompass more than one organization. In most jurisdictions these organizations will have regional and/or local branch offices. A good case study should never be confined to the offices in the capital city, but also include (other) branch offices. Often the competition and power struggles that can be found in the capital city are not present elsewhere. In any case there is likely to be a difference in the economic, social and other characteristics.

application of methodology

Studying a complex real-life system as a system of land registration can only be done with the appropriate attention for the methodologies to be used at the start of the study. The case study methodology highly recommends having a well-formulated theory (although not final of course) in advance, but in the field of land registration93 _{it is still a more cyclic affair.} For many highly relevant study’s questions, there is no such a well-formulated theory available beforehand. The case study design has to be based on less elaborated concepts, which themselves will be theoretically strengthened as a result of the studies. Obviously, the results of the studies will also make it possible to improve some of these concepts. At the start of this study the static model of land registration with the three entities to be identified was well known, but the dynamic model of the system of land registration, with

its three main functions, has been worked out during the study, and mainly after completion of the case study.