Gender and Property Formalization: Conventional and Alternative Approaches

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Gender and Property Formalization: Conventional

and Alternative Approaches

ANN VARLEYUCL (University College London), UK

Summary. — Securing property rights in both rural landholdings and urban housing is a much-de-bated feature of current development policy. Providing title for the household does not guaranteesecurity for women, and legal equality may fail to prevent gender differences in property ownership.A pro-active approach to women’s property rights is needed. Disenchantment with state programsdelivering individual titles has led to calls for alternative strategies emphasizing local or customaryauthorities and procedures. This paper questions the ability of either approach to address genderinequalities effectively without affirmative action but suggests that informal responses within stateinstitutions can help.� 2007 Elsevier Ltd. All rights reserved.

Key words — gender, urban property, formalization, Latin America, Mexico

‘‘Even more critical than the persisting legal inequitiesis the gap between women’s legal rights in land andits actual ownership, and between ownership andeffective control’’ (Agarwal, 1994b, p. 1461).

1. INTRODUCTION

The importance of land rights for women as adevelopment issue is now well established. TheWorld Bank report on Engendering develop-ment, for example, identifies land as an impor-tant asset for women but notes that inequalityin property rights is currently the norm ‘‘inmost settings’’ (World Bank, 2001, p. 120). Arecent review of gender and development mat-ters argues that ‘‘bringing gender equality intomarket-focused legal reforms is essential forextending the reach and enjoyment of women’sconstitutional rights’’ (UNRISD, 2005, p. 190).One such reform is the formalization of prop-erty in land, both rural and urban. 1

Over the past 20 years, the World Bank andother international agencies have promoted agrowing number of land titling programs inEast Asia, Latin America, Central Asia, andAfrica. The size of some programs is such thatin Latin America, for example, they represent a‘‘defining moment in . . . property rights’’(Deere & Leon, 2001, p. 294). The emphasis

has mostly been on rural land but illegally-developed urban housing has also been regular-ized on a massive scale in countries such asIndia, Mexico, and Peru. The Peruvian pro-gram grew out of an initiative by Hernandode Soto’s Institute of Liberty and Democracy(ILD), and it was on this basis that de Soto(2000) built his high-profile campaign for titlingas the key to widening access to credit anddevelopment of a modern economy. Providingsecure tenure and access to credit are key fea-tures of the Cities’ Alliance ‘‘Cities WithoutSlums’’ Action Plan (World Bank/UNCHS,1999), and in 2000, UN-HABITAT launchedits Global Campaign for Secure Tenure.

Recent years have seen a reaction against theidea that providing full individual title is thebest way to regularize urban property. Alterna-tive approaches center on intermediate forms oftenure, group title, local authorities, and cus-tomary tenure (Durand-Lasserve, 1998; Payne,2002a; UN-HABITAT, 2004).

In this article, I explore the gender implica-tions of both conventional title-based ap-proaches to the formalization of urbanproperty and the alternative approaches thatmay perhaps be described as ‘‘informal formal-ization.’’ 2 I do so in part because de Soto’srecent interest in sub-Saharan Africa (withthe ILD active in Tanzania and Ghana) has

World Development Vol. 35, No. 10, pp. 1739–1753, 2007� 2007 Elsevier Ltd. All rights reserved

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polarized a debate that has been waged forsome years about titling and more flexibleapproaches to land management building oncustomary practices in the region (Chimhowu& Woodhouse, 2005, p. 405). The debate isneatly summarized in the title of a recent arti-cle: ‘‘titling versus social embeddedness’’(Cousins, 2005). One of the arguments usedby those opposing titling is that it is against wo-men’s interests (Cousins, 2005; Platteau, 2000;Toulmin, 2005).

In these circumstances, there is a danger thatthe argument about gender may become ameans to an end. In this article, therefore, I donot engage with the broader arguments aboutformalization (see, however, Varley, 1987,2002). I focus instead on the consequences forwomen of property formalization, as an issuein its own right. 3 The urgency added to existingdebates by de Soto’s interest in Africa hasopened up opportunities for linking areas ofscholarship that until now have not had as muchto say to each other as they might have done.Greater efforts have been made, for example,to incorporate urban issues into the debateabout land in Africa (e.g., Kanji, Cotula, Hil-horst, Toulmin, & Witten, 2005; Quan, Tan, &Toulmin, 2005). Given, however, that much ofthe advocacy for informal formalization in ur-ban areas is informed by an empirical focus onAfrica, it is perhaps surprising that it has not en-gaged with the debate about gender and landrights in this region. This article therefore bringstogether some of the research from Africa andLatin America relating to gender and propertyrights. Although my focus is on urban areas, Idraw on the rural literature for both regions, be-cause most existing work on gender relates toagrarian land rights. I also draw extensively onmy long-standing interest in the formalizationof property in urban Mexico, which has one ofthe oldest and largest programs in the world. 4

I first ask how far approaches to securingtenure within the international agencies takegender relations into account. Pro-active ap-proaches to securing married women’s propertyrights are uncommon; where legislation giveshusbands and wives formal equality in propertymatters, only women heads of household maybe seen as requiring special attention. Evidencefrom Mexico is then used to illustrate the dan-gers of relying on equality before the law, be-cause of legal shortcomings and popularunderstandings of property relations relegatingwomen to a secondary position. The followingsection argues that illegality of tenure can dis-

rupt the operations of family law, deprivingwomen of protections they might otherwise en-joy. More attention to individual rights isneeded, but this suggestion runs counter tothe trend toward greater emphasis on grouprights in alternative approaches to securing ten-ure in urban areas. I review the arguments con-cerning the advantages of such approaches,concluding that their advocates also tend toequate ‘‘women’’ with ‘‘female householdheads’’ and overlook the findings of researchon gender and customary tenure or localauthorities in rural Africa. I then return tothe Mexican case to show that informal strate-gies within state agencies can sometimes helpwomen to defend their property rights, beforebriefly discussing the case for and against jointtitles as the focus of measures to improve wo-men’s security of tenure.

2. PROPERTY FORMALIZATION,GENDER, AND THE INTERNATIONAL

AGENCIES

The Global Campaign for Secure Tenureseeks to promote women’s housing rights.UN-HABITAT (2003a, 1.2) notes that ‘‘secur-ing tenure for the household does not necessar-ily secure tenure for women and children.’’ Tobenefit both women and men, ‘‘the extensionof secure tenure . . . will require some funda-mental changes to the rights of women.’’

In this key paragraph, UN-HABITATacknowledges the feminist argument thathousehold members do not always share thesame interests and that their relationships arenot necessarily defined by consensus and co-operation (see Deere & Leon, 2001). In doingso, it responds to Article 16 of the Conventionon the Elimination of All Forms of Discrimina-tion against Women, calling for ‘‘the samerights for both spouses in respect of the owner-ship, acquisition, management, administration,enjoyment, and disposition of property.’’ Thismarks an important break with a tradition ofsubsuming women’s property rights undermen’s; but UN-HABITAT’s position is not nec-essarily shared by other international agencies.

Different divisions of the World Bank adoptdifferent positions on gender and property is-sues (Whitehead & Tsikata, 2003, p. 83). Therecent report on Land policies for growth andpoverty reduction, however, criticizes the uni-tary model of the household and argues for‘‘a more pro-active stance in favor of awarding

1740 WORLD DEVELOPMENT


land rights to women [and] . . . greater genderequality in control of conjugal land’’ (Deinin-ger, 2003, pp. xxix, 57–62). By contrast, theonly reference to gender in the World Bank/UNCHS Cities Alliance ‘‘Cities withoutSlums’’ Action Plan appears in a letter froman Indian NGO involved in an upgrading pro-ject, reporting members’ request that titleshould be given in women’s names or jointlyto both spouses (World Bank/UNCHS, 1999,p. 10). The rationale for regularization makesno mention of gender. It concentrates on thelink between titles, access to credit, and housingimprovements.

The same argument features in the Bank’s ur-ban strategy document, Cities in transition(World Bank, 2000). This identifies tenure secu-rity as part of the Bank’s ‘‘strategic vision’’ forcombating urban poverty and inequality: itshould be available to ‘‘all households, includ-ing those headed by women’’ (p. 18). Such a fo-cus on female-headed households is common inpolicy and research on gender and housing, butit marginalizes married or cohabiting women(Varley, 1996b). It implies that women’s prop-erty rights are an issue only if they head theirhousehold—an inadvertent return to the prac-tice of subsuming women’s rights under men’s.What we see at work here is, arguably, a persis-tent attachment to the unitary model of thehousehold. The potentially conflicting interestsof household members are collapsed into theinterests of a single ‘‘mythical’’ figure, ‘‘theowner.’’ Whereas this figure used to be a malehead of household, it can now be a woman with-out a partner. This begs the question of how toprotect married or cohabiting women againstthe day when they too might become a house-hold head, if in effect the marital home belongsto their former partner rather than the couple.

Another reason for the seeming unwillingnessof urban specialists to engage with intra-house-hold differences may be a reluctance to deal with‘‘private’’ matters in public policy interven-tions. 5 Property formalization as a matter ofpublic policy does not venture, as it were, beyondthe front door. What happens ‘‘inside’’ is a pri-vate matter (see also Ikdahl, Hellum, Kaarhus,Benjaminsen, & Kameri-Mbote, 2005).

In practice, World Bank titling programs(rural or urban) adopt different approaches togender. 6 Some ignore the subject. Others, suchas the Urban Property Rights Project in Peru,simply assert that formalization will benefit wo-men because ‘‘they enjoy equality in propertyrights with men under the law’’ (World Bank,

1998, p. 5). Another approach focuses onwoman-headed households: for example, inthe Second Land Titling Project in Thailandor Cambodia’s Land Management and Admin-istration Project (World Bank, 1990, 2002). 7

In recent years, some projects have incorpo-rated more gender-sensitive elements. After anevaluation of Indonesia’s Land AdministrationProject found that land had been registered inthe husband’s name alone, the appraisal teamfor the successor project recommended mea-sures to combat this problem and identifiedthe share of plots titled in women’s names orjoint ownership as a key performance indicator(World Bank, 2004b, pp. 28–29, 79–80). Thesame performance indicator appears in the Sec-ond Land Titling Program in Laos, which alsobuilds on experience from its predecessor’sexperience with urban women’s property rightsto identify ways of addressing the greater chal-lenges to be faced in rural areas (World Bank,2003, 2005). On the other hand, the LandAdministration Program in Honduras, extend-ing an existing program to urban areas, stillemphasizes the gender neutrality of land legis-lation and the need for ‘‘equal treatment [of]male- or female-headed households’’ (WorldBank, 2004a, p. 13). It seeks to encourage morejoint titling but does not mention that the Lawof Equal Opportunities for Women (2000) hadalready made this mandatory for governmentsocial-interest programs.

While the level of attention to gender issuesin World Bank documents varies, the same can-not be said of the work of de Soto and the ILD,which generally ignores them (Kaarhus, Ben-jaminsen, Hellum, & Ikdahl, 2005, p. 464). Thisis not perhaps surprising, given de Soto’s over-riding emphasis on the connection betweentitles and access to credit. The ILD claimresponsibility, however, for a high proportionof titles in Peru’s urban property titling pro-gram issued to women. 8

3. EQUALITY BEFORE THE LAW?

One way of responding to a demand for‘‘gender-responsive project design’’ 9 is to as-sert that legislation gives women and men thesame rights. This was the response, for exam-ple, of an Ecuadorian non-government organi-zation consulted on an Inter-AmericanDevelopment Bank program to regularize ur-ban tenure: there was no need for any specialintervention, since the country’s Civil Code

GENDER AND PROPERTY FORMALIZATION 1741


allotted husbands and wives an equal share ofmarital property. 10

Reliance on formal equality of rights in mar-riage is, however, unlikely to offer sufficientprotection of women’s rights. In the Ecuadori-an case, an NGO supported by the SupremeCourt’s Judicial Reform Project, the CentroEcuatoriano de Promocion y Accion de la Mu-jer, reports that poor urban women do consultthem about problems with ‘‘exclusive controlof all common property and income’’ by theirspouse (Rodrıguez, 2000, p. 21).

Formal equality of property rights in mar-riage is not a sufficient guarantee of women’srights to a home they share with their malepartner for a number of reasons. First, it doesnot extend to all co-resident couples; second,it can co-exist with cultural practices relegatingwomen to a secondary position in relation toproperty; and, finally, there is a difference be-tween having a right to property and being ableto exercise that right effectively—especially con-cerning the disposal of the home in the event ofdivorce or separation. The following sectionsillustrate these arguments with examples fromurban Mexico.

(a) Marital property regimes

In Mexico, each of the country’s 31 states hasits own legislation concerning marital property,as does the Federal District of Mexico City. Onmarrying, couples are supposed to choose be-tween different property regimes. Most adoptcommunity property (sociedad conjugal),whereby property gained after they are marriedis held in common (Perez Duarte, 1994). 11 Thedefault regime in most states is also communityproperty. In one-third of them, however, thedefault is separate property. As Deere andLeon (2001) observe, where men have greaterincome-generating capabilities than women, aseparate property regime is generally less favor-able to wives than community property.

The Federal District legislation recognizesconsensual union only if the couple have livedtogether for two years or had children and ifthere is no legal impediment to their marrying(i.e., neither partner is already married). Inthese circumstances, the partners have the sameinheritance rights as if they were married. Asimilar pattern applies in most other states;only six allow consensual partners to establishcommunity property during their life to-gether. 12 In most Mexican states, therefore,people living in consensual union cannot look

to family law to protect their property rights,should the relationship break down.

(b) Women’s ‘‘secondary’’ rights to property

Even where couples hold property in com-mon, popular understandings of property rela-tions can relegate women to a secondaryposition. This became evident in researchcarried out in Guadalajara, Mexico’s secondlargest city, which included discussion groupsin self-help housing areas (Varley & Blasco,2007). 13 Popular understandings of genderand property reflect a contradictory mixtureof different principles, best illustrated by anopinion voiced by one woman:

Eloisa: I think that—the house, above all, itbelongs to the two of you, and then, if thereare children, then to the children. Like in mycase: in that paper that they gave him, hepresents himself as . . . that is, they ask him‘‘single or married?’’ and he says ‘‘married,with so-and-so’’ [fulana de tal]. Saying that,he’s protecting me, he’s leaving me thehouse, he presents himself as a marriedman (Varley & Blasco, 2007).

In principle, Eloisa argues that the house be-longs to both spouses. When she elaborates,however, she places herself in a secondary posi-tion. The paper is given to her husband, thequestions are asked of him, and he chooses toacknowledge his relationship with her and‘‘protect’’ her. She does not query any of this.

The notion of protecting and providing iscentral to the ways in which people conceivemen’s responsibilities in a relationship: it is ahusband’s duty to provide a home for his wifeand family. Women who believed that theman’s name should appear on the deeds justi-fied this argument on the grounds that ‘‘hebought it and he’s the one who pays for it.’’The connection of the provider role with‘‘responsible’’ masculinity leads both womenand men to overlook women’s contributionsto acquiring the house. 14

Whereas women interpreted questions aboutthe deeds primarily in relation to the couple,the men seemed more concerned about theirchildren. They too emphasized the question ofwho buys the land but worried about caseswhere a son or daughter provides the money.They also, therefore, introduced the argumentthat the man’s name should appear on thedeeds because he is ‘‘head of the family.’’ Thismight sound like self-interest, but the men dis-played anxiety about their responsibility for



the family’s moral as well as material welfare: itis a father’s responsibility to teach his childrento lead an upright life. Their main concern ap-peared to be about whether or not they couldtrust their children to care for them in later lifeand respect each others’ rights (group memberscited instances of people cheating their parentsor siblings). Putting a property in a son’s nameran the risk that he would sell it, and then ‘‘thefamily no longer counts for anything’’ [la famil-ia ya no es nada].

In short, the man ‘‘needs’’ to be the owner tomaintain his headship of the family. This beliefreflects customs in rural Mexico and elsewherein Latin America (Deere & Leon, 2001; Gon-zalez Montes, 1988). The head of the familymay keep the house and possibly the largestparcel for the youngest son, in exchange forcare in old age. He may give out housing plotsto the other sons when they marry, but farm-land is not divided up until his death. A similarlogic of retaining control over the family appar-ently underlies urban men’s attitudes to prop-erty:

Adolfo: I think that’s why there are wills, orpapers kept in the family. So that he can say‘‘this is yours,’’ or they can talk to the fam-ily, while they’re still alive, so as not to let goof the reins, ‘‘this is the way your fatherwants it.’’ If you do it while you’re stillaround—‘‘listen, lads, this is for this, andthis is for this, right?’’ If one of them’s awide boy [vividor] he’ll screw the others [sejode a los demas], but I think that while he[the father] is alive he can keep the deedsin his name because the head of the family,he’s head of the family until he dies (Varley& Blasco, 2007).

Men’s belief that exercising control overproperty is part of their responsibilities as headof family and a right enabling them to fulfillthose responsibilities leads to a greater senseof entitlement to ownership of the home. Theyare therefore more likely than women to havetheir name entered on property documents.Employees of the General Directorate of LandRegularization (DGRT—the agency formaliz-ing housing on private land in Mexico City) re-port that although women undertake most ofthe preliminary business, their husbands taketime off work to come into the office on theday the documents establishing ownership areto be signed. 15 In a report written in prepara-tion for the World Conference on Women inBeijing, the agency observes that ‘‘the processof issuing title deeds tends to favor men’’

(DGRT, 1994, pp. 17–18). A similar story istold by officials of the national agency formaliz-ing housing on ejido land: ‘‘In general it is thehusband who puts himself down as the owner[titular].’’ 16 The same pattern is recorded inmany other parts of the world, in both ruraland urban areas (Deere & Leon, 2001; Hilhorst,2000; Moser, 1993; UNRISD, 2005; Viravong,1999; World Bank, 2004b, 2005).

(c) Making rights effective: managing maritalproperty

Joint ownership rights are only meaningful ifpeople are able to exercise those rights effec-tively. Two important questions here are: whois legally entitled to manage the marital prop-erty? and how is ownership recorded?

Until recently the legislation of a number ofMexican states made the husband the adminis-trator of community property unless the coupleagreed otherwise (Perez Duarte, 1994). 17 Thisgave him the right to sell or mortgage the prop-erty without his wife’s consent. Although cou-ples can still choose who they want toadminister the property, in almost half thestates the default position is now that couplesshare the administration.

In some states the law now contains provi-sions to discourage people from cheating theirspouse or disposing of the family home. Theserequire explicit consent to sell, for example,and may even nullify sales in defiance of theseprovisions if there are minors living in thehouse. In the Federal District, since 2000, theperson who cheats their spouse by disposingof community property had to pay them com-pensation. Neither can sell without the other’sconsent, except (with judicial approval) whenthey have been abandoned and need the goodsfor their own or the children’s support (Varley& Blasco, 2007).

Such detailed measures to discourage fraudu-lent alienation suggest that the legislators be-lieve there is a problem to be addressed.Before the spousal consent clause was intro-duced, notaries formalizing property transac-tions in Mexico City were supposed to requirethe parties to present their marriage certificatesand, if necessary, to ask both spouses to autho-rize transfer of title. This policy has not, how-ever, had ‘‘the desired effects, since all youhave to do is to tell the notary you are singleif you want to get round this restriction’’ (PerezDuarte, 1994, p. 261). Since ownership is morereadily associated with men than women, a



man trying to pass off a property as exclusivelyhis own is more likely to be believed than a wo-man would be.

Women whose name does not appear on doc-uments concerning the marital home are there-fore more vulnerable should their husband seekto sell it. The importance of effective mecha-nisms to ensure spousal consent therefore joinsjoint ownership as a focus of concern (IIED/NRI/RAS, 2005; Schlyter & Erwer, 2005;UN-HABITAT, 2006; World Bank, 2005).

4. THE IMPACT OF ILLEGALITY

Where tenure is illegal, additional difficultiesface people trying to ward off attempts to cheatthem of their property. Formalization cantherefore offer advantages, even in the absenceof gender equity measures, by making owner-ship a matter of public record and removingsome impediments to the operation of familylaw presented by illegal tenure.

In Mexico, the absence of a public record ofownership means that someone who does nothave informal property documents in theirkeeping cannot support their claim to rightsof possession. In a case from the east of MexicoCity, a man who had abandoned his wifeclaimed that the plot on which she was livinghad been lent to them by his brother, the ownerof two neighboring plots (a plausible story:people often ‘‘lend’’ a house to relatives—forexample, while they are in the United States).The husband concealed the paper on whichhis name appeared as the purchaser and pre-sented the courts instead with a letter fromhis brother concerning the supposed ‘‘loan.’’He thus succeeded in having the property leftout of the couple’s divorce settlement. Withoutdocumentary evidence, his ex-wife could notprove that the house belonged to (both of)them. 18

The device used by the husband in this case isunusual: more often, the person whose name ison the informal documents simply claims aright to do what they like with the property.In another case from Mexico City, a womanbrought a divorce case against her husbandfor adultery. He responded by dividing theirproperty in two and ‘‘ceding’’ half to his lover.He carried on living on the same half as hiswife, in a new room he had built at the backof the plot, in the hope of having only that halfof the property divided between them in the di-vorce settlement. 19

Protections that family law could afford tothe aggrieved party can be rendered ineffectiveby illegal tenure. In the city of Puebla, a womanbrought a divorce case against her husband, aworker at the city’s Volkswagen car plant. 20

He had started to drink a lot, she claimed, be-cause he resented her success in supportingtheir five children from the proceeds of her juicestall in a local market. He became increasinglyviolent, particularly after her most recent preg-nancy, which he attributed to infidelity. After asevere beating one night, he threw her out anddenied her access to the children.The wife tooklegal measures to recover custody and starteddivorce proceedings. She soon wrote to thecourts to ask for their help, because her hus-band had handed over her juice stall to some-one else and was now trying to sell theirhome in an illegal settlement on ejido land.He had the documents recording their originalpurchase, in his name, and was using these innegotiations with prospective buyers.

The judge asked the Public Property Registryto prevent transfer of ownership by noting thatthe property was subject to litigation in the rel-evant entry in the register. She could also orderseizure of the property to guarantee paymentonce a maintenance order was granted for thechildren. Registry officials, however, deniedthat the couple owned any property. As it hadnot yet been regularized, and as the sale of ejidoland was legally non-existent, they had no re-cords for that address. There could be no entryin the register until the area was legalized.

Another example of illegal tenure disruptingthe operation of family law, and of the needfor women to have their names on all propertydocuments, comes from Mexico City (Bejaranoy Sanchez, 1994). A man bought a plot of landin the ejido of San Lorenzo Tezonco in the1960s. His wife died in 1983, before the prop-erty was regularized. Their children listed theirmother’s half of the property in the inventoryof goods they were to inherit. Their father ob-jected and asked the courts to exclude the plotfrom his wife’s estate. He won his case.

A minority judgment argued that as the wo-man had held the same rights of possession asher husband, her children should indeed inheritthem. The majority argued that the documentissued in the man’s name by the ejido authori-ties in 1964 only demonstrated, at best, thathe was physically in possession of the propertyat that time, but proved nothing about his wife.By implication, informal rights of possessiondid not form part of a couple’s community



property (p. 126). If this position were generallyupheld, plots acquired illegally would belongexclusively to the person whose name was onthe relevant papers until they were regularized.

It is in women’s interest to remove such legalambiguities about property in irregular settle-ments and to create a public record of owner-ship.

5. ALTERNATIVE APPROACHES TOSECURING TENURE

Although formalization can help in casessuch as those described, it is not enough onits own. Pro-active measures are needed to in-crease women’s security of tenure, since,‘‘where women’s rights are not stipulated, theyare likely to be overlooked’’ (Meinzen-Dick,Brown, Feldstein, & Quisumbing, 1997, p.1309). More attention needs to be paid to indi-vidual rights within the household or commu-nity.

To suggest a tighter focus on individualrights, however, runs counter to the generalthrust of current arguments favoring alterna-tive approaches to securing tenure. UN-HABI-TAT (2003b, p. 28) argue, for example, thatgroup tenure ‘‘can better accommodate low-in-come groups’’ than individual titles. Otheralternatives include an incremental approachfocusing initially on blocks or communitiesand intermediate forms of tenure (such as occu-pancy permits) (Kanji et al., 2005; Payne,2002b, 2005; UN-HABITAT, 2004). Advocatesalso emphasize the integration of customaryprocedures into the process (Durand-Lasserve,Bagre, Gueye, & Tonato, 2002; McAuslan,2002). They endorse a decentralized approachbased on community or local authorities: ‘‘itis regularization policies carried out in closecollaboration with local authorities, or by thoseauthorities themselves, that succeed best’’ (Dur-and-Lasserve, 1998, p. 242; Farvacque &McAuslan, 1992; Home & Lim, 2004; Rakodi& Leduka, 2004). Registration should be car-ried out locally wherever possible (Durand-Lasserve & Royston, 2002; McAuslan, 2005;Toulmin, 2005).

Insofar as these approaches acknowledgethat the provision of de facto security of tenureand urban services are the priority, I agree withthem (Varley, 1987). I am less convinced by theargument that local or customary authoritiesshould be responsible for formalization, if it is

based on the assumption that they will addresswomen’s property rights more effectively.

Gender is generally accorded only passingmention in the arguments of those advocatinginformal formalization of urban property, withno reference to specialist research on the topic.Even where they stress the importance of gen-der, they tend to do so in terms of ‘‘single wo-men with children’’ (Durand-Lasserve &Royston, 2002, p. 252; Kruekeberg & Paulsen,2002). The slippage from ‘‘women’’ to ‘‘fe-male-headed households’’ is also visible inUN-HABITAT documents (UN-HABITAT,2003b, p. 28; 2004, p. 9). The limitations ofsuch an approach have already been discussed(see above). 21

The question of women’s position in custom-ary law is much debated. For some authors,when women acquire their rights throughmen, those rights are precarious (COHRE,2000, 2004; UN-HABITAT, 2006; WorldBank, 2001). Others argue that women’s userights are not ‘‘secondary’’ rights and that theirsocial embeddedness strengthens them (Yng-strom, 2002). In light of the ‘‘re-turn to the cus-tomary’’ in policy discourses on agrarian landin sub-Saharan Africa, however, Whiteheadand Tsikata (2003) have conducted a thoroughreview of the literature in this area. They con-clude that ‘‘the rural customary cannot be leftto muddle along without widening the gap be-tween men’s and women’s land access’’ (p.98). 22

It is well known that the replacement of cus-tomary tenure by individual title has disadvan-taged women in some African countries,especially Kenya, as men have acquired fullcontrol over property (Lastarria-Cornhiel,1997). What lesson, however, are we to drawfrom this?—‘‘Does the recognition that statu-tory interventions, such as titling and registra-tion, may have the effect of rigidifyingcustomary practices and extinguishing somerights under customary law invalidate statutoryinterventions as a way of proceeding?’’ (White-head & Tsikata, 2003, p. 95). Examples such asthe Kenyan one can best be understood asmodernization programs reinforcing traditionalpatterns of male control, formalizing existinggender inequality (UNRISD, 2005, p. 190).Bias in the original tenure system and a lackof attention to the consequences of interven-tions in that system combine to produce a dou-ble discrimination. Past experiences with titlingdo not, therefore, offer a logical basis for thesuggestion that customary procedures will serve



women better. Categorical assertions that ‘‘titleto land discriminates against women’’ (UN-RISD, 2005, p. 239) are misleading.

The other issue is the emphasis on localauthorities. Such authorities are ‘‘better placedthan central government’’ to undertake thelegalization and upgrading of illegal settle-ments; they are sensitive to the needs of the lo-cal population, to which they are moreaccountable (Durand-Lasserve, 1998, p. 242).Not just closer, then, but better.

Evidence suggests, however, that such a‘‘moral geography of law and space,’’ investinglocality and community with a virtue denied theglobal or the national, overlooks importantquestions about gendered power (Khadiagala,2001, p. 59). In Uganda, local councils were gi-ven judicial capacity to dispense popular justicein 1988, but a study of Kabale District foundthat they have failed to protect women’s cus-tomary property rights. Women prefer magis-trates’ courts, despite the discriminatorynature of statutory law, because they see thesecourts as representing the ‘‘rule of law’’ ratherthan the ‘‘rule of persons’’ (p. 72). The localcouncils, by contrast, are likely to be filled withtheir husbands’ relatives or friends. Councilmembers interpret land disputes as ‘‘the prod-uct of women’s misbehavior rather than anyviolation of their rights . . . [and] send themaway with admonishments to behave ‘like wo-men’’’ (p. 71).

In a case study from Botswana, Griffiths(1986, p. 376) suggests that wives bringingproperty cases to informal courts risk beingseen as deviants rather than legitimate liti-gants. 23 In Mozambique, popular justice tribu-nals espoused conservative values thatdisempowered women and younger people(Gundersen, 1992, p. 277). Although McAuslan(2005, p.3) argues that building on local or cus-tomary dispute settlement processes ‘‘helps re-duce social tensions,’’ we might ask, then,which social tensions it resolves—and at whosecost.

There may, in short, ‘‘be a tension betweenobjectives of involving local organiza-tions . . . and those of improving genderequity’’ (Meinzen-Dick et al., 1997, p. 1312).Local authorities may be ‘‘closer to home’’but that does not in itself protect women’sinterests (Tsikata, 2003, p. 179). Questionsmust be raised, then, about ‘‘the kinds of infor-mal community-based institutions that arebeing legitimized’’ (UNRISD, 2006, p. 4).

6. INFORMAL STRATEGIES WITHINSTATE AGENCIES

The debate about alternative versus conven-tional approaches to formalization overlooksinformal strategies to protect tenure securitythat can evolve within government agencies asstaff find ways of addressing family conflicts.This observation may seem to contradict theearlier argument about reluctance to deal with‘‘private’’ matters in public policy interven-tions. It does not do so, but to understandwhy, we need to disaggregate ‘‘governmentagencies’’ into their distinct levels and func-tions. In the late 1990s, I approached officialsof CORETT, Mexico’s main regularizationagency, asking how formalization is related tofamily conflicts. Senior officials consistentlytold me that such conflicts were rare. I was toldthis at the national HQ, by the Director of theState of Mexico Office and by the heads of thelegal sections in the State of Mexico and Fed-eral District Offices. The response was not, Ithink, intended to block my enquiries (autho-rized by the agency’s Director). In each case, Iwas referred to lower-level legal staff or socialworkers dealing with residents on a daily basis.These employees—mostly women—replied invery different terms: yes, lots of family conflicts.What did I want to know?

Formalization agencies are in practice unli-kely to be able to avoid dealing with such con-flicts because the parties turn to them forhelp. 24 In Mexico, years of experience havetaught officials how to deal with problems suchas the difficulties facing a woman abandoned byher husband. They may allocate title to a wo-man who has been on her own for five yearsif she has a Certificate of Abandonment fromthe police and neighbors willing to supporther claim. 25

In a case from the south of the Federal Dis-trict, a man had signed a contract with COR-ETT for the legalization of the property heoccupied with his wife and sons. A year later,before deeds had been issued, he went to livewith his mistress and their children. After tenyears had passed without the husband showingany interest in the property, the wife sought tohave it titled in her name. As she had a Certif-icate of Abandonment and supportive neigh-bors, CORETT were able to make the changeof name. The husband would have to challengethe transfer in court and in the circumstanceswas thought unlikely to succeed. 26



In the case of the two brothers describedabove, the divorced man was unlikely to suc-ceed in cheating his ex-wife, despite the divorcesettlement. As his brother was unable to provethat he had ever been in possession of theirproperty, CORETT decided to issue the titlein the woman’s name, leaving it to the supposedowner to take the agency to court if he sowished.

The officials interviewed sometimes gave theimpression that they thought the legal basis ofthe agency’s actions in some of these casesshaky. It seems that they took a calculatedgamble. Officials also used other informal strat-egies, such as calling the parties in to CORETToffices to negotiate or sharing information oradvice with the party they considered in theright.

Similar observations have been made else-where. In Uganda, the government’s Office ofProbation and Social Welfare is popular withwomen because ‘‘[s]taff strongly support thepreservation of landholdings for children,allowing women to ‘piggyback’ their own needsonto the social and legal obligations of men tocare for their children’’ (Khadiagala, 2001, p.63). In Zimbabwean land resettlement pro-grams and in the work of the South AfricanDepartment for Land Affairs, women have beenhelped by the actions of individual officials,even where the agency’s overall performance isdisappointing (Jacobs, 1999; Walker, 2003).

Clearly, informal strategies are always inher-ently risky: they can cut both ways. The poten-tial rewards for corrupt practices in landagencies are high, so it cannot be assumed thatany informal intervention will help peoplethreatened with the loss of their home. Thatsaid, the existence of supportive practicesamong the ‘‘front line’’ social workers andother officials responsible for working directlywith residents points to the desirability of pro-viding appropriate gender-sensitive training,both within the agencies themselves and in thehigher education programs from which theseemployees are drawn.

7. FOR AND AGAINST JOINT TITLE

In her pioneering research on South Asia,Agarwal (1994a, p. 20) argued for independentland rights for women, whereas Deere andLeon (2001) believe that in Latin America jointtitling to couples will benefit more rural women

than any other measure. Since homes are gener-ally not readily divisible into separate units,joint titles also appear more desirable in an ur-ban context, unless the property is to be in thewoman’s name alone.

There is as yet little research on the conse-quences of joint titling. In India, in a villagenear Ahmedabad and in Chandigarh, womenreported that joint titles offered them protec-tion against being abandoned or obliged to re-turn to their parents’ home by their husband orin-laws (Datta, 2006; Unni, 1999). Most Chan-digarh women welcomed their ability to pre-vent their husband selling the house andmany reported an increased role in decision-making, although most men interviewed saidtheir relationship had not changed (Datta,2006, pp. 279–280). 27

In Peru, titling in both names is welcomed bywomen: ‘‘Sometimes men do whatever they feellike, but thanks to the title they’ve got to thinkabout you too. He says ‘it’s my house’ and I tellhim, ‘no, papito, this house is in both ournames’. Believe it or not: the title protects wo-men’’ (Consorcio Informet-Inpet, 2002, p. 34).It had not however affected household deci-sion-making.

In Costa Rica, researchers reported lessencouraging results from a housing project inHeredia. Joint title meant that couples weremore likely to stay together after they wouldotherwise have split up (since neither partnercould buy the other out), prolonging unhappyand sometimes violent relationships (BlancoRothe, Naranjo Porras, Ugalde Benavente, &Ramırez Aguero, 2002). It did, however, givewomen a better bargaining position in divorcenegotiations. In the Amhara region of Ethio-pia, joint registration and a divorced woman’sright to half the property is reported to havehelped make marriages more stable, althoughhow far this is beneficial to women remains un-clear (Teklu, 2005, p. 12).

Another concern is that spousal consentrequirements may hinder access to credit, aslenders fear they will be unable to seize thehouse if borrowers default. In Uganda, whereresidential property has been a major sourceof collateral, bankers were advised to ceaselending after the 1998 Land Act prohibitedtransactions without the consent of the vendor’s(possibly unacknowledged) dependants (spouseor children) (Hunt, 2004, p. 183). In Tanzania,consent clauses in the 1999 Land Acts were sub-sequently watered down to reduce banks’



responsibilities when land is used as security fora loan (Kaarhus et al., 2005, p. 459).

Such objections may be questioned. While toomuch emphasis can be placed on enablingwomen to stay put, when what they need maybe the ability to leave an oppressive relationshipwithout losing their assets, joint title presum-ably offers a better exit opportunity than titlein the man’s name alone. The possibility of wo-men’s being trapped in unhappy marriages, andconcerns about how joint property is handled atthe end of a marriage, have, however, led to thesuggestion that homes should be titled solely inthe woman’s name (Blanco Rothe et al., 2002).The priority given to the demands of financialinstitutions can also be queried, since they oftenhave no interest in lending to the poor anyway.In sub-Saharan Africa, for instance, most banks‘‘simply do not lend to individual small-scaleborrowers’’ (Hunt, 2004, p. 182).

Joint ownership can be promoted to theexclusion of, rather than alongside, individualtitles for women. After the Latur earthquake,the Maharashtra Government’s reconstructionprogram allocated houses to couples or womenwidowed in the earthquake; other unmarriedwomen were excluded (Krishnadas, 2004). Sim-ilar concerns are raised about South Africa’sCommunal Land Rights Act. Since ‘‘new or-der’’ rights are to be held jointly by spouses,Cousins (2005) suggests that single womencould lose their rights to land they currently oc-cupy. 28 Such an outcome would be completelyat odds with the thinking of those who arguethat married/cohabiting women, and not onlywomen heads of household, should be consid-ered in titling programs.

8. CONCLUSION

Gender bridges the gap between conventionaland alternative approaches to tenure, in thesense that exponents of both approaches haveoften been reluctant to engage with their genderimplications. As Nyamu-Musembi (2005, p. 19)has noted, law reformers, initially fixated on ti-tle, ‘‘belatedly . . . recognized the centrality ofcustomary tenure but celebrated its bene-fits . . . without critical analysis of the powerrelations that shape it. In both cases the inter-ests of women were adversely affected.’’

There is as yet insufficient evidence to supportthe assertion that alternative approaches tosecurity of tenure are more likely to promotewomen’s interests than conventional ones—or

vice versa. I agree, however, with Whiteheadand Tsikata (2003, p. 102), that ‘‘we cannot turnour backs on the state as a source of equity forwomen in relation to land issues.’’ Formaliza-tion programs are important because they rep-resent a ‘‘unique opportunity’’ to addressgender inequality, and in some cases state initia-tives could prove to be ‘‘women’s best chance ofbecoming property owners’’ (Datta, 2006, p.292). The growing experience with tenure for-malization in different parts of the world has al-lowed gender specialists to produce a guide toGender issues and best practices in land adminis-tration projects (World Bank, 2005). 29 This re-port shows an unequalled awareness of thecomplexity of the issues involved and providesdetailed practical guidance on how to promotegender-equitable outcomes, making it difficultto sustain the argument that we lack gen-dered land tools (cf. UN-HABITAT & Sida,2005).

Gender-neutral legislation is clearly not en-ough to ensure that women enjoy equal accessto property rights. Although explicit legalequality is necessary, it is not sufficient, since‘‘without concrete mechanisms of inclusion—such as mandatory joint titling to couples oraffirmative action measures—it is difficult, ifnot impossible, to increase women’s ownershipof land’’ (Deere & Leon, 2001, p. 332).Although Deere and Leon (2001, pp. 333–334) document an impressive range of suchmeasures in various Latin American countries,it is also clear that even mandatory joint rightsare not enough on their own, given the strengthof both institutional and individual resistance(World Bank, 2005, pp. 11–12, 25). A reviewof programs in Nicaragua, Honduras, andIndonesia found that without explicit instruc-tion to officials and community informationcampaigns, joint titling policies could be inef-fective (Lastarria-Cornhiel, Agurto, Brown, &Rosales, 2003). Even where these conditionsappeared to be met, in Nicaragua, the shareof titles issued to couples was still only 8%, be-cause of male resistance and the reluctance ofwomen and officials to confront it (p. 12). Somemen titled their land with their son or brother,and officials turned a blind eye to this practice.With a sufficiently pro-active approach, by con-trast, women can receive land even where cus-tomary practices would normally preventthem from doing so (World Bank, 2005, p. 25).

When working with customary proceduresand community authorities is chosen as theway to secure tenure, there appears to be a



growing consensus that some intervention toprotect women’s interests is necessary (Deinin-ger, 2003; IIED/NRI/RAS, 2005; UN-HABI-TAT, 2006; UNRISD, 2006; Whitehead &Tsikata, 2003). One strategy endorsed by gen-der specialists is the use of paralegals: volun-teers trained to promote women’s rights at alocal level, with support from an NGO network(Benschop, 2002; Lee-Smith & Trujillo, 2006).It would also be wise not to close our eyes tothe informal strategies that can assist wo-

men—or others whose rights are put at riskby family conflict or abuse—from within stateagencies. The gap between formal and informalis, indeed, not necessarily as wide as is often as-sumed.

The challenge now is for urban land special-ists to take up the findings of gender specialists,because neither the word of the law nor aromantic belief in the virtues of the local is en-ough to ensure that women’s rights to housingare adequately protected.

NOTES

1. ‘‘Formalization,’’ ‘‘regularization,’’ and ‘‘legaliza-tion’’ are used interchangeably in this article.

2. Unlike Benjaminsen and Lund (2003), I reserve thisterm for policy initiatives originating in the state with theexplicit aim of securing tenure, even if interventionsimply entails recognition of customary procedures. Theinformal formalization to which Benjaminsen and Lund(2003) refer concerns, rather, the strategies by whichillegal land acquisitions are given a veneer of formality(e.g., by the use of official-looking but legally invaliddocuments such as those produced by ejido authorities inMexico: Varley, 1985).

3. Jackson (1996, p. 489) warns against the instrumen-talism that often informs approaches to gender in thework of development agencies, although Datta (2006, p.292) argues that the instrumentalism does not matter ifformalization policy nonetheless meets women’s needs.

4. Tenure formalization (‘‘regularization’’ in Mexico)has focused on urban housing developed through illegalsale of the ejido land granted to rural communities inMexico’s agrarian reform. Some local regularizationagencies were established in Mexico City from 1969 to1973. CORETT (the Commission for the Regularizationof Land Tenure), the national agency for the regulariza-tion of urban settlements on ejido or communal land, wasset up in 1974. It sells ejido land expropriated for thispurpose by the government to existing residents, at lowand generally affordable rates; title is issued for regular-ized properties and recorded in the Public PropertyRegister (Varley, 1985). Illegal subdivisions of privateland have also been regularized, for example under thelate 1980s National Solidarity Program (Varley, 1996a).Some 2.5 million urban households were reported tohave received title by the mid 1990s (Varley, 1998).

5. I presented a paper beginning to explore theconsequences of formalization for urban women in aseminar series held at M.I.T. in 1996–97. A year later, I

met the research assistant of a senior urban developmentspecialist who was reviewing the papers. She askedwhether I could seriously be suggesting that policy-makers concern themselves with such ‘‘micro-scale’’problems—i.e., with ‘‘private’’ matters beyond the remitof public officials.

6. The information presented comes from a systematicsurvey of program documents available from theprojects database of the World Bank’s Land Policyand Administration Group.

7. Both include[d] urban properties. The Thai projectappraisal asserted that ‘‘some 12% of all rural landhold-ers and 20% of urban landholders [were] women whowould obtain secure title’’ (World Bank, 1990, p. i)—overlooking male landholders’ wives. The follow-upproject noted, however, that wives were now protectedagainst husbands selling property without their consent(World Bank, 1994, p. 27).

8. Of individual titles 64.2% were issued to women, andwomen constitute 51.6% of beneficiaries overall (Con-sorcio Informet-Inpet, 2002, p. 5). For couples, titles areissued in both names. The ILD claim was elicited by arequest for clarification of its position on gender asa condition for continued negotiation of funding for aprogram in Guatemala: ILD proposal and comments bya program officer of the Norwegian Embassy in Gua-temala available on the Land Rights Watch website(http://www.desotowatch.net).

9. The phrase comes from the World Bank’s GenderMainstreaming Policy, endorsed by the Board of Exec-utive Directors on September 18, 2001.

10. Presentation by Andrea Carrion (CIUDAD-Ecua-dor) to International Research Group on Law andUrban Space seminar on ‘‘Law and Urban Gover-nance,’’ Cairo, June 2000.



11. In theory, couples should draw up an ante nuptialagreement; in practice, they simply fill in a form sayingwhich arrangement they wish to adopt (Perez Duarte,1994). Unless agreed otherwise, property acquired byinheritance/gift after marriage remains individual prop-erty.

12. Zacatecas gives unmarried partners who have livedtogether for five years or had a child communityproperty rights; Queretaro requires only that neitherpartner be already married. Guerrero and Tabasco alsoallow for community property for consensual partners.Hidalgo allows unmarried partners who have beentogether for five years to draw up community propertyarrangements but otherwise assumes separate property.The same property arrangements apply to the civilpartnerships recently introduced by Coahuila (which arealso available to same-sex partners).

13. ‘‘Gendered housing: identity and independence inurban Mexico’’ (ESRC, UK); co-researcher MaribelBlasco. The project concerned four neighborhoods;those discussed here are a recent self-help settlementon the edge of the city and one from the 1950s.

14. Women often take a job to contribute to the costsof buying land and building. Many save money fromtheir earnings or the housekeeping, often without tellingtheir husband until the time comes to put down thedeposit on a plot of land.

15. Interviews with head of Social Section and socialworkers, Direccion General de Regularizacion Territo-rial (DGRT), Federal District, April 1994.

16. Interview with social worker, CORETT Office inthe State of Mexico, September 18, 1998.

17. The Civil Code of Baja California Sur still containsthis provision.

18. Interview with officials of CORETT Office in theState of Mexico, September 18, 1998.

19. Interview with officials of CORETT Office in theFederal District, September 19, 1998.

20. Legajo 17973, 1989, Juzgado 4 de lo Civil, ArchivoJurıdico, Estado de Puebla.

21. To investigate whether rights are available ‘‘tomen/women only’’ or ‘‘equally to men and women’’ isnot enough, since programs can then be classified asgender-progressive if (only) those women who arehousehold heads benefit (cf. Payne, 2002b, p. 8).

22. In India, ‘‘heightened emphasis’’ on customarynorms has led to ‘‘shrinkage of women’s rights’’ (Jack-son & Rao, 2004, p. 37). Inheritance by tribal women isopposed on the grounds that if they marry outsiders landmay be lost to the group.

23. Larsson and Schlyter (1993) report a similarresponse from state courts. In Zimbabwe, a womantrying to prevent her estranged husband from sellingtheir house ‘‘was scolded by the judge in High Court forbringing her domestic problems to court’’ (p. 25).

24. Other examples may be found on the COFOPRIwebsite (Peru), which lists the decisions of a tribunaldealing with such matters: http://www.cofopri.gob.pe/normas-Tap/index.htm.

25. Interviews with Director, Head of Social Sectionand social workers, DGRT, Mexico City, April 1994.

26. Interview with officials of CORETT Office in theFederal District, September 19, 1998.

27. One concern about measures giving women morelegal control over property is that some men may use thethreat of violence to get their wife to agree to a sale.Problems of this sort were noted in Nicaragua’s ruraltitling program in the 1990s (World Bank, 2002, p. 122).

28. Clearly, there are also other concerns, such aspolygamous households, for which there may be ‘‘noeffective and gender-sensitive titling procedures’’ (WorldBank, 2005, pp. 29–30).

29. The report was prepared by Renee Giovarelli,Susana Lastarria-Cornhiel, Elizabeth Katz, and SueNichols.

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Gender and Property Formalization: Conventional and Alternative Approaches

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