Stubkjær: A View of the Cadastral Problem Domain
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A View of the Cadastral Problem DomainErik Stubkjær
Department of Development and Planning, Aalborg University
Fibigerstræde 11, DK-9220 Aalborg Øst
Abstract
It is a classical activity in science to open a new subject area by describing and naming the elements of the subject area. Prominent examples include the botanical system by Linné (Systema naturæ, 1735), and the table of elements by Mendelejev, and Lothar Meyer, respectively (around 1869). The present treatise names elements of the cadastral subject area. The structuring effort refers to the Soft System Methodology (Checkland, 1990). The cadastral area is multi-disciplinary; the elements of the subject area are related to recent research within diverse disciplines. The presented view of the cadastral subject area provides the basis for raising the issue of developing cadastral and land registry institutions that are cost efficient relative to the transaction costs of real estate markets.
Keywords: Cadastre, institutions, land tenure, ontology, professions, property right, real estate, technology, transactions.
1. Introduction
The recent Bathurst Declaration on Land Administration for Sustainable Development calls for a commitment to provide effective legal security of tenure and access to property for all men and women. It identifies the need for the promotion of institutional reforms to facilitate sustainable development and for investing in the necessary land administration infrastructure. It recommends the active participation by local communities in formulating and implementing the reforms, and sees information technology as playing an increasingly important role in developing the necessary infrastructure and in providing effective citizen access to it (Badhurst, 1999).
The wide scope of the Declaration, encompassing institutional reforms, participation, infrastructure development, and use of information technology, calls for an appropriate methodology. Generally, methodologies for information systems development suggest steps, which eventually leads to the implementation of a specific information system. However, what is needed is essentially a structuring of the problem domain. An essential criteria of the structuring is that it, as far as possible, is independent of national details.
Soft Systems Methodology (SSM) was introduced to the readership of CEUS by (Kasimin & Yusoff, 1996). The SSM addresses a situation where specific stakeholders are not yet determined, where they have insufficient knowledge of the issue and each other, and where, consequently, problems are only vaguely framed. SSM support the learning process of the stakeholders by suggesting a conceptual modelling of the situation or problem domain. An initial conceptual model is used as a means of communication, which shall assist the stakeholders to arrive at a shared understanding of the real world situation. The conceptual model is revised and refined through interviews, etc.
The paper presents such an initial conceptual model. It complies with the SSM in the following respects:
· It is a conceptual model of a human activity system, the main activity being real property transactions.
· It describes what essentially needs to be carried out, namely the outcome of real property transactions, and the actors that are involved in the transactions.
· It describes the related social and political system, which determines how the activities should be carried out, namely the rule set that regulates the transactions, and the factors that change the rule set.
· It includes activities and structure for communication and control for survival in a changing environment, in the sense that social powers, professionals (research), and technology is taken into account.
Furthermore, SSM assumes a list of aspects to be taken into account. In SSM-terminology the list is dubbed CATWOE. For further details regarding SSM, reference is made to (Kasimin & Yusoff, 1996; referring to Checkland & Scholes, 1990). The table below renders the aspects and their interpretation within the present paper; in this way a overview of the scope of the paper is provided.
Table 1: Soft Systems Methodology's CATWOE checklist
applied to the cadastral problem domain
Actor / Owners, Professionals, Organised interests, Authorities
Transformation / Transfer of real property rights;
Change of rule sets that regulate this transfer
Weltanschauung / Society marked by rationality, rule of law, and discourse on values
Owner / Cadastral academics
Environment / Non-cadastral society. Technology. Natural environment
Cadastre and other land administration are culture specific, as the relations between man and land, and the governmental traditions, are varying among cultures. The present cultural context is Western countries, more specifically Continental Europe. 'Cadastre' is a well-established term in Europe, and as the paper develops on the cadastral land parcel, the title of the paper refers to the cadastral problem domain.
The scope of the paper is further detailed by Figure 1 below. The names of the problem domain entities and the named relations constitute 'Root definitions' according to the Soft System Methodology. For example, 'Transactions define terrain objects' is a root definition that is further described in the paper.
As appears from Figure 1, the cadastral problem domain is viewed largely through a matrix of 3 rows and 3 columns. The upper row is made up of persons, either individual, physical persons or persons united into groups, as 'legal persons', organisations, or other social constructs. Generally, persons are assumed to control, influence or otherwise cause a change of the content of the two lower rows.
The problem domain entities of the three columns view the cadastral problem domain with a different level of abstraction: The left part being the most concrete, tangible; the larger, right part being the most abstract. The domain entities professionals,transactions, and databases constitute the dividing column. It concerns knowledge based, largely routine activities, and the related documentation.
Some modifications of the general principles have been made: The property right entity is quite abstract; it is in a sense a shorthand of the right part of the matrix. Also, the technology entity differs from the general pattern, as technology and new inventions are assumed to be a (exogenous) cause of change.
It is posited that the presented view of the cadastral problem domain names the aspects, which are needed to describe short term, routine activities, and provides a frame for analysing medium term (3 - 8 years) changes.
The paper is structured in the way that the basic (leftmost) entities are treated first (section 2), then the central transaction components are presented (section 3), followed by a survey of the dynamics of rules (section 4). The issue of social justice, values, and ontology is shortly mentioned (section 5), and the paper closes with reference to related research (section 6), and a conclusion.
2. The basic entities of the cadastral problem domain
2.1 Owners, property rights, and land
Activities regarding land may be of physical nature, e.g. tilling the soil, but important activities, e.g. the transfer of ownership to land, are of a symbolic nature, and expressed through a sequence of events and specific linguistic expressions. Symbolic activities regarding the man-land relation must be performed correctly to achieve the intended social effect; therefore, professionals with various skills support the primary actors.
The analysis of symbolic activities regarding the man-land relation must be done within many knowledge domains. The mentioned professionals draw upon several disciplines: law, economic sciences, and geosciences with mapping. Furthermore, research in the field draw on further academic disciplines like sociology with organisational sociology and political science, informatics, linguistics, and even philosophy.
Property rights
The relations between man and land are addressed, primarily, by law and economy. From a legal perspective, real property rights regard the relations between man and land; personal property rights regard the relations between man and movable things; and immaterial rights like copyright regard the relation between man and a work of symbolic nature. The notion of 'right' implies that the relations between man and the mentioned three kind of assets are protected by the legal system. Without the legal system man would hold land or a thing in possession, rather than be the owner of it. Power, including physical power, can yield control over a piece of land, but does not establish rights (except in international law). The relation between law and power, and the notion of law as a social construct is developed by (Smith, 1997, c.f. Bromley, 1996).
Alternatively to refer to a legal system, you can refer to other men: "Property rights are relations among individuals that arise from the existence of scarce goods and pertain to their use. They are not relations between individuals and things" (Pejovich, 1996: 119). It can be agreed that ownership basically defines the relation between the owner and other individuals, and that the legal system is not the only means of enforcement. However, as rule of law and independent courts are generally assumed to exist or are advocated, e.g. by (Pejovich, 1996: 118), it seems defensible to refer to the legal system in the definition of property rights.
Ownership is thus a compound relation among owner and other men, and owner and land (or other asset) that is protected by the legal system. An owner holds or enjoys property rights.
Common to all property rights is that they constitute 'a specific set of disposals which is constantly found in every developed system of law' (Vinding Kruse, 1929: 143; translated). The disposals may be of a physical nature, e.g. to harvest, or of a legal nature, e.g. to found a right. Property rights are often described with reference to a 'bundle of sticks' (Smith, 1997, quoting Hohfeld, 1919). Each stick signifies a particular right: to use exclusively, to enjoy the usufruct from, to build, to mortgage, to found an easement, to subdivide, to transfer title, etc. Property rights to real property is achieved by specific procedures, including transfer of title, heritage, sale by order of the court in cases of breach of contract, and sometimes through adverse possession.
From the perspective of economy, the protecting role of the legal system has not been the issue of investigation. Neo-classical economics classifies property by nominal ownership: Private property is owned by a specific individual who controls its use; common property is collectively owned by a defined set of individuals with some governance structure that determines use by individuals within the collectivity; state property is owned in the name of the citizens, and its use is determined by an agent of the government; and open access property is owned by no one and available to be used by anyone who can physically gain access to it (Weimer, 1997: 4, quoting Bromley, 1991). According to this conception, what matters is that what in legal terms is called possession.
However, in the context of the political economy of property rights, property rights is defined as ".. relations among people concerning the use of things .. They specify relations among those who have various rights and those who have duties to honor the rights, as well as the mechanisms that are available for inducing the compliance of duty bearers" (Weimer, 1997: 3). This conception recognises relations among the three domains: man, thing (asset), and legal system, and is thus for the present purpose sufficiently equivalent with the legal perspective.
2.2 Land tenure
Returning to the legal perspective, it must be noted that land tenure, the different modes of holding property rights in land, is described differently in different legal traditions and cultures. Land tenure in Continental Europe differs from the legal figures of the Common Law tradition of Anglo-American countries. In the Continental European tradition, the transfer of real property right is part of a consolidated, civil law. The constitution protects ownership, but even so especially welfare states have regulated ownership through public law, especially in the fields of agriculture, construction, heritage conservation, spatial planning, environment, and the provision of technical infrastructure.
The strength of the legal system varies from state to state. When legal institutions are weak, real property rights are informal. This means that the above mentioned 'mechanisms .. for inducing compliance' are social rather than legal. Adverse possession, that is the occupation and use of land inconsistent with the rights of the owner, occurs where legal institutions are weak, but may be accepted also within strong, formal systems in order to absorb minor inconsistencies in a cost effective way. A more complete treatment of the details of land tenure, etc. is outside the scope of the paper.
Real estates
So far the immovable object of ownership has been loosely termed 'land'. However, land is a scarce commodity, and so land is, generally, bound by neighbouring tracts of land. The bounded land with its buildings constitutes a real estate. This term signifies the management and economic aspect of the man-land relation. However, the specific implications of the term are described in national legislation.
The concept of real estate marks bounded area on the surface of the Earth, but the estate is bounded also towards the sky and somewhere in the underground. Furthermore, a tricky boundary is to be drawn between the objects, which in legal terms are part of the estate (fixtures), and the objects, which are not. Examples of these objects include furniture, machinery, installations, and material. For various reasons, different acts within the same country may draw this 'boundary' differently. Finally, the rights and obligations, which pertain to the real estate proper must be delineated as well. Here also legal and economic theory does not agree on the issue. For example, a building permit is - from a legal perspective - surely a right, but not a property right, while the building permit in economic theory is regarded as a property right (Sevatdal, 1999).
Loosely speaking, real estates can be nested. A prototype example is a residential multi-storage building that is subdivided into condominiums. Also, a real estate may include several non-connected fields or plots that are kept together by being managed together. Nested real estates complicate economic and legal dispositions. Specific acts may demand that the owner of a real estate reside at the estate to reduce these secondary effects. Also, political concern to avoid absentee ownership may as well motivate restrictions regarding the nesting of property rights.