Eligibility without land title: squatters, tenants and encroachers

The single largest difference between national expropriation law and the international standards is what happens to people with no title. Domestic law generally compensates recognised interests and nothing else. The standards require that anyone displaced be assisted, whether or not they hold a claim the law recognises.[1]

Bridging that gap is most of the work in a RAP prepared in a jurisdiction with low formal registration, and it is where projects most often fail — not by refusing to pay, but by never recording the people concerned in the first place.

The three categories

1. Formal legal rights. Title, leasehold, or a registered interest. Compensation for land and assets, plus assistance.
2. Claims recognisable under national law, or capable of becoming so — customary holdings, long undisturbed occupation, claims a court would recognise. Treated substantially as the first category.
3. No recognisable legal claim. Compensation for structures and improvements they built, compensation for crops they planted, and resettlement assistance sufficient to restore their livelihood — but not for the land itself.[2]

The third category is the one that matters, and the phrase that carries the weight is resettlement assistance. It is not a token. It is whatever is required to restore the person to their prior position, which for a household occupying land it does not own may be a serviced plot, transitional support and a livelihood programme.

Who is actually in the third category

• Households occupying public land, road reserves or utility wayleaves.
• Tenants — of houses, of farmland, of commercial premises — who lose occupancy without owning anything.
• Sharecroppers and those farming borrowed land under seasonal arrangements.
• People using land under permission from a holder who is themselves informal.
• Employees and dependants whose livelihood is attached to an affected holding.

Each of these is invisible to a title search and to any process that starts from the land register. The only instrument that finds them is a physical census that asks who uses this land and on what basis, parcel by parcel.

A register built from the land registry lists interests. A register built from enumeration lists people. Only the second can support the standard's eligibility test.

The cut-off date is what makes it administrable

Extending eligibility beyond title raises an obvious objection: without a boundary, what stops arrivals after the announcement from claiming? The cut-off date is that boundary, which is why it has to be declared, disclosed and evidenced before or at enumeration.[3]

Its legitimacy depends entirely on disclosure. A cut-off date applied to exclude someone who was never told about it will not survive a grievance, and correctly so.

Reconciling with national procedure

The practical difficulty is that the implementing agency pays under national law, and national law may have no basis for paying someone with no interest in the land. The payment is legitimate under the project's own policy but the agency's finance procedure has no line for it.

This is soluble and it has to be solved before payments start, not during. The usual routes are a project-specific compensation policy formally adopted by the implementing agency, a separate assistance budget with its own authorisation chain, or payment through a delegated entity. Each requires an approval that takes months, and the failure to obtain it early is one of the more common reasons informal occupants are paid last or not at all.[5]

Documenting what will be challenged

Payments to people with no title attract scrutiny, both from auditors and from neighbours who believe the recipient had no right to anything. The register therefore needs to carry, for each such claimant: the basis of occupation as recorded, the date occupation began where it can be established, the evidence relied on, who attested to it, and what the household received under which entitlement row.

That record is what allows the project to defend the payment years later. Its absence is what turns a correct decision into an unexplainable one.[4]