Guiding principles on security of tenure for the urban poor
30 December 2013
Special Rapporteur on the right to adequate housing, Raquel Rolnik
To the Human Rights Council at its 25th session
In 2014 the Special Rapporteur presented
Guiding principles on security of tenure for the urban poor to the Human Rights Council. The principles give guidance on existing human rights standards as they pertain to housing and land tenure.
Security of tenure is a key component of the right to adequate housing under international human rights law. Security of tenure must be understood as a set of relationships with respect to housing and land, established through statutory or customary law, informal or hybrid arrangements, that enables one to live in one’s home in security, peace and dignity. It is an integral part of the right to adequate housing and a necessary ingredient for the enjoyment of many other civil, cultural, economic, political and social rights.
However, many marginalized persons living in urban or semi-urban areas, including in informal settlements, lack adequate security of tenure.
States have an immediate obligation to ensure that all persons possess a degree of security of tenure that guarantees legal protection against forced eviction, harassment and other threats. They also have an obligation to take progressive measures to strengthen security of tenure for all persons using land or housing for their basic housing needs, and who currently lack such security.
Underlying the guiding principles is a presumption that individuals and communities occupying land or property to fulfil their right to adequate housing, and who have no other adequate option, have legitimate tenure rights that should be secured and protected. The concept of legitimate tenure rights extends beyond mainstream notions of private ownership and includes multiple tenure forms deriving from a variety of tenure systems.
On 28 April 2014 the Human Rights Council adopted resolution
25/17 acknowledging with appreciation the Guiding principles on security of tenure for the urban poor and encouraging States to take these guidelines into account when planning and implementing measures to improve the security of tenure for the urban poor.
Strengthening diverse tenure forms
States should promote, protect and strengthen a variety of tenure forms, including those deriving from statutory, customary, religious and hybrid tenure systems. All relevant laws, policies and programmes should be developed on the basis of human rights impact assessments, which identify and prioritize the tenure arrangements of the most vulnerable and marginalized. The following types of tenure, among others, should be promoted, strengthened and protected, as appropriate in the given context:
(a) Possession rights;
(b) Use rights;
(d) Freehold; and
(e) Collective arrangements.
2. Improving security of tenure
In order to improve security of tenure, especially for vulnerable and marginalized persons and groups living in urban poor settlements, States, including relevant authorities, should take the following measures:
(a) Conduct citywide assessments of tenure arrangements;
(b) Identify insecure settlements and population groups, including the homeless;
(c) Develop citywide strategies for securing tenure and upgrading settlements on different categories of land and with different tenure arrangements;
(d) Review and reform urban plans and regulations in order to integrate settlements;
(e) Adopt and implement a human rights-compliant resettlement policy to be applied where in situ solutions are not possible;
(f) Facilitate participatory settlement mapping, enumerations and tenure registration;
(g) Establish fair and effective land dispute resolution mechanisms;
(h) Allocate sufficient funds to ministries, municipalities and local governments for the implementation of these measures; and
(i) Adopt or revise legislation to recognize and protect multiple tenure arrangements.
3. Prioritizing in situ solutions
Tenure should be secured in situ unless there are exceptional circumstances that justify eviction consistent with international human rights law. Regulations aimed at protecting public health and safety and the environment or at mitigating risk for the population should not be used as an excuse to undermine security of tenure. In situ solutions should be found whenever it is possible to:
(a) mitigate and manage risks of disaster and threats to public health and safety; or
(b) balance environmental protection and security of tenure; except when inhabitants choose to exercise their right to resettlement.
4. Promoting the social function of property
Property has a vital social function including adequate housing of the urban poor. States should balance property rights with the social function of property in designing and implementing housing and other relevant policies. In particular, States, including relevant authorities, should promote access to secure and welllocated housing for the urban poor through, inter alia, the following measures:
(a) Conduct citywide audits of vacant and underutilized land, housing and buildings;
(b) Conduct assessments of spatial needs to house the urban poor, including homeless persons, taking into account current and anticipated trends;
(c) Allocate available public land for the provision of low-income housing;
(d) Adopt measures to combat speculation and underutilization of private land, housing and buildings;
(e) Adopt inclusive urban planning strategies and regulations;
(f) Adopt measures to regulate and stimulate the low-income rental market and collective forms of tenure; and
(g) Adopt measures to regulate the housing finance market and financial institutions.
5. Combating discrimination on the basis of tenure
Non-discrimination on the basis of tenure status must be guaranteed and protected in law, policy and practice. This guarantee must apply to all forms of tenure. Nondiscrimination on the basis of tenure status must be guaranteed in the context of, inter alia:
(a) Access to basic services and facilities;
(b) Access to social security;
(c) The collection and presentation of official data;
(d) Land administration programmes;
(e) Housing legislation and policies;
(f) Urban planning;
(g) Land acquisition and use for public purposes;
(h) Police procedures; and
(i) Humanitarian assistance, including access to shelter.
6. Promoting women’s security of tenure
Both de jure and de facto gender equality are essential to the enjoyment of the right to adequate housing. In this regard, States must strengthen and protect women’s security of tenure, regardless of age, marital, civil or social status, and independent of their relationships with male household or community members.
7. Respecting security of tenure in business activities
Business enterprises should take all relevant steps to ensure that:
(a) there are no adverse impacts on security of tenure as a result of or in connection with their activities or business relationships; and
(b) any adverse impacts are addressed, including through the provision of remedies to affected persons. Business enterprises should ensure transparent, free and fair negotiations regarding any transfer or modification of tenure rights with full respect for the right of people or communities to accept or reject offers.
8. Strengthening security of tenure in development cooperation
Multilateral and bilateral development agencies should ensure that their operations and projects promote and do not undermine security of tenure, including by adopting binding safeguard policies that aim to give effect to the right to adequate housing. Such agencies should support States lacking sufficient resources to take all necessary measures to strengthen security of tenure of the urban poor.
9. Empowering the urban poor and holding States accountable
Urban poor individuals and communities are essential actors in strengthening tenure security. States should be accountable to the urban poor for the implementation of these guiding principles by, inter alia:
(a) Making tenure-related information public and accessible to all in a timely manner;
(b) Ensuring transparency of all decision-making, including reasons for decisions;
(c) Guaranteeing free, informed and meaningful participation of the urban poor in the design and implementation of measures to secure their tenure status;
(d) Developing contextually appropriate indicators and benchmarks against which to measure progress and regressions; and
(e) Periodic reporting of progress at national and international levels.
10. Ensuring access to justice
Tenure status should not pose a barrier to people in accessing an effective remedy for the violation of human rights. States must ensure access to effective administrative and /or judicial remedies for violations of the right to adequate housing, due to, inter alia:
(a) Discrimination on the basis of tenure status, including multiple discrimination;
(b) Discrimination on the basis of any prohibited ground in the enjoyment of security of tenure;
(c) Failure to adopt appropriate and timely measures to address tenure insecurity of the urban poor; and
(d) The undermining of security of tenure including through forced eviction.
Guiding Principles in all six UN languages with their commentary.
Booklet: Guiding principles on security of tenure for the urban poor
Guiding principles on security of tenure for the urban poor: full text with commentary
The Guiding Principles were developed by the Special Rapporteur over a period of three years from 2012-2014, on the basis of several
consultations with civil society organizations, government officials and academics. Background papers and reports from these consultations are available below.
In December 2012 the Special Rapporteur submitted a
study on security of tenure to the Human Rights Council (A/HRC/22/46). Building on years of practice in the urban planning, housing policies and development fields, as well as human rights advocacy and litigation, the study offered guidance on ways to address the variety of tenure issues and how security of tenure can be strengthened in particularly for those who most need it.
In July 2013 the Special Rapporteur analysed in her
report to the General Assembly (A/68/289) policies and programmes aimed at promoting forms of tenure other than individual freehold, such as rental and communal forms of tenure and subsidies for rental housing construction.
In September 2013 the Special Rapporteur prepared a draft set of recommendations and good practices—both from local and national levels—about security of tenure. She invited relevant stakeholders to submit comments to the draft. Below are submissions received from States.
2013 Consultations and meetings convened by the Special Rapporteur
The following consultations on this issue have been convened by the Special Rapporteur or by partners:
- Consultation on security of tenure, 6 September, Naples, Italy - list of participants
- Expert Group Meeting on security of tenure, 22-23 October, Geneva, Switzerland - list of participants
- Public consultation on security of tenure, 24 October, Geneva, Switzerland - list of participants
- Regional consultation on security of tenure for the urban poor (Latin America region), Quito, 10 May 2013
- Regional consultation on security of tenure for the urban poor (African Region), Johannesburg, 27-28 May 2013
- Brazilian consultation on security of tenure, Sao Paulo, 17 June 2013
- Regional consultation on security of tenure for the urban poor (European region), Geneva, 26 June 2013
- Consultation security of tenure in Humanitarian Shelter, Geneva, 27 June 2013 (convened by NRC and IFRC)
- Roundtable on security of tenure in Humanitarian Shelter, Geneva, 28 June 2013 (convened by the Permanent Mission of the UK, DFID, NRC and IFRC)
Briefing and background papers
These papers were submitted to the Special Rapporteur to help inform her studies. These papers do not necessarily reflect the views of the Special Rapporteur.