Obtaining a certified legal title in the Pan Amazon

Occupying a plot of land is the first, and perhaps easiest, step in the process of creating a legally constituted private property. In all eight Amazonian nations, a title or a certification of a title must be issued by an agency of the central government, which in most cases is a lineal descendant of the colonisation agencies of the 1960s and 1970s. At the time, these agencies issued provisional titles because full tenure was contingent upon establishing a successful homestead.

This negative legacy grew over decades as the rural economy expanded and the number of landholdings multiplied. One key responsibility of these agencies was the compilation of a land registry, known as a ‘cadaster’, which functions as a documentary reference point for all legal transactions involving rural property.

The decision to delegate the task of title certification to a national rather than a local agency was a logical consequence of the distribution of public lands by the central government. A national solution probably appealed to central planners who doubted the capacity of local (frontier) governments to manage a large and technically complex undertaking. Individual landholdings are incorporated into the national rural cadaster, but only after their spatial attributes and legal providence have been validated by public servants.

The failure to complete this process and consolidate national cadasters is a major driver of the lawlessness that defines frontier society. These agencies, whether by design or happenstance, oversee a chaotic system where fraud and graft facilitate the misappropriation of public lands. As such, it is a fundamental driver of deforestation.

It is also a massive moral failure because the system has failed to provide millions of smallholders with legal title to their most important financial asset. Successive governments and multilateral agencies have organized multiple initiatives to reform and modernize these agencies and, most importantly, complete the task of determining land ownership in the Pan Amazon. They have all failed.

Historically, transactions involving land are recorded with a notary public, known as a Cartório in Brazil and as Notaría de Fe Pública in Spanish-speaking countries. These legal offices provide a more substantive service than their counterparts in than United States because they keep a legal copy of all contracts and transactions as well as validate certain legal principles common to contract law. This type of documentation provides the primary legal basis for most rural landholdings.

The agencies compiling national cadasters have protocols for validating landholdings and incorporating them into the national cadaster using a property’s ‘historial’, essentially a paper trail that documents its origin and previous transfers or subdivisions. These protocols open a door for fraud because land grabbers use them to invent a legal history or to clone another property’s past with forged documents. Since land registries have massive backlogs of unprocessed land claims, it is often necessary to provide a cash payment to ‘expedite’ legitimate transactions. The practice of paying a bribe to process a legal transaction provides cover for land grabbers processing illegitimate documents.

The regulatory framework is further complicated by two distinct levels of land tenure: ownership and possession. As the terms imply, an owner (proprietário) holds a legal title to a property, while a possessor (poseiduero) lacks a legal document validating ownership but is occupying the property and using it for his or her economic benefit.

Logically, ownership has more rights than possession, but a possessor is not devoid of legal protection, including the right to not be evicted from the property if he or she is utilizing it according to principles referred to as a ‘social and economic function’.

There is an implicit assumption that possession will eventually be transformed into ownership; nonetheless, the lack of a clear legal title impacts a property’s value in real estate transactions.

Insecure land title and corrupt systems also impact legitimate landholders. In Brazil, there is a long history of ranchers dispossessing smallholders and forest dwellers by inventing documents and then using violence to evict them from their homes.

In Bolivia, squatters will invade a property if its owner is incapable of demonstrating clear title and lacks the economic resources to physically defend the property. On occasion, squatters are paid agents acting on behalf of a land grabber who is preying on a family perceived to be weak. Insecure land tenure is an invitation for bad actors to use force to obtain what does not belong to them.

“A Perfect Storm in the Amazon” is a book by Timothy Killeen and contains the author’s viewpoints and analysis. The second edition was published by The White Horse in 2021, under the terms of a Creative Commons license (CC BY 4.0 license).

Read the other excerpted portions of chapter 4 here:

Article published by Mayra

Bolivia, Brazil, Colombia, Ecuador, Guyana, Latin America, Peru, South America, Suriname, Venezuela

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