In the land field, it is always common for actors to make reference to the ‘bundle of rights’ when discussing the legal entitlements generally granted to land rights holders. But what exactly does this mean?
The metaphor ‘bundle of rights’ essentially portrays a pack of sticks in which each stick signifies a different right associated with property. According to this theory, property ownership is structured according to various social phenomena including cultural beliefs, legal institutions, social relations and practices. These create and influence the various rights tat can be held or distributed to various persons or groups. While there are academic divergences on the exact rights contained in the bundle, the common rights associated with the allegory include: the right to exclude others; the right to own; the right to use; and the right to transfer/dispose/alienate. Furthermore, it may also include the rights to manage and earn from the land as the right to security and peaceful enjoyment. There have some attempts to explain these rights. According to Schlager and Ostrom, the right to;
- access involves the right to “enter a defined physical property”;
- withdrawal means the right to “obtain the ‘products’ of a resource”;
- management involves regulating “internal use patterns” and transforming the resource by improving it;
- exclusion includes the right to “determine who will have an access right, and how that right may be transferred”; and
- alienation means the entitlement to “sell or lease either or both of the above collective choice rights”
At the same time, it is also important to examine alternative frameworks for classifying property rights. For example, under the Roman Law System, land is largely considered through the concept of ‘property’ and ‘possession’. According to this system, ‘property’ means the English equivalent of ‘ownership’ which was a right held absolutely against the whole world. This is what is referred to as rights in rem. In this system three rights existed namely:
- usus which concerned the right to “use the thing”;
- fructus i.e. the right to “take its fruits”; and
- abusus which relates to the right to “dispose of the thing”.
The combination of usus and abusus constitutes what legal academics refer to as possession. In between these two emerges another category of rights: usufruct rights which essentially is a merger of usus and fructus. This right restricted the land owner’s powers of servitude especially in the context of shared or common land use.
Closely linked to the bundle of rights is the issue of land tenure security. It is argued that basically, this deals with the perception by an individual or group that the rights they possess on land are held constantly, without any external interference. It also deals with the ability of the rights holder to benefit from that land either based on their investment on the land or a transfer to another person. From this perspective, three key issues emerge namely; breadth, duration, and assurance.
- Breadth is associated the number of rights one has in the “bundle of rights”. The higher the rights, e.g. access, use, transfer etc, the higher the economic returns on the land.
- Duration relates to the period one enjoys the rights on the land. The longer the time spans, the higher economic gains.
- Assurance concerns the certainty and enforceability of the rights held regardless of the duration and breadth.
In a nutshell, when examining land rights, it is important to ascertain the distribution of the “bundle of rights” especially in a country like Uganda which has different land tenure systems, some with complex characteristics rooted in decades of practice and cultural endorsement.