g) It has a negative impact on the real estate market and on city-wide land use. ..... http://www.ti- juana.gob.mx/Leyes/pdf2010h/LEY_TIJUANA_%202008.pdf ...... 15. STATE. EXPROPRIATION. Sketch. 69555. 508. ABC. ANEX. A DEFEN.
www.colef.mx
forros-Legalizing-FINAL.indd 1
Dick Cluster (translator) has translated more than fifteen books of fiction and scholarship, and is the author of three novels, two works of history, and one of economics. Based in Oakland, California, he is the former Associate Director of the Honors Program at the University of Massachusetts at Boston.
Informal Settlements and Regularization Processes in Tijuana
A professor-researcher at El Colegio de la Frontera Norte since 1990, he earned his doctorate in political science from La Universidad Complutense de Madrid in Spain, and is a member of Mexico’s National System of Researchers, level III, and of the Mexican Academy of Sciences. His varied publications in the fields of social policy, anti-poverty efforts, and local government include six books as editor/coordinator and six others as author or co-author. In 2002, he was awarded the “Dr. José Gómez de León” prize for winning first place in the doctoral thesis competition in the Education, Health, and Food Program organized by the Universidad Nacional Autónoma de México and Sedesol. He served as editor-in-chief of the journal Frontera Norte.
Tito Alegría Olazábal Gerardo Ordóñez Barba
Gerardo Ordóñez Barba
For several decades, the phenomenon of irregularity in urban land tenure has been a central element in the growth of Latin American cities. In the case of Tijuana, informal settlements have proliferated through the city’s history as a result of spectacular population growth, a significant share of the population’s lack of economic capacity to acquire housing, a limited supply of land in the real estate market for housing construction, local topographical obstacles, and institutional weaknesses in all three levels of government that prevent the orderly oversight of property rights and urban development. According to the findings of this study, more than half of currently occupied dwelling units in the Tijuana had irregular origins. In this context, the book embodies a systematic approach to the study of land tenure informality in the city. The research findings address the location and dimensions of informal settlements; their implications for housing quality and availability of basic public services and urban infrastructure, as well as implications for local real estate markets; and the limitations of the public institutions charged with housing production and supervision and with the process of land tenure regularization. The research presented here retains its currency and topicality ten years after it was carried out. This English edition is an effort to contribute to debate and analysis about one of the central issues in economic and social progress in every large city in the developing world.
Informal Settlements and Regularization Processes in Tijuana Tito Alegría Olazábal Gerardo Ordóñez Barba
Tito Alegría Olazábal An urban planning expert specializing in analysis of cities in the Mexico–United States border region and professor-researcher at El Colegio de la Frontera Norte since 1987, he is currently Director of the Department of Urban and Environmental Studies. He earned his doctorate in urban planning and development from the University of Southern California. A member of the National System of Researchers, level II, he has published three books and a variety of scholarly articles in nine countries, all in the field of urban development and inter-urban land use structure. His latest book is Metrópolis Transfronteriza: Revisión de la hipótesis y evidencias de Tijuana, México y San Diego, Estados Unidos [Trans-Border Metropolis: A review of hypotheses and evidence from Tijuana and San Diego]. He has consulted for local governments and UN-Habitat, and worked with the Cátedra UNESCO-SSIIM.
1/19/17 12:43 PM
Legalizing the City Informal Settlements and Regularization Processes in Tijuana
Gerardo ordoñez BarBa TiTo aleGría olazáBal
Legalizing the City Legalizing the City Legalizing the City Informal Settlements and Legalizing the City Informal Settlements Informal Settlements andand Regularization Processes in Tijuana Informal Settlements Regularization Processes inand Tijuana Regularization Processes in Tijuana Regularization Processes in Tijuana Gerardo ordoñez BarBa GTerardo ordoñez BarBa Gerardo ordoñez Bo arBa iTo aleGría lazáBal iTo aleGría olazáBal TiTo G aTerardo leGría oolazáBal rdoñez BarBa TiTo aleGría olazáBal
Alegría, Tito. Legalizing the City : Informal Settlements and Regularization Processes in Tijuana / Tito Alegría O., Gerardo Ordóñez B. ; translated by Dick Cluster. –– Tijuana : El Colegio de la Frontera Norte, 2016. p. 208 ; 14 x 21.5 cm Traducción de: Legalizando la ciudad : asentamientos informales y procesos de regularización en Tijuana. ISBN: 978-607-479-232-4 1. Urbanización –– México –– Tijuana. 2. Tierras urbanas –– México –– Tijuana. 3. Urbanismo –– México –– Tijuana. 4. Política urbana –– México –– Tijuana. 5. Tijuana, Baja California –– Política social. I. Ordóñez Barba Gerardo. II. El Colegio de la Frontera Norte (Tijuana, Baja California). HT 384 .M62 T513 2016
First edition in English, 2016 First Edition in Spanish, 2005 D. R. © 2016 El Colegio de la Frontera Norte, A. C. Carretera escénica Tijuana-Ensenada km 18.5 San Antonio del Mar, 22560 Tijuana, Baja California, México www.colef.mx isbn: 978-607-479-232-4 Editor in Chief: Érika Moreno Páez Type Setting and Editorial Design: Jonathan Girón Palau Translation: Dick Cluster Cover Design: Juan Carlos Lizárraga/Xaguaro
Made in Mexico/Hecho en México
CONTENTS
Prologue to Legalizing the City ............................................ 9 Introduction ................................................................................. 27 1. The Problem in Context ...................................................... 30 2. Conceptualization of the problem ...................................... 37 3. Methodological strategy ....................................................... 43
I. Location, dimensions, population, and value of irregular settlements.......................................49 II. Implications of irregularity for urban consolidation ............................................................ 65 III. Institutional management of the problem of irregularity ...............................................77 1. The regularizing agencies ......................................................... and the regularization process ..................................................79 2. Property registration systems and control of urban expansion...............................................106 3. Planning urban growth........................................................116
IV. Conclusions and recommendations...............................125 1. Conclusions.........................................................................125 2. Recommendations...............................................................130
[ 7 ]
Appendices .....................................................................................141 Chapter I .................................................................................143 Chapter II.................................................................................152 Chapter III...............................................................................157
List of initials and acronyms ..................................................189 Bibliography, legislation, and documents consulted .......................................................193 Interviews carried out..............................................................203
8
legalizing the city
PROLOGUE TO LEGALIZING THE CIT Y
Paavo Monkkonen
Many from the international development community have been pushing for land titling programs as an essential way to help the people of low-income settlements around the world. However, the act of defining property rights is problematic because multiple property rights systems often operate in any given place (Payne 2002) and the act of defining rights can generate conflict and violence (Alston et al. 1999). Therefore, studying the process of land titling is especially important at the present time, not only because of potential benefits but also to protect many of those living in informal housing who depend on its legal ambiguity. Legalizing the City is an exemplary case study of informal housing development and land regularization in Tijuana, Baja California, Mexico. Mexico is an important country for research on property rights and land titling programs, in part because a majority of houses are thought to have an informal origin (Monkkonen, 2011). Of equal importance, it also has one of the longest running and most ambitious land regularization programs. Thus, the book is rich in data and historical analysis of the institutions of land regularization in the city of Tijuana. Legalizing the City does something new that should be widespread. It documents the irregular settlements and land regularization processes through available administrative and census data, historical archives and interviews of public officials. Urban
[ 9 ]
scholars around the world will now benefit from this English translation. The data that Alegría and Ordoñez have gathered and present on land values and the inhabitants of irregular settlements in Tijuana address commonly held stereotypes of irregular settlements. More than half of the area of the city of Tijuana was developed irregularly, including centrally located areas that have since become sites of commercial use, formal planned urban developments sponsored by the government, and the more commonly conceived squatter settlements at the urban periphery. The land varies not only in its location and current use, but also in its origin and the way it was developed, from massive squatter invasions to the illegal subdivision of private land. Yet the most important element of Legalizing the City is the access to and presentation of large amounts of data on land regularization in Tijuana. Regularization agencies in the city have begun proceedings in more than 160,000 lots in a city that according to the 2000 census had only 270,000 households (INEGI 2000). Beyond demonstrating the potential of administrative data from regularization agencies for the study of informal housing, Legalizing the City also clearly shows the institutional complexity of the regularization process. At the time data presented in the book were gathered, there were six land regularization agencies operating in the city. The six different land regularization agencies —one federal, three state and two municipal— reflect in part different goals but primarily the different kinds of land on which housing has been irregularly developed. One important finding from the book is the relative lack of take-up by the inhabitants of irregular settlements of the possibility to acquire full property rights, which partly contradicts conventional wisdom about land titling. Less than 40 percent of the 160,000 households that initiated regularization proceedings completed the titling process. This is true even for households
10
legalizing the city
those that began proceedings in the 1970s and 1980s. It seems that either the process has some serious flaws or land titles are not as beneficial to households as is often argued. In a study that took advantage of the data collected for Legalizing the City, I develop and test a model of demand for full title in Tijuana (Monkkonen, 2012). This is just one of the kinds of possible extensions of the important work by Alegría and Ordoñez, needed for policy reform. In sum, Legalizing the City makes an important contribution to the literature on land titling in its aggregation and analysis of administrative data from land regularization agencies. Though every country will be very different in this arena, Legalizing the City points urban and legal scholars in at least three important directions for further research. First, it demonstrates that the institutional structure of regularization systems is important and should be an object of inquiry. This structure can be quite complicated due to the varied types of informal land development and the history of existing regularization institutions. Second, it suggests that we need to know more about the demand for land titles among residents of irregular settlements. This will be crucial to making the programs function. Finally, the book shows the potential uses of administrative data on irregular settlements. It is clearly a painstaking collection process but one that deserves greater attention from scholars. Future research on property rights in informal settlements can usefully focus on documenting the details of the urban development processes that lead to irregular development and much more on understanding the processes that regularize land. When more than half of a city’s residential area was developed irregularly and remains so, it is clearly an issue that is here to stay.
prologue
11
REFERENCES ALSTON, Lee J., GARY D. Libecap and Bernardo MUELLER.
1999. Titles, Conflict and Land Use. Ann Arbor, Michigan: University of Michigan Press. INEGI. 2000. XII Censo de Poblacion y Vivienda. Aguascalientes: INEGI. MONKKONEN, Paavo. 2012. “The Demand for Land Regularization: Theory and Evidence from Tijuana, Mexico.” Urban Studies, 49(2): 270-287. MONKKONEN, Paavo. 2011. “The Housing Transition in Mexico: Expanding Access to Housing Finance.” 2011. Urban Affairs Review, 47(5): 672-695. PAYNE, G. (2002) Land, Rights and Innovation: Improving Tenure Security for the Urban Poor. London: ITDG Publishing. PEATTIE, Lisa. 1987. “An Idea in Good Currency and How it Grew: The Informal Sector.” World Development 15: 851-860.
12
legalizing the city
PROLOGUE
Boris Graizbord
Institutionalizing land tenure (legalizing, regularizing, and administering it) constitutes a means to influence income distribution. However, land tenure is in itself a complex body of rights pertaining to the use of space, including the rights to access, occupation, and development, as well as all the privileges associated with a given piece of land and what lies on or below it (except in our country, where subsoil rights are national patrimony). Nonetheless, such rights and privileges over property are limited by important restrictions: statutes, adjoining and neighboring properties, and other aspects including the higher interests of the community or the nation. The latter aspect means that the instruments available to the state to balance public and private interests are of great importance, as the state attempts to ensure both the security represented by property rights and the social good resulting from proper design and implementation of the rules of the game. Yet these instruments also offer opportunities to improve the lives of residents and of the general population, as is shown by the findings of Alegría and Ordoñez. Irregularity in land tenure has a variety of costs (p. 18): a) It generates legal conflicts that involve public and private costs; b) It generates financial costs for the authorities; c) It imposes financial costs on the person who initiates a regularization process;
[ 13 ]
d) For an occupant, it produces insecurity and uncertainty; e) For others, it implies extra costs and property devaluation; f) In has a negative effect on finance and construction markets; g) It has a negative impact on the real estate market and on city-wide land use. The authors’ objectives are to estimate the irregularity in land tenure, examine its implications for urban consolidation, and analyze institutional management of the problem (p. 18). These issues, central to Alegría and Ordoñez’s book, make it highly important not only in the context of Tijuana – a city in which nearly six out of every ten housing units have informal origins (p. 9) – but also in that of the explosive physical expansion experienced by the majority of large and mid-sized cities in our country. The private interests of developers and real estate capital have dominated this physical expansion, taking advantage of the weakness – to put it mildly – of municipal institutions and governments. In such a context, it is little short of impossible to plan such development and to ensure respect for plans, programs, and land-use designs. Any public or private action to assign resources, modify uses, offer services and infrastructure, apply zoning, improve environmental quality, or in general to protect, control, and regulate, will have effects on accessibility (and therefore on land rents, land prices, and land values) and will produce externalities. How can we ensure that these are positive —that is to say, that the effects and results are redistributive? This question, which fundamentally permeates the work of Alegría and Ordoñez, allows us to understand their argument, which demonstrates the relationship of regularization to urban consolidation, and to living conditions and socio-economic betterment (p. 53). The consolidation of an area can improve:
14
legalizing the city
1) Physical conditions of habitability; 2) urban infrastructure; and 3) the residents’ relationship to the city on three different levels: that of the dwelling unit, the neighborhood, and the urban structure. Alegría and Ordoñez’s book is divided into four thematic sections, following an introduction that explains the issue and followed by detailed statistical and cartographic appendices. The four sections are: I) Location, dimensions, population, and value of irregular settlements; II) Implications of irregularity for urban consolidation; III) Institutional management of the problem of irregularity; IV) Conclusions and recommendations for improve the network of regulatory agencies, systems for property title registration and regulation of new development, and planning for urban growth. The reader will find a text that follows a clear line of argument offering not only theoretical but also practical uses, because this is also an exercise in evaluating policy. In our country, in the context of greater political openness and transparency and frequent changes of administration on the local level, it is more and more important to reduce waste and become more effective in achieving social goals and objectives, and, of course, in administering (governing) our cities. At the base of any such assessment lies the idea of causality, but the relations of cause and effect are not easy to see or explain (and many times they are reciprocal). Thus it is indispensable to build models that allow us to understand, even indirectly through the use of statistical tools, the relations among variables that represent actions and results. If it is technically important to resolve defects in the process of designing, implementing, and evaluating of policies in general, in the sphere of urban policy it indispensable to embed planning within the decision-making
prologue
15
process of public administration. But local governments in our country, in power for three-year terms without reelection, generally: a) do not have sufficient capacity to determine whether the actions they program and carry out are really necessary or highpriority and whether their impacts are positive; and b) when they decide that something must be done, they are not clear about how or through what instruments (normative, financial, programmatic) to obtain the desired results, given the lack of evaluation of implementation and especially of impacts. The authors demonstrate the inherent institutional weakness of municipal public administration despite powers and responsibilities which in theory appear omnipotent (pp. 61-62). The list is indeed impressive, but in practice the cost of exercising these powers and fulfilling these responsibilities is prohibitive, except perhaps for certain metropolitan local governments (and even then, who knows?). It is prohibitive because, in general, the majority of municipal governments are characterized by: i ii iii iv v
lack of organizational capacity; lack of trained personnel; financial insolvency; limited human and technical resources; weak commitment to the citizenry that elects them for a single term (re-election being prohibited); vi deficient jurisdictional control. In particular, the functions of the regulatory bodies are affected in practice by a flawed work culture accompanied by incapacity and corruption. At base, they lack internal planning tools and a normative or and legal framework. Their ability to apply the laws is therefore minimal. This bears repeating: The limitations affecting the process of designing and implementing measures, and especially that of as-
16
legalizing the city
sessing their impacts, reflect an inherent weakness in local (municipal) government in Mexico. However, the virtue of this book is that, in response to these limitations, the authors propose a series of measures that range from restructuring regulatory agencies, urban expansion controls, and property registration systems, to recommendations for planning urban growth and land and housing development at both municipal and state-government levels. Their proposals also include measures to enhance coordination among the three levels of government and policies for financing progressive land development and real estate credit. In this sense, and in the context of metropolitanization alongside the physical expansion of urban areas, horizontal intergovernmental relations among neighboring jurisdictions must also be considered. The absence of such associative instruments is a problem that affects mainly, but not only, the nearly sixty metropolitan areas of our country. This book will have special appeal to those concerned with economic development, law, and urban planning. Its findings, interpretations, and resulting proposals reflect an analytic and political approach that is not merely ideological and that surpasses what usually occurs when such juridical and policy issues are discussed.
prologue
17
PREFACE
This book was originally released in Spanish, by the same publisher, a decade ago. We decided to republish it in English because of the importance and continued relevance of the issue of informal settlements and their regularization for Latin America and especially for Mexico, and also because of the recognition that international organizations have accorded the subject, the growing complexity of discussions within the specialized literature in the field, and above all because of renewed attention to the subject in English-language publications. We think that many of the research findings reported in this book retain their currency not only for Tijuana but for many other Latin American cities. Since the book was published in Spanish, it has been discussed in institutional documents and academic publications, but its circulation to interested publics in various part of the world has remained limited by the language barrier. We hope that this English edition may contribute to debate and analysis about one of the central issues affecting economic and social progress in all the large cities in the developing world. International literature and organizations use a variety of terms to refer to areas arising from informal settlement, such as, in Spanish, asentamientos precarios, tugurios, or barrios marginales (roughly equivalent in English to “substandard settlements,” “slums,” or “marginal neighborhoods”). This variety may be at-
[ 19 ]
tributable to local linguistic usages or to the particular goals associated with such concepts. There is no agreement as to what constitutes informality, and research studies have been affected by the linked problems of defining and measuring the phenomenon. UN-Habitat’s definition primarily takes into account the material conditions of the dwellings; it includes the possibility of eviction only as a characteristic associated with the legality of land tenure. It proposes the term tugurio (slum) for dwellings that lack one or several conditions including the use of durable materials, sufficient space, access to improved water sources and sanitation facilities, and security against eviction.1 This definition has been the framework used in Goal 7D of the Millennium Development Goals. International bodies and academic studies involved in the issue have used three kinds of characteristics to define informality of settlements and to measure its prevalence: physical characteristics, type of land occupancy, and legal status.2 Even so, a lack of precision persists because of the variety of particular situations and also the inconsistences between definitions and data. Among the physical characteristics used in the definition of informality are the absence or substandard nature of urban infrastructure such as water or sewer services or paved streets; substandard construction of dwellings; insufficient health care and education services; and lack of public space. However, the presence of some of these deficiencies does not make an informal settlement very different from others that are considered formal. For example, examining data from Mexi1 UN-Habitat (2012). The State of Latin American and Caribbean Cities 2012. Kenya. P. 63. 2 Fernandes, Edésio (2012). “Regularization of Informal Settlements in Latin America.” Policy Focus Report. Lincoln Institute of Land Policy. Cambridge, USA. P. 10.
20
legalizing the city
co from the 2008 National Survey of Household Income and Spending (Spanish acronym ENIGH), it was found that 76 percent of dwellings with property titles had connections to public water systems and 77 percent to public sewers, while for units without property titles those figures were 56 percent and 58 percent.3 Thus, when considering physical characteristics the distinction between formal and informal dissolves, because having a property deed does not guarantee adequate public services, nor does lack of title necessarily deprive a resident of these.4 The forms of land occupation used as criteria to define irregularity may be grouped into two categories: first, occupation of private, public, or communal (ejido) land without property rights; and second, the subdivision of private, public, or communal land without the required municipal authorization. In both cases, the occupying families build their units individually, through various strategies of which the most common is self-construction. Also in both cases, to obtain property titles the families must begin the process of regularization. The quantification of irregularity in terms of form of occupation has suffered from a lack of information sources. The aspect that most generally defines informality is the legal status of landholding. Whether the settlement has emerged through an illegal land seizure or through subdivision outside the rules, the result is its exclusion from the state legal system. International organizations have concluded that the type of land tenure has a strong influence on occupants’ ability to take advantage of the advantages that a city has to offer; it influences ability to obtain public services, accessibility of urban health, 3 Cidoc and SHF (2010). Current Housing Situation in Mexico 2010. Mexico City. P. 124. 4 Herbert, C. E., E. S. Belsky, and N. DuBroff (2012). “The State of Mexico’s Housing – Recent Progress and Continued Challenges.” W12-8. Joint Center for Housing Studies. Harvard University.
preface
21
education, and public-space infrastructure, material conditions, access to financing, and possible benefits accruing from selling or renting the units. In spite of this factor’s importance, in Latin America there are no sources of geo-localized data on land tenure within a city. In Mexico, census figures do not allow one to make local estimates of the number of informal units under any of the definitions or on any scale. There is information at the national level thanks to ENIGH survey data; using this survey, it has been estimated that, in 2008, 31 percent of urban housing units in Mexico lacked property titles.5 More current versions of that survey contain omissions that make it impossible to estimate informality even at the national level. Using a different designation, CEPAL estimated that in 2014, in Latin America, 24 percent of the urban population lived in tugurios (slums).6 The study presented in Legalizing the City is perhaps the only one to have quantified, within a given city, the number of people whose property tenure in their homes was or still is informal. This was accomplished through use of the registration data for all Tijuana settlements that had begun a process of regularization through any of the public agencies that were offering this service, information that was then combined with local census data. That procedure did not account for units that had not begun the regularization process; nonetheless, based on the opinions expressed in interviews with officials responsible for regularization, we judge that the number of such units is small. Even without including all irregular units, the phenomenon is clearly extensive because at last half the city had informal origins, and out of the settlements registered for the regularization process, only one third had obtained property tittles at the time of the research. 5 Cidoc and SHF (2010). Current Housing Situation in Mexico 2010. Mexico City. P. 124. 6 http://interwp.cepal.org/sisgen/ConsultaIntegradaFlashProc_HTML.asp
22
legalizing the city
In the most recent decade, the need to regularize informal settlements has generated controversy. The arguments in favor, promoted by international agencies, refer to the advantages that families and local governments obtain. Families no long face the danger of eviction, their ability to obtain public services is strengthened, they can gain access to credit using their homes as collateral, and they can sell or rent their homes for higher prices. Government, for its part, can increase its income through levying property taxes on many more units, strengthen its ability to administer land use by concentrating eradication efforts on settlements in high-risk zones, and strengthen its capacity to plan roads and transport;. Nonetheless, as has been shown in several cities, regularization does not seem to have changed families’ behavior with respect to consolidation of their homes, and local governments seems to have consigned themselves to living with the irregular situation of many settlements by treating them as if they were regular. The lack of a property title does not prevent an occupant from exercising certain property rights in usufruct. Several studies of regularization in Latin America show that those most likely to benefit from title legalization are the households with relatively higher incomes, who were able to enforce their rights in spite of lack of title.7 In that sense, having a property title appears not to change the financial pattern of families very much. In Mexico, among families whose incomes total less than six monthly minimum wages, only 10 percent made use of loans to invest in their homes (although, among this group, those with titles invested 28 percent more than those without titles).8 In Latin America, 7 Van Gelder, Jean-Louis (2013). “Paradoxes of Urban Housing Informality in the Developing World.” Law & Society Review, Volume 47, Number 3. 8 Herbert, C. E., E. S. Belsky, and N. DuBroff (2012). “The State of Mexico’s Housing – Recent Progress and Continued Challenges”. W12-8. Joint Center for Housing Studies. Harvard University.
preface
23
formalization of property tenure has not brought significant changes in access to credit, which primarily depends on workforce status: being employed and having a higher salary facilitate access to credit among inhabitants of informal settlements.9 Family patterns of behavior with respect to their housing units seem to be persistent and little related to titling. In informal settlements, families tend to move infrequently, so that commercializing their homes is not a widespread goal. This is turn reduces the incentive to acquire a property title. One study found that in Bogotá and Mexico City, more than 80 percent of the original families in informal settlements were still living on their lots thirty years later.10 The actions of the public sector through regularization programs have also been called into question. The state legal system dealing with properties supported by legal titles does not, in practice, recognize the existence of a parallel, informal legal system that functions with its own rules about property rights —rules that, although different, do emulate and interact with those of the state system; this parallel system has a certain effectiveness as a certifier of non-market agreements and mercantile transactions involving homes.11
9 Fernandes, Edésio (2012). “Regularization of Informal Settlements in Latin America.” Policy Focus Report. Lincoln Institute of Land Policy. Cambridge, USA. P. 26. 10 Grajeda, Erika D. and Peter M. Ward (2012). “Inheritance and Succession in Informal Settlements of Latin American Cities: A Mexican Case Study”. Latin American Research Review, Vol. 47, Special Issue, pp. 139-162. 11 Abramo, Pedro (2012). “La ciudad com-fusa: mercado y producción de la estructura urbana en las grandes metrópolis latinoamericanas”. EURE, vol. 38, no. 114, May, pp. 35-69. Poirier, Marc R. (2013). “Brazilian Regularization of Title in Light of ‘Moradia’, Compared to the United States Understandings of Homeownership and Homelessness.” The University of Miami Inter-American Law Review, Vol. 44, No. 2 (Spring), pp. 259-312.
24
legalizing the city
From a legal point of view, government regularization actions embody a juridical paradox, because in defending the principle of property via titling, they are depriving legitimate original owners of their property without legal basis for that dispossession.12 Further, in cases like Tijuana, by individually regularizing the properties in the given area, they are in non-compliance with the regulations on subdivisions, which require the cession of a certain fraction of the land for schools, parks, and other communal activities and functions. Regularization as an instrument of improvements in urbanization has also been questioned due to the greater government spending implied by reversing the technical sequence of urban development, because a posteriori creation of infrastructure can be three to ten times as expensive as planned urbanization.13 In the fiscal arena, irregularity now constitutes only a minor obstacle to tax collection. In Tijuana, for example, since 2008 the local government has been collecting property taxes in irregular settlements in process of regularization, which is to say almost all of them. In exchange, the settlements receive garbage collection and public lighting services.14 The families paying property taxes in this way are no longer in danger of eviction despite continuing to occupy informal lots and dwellings. Thus, the UN-Habitat criterion that defines irregular occupants as those in danger of eviction underestimates the extent of informality. In Tijuana, the few evictions —accompanied by relocation— have
12 Van Gelder, Jean-Louis (2013). “Paradoxes of Urban Housing Informality in the Developing World.” Law & Society Review, Volume 47, Number 3. 13 Blanco, A., V. Fretes, y A. F. Muñoz (2014). “El alquiler como oportunidad para mejorar las políticas de vivienda en América Latina y el Caribe,” in A. Blanco, V. Fretes, and A. Muñoz, Busco casa en arriendo: Promover el alquiler tiene sentido. Inter-American Development Bank. Washington DC. 14 Ayuntamiento de Tijuana (2008). “Ley de Impuestos.” http://www.tijuana.gob.mx/Leyes/pdf2010h/LEY_TIJUANA_%202008.pdf
preface
25
taken place only in high-risk zones such as the bed of the river that flows through the city or the very steep slopes of some mountains, in accordance with the local government’s map of risk zones. Other than that, the threat of governmental eviction is practically nonexistent. In spite of these weaknesses and complications of regularization, Legalizing the City found that regularization does aid families in consolidation of their habitat and improvement of their material living conditions, although this too depends on family incomes. Information about irregularity at the scale of individual neighborhoods within a city is nonexistent. Legalizing the City offers a method for amassing such information and combining it with census data. Although this method remains costly, it will become more accessible with geo-referenced digitalization of the property registers of each regularizing agency, now possible thanks to the new developments in geographic information systems in recent years.
Tito Alegría O. Gerardo Ordóñez B. Tijuana, May 2016
26
legalizing the city
INTRODUCTION
This document presents the results of an extensive research project carried out between June of 2001 and May of 2002. It offers an initial systematic approach to the study of irregular occupancy of urban land in the city of Tijuana, Baja California. The book’s structure parallels the project’s objectives, which were: a) to identify and digitally map irregular settlements, quantitatively estimating their surface area, value, and resident population; b) to explore the implications of this phenomenon for quality of dwellings, access or lack of access to basic public services and urban infrastructure, and local housing markets; c) to learn about the scope and limitations of the public institutions responsible for resolving the problem of irregularity, both in terms of prevention and control and in terms of the process of regularization; and d) to propose policy recommendations that would allow for improving institutional capacities to accelerate regularization and limit irregular urban growth. As observers will note for themselves, irregular land tenancy in Tijuana has contributed significantly to the city’s growth, and, according to the most recent data, it seems not to be losing momentum as an alternative way to meet important social sectors’ growing need for land and housing. This phenomenon’s magnitude and spread have been impelled to a great degree by the spectacular population growth of the past several decades, but its complexity also derives from the variety of techniques adopted in practice (ranging from gradual encroachment to the under-
[ 27 ]
ground sale of large expanses) and the several types of original ownership of the lands in question (communal, private, federal, state, and local). These particularities have complicated the work of public institutions charged with solving the problem. Also, government intervention has traditionally lagged behind the events themselves, concentrating more on processes of regularization than on mechanisms of control or tools of urban planning.1 But even in the dimension of regularization, as can readily be seen, much remains to be done. In this context, it is surprising how little research has been done on this issue whose social and economic costs affect the city’s quality of life, functioning, and the potential productivity of individuals and businesses. We are grateful to Tijuana Trabaja, A.C., and to the Consejo de Desarrollo Económico de Tijuana for proposing, promoting, and financing this investigation. Their efforts reflect their commitment to bringing knowledge and solutions to bear on problems that interfere with the integrated development of our community. Also deserving of special mention are the offices and officials at all levels of government who shared part of their time in meetings and in-depth interviews, as well as giving us access to their data bases, maps, and documents.2 We particularly thank the Instituto Municipal de 1 This problem is not unique to Tijuana or Mexico. A CEPAL paper says, in reference to Latin America and the Caribbean, “regulation of and direct intervention in the land market by means of measures such as land purchasing, the creation of land banks or regulation and control of speculation by public bodies have been very few and far between and limited in scope, due to the existence of strong vested interests in the real estate market, the limited management capabilities of governments, the scarcity of public funds and the lack of political will” (Mac Donald, et al, 1998:24). 2 We are especially grateful for the support provided by Sra. Cecilia Barone, Subsecretary-general de Gobierno, Dr. José Rubio Soto, Sedesol delegate in Baja California, and Ing. Manuel Guevara, Development Coordinador, XVII Ayuntamiento de Tijuana.
28
legalizing the city
Planeación for their support for the digitalization of the maps that appear in this document. As mentioned at the outset, this research project represents only a first approximation. The scarcity of systematized information and the nearly complete lack of previous studies3 required us to concentrate on securing and representing basic information through digitized maps and statistical data bases, and in formulating the diagnoses proposed in the our objectives. Many further issues must still be clarified to fully understand the process of popular urbanization and to define specific strategies adapted to resolving the problem from the point of view of families involved. Another limitation of the study is the type of irregular settlement on which we have concentrated the most. Due to the complexity and dynamism of the phenomenon and the scarcity of resources and time, we could not arrive at a complete estimate, but rather had to limit ourselves to systemizing the information on those irregular settlements that had already been identified or recognized by the bodies responsible for them. This approximation omits settlements not yet included by authorities in any process of regularization.4 It also omits the significant number of irregular transactions that take place individually; over various decades, these have been regularized through juicios de prescripción, in which civil tribunals may grant property rights to residents after five years of occupation. According to the Public
With the exception of SAHOPE and Ayuntamiento de Tijuana, 1991. A striking example is the settlement of Maclovio Rojas, which has not been included in any regularization program because of a land conflict that has, since the early 1990s, pitted its residents (who have applied to the Secretaría de la Reforma Agraria to form the nucleus of a new ejido) and the existing ejido Francisco Villa (which has applied to the SRA for an expansion). This land, approximately 197 hectares in the eastern part of the city, still lacks both an official map and a population census. 3 4
introduction
29
Property Registry, approximately 10 to 15 per cent of the titles registered each year in Tijuana come from such prescriptions.5 Another form of irregularity not considered in the study is that resulting from so-call “ant invasions” —gradual encroachment in or around existing settlements, in which individual families (not organized as groups) invade these lands slowly but continually, one lot a time. Other exclusions have to do with situations of irregularity arising in non-residential areas surrounding the settlements on which we focus, or in vacant lots. Despite these limitations, the information we present will explain a large part of the problem and can serve as a basis for future research and for the search for alternatives that will allow the city to achieve ordered growth.
1. THE PROBLEM IN CONTEXT The dizzying growth of the city of Tijuana is closely linked to its border location. At the outset of the twentieth century, Tijuana was a tiny town of 242 inhabitants. A hundred years later, it held 5 The juicio de prescripción “is a form of regularization, because let’s say I have a piece of land where I’ve been living for thirty years and it turns out that the landlord died, or the person who sold it to me was not really the owner. It would be unjust if somebody who acquired it in good faith should have to spend their whole life without a property title. And this public device allows someone to regularize their land. Sentencias de prescripción are exactly that, property titles. That’s why, in my opinion, it’s a very important device. The problem is that here in Tijuana it’s been distorted; lots of people even use it in fraudulent ways, because there are lots of cases where an owner, so as to avoid the procedures for subdividing property, what he does is —let’s say he has 1000 square meters, what he does is sell 200 and then prescribe it to me and nobody has to wait the five years because the contract is back-dated. So, this procedure lends itself to all sorts of irregularities, though obviously that’s not true all the time.” Interview with Lic. Miguel Ángel Rodríguez, Public Register, RPPyC of Tijuana.
30
legalizing the city
1,148,681 people. In the year 2000 the city took its place among the eight most important in the country. It was the second largest on the United States border, outranked only by Ciudad Juárez with its approximately seven million residents. Table 1. Tijuana City: Population and growth rate Annual growth rate Year
Inhabitants
Period
Rate (%)
1900
242
1900-1910
11.1
1910
733
1910-1921
3.1
1921
1,028
1921-1930
23.3
1930
8,384
1930-1940
6.8
1940
16,486
1940-1950
12.9
1950
59,950
1950-1960
9.3
1960
152,374
1960-1970
8.1
1970
327,400
1970-1980
2.6
1980
429,500
1980-1990
5.0
1990
698,752
1990-2000
5.0
2000
1,148,681
Average
8.7
Source: Population censes.
This rapid twentieth century population growth (averaging 8.7 percent a year, calculated on the basis of ten-year periods) has been fed by intense migratory flows. In 2000, 48 percent of the city’s total residents had been born somewhere else. Tijuana’s growth rate, like that of its entire cohort of border cities, has exceeded national urban averages. This has been interpreted as a geographic-demographic reflection of the structural differences between Mexico and the United States (Alegría, 1992). The fundamental differences lie in the economies’ capacities for capital accumulation and for social distribution of income, as manifested in differences in prices and
introduction
31
wages. These differences give rise to a complementary relationship between the two sides of the border, which —when added to their geographic adjacency— produces intense cross-border flows of capital, goods, and people. The governmental sphere can apply only selective restrictions to these flows, while the associated economic activities form the main components of the local economic dynamic: when the structural differences between the two countries widen, cross-border flows increase and the border cities grow. The widening of the differences between the two countries, in turn, is associated with two processes: a) On the Mexican side of the border, there is an increase in investment in search of low wages, and on the United States side an increase in cross-border employment (e.g., workers who reside in Tijuana but are employed in San Diego) in search of better wages. b) Generally, the economy in the Mexican interior shrinks, bringing unemployment and a decline in wages which in turn produce migration toward cities offering more jobs, such as the border ones. For Tijuana (and, to a greater or lesser extent, the rest of the border) the first process implies economic growth and the second implies population growth, both of which result in the spread of the urban area. When things are going badly for the country as a whole, they are usually going well for Tijuana. Over the course of the city’s history, the specific economic activities that propel growth have changed. From the turn of the twentieth century to the 1950s, tourist services for U.S. visitors formed the most important activity, a product first of the prohibition of alcohol consumption the United States and later of that country’s participation in wars which involved its fleet based in the port of San Diego. From the 1960s to today, maquila manufacturing and cross-border migration have become the engines of local economic growth. The maquila factories grew because of the wage difference between Mexico and the United States, the technological ability to produce by way of
32
legalizing the city
decentralized but integrated processes located in different cities and countries, and the proximity of the border plants to the products’ final markets (Alegría, 1995a). According to the 2000 Census, 35 percent of Tijuana’s economically active population (EAP) works in the manufacturing sector, made up predominantly of maquilas. This activity also generates multiplier effects, calculated as one additional local job for every job in a maquila (Alegría, 1995b). The other activity stimulating local growth is cross-border employment of Tijuana residents who traverse the border daily to work in the southern part of the U.S. state of California. Although the share of the local EAP involved in such activity has been dropping over the past several decades, still it has surged each time that wages in Tijuana have lost purchasing power, whether because of the local factor of inflation or the trans-border one of currency devaluation. Although the proportion of cross-border workers may not be large, the earnings they bring into the city and the multiplier effects on local employment are considerable. In 1998, cross-border workers made up eight percent of the EAP but they represented 20 percent of the city’s total wages and salaries (Alegría, 2002). Because of the degree of productive potential that has been realized, today’s Tijuana society does not suffer from evident unemployment (between 1993 and 2003 a mere 1.3 percent of the EAP was out of work, INEGI-BIE) and its income levels are better than those in most of the country (only 3.3 percent of the employed EAP earns less than the legal minimum wage, INEGI, 2000). Also, according to Conapo, the city evidences a low degree of marginality (Conapo, 2000). On the other hand, Tijuana’s socioeconomic development has far outrun the ability of all levels of government to meet the infrastructure and public service needs implied by ordered, functional, safe, and socially equitable urban growth. The deficits in these areas —aggravated by the city’s hilly topography and the
introduction
33
lack of available land adapted to working-class housing— have created an urban structure that generates obstacles to productive activity, imposes restrictions on economic growth, significantly reduces the well-being of broad sectors of the population, and increases the risk of catastrophe in many human settlements. This is all in spite of the fact that, as has been stated already, such socioeconomic indicators as wages and employment rates place the city above other parts of the nation.6 The fact that much of the city’s growth has involved irregular forms of property tenure has intensified this predicament. A rough calculation based on the data available to us reveals that at least 57 percent of Tijuana’s occupied housing stock has an irregular origin.7 In the following chapter we will more precisely define the economic, urban, and social costs linked to this problem, but as a preview we can say that property irregularity has facilitated the emergence of informal markets for the sale and rental of land and dwellings. For families, this irregularity means less access to services and urban infrastructure and to mortgages or other forms of credit for construction and repairs. In general, it reduces their quality of life by forcing them to live in inadequate housing and a rundown environment. For the public sector, especially at the municipal level, the implications are reflected in less income from taxes on property and on real estate transactions, greater social pressure in terms of demand for services and construction of infrastructure, and high costs for various urban needs.
6 A deeper discussion and empirical evidence about the relation between socioeconomic characteristics and urban marginality in Tijuana and other border cities can be found in Guillén, 1990:95-119, and in Guillén and Ordóñez, 1992:149-163. About the relation between intra-urban structure and poverty, see Alegría, 1994. 7 This figure was obtained by dividing the total number of lots of irregular origin identified in this study (166,234) by the total number of occupied units identified in Census 2000 (292,782).
34
legalizing the city
In a national and even a Latin American continental context, the causes underlying this urban phenomenon in Tijuana have much in common with those in other cities that have experienced accelerated growth. In these cases, and in general, irregular settlements have resulted from the mismatch between rates of demographic expansion of social segments with low incomes, the scarcity of accessible land for building working-class housing, and the insensitivity of existing frameworks and planning to local realities.8 However, one additional cause in the case of Tijuana, according to a variety of officials and observers, is its history of first owners who were awarded large land grants and the informal fashion in which those tracts have been subdivided over time: The original titles were grants in which the federal government awarded titles to certain individuals with the goal of turning them into landowners. In Tijuana the goal of these titles was to populate the land; there were very few people and a lot of land, so the aim was to populate it, put it to good use, and protect it from [foreign] invasions. This began a long time ago. Some of these original titles, from east to west, were for El Monumento, San Antonio de los Buenos de Mendoza, San Antonio de los Buenos de Machado, El Rancho Tijuana, El Morro, San Isidro, El Rancho Cerro Colorado de los señores García, and El Rancho Rosario. There are seven or eight titles dating from different years; this started in 1870, 1840, 1850 —the first title was somewhere around that time. They gave Argüello the title to the Rancho Tijuana...9 And all this continued to unfold, there are 8 Some representative cases from Mexico and Latin America can be found in García, 2001:119-156; Vega, 1991; Varley, 1985:71-95; Duhau, 2001; and Azuela, 1993:133-168. 9 An unpublished document confirms that the grant of Rancho Tía Juana to Santiago Argüello occurred in 1829, and the title was revalidated in 1846.
introduction
35
areas like La Libertad, one of the first neighborhoods of Tijuana, where the land was sold in this way, I mean, say I was the owner of 350 hectares, along comes someone living on it and I sell him 200 square meters by means of a private contract, and then, in those days, we’d come register it here, in the Public Property Registry, without any other government oversight in the way of plans or descriptions of the land or any of that. So that’s how these neighborhoods began to grow up. [Were these original titles correctly awarded to their owners?] ... There are a lot of arguments about whether at some point there was a limit of 2500 hectares per property title, but I can’t get into those details because, as far as we’re concerned, those titles are valid, they’re properly drawn up unless there’s some other document that cancels them or renders them invalid, but otherwise as far as I’m concerned they are still valid, and so far I don’t have any information to say otherwise. [Is the entire municipality made up of these original grants?] All of it, yes. [And the ejidos?] ... They’re all on land from the original grants. Some are expropriations and others not; land was given to those ejidos as if it had never left the public domain of the Federation. This reflects the faulty inventories of the Urban Reform. [Today, might there be a legal dispute over such properties?] There could be, but it would have to brought by the current However, a decree of 1857 declared sales from 1821 on to be invalid unless they were ratified by the national government. In 1861, the 1846 revalidation was approved, and in 1879 a new property title was issued to the heirs of Santiago Argüello, who had died in 1862. In 1929 the federal government once again declared the Rancho’s title to be void (the Rancho had by then been subdivided into several pieces), arguing that the land had never left the domain of the nation. Finally, more than a hundred years after the first grant, in 1938 the supreme court issued a judgment in favor of Argüello’s descendants, declaring invalid any sales or rental contracts by the Secretaría de Agricultura y Fomento involving the Rancho (López, 2001:6-15).
36
legalizing the city
generations descended from those who got the original grants; but in those cases what seems to have happened is that those people asked for those grants but then they left, all this area was deserted, they weren’t interested in it.”10
2. CONCEPTUALIZATION OF THE PROBLEM Regularization of land tenure is an action on the part of the state that transfers all the property rights over a piece of real estate from one entity to another and recognizes that transfer by means of a form of legal property ownership. In general, property rights include the rights of individuals, companies, and public institutions to use or decide how to use goods and services and to exclude others from making such use, to receive income generated from such use, and to transfer those goods or services to others. We can call these, respectively, the rights to use, income, and exchange or transfer (Carson, 1997: Chap 1). Given that the rights to property affect the relations between individuals, they can also be called property relations. In that sense, property rights are a societal tool because they shape the expectations that any person has in relating to another. Legal property forms, for their part, are recognitions on the part of the state of the property rights of an individual or entity, as expressed through registration and enforcement. However, legal property ownership does not give the owner complete rights. For example, the legal owner of a house may rent it and secure his or right to the income from this rental, but then the owner no long has the right of use, which has been granted temporarily to the person occupying the house.
10 Interview with Lic. Miguel Ángel Rodríguez, Public Register, RPPyC of Tijuana.
introduction
37
A recent report by the World Bank offers the following definition: “Land rights are social conventions that regulate the distribution of the benefits that accrue from specific uses of a certain piece of land” (Deininger, 2003:7). From another viewpoint, the United Nations explains, “Security of tenure is an individual or group agreement about the right to land and residential property, as governed and regulated by a legal and administrative framework. Security derives from the fact that access to use and ownership of land is based on a well-known set of norms, and that this right can be the object of legal action. A person or family can be said to have secure tenure when they are protected against involuntary removal from their land or residence, except in exceptional circumstances, and in each case only through a legal proceeding that is generally known and agreed upon, which must itself be objective, applicable to all similar cases, independent, and subject to appeal.” (CEPAL, 2001:15) From the point of view of state functions, regularization of land ownership has two main goals. The first is to eliminate conflicts arising from disputes over property rights in land. Once a lot has come into a state of irregular possession, disputes over property rights arise when the land can command greater land rents. To avoid the conflict that would eventually arise from such disputes, the state adopts the role of promoter of regularization of tenure. The second state goal is to incorporate residents into the local tax base —a first step toward recovering public investment in city services (Ward, 1991:209). The municipal or state government, as the case may be, can levy property or real estate transaction taxes, without conflict, only after the property is legally registered. From the point of view of the landowners, regularization is a means to capitalize land rents, which otherwise would be expensive or impossible. In this sense there are three variants, in
38
legalizing the city
accordance with the form of tenure in which the irregularly occupied lands were previously held. Private owners who cannot recover their property rights through judicial means have a great incentive to recover the value through regularization. Those who have skirted municipal regulations so as to subdivide their land and sell some of it irregularly have the incentive to regularize if they can obtain a greater share of the land rent from the irregular portion by lowering the costs of permissions and cessions and if they can expect greater income from the part not yet subdivided. Members of ejidos, though they are not private owners strictly speaking, do hold all the usufruct rights to the lots occupied by their families. Their incentive to regularize comes from the expectation of land rent from these lots and from others not yet occupied that could benefit from the extension of urban infrastructure that would follow the regularization of the occupied ones. From the point of view of those living on the land, regularization is a viable option if the costs of doing it are less than the short-term benefits currently derived from the partial usufruct rights they already have: complete rights of use, including exclusivity, partial rights to income if they rent out the property, and some lesser rights in the case that they sell or transfer it. Such renting and transfer take place in markets that are not legally sanctioned and give the occupant fewer benefits than would be the case in the formal market. In that sense they represent only a partial exercise of property rights. Thus, one way to define irregularity in land tenure is precisely this —the partial exercise of property rights over the land. For purposes of our research, we define irregularity in land tenure as an occupant’s partial exercise of property rights to a parcel of land that is not legally recognized in the property registers but that gives the occupant benefits of use, income, or transfer. This definition is useful because it allows us to establish types of regular and irregular land tenure, and to recognize irregularity
introduction
39
in lands whose previous owner may be a private proprietor, an ejido, or a public entity (federal, state, or municipal). This basic typology helps us to avoid the error of classifying a given parcel in more than one category. It also gives us an element that contributes to understanding the origin and scope of action of the agencies that intervene in the long processes of regularization. But, why is irregularity in urban landholding a problem that merits societal attention at all? There are two main reasons why institutions and scholars of underdevelopment have shown special interest in analyzing the growth of cities on the basis of irregular property: in the first place because of the implications for markets, production, and investments; and in the second place because of the consequences for those residing in irregular areas in conditions of poverty. Hernando de Soto, referring to the context of informality in which property rights operate in third world countries, explains, “Poor people’s houses are built on lots with inadequately defined property rights, their businesses are constituted without clear-cut obligations, and their industries are hidden where sources of finance and investment cannot see them. Without adequately documented rights, these possessions become resources that are hard to convert to capital, that cannot be commercialized outside of the narrow circles of mutual trust, and that do not serve as collateral for a loan or participation in an investment.” (Soto, 2002:32) From the perspective of the neo-institutionalists, legal uncertainty surrounding property rights affects economic activity to the extent that it raises transaction costs —that is, the costs implied in the processes of negotiation, the obtaining of information, and the means to enforce agreements. From their perspective, if an institutional framework (understood as a mix of formal and informal rules) is inefficient, it generates inefficient economies (North, 1993). Klaus Deininger, in his research paper for the World Bank, states, “For most of the poor in developing countries, land is the primary
40
legalizing the city
means for generating a livelihood and a main vehicle for investing, accumulating wealth, and transferring it between generations. Land is also a key element of household wealth ... Because land comprises a large share of the asset portfolio of the poor in many developing countries, giving secure property rights to land they already possess can greatly increase the net wealth of poor people... In many countries of the developing world, insecure land tenure prevents large parts of the population from realizing the economic and noneconomic benefits, such as greater investment incentives, transferability of land, improved credit market access, more sustainable management of resources, and independence from discretionary interference by bureaucrats, that are normally associated with secure property rights to land” (Deininger, 2003:5,9). As can be gathered from what we have said so far, irregularity in land tenure has implications of many sorts: • In the first place, it generates legal conflict, the resolution of which imposes both private and public costs. The introduction of a political-administrative arbiter (a regularizing entity) responds to the social character of the source of urban land conflicts: the formal market cannot satisfy the demand. • It is costly to the public sector at various levels. It demands the time and resources of political-administrative authorities, intervention by police forces in the case of expulsion, and subsidization of specialized offices to handle regularization. Also, irregularity limits the public sector’s ability to raise revenue by means of property taxes and real estate transaction taxes, and it hinders later interventions for urban renewal that the government must undertake in order to bring the irregular area up to the requirements for the rest of the city. The gap between the demands of the irregular settlements and the plans or forecasts of public
introduction
41
•
•
• • •
42
service agencies makes the adequate provision of services more costly. It is costly to the person (or entity) that previously had the property rights if they are involved in the process of seeking to recover them. If they are not attempting to recover their property, the cost of irregularity is equivalent to the commercial value of the land. To the person or family occupying the land, irregularity implies the past danger and, in some cases, violence they suffered when entering into possession of their lot, and the current costs of uncertainty and lack of a healthful environment. Also, because of the absence of a property title, they cannot access mortgage credit, which limits their opportunity to improve their housing or surroundings. “For the rest of the residents of the city it implies an overcharge for city services and a devaluation of their properties.” “For the private sector it means narrowing of financial, housing, and construction markets,” (CEPAL, 2001:17-18); and The costs to the city lie mainly in the effects on the real estate market and land use. Due to the lack of a property title, the real estate (land and building) cannot circulate in the formal market. Informal markets for sale and rent emerge, but their meager financial support limits the quality of the housing supply and the surrounding environment, which means the seller loses the opportunity to capitalize local property values. Due to this financial exclusion and to the informal manner in which the settlements arise, the mix of land uses is not necessarily the best for the place or the people. The resulting street network is inadequate in terms of accessibility and services for local activities. In general, irregularity has generated large residential areas inhabited by homogeneously low-income groups, areas without workplaces, commercial centers, or services. The
legalizing the city
lack of such resources means that the real incomes of these neighborhoods’ residents are less than their nominal ones; their real income declines because of the accessibility costs generated when they go elsewhere to work and when they consume goods and services outside their neighborhoods (Alegría, 2004). • In this framework, a determined public intervention to correct the problems of irregularity can set off a chain reaction of positive effects, both for those who live in the settlement in question and for those who live in the rest of the city. As the United Nations explains, “Security in land tenure is a fundamental component within the human right to housing, and it constitutes a basic requisite for promoting positive integration of the urban poor into the development of cities and full exercise of citizenship. Guaranteeing secure tenure is an important part of an integrated approach to broadening opportunities for the urban poor, in terms of access not only to housing and basic services, but also to opportunities for formal employment and direct political representation. Awarding secure tenure, recognizing and protecting it, not only benefits the people to whom tenure is guaranteed, but also brings in its wake a whole series of positive benefits, in terms both of settlement regularization and urban development in general” (CEPAL, 2001:14).
3. METHODOLOGICAL STRATEGY The specific objectives of this study can be grouped into two categories: those related to estimating the degree of irregularity and its implications for urban consolidation, and those related to the institutional management of that issue. Achieving each objective required particular methods.
introduction
43
A. Estimating irregularity and its implications No single institution in Tijuana maintains a registry of the areas that are or have been irregular in terms of land tenure. Neither the city nor the state government has a continuous list. Some institutions do, however, have registries of the land areas that have been or currently are in the process of regularization. For this study, we consulted all the agencies at all three levels of government that possess this kind of information. These are Corette, Corett, Inett, Fiduzet, and Produsta, as well as the Programa de Acciones de Regularización (PAR), currently in the process of municipal approval. We also explored other sources of information, but with discouraging results because their registries did not clarify which landholdings were legal versus irregular; examples are the data base of the city land agency (the Catastro)11 and the “Estudio de Geografía Social” poll undertaken by the municipal Dirección de Desarrollo Social in 2000. Stages of estimation. To estimate the geography of irregularity, we began by seeking information on the lands, blocks, or neighborhoods that are or have been irregular as noted in the records of the six agencies listed above. The irregular properties and those in the process of regularization were then digitally drawn and superimposed on a map of the city blocks of Tijuana with the aid of the GIS-based computer program ArcView. This first stage required great cooperation from the institutions possessing the information, both in getting access to the data and in judging its 11 This is in spite of the fact that the city has been collecting property taxes in many irregular settlements. Still, as we shall see, the under-registry in the Catastro is between 28 and 42 percent; i.e., there are between 100,000 and 150,000 non-registered properties, as compared to 360,000 currently listed in the data base.
44
legalizing the city
reliability. The second stage involved analyzing the consistencies and inconsistencies within the data. The form of tenure of each area was defined as regular, in process of regularization, or irregular. Those with more than one declared form of tenure were rechecked and classified. The result was a map of the areas, showing confirmed forms of tenure. The third stage involved the estimation of area, value, and population (as of the year 2000) of the irregular areas according to original property form and current tenure. Irregularity and urban consolidation. For this part of the project we used our estimates of the irregular settlements combined with population census data from 2000 broken down by basic geostatistical areas (Spanish acronym AGEB, referring to relatively well-defined zones or neighborhoods). The analysis was oriented toward establishing the existence or nonexistence of relationships between irregularity in land tenure and urban consolidation in the sense of public service provision, urban infrastructure, and quality of housing units. The statistical techniques employed were those of correlation and regression.
B. Institutional management of irregularity. To study the scope and limitations of government intervention in the process of urban landholding regularization, we employed two types of research: documentary analysis and semi-structured interviews with relevant officials from the three levels of government. For this part of the process, our set of public agencies was not limited to the regularizing bodies; we also consulted government agencies that regulate the city’s growth, register properties, and plan for expansion. The list of agencies at which we carried out one or more interview and sought documentary and/or sta-
introduction
45
tistical information is as follows, classified by level of government and by function. AGENCIES BY LEVEL OF GOVERNMENT State 1. SAHOPE 2. Corette 3. Inett 4. Produsta 5. Registro Público de la Propiedad y del Comercio Municipal 6. Subdirección de Catastro 7. Subdirección de Control Urbano 8. Fiduzet 9. Programa de Acciones de Regularización 10. Implan Federal 11. Corette 12. Secretaría de la Reforma Agraria 13. Sedesol
INSTITUCIONAL FUNCTIONS Regularization Regulation or Planning Registry X X X X X
X X X X X X X X
Note: See glossary of acronyms in the Appendix.
The documentary analyses and interviews were directed toward learning, through the official documents and qualified informants, what each institution contributes toward solving the problem, including the standards, programs, and procedures they implement as well as the issues they have confronted over time. An additional plan was to convene an analytical workshop with participation from the informants themselves, toward the goal of plumbing these issues more deeply and generating a reflective space that would help create an integral panorama and,
46
legalizing the city
if possible, some common solutions. In the end, at the suggestion of the SAHOPE representatives, we did not carry out this activity but instead included some questions that would serve the same purpose in the interview protocol.
introduction
47
I. LOCATION, DIMENSIONS, POPULATION, AND VALUE OF IRREGULAR SETTLEMENTS
Tijuana’s urban growth during the twentieth century has been marked to a large degree by irregular forms of settlement. This process has been evident from the city’s early spread to the east side of the Tijuana River in the 1920s through the huge eastward and southward growth of recent decades. As a result of this pattern, irregular settlements are present throughout the city’s territory (see Map 1a). This pattern of dispersion of irregular settlements distinguishes Tijuana from many other Latin American cities, for two reasons. First, Tijuana is a young city. The great urbanization of Latin American societies that unfolded in the mid-twentieth century rapidly added large expansion zones to cities that dated back to the time of the Spanish vice-royalties, cities that had taken shape over periods of three or four centuries.12 Many of the new areas grew up through irregular forms of land access,
12 For example, in Mexico City, settlements with irregular origins made up 23 percent of the city in 1952, around 45 percent in 1970, and 60 percent in 1990 (Ward, 1991). Lima, Peru, had 10 percent of its area occupied by irregular areas in the 1950s, a figure which had risen to 50% by the mid-1970s (Matos, 1977). Guadalajara had 23 percent of its area occupied by irregular settlements in the early 1990s (López, E., 1996). Aside from the usual reasons for the growth of irregular settlements, particular events have accelerated the process; for instance, in Mexico City in the 1960s there was a legal restriction on new real estate subdivisions (Schteingart, 1978).
[ 49 ]
but they did so beyond the urban nuclei that had already been consolidated through legal forms of tenure. Thus, the irregular areas were located on the peripheries. Tijuana, in contrast, was founded only slightly more than a century ago. At the turn of the twentieth century it had only 242 inhabitants, and by 1950 it was only as large as today’s city of Tecate. When the process of urbanization erupted in mid-century, Tijuana had not yet consolidated a large urban nucleus. Expansion occurred quickly and in multiple directions. In accordance with the Latin American pattern, it was primarily irregular, but in contrast to the pattern, it unfolded almost from the center of the small city of that time. Between the mid-twentieth century and today, irregular expansion has continued parallel to legal expansion, resulting in a pattern of dispersed irregular areas, which can be found anywhere from the center of the city to the periphery. The second reason for the dispersion has to do with ambiguities surrounding land ownership in many zones outside the city’s first nucleus. The nucleus, which now forms the city center, was originally sold block by block. Most of the surrounding properties were sold without official transaction declarations, or they were enmeshed in legal disputes until the 1970s. Even now, in various parts of the city’s periphery, more than one owner claims the same land. This ambiguity allowed many residents to invade parcels of land or to buy lots that had been subdivided without permission, even right next to the city center, thus further stimulating the dispersion of irregular landholdings. A first approximation of the geographical dimensions of the irregular settlements, based on data from our analysis of the maps obtained from each regulatory agency, appears in Table I.1. We were able find such maps for a total of 310 settlements. The great majority of these, 91 percent of the total, were digitized directly from originally hand-drawn maps, while others came from already digitized drawings provided by the agencies. For
50
legalizing the city
the small number of settlements that had no such maps of either type, we sought out corresponding neighborhoods on the maps of the Oficina de Catastro. Also, as we shall discuss farther on, most originally irregular areas have by now gone through partial regularization into individual lots. For a number of reasons, our figure of 310 mapped settlements differs from the total in the records of the regulatory agencies. For example, some areas still do not have legally defined boundaries, other boundaries are in the process of technical definition, and the rest yielded no corresponding area in the Catastro’s neighborhood map. Table I.1. Characteristics of the irregular settlements outlined on the maps
INSTITUTION Corette
% of settlements Number of mapped irregular from origi- Total area settlements nal maps (ha)
Minimum size (ha)
MaxiStandard mum Average deviation size size of size (ha) (ha) (ha)
172
88
5,139.2
0.4
254.1 29.9
36.4
32
88
1,624.3
2.2
257.3 50.8
59.3
PAR (municipality)
46
100
3,225.6
3.4
875.5 70.1
132.0
Corette
25
88
1,334.6
3.3
153.4 53.4
42.6
Produsta
26
100
1,202.2
1.5
501.0 46.2
95.2
9
100
290.3
5.0
60.3 32.3
19.4
310
91
12,258.2
0.4
875.5 41.3
68.8
Inett
Fiduzet All settlements
Sources: Maps of irregular tenure areas.
Forty-six of these 310 areas have been identified by the city government’s recently created Programa de Acciones de Regularización (PAR); as such, the process of legal definition of their limits has not yet begun. The maps of the PAR areas were supplied in digital format by the city’s Secretaría de Desarrollo Ur-
location, dimensions, population
51
bano. Some were eliminated from our final map because the areas were already included within the confines of others in the maps of other regulatory agencies; in additional cases, boundaries were modified when we found overlaps with such demarcations in other maps. The list of modifications can be found in Appendix I.1. Map 1.a: All irregular land tenure areas
As can be seen in Table 1, the area occupied by irregular settlements totals 12,258.2 hectares with an average size of 41.3 hectares. The high standard deviation reveals two things: great variation in the sizes of these areas, and relatively few very few large ones. The first observation is corroborated by the values for maximum and minimum size, and the second by analysis of the individual area data: among all the areas, the largest five percent (sixteen settlements) have an average size of 240 hect-
52
legalizing the city
ares, while the remaining 95 percent average 31 hectares. The PAR data has an over-representation of the large areas (five out of the sixteen), while the Produsta data includes the largest single settlement (Granjas la Esperanza). The locations and sizes of the settlements identified by all the regulatory agencies can be seen in Map 1.c and, separately, in Appendix maps 1 through 6. Map 1.b: All irregular land tenure areas
location, dimensions, population
53
Map 1.c: All irregular land tenure areas by regularization agency
To estimate the numbers of people living in areas with irregular land tenure origins, we made use of the Census 2000 maps and data covering Tijuana city neighborhoods. The census data were disaggregated at the level of AGEBs with the maps superimposed on our maps of irregular settlements. Census maps had to be edited to correct problems of scale and the locations of some peripheral AGEBs. Since the total census area is made up of defined localities within the Tijuana municipality, it does not include certain irregularly settled lands. The census’s population estimates, in turn, cover only the people living on land within the census area, which includes 80.8 percent of the total area of irregular land tenure settlement. (As can be seen in Table I.2, the irregular areas defined by the PAR and Produsta were those that least often fell within the census area, at 58.9 percent and 58.3 per-
54
legalizing the city
cent, respectively.) Our demarcated irregular land tenure areas located within the part of the city covered by the census account for 42.8 percent of the total land. If, on the other hand, we compare the total of all demarcated irregular areas to the total size of the census area, that figure becomes 53 percent. The total population of the urban neighborhoods of Tijuana included in the census is 1,196,684, of whom 53 percent live in the irregular areas. The population density for the entire city is 51.7 inhabitants per hectare, while that for irregular areas is higher, 64 inhabitants per hectare. The only institution whose records yield an irregular population density lower than that of the city as a whole is the PAR (31.5), because the settlements under its purview are the most recent ones. The over-all greater density of the irregularly settled areas comes as a surprise, especially because these areas have a higher proportion of steep gradients than the city as a whole, as will be discussed below, and because within the irregular areas there is a high negative correlation (-60 percent) between population density and the proportion of the land area with gradients of 35 percent or more; that is, the higher the density, the lower the proportion of steeply graded land. One part of the explanation for the higher average density in the irregular areas may be found in the process of urbanization and consolidation. Some of the areas originally settled in irregular manners, several decades ago, now form part of the central and most consolidated nucleus of the city, and market conditions tend to make Tijuana (like other Latin American cities) denser in its more central neighborhoods, regardless of regularity or irregularity of land tenure. Also, the density findings may bear out the hypothesis that the majority of irregular settlements have not made the required cessions of land the city government; such ceded parcels are intended to be devoted to non-residential uses. A third reason for the higher density could be that occupants of the settlements have subdivided their lots or added a small or substandard unit (e.g., a second-floor or backyard
location, dimensions, population
55
apartment) to house an additional family, as can be deduced from the fact that irregular settlements tend to have more single-room units than regular settlements do. (See Table II.1.) The last column of Table I.2 presents our estimate of the entire population in the irregular areas covered by each regulatory institution, taking into account that each institution has some part of its covered area outside the census zone. Our procedure was to extrapolate from the population of each institution’s covered area within the census zone, to the institution’s total covered area. In the cases of Produsta and “All irregular settlements,” the estimate was made without including Granjas la Esperanza because of that settlement’s relatively large area, very little of which is inhabited. The total population estimate for all irregular tenure areas is 753,056 inhabitants. This may overstate the total by about 30,000 inhabitants, because some of the PAR areas have not yet been settled. Regardless, the estimated population represents an important share of the residents of Tijuana: 62 percent of the municipal population lives in areas that were irregularly settled.13 Additionally, Table I.2 presents migration data that allow us to explore the hypothesis that irregularity stems primarily from the great in-migration that Tijuana has experienced. The idea that links immigrants to irregular settlement is not a new one in Latin America or specifically Mexico; it has been recurrent in the literature about urban problems in recent decades. From a pejorative viewpoint, it is assumed that urban population growth generated by immigration has been the cause of worsening urban problems (Castells, 1973; Urquidi, 1975; Kasarda & Parnell, 1993). Among those problems, the irregularity of settlements has been interpreted as a product of the gap between a city’s population growth and the formally accessible supply of land and housing. However, no study has been carried out to test this interpretation.
13
56
The city’s population according to the year 2000 census was 1,210,820.
legalizing the city
location, dimensions, population
57
42.8
1.2
3.0
5.7
8.2
6.9
20.1
100.0
80.8
99.1
58.3
99.3
58.9
97.9
90.5
634134
29437
53082
114789
59852
144207
316841
51.7
64.0
102.3
75.7
86.6
31.5
90.7
68.1
777803
407343
17324
36178
64869
34295
91945
212899
65
64
59
68
57
57
64
67
NA
753056
29691
87289
115639
101604
147317
350200
Estimate of total % of Total population, year popu-lation 2000
Population RESIDENT IN TIJUANA in 1995 Total Population Density (Inhab/ha) Residents
23143.6 1196684
9901.3
287.9
701.3
1324.8
1900.1
1590.1
4649.6
Area (Ha)
Sources: Maps of irregular tenure areas, and Census of Population and Housing 2000. Population estimate for “All irregular settlements” and “Produsta” excludes Granjas la Esperanza.
23143.6
100.0
1.3
5.2
Census area
290.3
Fiduzet
53.0
1202.2
Produsta
5.8
13.9
7.0
22.2
All irregular settlements 12258.2
1334.6
Inett
3225.6
1624.3
Corette
Corett
5139.2
INSTITUTION
PAR (Municipal)
Total area (Ha)
Census Compaarea rison to Cenas % sus % of Cen- of total area (%) sus area area
Within the Census area
Table I.2. Population (year 2000) and area characteristics
The emergence of a difference between immigrants and natives with respect to their form of tenure (regular or irregular) in the places where they live would presumably occur in their process of obtaining access to housing. Two distinct factors should affect this difference: their purchasing power and their manner of arriving at their current location. To test the difference made by purchasing power, we can compare the incomes of immigrants and non-immigrants (natives); the available data show that in the case of Tijuana this difference is minimal. If we examine the lower-earning half of the EAP of Tijuana, who make up the majority of residents of irregular settlements, we find that in the year 2000 the average earnings of those born within the city were only nine percent higher than the average earnings of immigrants.14 Even if this difference in purchasing power influences legal access to housing, the intensity of the effect (and thus its explanatory power) is minimal. The second factor, the manner of arrival in the unit where the individual or family was identified by a survey or by the census, can be examined by way of data from a study carried out by the Centro de Ecodesarrollo (Center for Eco-Development), which administered a survey in a number of poor and working class Tijuana neighborhoods (Hiernaux, 1986). This study found that the majority of subjects not born in Tijuana had lived on arrival in a non-central neighborhood less than twenty-five years old, and that this was not their current residence. The main influence on their location upon arrival was their personal networks. What can be concluded from this information is that the determinant factor in initial settling place of immigrants is not the irregularity or regularity of land tenure in the area, but rather the location of family and friends who probably —over time— adopt the same pattern as those born within the city.
14
58
Authors’ estimate based on data from the Censo de Población 2000.
legalizing the city
For this conclusion to be justified, the proportion of immigrants living in irregular settlements should be similar to their proportion in the city as a whole. Corroborating this statement required us to estimate, for each regulatory institution, the share of the population that was already living in Tijuana five years before the census of 2000. (The estimate could not be made according to the variable “born in Tijuana,” because that information was not available at the AGEB level.) Comparing the irregular areas with the city-wide census zone, we found almost no difference in the share of residents who had resided in Tijuana in 1995 (64 percent and 65 percent, respectively); thus migration does not explain the existence of irregular settlements as a generalized urban phenomenon. However, observing the data institution by institution, the PAR and Corett settlements received a larger proportion of recent immigrants (43 percent) than did the census area (35 percent). Most of the areas covered by these two institutions lie to the east and south of the city, subregions where the urban area is growing the fastest. Although these data do show that there are more recent migrants in the areas where the city is growing most rapidly by irregular means, such migration contributes only slightly to the creation of irregularity. The areas of Tijuana that began as irregular settlements now house an important share of the city’s labor force, as Table I.3 reveals. In the irregular areas within the census zone, 215,813 people are employed. If we extrapolate from that quantity to the total of irregular areas, we come up with an estimate of 256,285 workers, representing 57 percent of the employed population of the city of Tijuana.15 The participation rate (workers divided by population) in the irregular areas is similar to that in the whole census zone (0.340 and 0.344, respectively); the dependency
15 The employed population in 2000 was, according to the census, 450,608.
location, dimensions, population
59
ratio (the inverse of the participation rate) is 2.9 people who depend on the earnings of each worker. On average, the employed population of the irregular areas earns 3.9 times the monthly minimum wage, which is less than the 4.3 figure for all employed people in Tijuana. Such differentials are present for each of the areas covered by a given regularizing institution; the Fiduzet and Inett areas had the lowest average earnings. Although the majority (59 percent) of employed people living in irregular areas earn in the range of two to five times the minimum, another 19 percent receive more than five times the minimum. Thus, irregularity in land tenure is not necessarily a synonym for poverty. This suggests that an efficient institutional policy designed to regularize landownership could, in the majority of cases, overcome the obstacle of payments for land. Table I.3. Characteristics of the Economically Active Population, EAP (2000) Within the Census area EAP earning 0 -2 min. Employed Participa- monthly EAP tion rate wage INSTITUTIONS (EAP/Pop) (%)
EAP = 2 -5 min. monthly wage (%)
Average salary in terms of monthly minimums EAP > Compari5 min. #x son with monthly monthly Census wage (%) minimum area
Corette
108261
0.342
21
55
23
4.1
0.96
Inett PAR (Municipal)
48682
0.338
24
61
15
3.6
0.85
19777
0.330
21
60
19
3.9
0.92
Corett
39452
0.344
19
62
19
4.0
0.92
Produsta
17948
0.338
23
59
18
3.9
0.90
Fiduzet All irregular settlements
10241
0.348
23
65
12
3.5
0.82
215813
0.340
22
59
19
3.9
0.91
Census area
411960
0.344
20
55
26
4.3
Source: Appendix I.3.
60
legalizing the city
The real estate value of irregularly held land and the degree of price penalty incurred by irregular areas were both unknown before this study. To estimate each of these indicators we made use of multiple information sources and designed specific procedures that took the available information into account. Given the limitations of this information, we constructed general estimates only in relation to the value of the land, not that of the buildings. The land value of the irregularly settled areas was estimated on the basis of a study of land prices in homogeneous zones carried out by the city of Tijuana in 2000. The estimation procedure was as follows: First, areas with a gradient above 35 percent were identified, on the assumption that these could not be sold for building purposes. The Development Program for Urban Population Centers (Spanish initials PDUCPT) has established that land with gradients steeper than 35 percent should not be built on. The demarcation of such non-building zones was accomplished by converting a raster image map of elevations into one of gradients, and this in turn into a map outlining the zones with gradients above 35 percent. The results appear in Map 1.b and Table I.4. Second, for each irregular area, the non-building zones were digitally subtracted to obtain the buildable area for each. Third, 66 percent of the buildable area for each irregular settlement was considered to be saleable. The figure of 66 percent represents the area available for lots after discounting the area taken up by streets and sidewalks. That figure was digitally derived from a sample of 15 irregular settlements with gradients of less than 35 percent and without substantial geographic interruptions such as rivers or canyons. The final calculation was that the saleable area of the irregular settlements equals 57 percent of their total 12,258 hectare expanse. This percentage varies somewhat among the areas covered by regularizing institutions due to the differential presence of non-buildable areas. The institu-
location, dimensions, population
61
tion showing the proportionally highest saleable area is Fiduzet (66 percent) while the lowest is Corette (55 percent). Additionally, the estimated saleable area for the entire census zone, at 58 percent, is very close to that for all the irregular settlements, indicating that topography is not a determinant of the location of irregular settlements. Table I.4. Estimate of land values (2000)
Area INSTITUTIONS (ha)
Area with gradient >=35% (%)
Saleable area (66% Area with of area gradient with
