Policy Note1



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References
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Korf, B.; Flämig, T.; Schenk, C.; Ziebell, M.; Ziegler, J.; Singarayer, R.; Abeyratne, R.; Devvarajah, K. Dharmarajah, D.; Sakthivel, T. (2001) Conflict – Threat or Opportunity? Land Use and Coping Strategies of War-affected Communities in Trincomalee, Sri Lanka. Berlin: Seminar für ländliche Entwicklung (SLE).

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ANNEX 1: Three Types of Land Disputes in the North and East


of Sri Lanka
This Annex scrutinizes and provides evidence for the different land issues listed and categorized in Table 4 of the main report. The main report has differentiated three types or levels of land issues:

  1. Level 1: Inter-individual land disputes and property rights issues (individual-individual, individual-state) which remain intra-ethnic and where there is no inter-ethnic dimension involved.

  2. Level 2: Inter-communal and inter-individual land disputes and property rights issues (individual-individual, individual-communal, communal-communal) with an inter-ethnic dimension involved.

  3. Level 3: Inter-individual and inter-communal land disputes and property rights issues (individual-state, communal-communal, communal-state, conflict parties) where the inter-ethnic dimension has become dominant. These issues are highly politicized and considered as core fundamental grievances of one or more of the conflict parties.

Within each of these three levels, the Annex specifies issues relating to land tenure and property rights, issues relating to (physical, spatial) land access and governance issues relating to land alienation and land administration (see para 27f. in the main report). For each type of conflict, different issues are listed and examples given with respective sources of evidence documented in footnotes (see reference list of main report for full details of the sources).
Inter-Individual (predominantly intra-ethnic) land disputes (Level 1)

This section reviews inter-individual disputes relating to residential and agricultural land. Such disputes are normally resolved by the existing legal and administrative system, such as courts in the case of privately owned land and the respective land administrative bodies in the case of alienated state land. Issues listed in this section can, in principle, be sorted out without political involvement and prior to a final solution to the conflict on the national level.



Inter-individual disputes over land and property may emerge along a variety of issues related to the return of internally displaced persons and of refugees to their original place.32 Issues relating to tenure security, land access and land disputes on an inter-individual basis can be classified as follows.
Land tenure and property rights:

  1. Disputed occupation of land (secondary occupants, encroachment of land): The massive destruction of housing and the reduction in usable land have forced many displaced or landless people to occupy vacant lands, houses and properties.33 Because the war has been so lengthy, IDPs and refugees may have abandoned their properties for periods of up to 10-15 years and secondary occupants could have been using this land, property for a similar period.34 In some cases, secondary occupants cannot go back to their original homes, since these are located inaccessible locations (HSZ, LTTE areas). But there is also evidence that illegal occupation, especially in Jaffna, is used by some to earn money or settle old scores.35 Secondary occupants have often significantly invested in these lands and properties. In some instances, these secondary occupants use these areas as if these were their property. Some secondary occupants possess declaratory deeds in their favor, which would give them a prescriptive title of ownership. The lawful property owner (private property) can bring such case to the court. Court cases, however, are time-consuming and expected to take 5-10 years, and this time gap may substantially increase if a significant number of returnees filed their case in the courts.

  2. Disputed titles, false titles, illegal alienation of land (“Japan” deed): transfers under duress or forcible and fraudulent transfers:36 In some places, only part of a community was forced to flee or some people decided to move away and sold their property and land to those who remained for a price far below market values because they felt under duress. In some instances, people were allowed to leave an area only after surrendering their properties to those who restricted their movements. In some cases, these transfers were sought to be formalized with forged deeds or written declaratory deeds in relation to private and State land. Such “deeds” were then transferred to third parties who purchased this land bona fide and feel now in possession of this land. These persons have no remedies as they have purchased land or property for which the vendor did not have a title. The problem is that without resorting to a protracted legal procedure, the deed cannot be declared void.37 Such false deeds, commonly called “Japan deeds” are in circulation in large quantities in Mannar, Vavuniya and Puttalam districts38 and many displaced persons have fallen victim to these fraudulent transactions.39

  3. Temple lands: Many Hindu temples have received large tracts of land as donations from devotees, in particular in Jaffna and in Trincomalee. Many of these temple lands are currently used for residential lands without proper agreements or documented tenancy. Some temples have lost their records and administration of remaining records has been poor. Some of the temples are located in South India. There may also be boundary disputes and illegal sales and transfers affected over a period of time.40

  4. Boundary disputes:41 Boundary disputes between neighboring land rights holders are difficult to resolve at present, because physical boundary structures are often dilapidated, overgrown or destroyed and documentation is often incomplete (title documents without survey maps), which make an exact identification of property boundaries difficult. Returnees may also face the situation that neighboring returnees arriving prior to them have created “facts on the ground” marking boundaries by erecting fences. Such disputes are particularly prominent in urban and semi-urban settlements, such as Jaffna.

  5. Loss, destruction of title documents:42 Many displaced persons have lost their title documents during the armed conflict. Persons who have lost their deed (private property) may apply for a certified copy at the District Land Registry. In the case of alienated state land, persons who have lost their permits or grants can apply for certified copies at the Divisional Secretariats (Table 5). However, documentation held by the state in land registries and the Kachcheries have partially been damaged or destroyed as an effect of armed confrontation (Table 6). The loss of title documentation creates immense problems in identifying land parcels and land boundaries, encumbrances and the owner or right holder of the land.

  6. Gender issues:43 The current legislative framework discriminates against women, especially titles of alienated state land. At present, when state land is granted under the LDO, the grant is made to the head of household and does not recognize joint ownership of land. Thus the female spouse has not legal control over such land. This has implications for situations in which a woman’s spouse has been killed or disappeared. If women are the heads of household (as widows), but are not recognized as such, they will not be able to legally uphold the title to the property. This is a serious concern for cases where the husband’s death is not documented, the man is missing or where the husband’s death is not recognized by state authorities. Furthermore, since women are often not aware about their entitlements to land under resettlement schemes or other government welfare, they do not apply for such state benefits they are entitled for.

Table 5: Types of Property Documents

Type of land

Document

Copies kept by

Private

Deed

Owner

Notary Public

District Land Registry

State

Annual Permit, LDO Permit

Owner

Divisional Secretariat

LDO Grants

Owner

District Land Registry

District or Divisional Secretariat

Leases & other grants under the State Lands Ordinance

Owner

District Land Registry

District or Divisional Secretariat

Land Commissioner’s Office, Colombo

Source: CPA 2003

Table 6: Damaged/lost documents at the District Land Registries in the North and East



District

Assessment of damage to land registries

Jaffna

Post-1940 documents of the Jaffna District were shifted to private premises eight times after 1986. On one of these occasions, the house where the documents were stored had been used by the LTTE and was captured by the Indian Peacekeeping Forces (IPKF). The IPKF reportedly used the register as fuel during the rainy season. Of the post-1940 documents, 1,325 volumes have been lost. All pre-1940 documents have been lost.



Kilinochchi

Prior to the opening of the Land Registry in 1990, registers for the Kilinochcho District were kept in Jaffna, All deeds registered before 1990 are still being kept in Jaffna; all those registered after 1990 are kept in Kilinochchi. Civil servants from the Registry removed the registers to Shantapural in 1995 as a precaution. The registers were shifted anew due to displacement in 1996. Most post-1990 documents are still intact. Kilinochchi volumes which were kept in Jaffna were destroyed by the IPKF in 1987.



Mullaitivu

The Mullaitivu Land Registry was opened in 1984. Following heavy fighting in 1990, the Registry was destroyed and, according to the Jaffna and Vavuniya Land Rgeistrars, all Mullaitivu registers were destroyed.



Vavuniya

Approximately 30 volumes from the pre-1940s have been damaged due to poor quality of paper.



Mannar

Approximately 30 volumes have been destroyed due to poor quality of paper.



Batticaloa

No land documents have been lost by the Land Registry, though a number of volumes were damaged following the 1978 flood.



Trincomalee

No documents have been lost by the Land Registry as a result of the conflict. However, a number of volumes stored before 1970 have been damaged due to the poor quality of the paper and storage, and following the 1964 cyclone. In addition, a small number of documents which were located at the Court were destroyed when the building was burnt down on two occasions.





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