Guideline for land problems / RESOLVING: 5.4 Signing a written agreement and physically marking upon agreed boundaries
During the orientation process of the available literature, we identified the following interventions as most plausible for accepting in ownership and use of land disputes:
To be successful, a dispute resolution process must lead to an agreement that is considered legitimate by all parties. Once such an agreement around land use and ownership has been made, it is important for the parties involved to demonstrate their commitment to and ownership of the outcome. This is most often achieved by signing a written agreement or physically marking the agreed upon boundaries. These distinct interventions can also be combined in a way that is mutually reinforcing.
Signing a written agreement
One way for parties to an ownership and use of land dispute to accept and formally document their boundary agreements is to sign a written agreement, sometimes known as a “memorandum of understanding” (Knight et al., 2017, p. 7). Memoranda of understanding (MOUs) are written agreements that generally contain “general obligations of the parties to implement the settlement fully, prevent any recurrence of the dispute and refrain from litigating the matter elsewhere” (Norton, 2011, p. 23).
“Such MOUs [or other written agreements] might include:
The neutral third party helping to resolve the dispute and draft the written agreement should be “alert to the possibility of rights in land other than formal ownership, even if these are not directly protected by statutory law, [as] it may sometimes be appropriate to document them in any settlement agreement.” In many countries around the world, “one person may have the legal ownership of the land; [while] another may lease or share-crop part of it; a local trader may have a mortgage or informal security on the land to secure the price of seeds or other inputs sold to the farmer on credit; pastoralists may graze their stock on it or use a watering hole there; women may customarily collect firewood from it; [and] local subsistence farmers may be permitted to glean any remaining grain after harvest” (Norton, 2011, p. 24).
Once drawn up, a written agreement should be signed by the parties to the ownership or use of land dispute and any neutral third parties involved. “The moment of signing should ideally be captured in a photograph or video. Both parties and the [third party] should keep a copy for their records” (Knight et al., 2017, p. 173).
Physically marking agreed upon boundaries
As an alternative to signing a written boundary document, parties to an ownership or use of land dispute can honour their agreement by physically demarcating the land. Specifically, parties can “plant boundary trees or place other locally-accepted markers to indicate the limits of their lands” (Knight et al., 2017, p. 7; 166). As described below, such markers may include rivers, roads, large boulders, or corner strokes in addition to trees.
“Each culture and region tends to have certain trees or bushes that people have used traditionally to mark boundaries. For example, in Liberia they use “Cotton” trees because they grow to be exceptionally tall or “Soap” trees because they are fire-resistant. In Uganda, they use “Omara-mara” trees, because one can plant branches in the ground like fence poles and the branches will root and become trees. In other cultures, people carve into tree trunks to indicate boundaries. Alternatively, [parties] may choose rivers, roads or large boulders as their boundary markers” (Knight et al., 2017, p. 180). ”In urban settings, ‘corner stones’ (actually concrete blocks with the parties’ initials on them) are often put in place” (Norton, 2011, p. 25).
“Recording the…planting of boundary markers on a camera or smartphone is another form of documenting the agreements and creating evidence that can be useful if boundaries are ever disputed. These recordings can be stored with other digital records, such as maps or boundary marker coordinates” (Knight et al., 2017, p. 177).
Another way to demarcate land is by conducting a land survey. Land surveying is “a means of making relatively large-scale, accurate measurements of the earth’s surfaces. It includes the determination of the measurement data, the reduction and interpretation of the data to usable form, and, conversely, the establishment of relative position and size according to given measurement requirements.” Surveying has two similar but opposite functions: 1) the determination of existing relative horizontal and vertical position, such as is used for the process of mapping, and 2) the establishment of marks to control construction or to indicate land boundaries” (Encyclopedia Britannica).
“Facilitators [or other neutral third parties may] support [parties] to record measurements of their boundaries using coordinates collected with a Global Positioning System (GPS) device, by using high resolution satellite imagery, or through a land survey completed by a licensed surveyor” (Knight et al., 2017, p. 7; 166). Additional measures may be needed depending on the country where the survey takes place.
Liberian law, for example, “requires that all neighbours and other relevant parties [be] served with notices of an intended survey.” As part of its land conflict resolution work in Liberia, the Norwegian Refugee Council (NRC) “also arranges for details of the survey to be broadcast on community radio and advertised in local newspapers. NRC requires the parties to be present for the survey and they are also asked to provide any necessary labour for clearing the areas of land over which the survey lines are being measured, which also acts as a demonstration of their commitment to the process. The surveyor and his staff take ‘field notes’ which are used to create the final survey drawing” (Norton, 2011, p. 25).
In addition to legal and geographic considerations, the most effective land demarcation technique depends on the local culture and conception of landholding. For example, “there are few reliable maps of the correct scale in Liberia, especially for rural areas, and it is common to identify boundaries by relevant natural features rather than formal survey – but this does suggest that Liberians do not necessarily conceptualise their landholding in a neatly ‘bounded’ cadastral fashion. This may in turn reflect a distinctively ‘African’ view of land as being a community resource where boundaries are less relevant, or the fact that rural landholding in Liberia are often fairly large because of the comparatively abundant supply of land” (Norton, 2011, p. 26). Furthermore, surveying can “create costs that are not affordable or the poor” (Werhmann, 2017, p. 94).
Wehrmann notes however, that “especially in cases of boundary conflicts between neighbours, clans or administrative units, surveying should accompany the boundary-setting. How accurate, and therefore costly, this should be depends on the value of the land as well as the characteristics of the conflict and the relation between the conflicting partners” (Wehrmann, 2017 p. 94).
For parties to an ownership or use of land dispute looking to commit to and take ownership for an agreement (accepting), is signing a written agreement or physically marking agreed upon boundaries more effective for well-being?
The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.
For this PICO question, keywords used in the search strategy are: land disputes demarcation; land boundary markers; land disputes written agreement; land dispute acceptance
Quality of evidence and research gap
According to our research method, we grade the evidence comparing two dominant approaches to accepting – signing a written agreement and physically marking agreed upon boundaries – as very low. There is a dearth of empirical and non-legal research on techniques that parties to ownership or use of land disputes can use to demonstrate their commitment to and ownership of an agreement. Further research that explicitly compares the interventions compared below and explores the extent to which they are complementary and/or mutually reinforcing is needed.
Signing a written agreement
Physically marking agreed upon boundaries
Signing a written agreement increases respect between the parties by creating a record of their will to cooperate and take responsibility for the agreed upon terms. “A major advantage of local [land use agreements] is that they re-establish mutual respect and that they document the will to cooperate. By agreeing together on the future rules and sanctions, stakeholders assume responsibility and feel much more obliged to adhere to the rules, even accepting the payment of fines in case of offence against the [agreement]” (Wehrmann, 2017, p. 100).
Physically marking agreed upon boundaries in the final stages of the dispute resolution process tends to increase the durability of an agreement. A land survey or demarcation “often plays a key role in ensuring a durable settlement. It may be required in order to establish or publicly document a particular boundary, to delineate a specific landholding, or to produce a diagram which will be attached to a transfer deed for private land” (Norton, 2011, p. 25).
Signing a comprehensive written agreement may help the parties avoid costly and time-consuming litigation of an ownership or use of land dispute at a later stage. NRC staff suggest that parties rarely litigate the same dispute in other venues if a properly drafted memorandum has already covered all the relevant issues (Norton, 2011, 23).
Demarcating landholdings through the implantation of cornerstones specifically can help the parties as well as the broader community to resolve overlapping land claims and prevent future disputes related to land encroachment. “The cornerstones serve as immediate, long-lasting benchmarks to detect and resolve future land encroachment disputes. Moreover, they represent a more standardized substitute to traditional methods, such as tree-planting, used my landholders to mark the frontier of their parcels…Demarcation per se does not necessarily amount to enforceable land rights, but the process that surrounds demarcation allows each community to unify competing and overlapping conceptions of land rights” (Goldstein et al., 2015, p. 4).
If an agreement is not honoured and enforcement becomes necessary, the existence of a formal written agreement makes it possible for one party to sue the other other or take the original conflict to another resolution forum such as a court. “A negotiated agreement may have legal authority if it meets the criteria of a contract in the formal law of the country” (Herrera & da Passano, 2006, p. 82-33).
Though more difficult to enforce in the courts, agreements represented by physical markers or a land survey can be enforced in the community if the dispute resolution process has taken place under customary rules. “For example, the norms of the community may establish the enforcement of the agreement if it is witnessed by the elders or other eminent people” (Herrera & da Passano, 2006, p. 82). “Signing witnesses can act as social enforcers over time” (Knight et al., 2017, p. 173).
Demarcation through a land survey facilitates formal land registration, which can increase the land tenure security of the parties involved. “In some contexts, communities may not want to survey or GPS their boundaries, however, if the [parties involved] want to apply for formal registration it is likely that the government will require some form of technical measurement of boundaries” (Knight et al., 2017, p. 175).
Signing a written agreement
Physically marking agreed upon boundaries
Signed written agreements that are missing specific information or do not accurately reflect the intentions of the parties may not be enforceable by the courts. The legal enforceability of a written agreement may depend on the availability of a trained mediator who can help the parties draft an accurate and understandable agreement. According to legal practitioners involved in land dispute resolution in Liberia, “it is unlikely that the parties (or NRC) would ever go to court to compel performance of obligations under the memorandum or seek damages for breach of it but it would be important that such a memorandum is recognised by the courts as representing binding settlement of the dispute from which the parties cannot withdraw. In order for the courts to give effect to a contract, it must accurately and clearly reflect the intentions of the parties, and so it is desirable that the content of the parties’ obligation is as specific and unambiguous as possible. This may require [a] mediator to help the parties in tightening up the exact wording of what they have agreed, which can be quite challenging if translation into local languages is required” (Norton, 2011, p. 43). “Ideally, the written agreement should [also] be drafted so that it is simply enough for everyone to understand” (Knight et al., 2017, p. 174). This may be a difficult balance to strike in practice.
In some instances, the final, physical, and in some cases technical nature of land demarcation may re-instigate conflict instead of helping to solidify an agreement. “In some communities, the [boundary] marking process may cause conflict because of the final, physical nature of the activity” (Knight et al., 2017, p. 180). As for land surveys, “a frequent bone of contention is the ‘commencement point’ …since the metes and bounds method requires the surveyor to follow or record particularly compass bearings and distances in order to cover all four sides of the plot. A number of NRC surveys fail or have to be re-done because the parties cannot agree on the commencement point or disagree with some other component of the surveying methodology…it is not always clear that they understand the technical basis of the survey and its implications for them, or what is involved in the surveying processes. In some cases, this decision [to agree to a particular surveying method] simply serves to delay the arguments until the surveying process; in others, the implications only become clear when the survey is in progress and one party realises that they may ‘lose’ a certain area of land because the true acreage figure is smaller than the one in their tribal certificate” (Norton, 2011, p. 25).
Agreements represented by land markers are more difficult to enforce in the courts. As established in the previous section, land “demarcation per se does not necessarily amount to enforceable land rights” (Goldstein et al., 2015, p. 4). “Informal agreements such as unwritten agreements [represented by land markers] may be enforced under formal law, but much more effort is required in court and the outcome of the process is much less certain” (Herrera & da Passano, 2006, p. 82).
Taken together, the available research suggests that both signing a written agreement and physically marking agreed upon boundaries help to demonstrate the commitment of the parties to an ownership or use of land dispute and increase the likelihood that they will cooperatively carry out what they have agreed.
Signing a written agreement achieves this by creating a record of the parties’ willingness to cooperate and take responsibility for the terms of the agreement. If carefully and comprehensively drafted, the existence of a signed written agreement may also reduce the likelihood of litigation related to the dispute at a later stage. Physically marking agreed upon boundaries achieves this by publicly establishing and documenting a particular boundary. Demarcation through a more permanent marker, such as cornerstones, has the additional benefit of helping the broader community reconcile competing and overlapping conceptions of land rights and prevent future encroachment.
Whereas a signed written agreement is generally easier to enforce in the courts, physical markers may be a more visible and practical way of ensuring that an agreement is enforced within a community. The extent to which each intervention helps the parties’ agreement to be enforced depends largely on the availability of an authoritative third party. A written agreement may not be legally enforceable unless it is drafted with the support of a trained mediator, who can describe exactly what has been agreed and ensure that its terms are correctly translated from or into the local language. Similarly, physical markers are more likely to facilitate enforcement of an agreement if the demarcation process is witnessed by elders or other eminent members of the community where the dispute took place.
For both interventions, there is a risk that the accepting process itself becomes a new source of conflict. This may occur in the signing process – if the terms of the agreement are not sufficiently accurate or understandable to the parties involved – or due to technicalities or disagreements that arise in the process of demarcating the land.
The balance of the outcomes between signing a written agreement and physically marking agreed upon boundaries is therefore roughly equal. When used together, these interventions can be mutually reinforcing.
Taking into account the balance of outcomes, the benefits for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute, signing a written agreement and physically marking agreed upon boundaries are both conducive to well-being. Their relative effectiveness depends on the setting and availability of third parties in the dispute resolution process. Either intervention – or a combination of the two – is preferable to doing nothing to facilitate and represent the parties’ acceptance of a land agreement.
Whether parties to an ownership or use of land dispute should reinforce their agreement by signing a written agreement or physically marking agreed upon boundaries may also depend on the specific land rights under dispute. Agreements regarding land use rights – as opposed to land ownership rights – may be harder to represent through physical markers and may therefore best be reinforced through a signed written agreement, such as an MOU.
Table of Contents