«Working Paper No. 2010/56 Women and Landed Property in Urban India Negotiating Closed Doors and Windows of Opportunity Bipasha Baruah* May 2010 ...»
Knowledge of informal landlords (or landladies) and tenants and the kinds of programmes that might benefit them are rare, and aid programmes for rental tenure remain a neglected element of development assistance. The limited research on ‘landlordism’ predictably includes no analysis of gender (see, for example, Kumar 1996). Informal renting in slums is a double-edged sword for women. Women and women-headed households are adversely and disproportionately affected by increases in rents due to their positional vulnerability in society. Simultaneously, findings from this research and from others such as De Soto (2000) and Gilbert (1999) support the view that providing rental housing is a major livelihood and sometimes the only form of social security available to women in slums. A landlady in a slum is little better off, and often does not have better tenure security, than the tenant. Most lived close by or in another part of the house and were engaged in the same or similar economic activities as the renter. Although it would be unwise to generalize, it would seem that the caricature of the exploitative landlord or landlady may be as much a part of middle-class mythology as the assumption that slums are home to indolent criminals who make no positive contribution towards the functioning of the city.
3.4 Landed property titles for urban women
Regardless of their social class and economic status, very few women in India own landed property. For example, only one staff member at the SEWA Housing Trust held joint title with her husband to their home. Most staff members were from middle-class backgrounds and although all of them contributed income to the household kitty, none had ever questioned why they lacked joint titles to the houses they lived in.
A large number of the research participants had moved to Gujarat as young brides from the states of Rajasthan, Maharashtra and Uttar Pradesh. Very few could afford to visit their families and any claims they might have had to parental or ancestral property were cancelled by the inaccessibility to their natal families. There is clear evidence of male bias in land distribution through government schemes. In Keshav Nagar, the only slum in the study with full legal tenure, both male and female residents had contributed money and labour towards the acquisition of their plots, but the land revenue officials gave clear preference to male household heads in issuing property titles. There were no joint titles for married couples, and the only two women in the community who received independent titles did so because there was no male household head in their families.
Given the low availability of land for distribution and the tradition of limited female inheritance, securing joint titles to land and landed assets would appear to present a practical solution, despite the counter-argument that the wife already has a legal, albeit rarely exercised, right to parental property.
The majority of women participating in the research were married, yet very few held joint titles to land and landed assets. In many cases, the property remained in the name of the father-in-law or brother-in-law; in some cases, even the husband lacked title.
Women do have the option of independently purchasing land on the market, but the scarcity of resources as well as their poor access to credit and other financial services mean that they are rarely able to do so. Under these circumstances, joint land titles should not be seen as an alternative to inheritance, but as rectification of the reality that Indian women in general are property-less. Most study participants recognized the value of joint titles, yet a few indicated that they trusted their husbands or sons to take care of them and did not see the need to be named on ownership documents. The prominent advantage cited by those who did perceive the need for joint titles was that of security.
Several participants stressed that their claim to land and other productive assets would make it difficult for family members to expel them from their homes. The sale of land would also not be possible without their consent.
As with agricultural land, SEWA Bank has tried to advocate for the inclusion of women’s names in titles to urban land and housing. Although SEWA Bank provides loans for the outright purchase of land and homes, women frequently prefer to borrow money for repairs, upgradation, and deliverance from mortgage payments. While it is relatively simple to provide women with independent or joint titles to newly purchased property, there are several legal and financial obstacles with regard to previously owned land and houses.
Joint titles are problematic even in the normal urban context without the slum situations where land ownership verified by standard deeds of sale is rare. In the rural context, joint titles become valid if the person named in the title has no objection to another name being added on. Given the stronghold of patriarchy in India and the widespread resistance to female inheritance of property, acquiring joint titles for women on a mass scale is a significant challenge even in rural areas where legal mechanisms exist to effect such change. In contrast, in the urban setting, no provision exists for the inclusion of a woman’s name in the title of property belonging to her husband, and inserting a new name in the title document constitutes a sale or transfer of property for which a new sales deed needs to be drawn up. Under the Bombay Stamp Act of 1958, any transfer of property is liable to a stamp duty worth 10 per cent of the value of the property (Unni 1999). Stamp duty on property transactions has been justified on the grounds that without the practice, there would be large-scale illegal or benami (nameless) transfers of property among the middle- and upper-income groups to avoid wealth, property, and gift taxes.
In addition to formal transaction costs (registration fees, stamp duties and surcharges), it was commonplace for people to incur under-the-table costs (bribes) to expedite transactions and baksheesh (informal gratuities) to informal land evaluators. Mearns (1999) estimates that land transaction costs, including both formal and informal expenses, could amount to one-third of the total value of the transaction. These costs are onerous for all, but are especially prohibitive for the urban poor, and may explain why even educated middle-class women do not attempt to secure joint titles despite their contribution to the upkeep of family property. The costs are certainly too high for lowincome women in the informal sector. None of the participants in this study considered spending such a sum, even if they had it, when there were so many other, more pressing, family needs. The risk of losing land or property through encroachment or nontransparent recordkeeping is considerably higher when landholders lack clear title to their land. Dealing with bureaucracy related to property acquisition and transfers is especially formidable for women already burdened with illiteracy, overwork, seclusion, lack of political voice and sexist cultural norms.
In order to gain access to property within existing patriarchal structures, there is a need for women’s organizations like SEWA to strongly advocate joint titles for women at the national and state level. As a result of academic scholarship and the activities of women’s groups, agricultural land is now widely understood to be a productive asset for rural women. A similar, equally convincing, argument can be made for urban women.
Women’s organizations should also petition land revenue departments for an exemption from stamp duty or a considerable reduction in the costs related to property transfers for low-income women. This would facilitate the ability of low-income women to secure joint titles with their husbands.
Efforts to optimize women’s access to joint titles through a reduction in the formal transaction costs must be complemented by the efforts of the land administration and revenue agencies to improve the transparency of recordkeeping and land management operations so that corruption is reduced and informal costs of land transaction are minimized. The multiple land management institutions and departments (municipal corporations, revenue departments, town development departments, estate departments) and their frequently nebulous roles and responsibilities significantly contribute to confusion and delays in property acquisition and transfer. The 74th Amendment Act of the Constitution of India facilitated the transfer of power from state legislatures to municipalities in such functional areas as urban planning, regulation of land use, economic and social development planning, provision of civic infrastructure, slum improvement, and urban poverty alleviation. However, this decentralization, although well-intended, was not matched with the resources required to operationalize it.
Consequently, the lack of skilled human resource capacity is a serious obstacle to the realization of decentralization and gender equity objectives. Bribery is widespread in municipal corporations and revenue agencies, where incentives and promotion opportunities are not performance-related. If corruption is to be reduced, reform of management and incentive structures of municipal bodies in combination with the countervailing influence of a strong vigilant civil society is crucial.
3.5 ‘Right of residence’ and ‘right of ownership’ A wide range of legal, cultural, economic, political and ideological factors influence women’s ability to own and control urban property. This complexity seems to reinforce the observation that urban land tenure in South Asia is best understood as a multifaceted social and political process rather than as a system of laws and rules: the process bears greater resemblance to a continuum with many intermediate goals rather than a dichotomy of what is legal or illegal, formal or informal. Similarly, in urban areas, concretization of a woman’s right of residence may serve as an intermediary step en route to the final goal: the right of independent or joint ownership. While the right of ownership can be established only through a sales deed on secure land, the right of residence can be strengthened through various mechanisms. Since land ownership is still unavailable to an overwhelming majority of the slum population, and the concept of joint titles to urban land and housing is only just beginning to gain currency, organizations like SEWA have developed alternative channels to strengthen women’s right to residence and to secure a stake in landed property in case of disputes and separation, legal or otherwise. Renana Jhabvala, the current President of SEWA Bharat (India), sums up the organization’s strategy as follows:
Since there is no concept of standard ownership for poor women living in slums, we attempt to empower them with whatever means available to us.
It’s usually more of a matter of putting women’s names on different documents such as promissory notes, electricity bills, and house and land tax. In the slums, the best we are assured of by way of tenure security at the moment is a ten-year guarantee of non-eviction. We have to work within this framework while advocating for the appropriate policy instruments and legislation.
There was very little male resistance to SEWA’s recommendation for land tax documents and electricity bills to be issued in the names of women. While this may have prematurely led to the conclusion that gender relations are more egalitarian among the lower-income groups, or that such ego issues are more prevalent in middle-class households, the male stance of no objection may be a reflection of the considerable deprivation of basic necessities that affects both genders in these communities, rather than being a question of gender equality. Indeed, as one male resident put it—since he had never experienced the luxury of having electricity, it would not bother him if the related bills were issued in the name of a stray cat on the street as long as the promised service was delivered. Similar findings are recorded by other authors. Agarwal (2003), for example, reports very little male resistance in Andhra Pradesh to wives farming land leased or purchased collectively by women’s groups since it was a ‘win-win’ situation for everyone. While the gains from secured services like electricity or profits from women’s farming efforts may not be challenged by men, it is possible that land redistribution within families could be contested since males stand to lose their traditional control over the resource. Therefore, for women to gain access to landed resources at par with men, it is as important to work with men as it is to work with women.
User charge documents for electricity and water are almost universally perceived as empowering to women. They can also be used in a court of law to apply for the female right of residence in the event of divorce or separation, but cannot be used to establish the right to ownership. Securing joint title to urban land and housing is a practical approach to improving women’s entitlements, and can be especially empowering in conjunction with credit and other financial services as well as appropriate social security interventions that allow women to procure independent landed assets. In the context of slum communities, provisions for more affordable group tenure, collective tenure and cooperative tenure with equitable representation between men and women may also be explored as alternatives to individual or joint ownership.