Saturday, 19 May 2012

UNTAET GUIDELINES FOR THE ADMINISTRATION OF PUBLIC AND ABANDONED PROPERTY

Original Citation: 2004 ETLJ 11 UNTAET GUIDELINES FOR THE ADMINISTRATION OF PUBLIC AND ABANDONED PROPERTY

United Nations Transitional Administration in East Timor

GUIDELINES FOR THE ADMINISTRATION OF PUBLIC AND ABANDONED PROPERTY BY DISTRICT ADMINISTRATIONS

UNTAET LAND AND PROPERTY UNIT

PROPERTY ADMINSTRATION GUIDELINES

Revised 15 August 2000

UNTAET GUIDELINES FOR THE ADMINISTRATION OF PUBLIC AND ABANDONED PROPERTY BY DISTRICT ADMINISTRATIONS

CONTENTS

1.INTRODUCTION

1.1 The General Approach of these Guidelines

1.2 Implementation of these Guidelines

2. RELEVANT REGULATORY FRAMEWORK

2.1 Source of Land and Property Powers of UNTAET

2.2 Defining "Public" and "Abandoned" Property

3. GUIDELINES FOR DEALING WITH UNTAET ADMINISTERED PROPERTY

3.1 Assertion of UNTAET's Administrative Authority over Property

3.2 Identification of Property as Public or Abandoned

3.3 General Principles for Administration of Public and Abandoned Property

3.4 The Process of Allocating Public and Abandoned Property for Use

3.4.1 Investigation
3.4.2 Decision-making
3.4.3 Notification
3.4.4 Three Categories of Agreements
3.4.5 Appeals

3.5  Receiving Requests to Use Vacant Public and Abandoned Property

3.6 Receiving Requests to Use Occupied Public and Abandoned Property

3.6.1      Requests to Use Occupied Public and Abandoned Property Where the Current Occupier is Authorised to Occupy the Land

3.6.2      Requests to Use Occupied Public and Abandoned Property Where the Current Occupier is Not Authorised to Occupy the Land

3.7 Collection of Rent

3.8 Eviction

3.9 Protection of Public and Abandoned Properties

3.10     Sub-leases

3.11  Appeals

THE ADMINISTRATION OF PUBLIC AND ABANDONED PROPERTY BY DISTRICT ADMINISTRATIONS (Revised 15 August 2000)

1.INTRODUCTION

1.1The General Approach of These Guidelines

These are designed to provide guidance to District Administrations in the administration of property as per Section 7 of Regulation 1999/1. Some of the important issues covered by these guidelines include:

•identification of public and abandoned property
•assertion of administrative control over the properties
•protection of properties from looting
•receiving requests to occupy property
•allocation of the properties in a regularized way through issuance of Temporary Use Agreements
•collection of rent where appropriate
•sub-leases
•resolution of conflicts over allocation decisions

The broad strategy of this approach is to bring public and abandoned properties under UNTAET's administration in order to regulate their occupancy in the short to mid-term (i.e. between a few months to 5 years, depending on the property and circumstances). At the same time, this process must not prejudice legitimate claims to underlying ownership or use. The intention of the strategy is to provide legal clarity with respect to land issues in the short to mid-term through the use of temporary use agreements, while appropriate mechanisms are established to address the complex issue of permanent title to land.

1.2Implementation of these Guidelines

Implementation of these Guidelines should occur at the District Administration level and accordingly a fair degree of discretion is allowed.

To the maximum extent possible, East Timorese people should be involved in the process of allocating property, for three reasons. First, the involvement of Timorese will allow UNTAET to access community knowledge about the ownership and history of use of various properties. Secondly, it will build capacity and responsibility among the Timorese securing that TUA decisions are taken in consideration of East Timor interests.  Finally, it will provide many District-level employment opportunities for Timorese people.

2.RELEVANT REGULATORY FRAMEWORK

2.1Source of Land and Property Powers of UNTAET

Section 7 of  UNTAET Regulation 1999/1 provides as follows:

7.1UNTAET shall administer immovable or movable property, including monies, bank accounts, and other property of, or registered in the name of the Republic of Indonesia, or any of its subsidiary organs and agencies, which is in the territory of East Timor.

7.2UNTAET shall also administer any property, both as specified in section 7.1 of the present regulation and privately owned that was abandoned after 30 August 1999, the date of the popular consultation, until such time as the lawful owners are determined.

These Guidelines give effect to Section 7.

2.2Defining "Public" and "Abandoned" Property

The key terms in Regulation 1999/1 Section 7 are defined as follows.

Section 7.1 relates to “public” property.  "Public" is here used as shorthand for property which formerly belonged to the Indonesian state, to a province or other public authority (e.g. city), or to an individual as a result of a person's official capacity (e.g. residences of administrators, police or other officials). This category includes include offices, buildings, the roads and general infrastructure network, barracks, and government houses. It also includes property formerly belonging to state-controlled enterprises (e.g. banks, airlines, telecommunications, Pertimina fuel company), as this is "property registered in the name of the Republic of Indonesia, or any of its subsidiary organs or agencies".

Section 7.2 relates to “abandoned” property. "Abandoned" property is property that is:

not currently occupied or controlled by its previous user, or by a person who might  reasonably be regarded as acting for such user, for the reasonably foreseeable future.

Interpreting the term therefore requires judgement. What is "reasonable" will depend upon the local circumstances, traditions and evidence. Examples of abandoned property may include that belonging to a former high-level Indonesian official, or a person about whom absolutely nothing has been heard for some time without family or friends who could intervene on the person’s behalf.

The allocation of abandoned private property is more likely to lead to competing claims over the property than is the allocation of public property. For this reason District Administrations may elect to take a fairly restrictive view of the definition of ‘abandoned’, and be less ready to allocate abandoned land to applicants.

The meaning of “property” is potentially very wide.  It could take in anything which is capable of being the subject of rights of control, including claims over assets (eg the right to live in a house, or a bank account), actual items (eg furniture or vehicles), or real estate and the structures erected on it.  These Guidelines relate only to the last category.

3.GUIDELINES FOR DEALING WITH UNTAET ADMINISTERED PROPERTY

3.1General Principles for Administration of Public and Private Abandoned Property

The following general principles should be applied to property falling under UNTAET administration by virtue of Section 7 of Regulation 1999/1.

•Public and abandoned property should if possible be protected from further damage.

•Putting such property to effective use may not only protect it, but assist in economic and social reconstruction.

•Generally, "vacant" properties should be carefully handled, as they may not be "abandoned".

•Occupation of properties by any person who cannot reasonably claim some direct or indirect authority from the previous occupier, should be regularized wherever possible under this regime.

•Returning previous holders of property rights should not be excluded from asserting their claims over their property, although this must often be balanced with the temporary rights of occupancy that will be granted through the "Temporary Use Agreements" set up under these Guidelines (particularly those agreements longer than one year).

•Because property allocations which are contrary to existing rights or community wishes may lead to disagreements, every effort should be made to achieve community consultation and consensus in the process.

•Every effort must also be made to communicate UNTAET policies on public and abandoned property allocation.  The basic points are that (1) temporary allocations are being made, (2) such allocations are provisional and, depending on which category of allocation is made, will not necessarily prevent return of land to its rightful owners, (3) any investment in public or abandoned property without obtaining an allocation from UNTAET is at the investor's risk, (4) a system is being developed to determine all land claims in order to remedy wrongful dispossession and allow greater certainty of land title, and (5) land claimants may apply for temporary public or abandoned property allocations pending development of such a system.

•Those parties allocated property must understand the limitations of what is being agreed! Occupiers get occupation, not title – their interests will be balanced against those of any persons claiming better rights. A leading principle is that property may be returned provided that persons comply with certain requirements prescribed below. Nonetheless, the right of re-occupation is not absolute and will be limited for the sake of the community interest.

•Generally, internally displaced peoples (IDPs) who are not in their own properties should be asked to acknowledge that they may have to move.  Still, they would not ordinarily be removed from public or abandoned properties without appropriate plans for alternative housing arrangements.  District Administrations should seek to facilitate a process whereby alternative arrangements are made to satisfy the humanitarian needs of IDPs with a view toward long-term and sustainable solutions. They should also not be moved unless an urgent use for the property can be identified, or it will simply lead to another vacancy, and probably another unauthorized occupation.

•Wherever possible, public property should be allocated to the same use as existed under the Indonesian administration.  Hence, former military land should generally be allocated to military and police uses.  Former civil service land should generally be allocated to the equivalent Department under UNTAET (e.g. hospitals should be kept as hospitals, health worker housing as health worker housing).  This principle may be overridden where there is a strong public interest to use a property for another use (including simply protecting it against vandalism).

•Public property should not be allocated to commercial interests as a general rule unless: it has been determined that there are no public uses pending or there is a special need for allocating a property to a particular commercial land use (e.g., the business provides an essential service that is not available elsewhere, the occupation will prevent damage by keeping it occupied, etc).

•In determining what type of property allocation is to be made, District Administrations should assess the likelihood of return by lawful owners, type of use, nature of proposed investment (if any) and degree of community objections (if any). To reduce potential disputes with returning persons who may claim ‘ownership’ of properties, it is suggested that property allocations focus on “public” property in priority to “abandoned” property where possible (this is particularly true of residential allocations). However, property allocations on abandoned property encourage applicants to reconstruct destroyed properties since they are somehow backed by UNTAET authority – this is true specially among Indonesian returnees.

•Vacant and unprotected public properties can be occupied by UNTAET staff where no other housing alternatives exist. If no rental is being paid, staff should be aware that there may be consequences for MSA.  Where rent is paid by UN staff, the usual procedures should be followed in providing the UNTAET Finance Unit with copies of the Temporary Use Agreement so that MSA is not reduced to take into account the standard rent.  As soon as practical, the District Administration should put reasonable rentals in place to prevent this.

3.2Assertion of UNTAET's Administrative Authority over Property

The following principles should be applied when asserting UNTAET's administrative authority over Property.

•UNTAET should, where appropriate, assert administrative authority over all public and abandoned properties, and this must be done at the District Administration level. (But District Administrations should also have regard to the earlier comments concerning problems associated with asserting control over ‘abandoned’ property).

•This should be done as quickly as possible in cases where property has been occupied for residential or commercial purposes without having been allocated by UNTAET. It is vital to inform these illegal occupants that they do not acquire rights through unauthorized occupation.

•a public notice of intention to administer property (see Notice 1) should be used as a means of announcing and asserting UNTAET's administrative authority.

3.3Identification of Property as Public or Abandoned

The following principles should be applied when identifying property as "public" or "abandoned".

•District Administrations should, where appropriate, attempt to identify all properties within their District that are either public or abandoned. This information will eventually be incorporated into a national database. The best way of obtaining this information will depend on the prevailing circumstances (in site visits are useful), however it has been the experience of many officials that local Timorese community leaders including chefes du suco and church and CNRT representatives are often aware of the status of local properties.

•District Administrations should ensure that applicants to use property temporarily have undertaken due diligence in establishing that land was public or abandoned after 30 August 1999. Commonly, this will involve a written undertaking that discussions have taken place with reliable witnesses (Church, ex-civil service workers, INTERFET and UNAMET reports, etc.) and that, in the applicant's best opinion, the property was public or abandoned after 30 August 1999. Applicants should also briefly state the basis for this opinion.

•A further requirement is that UNTAET post public notices on the building for a period of 14 days stating that the property will be administered by UNTAET in the event that the owner to the property does not return to claim it (see Notice 1).  Care should be taken when considering whether a property is ‘abandoned’ particularly where there appears to be an occupier claiming that the property is not abandoned or that the occupier is acting on behalf of the ‘true’ owner. In this case, it is recommended that the holder of a power of attorney make the TUA in his/her own name. This is for two reasons;

1.It might be more difficult to pursue a principal in case of default; and
2.A signatory under a contract is more likely to be responsible if they know that they will be personally liable for the default of the principal.

Appropriate investigations should be conducted with the occupiers.  The mere absence of documents should not automatically mean that a person is an unlawful occupier.  “Appropriate” investigations should be in the form of a reasonable enquiry and NOT take the form of an inquisition, cross  examination or prosecution!

•As District Administrations prepare their own list of public and abandoned properties, they should cross-check applicant assertions that a property is in fact public or abandoned. This task should be undertaken by Land Investigation Officers (see paragraph 3.4.1 below).

3.4The Process of Allocating Public and Abandoned Property For Use

Special cases
In cases where:
(a)the property involved is of national or strategic significance (for example, airports, ports etc.); or
(b)an applicant is an International Mission from a foreign country (or similar entity); or
(c)the property is to be the site of a development of strategic, or significant foreign investment in the national interest (in consultation with the relevant local District Administration)
allocations may be made at an executive level by UNTAET (e.g. SRSG or DSRSG – GPA) and not Local Land and Property Committees.

If a District Administration receives an application that appears to fall into one of these categories it should contact the Land and Property Unit.

Ordinary cases

In most cases, however, the allocation process will occur at the District level, and will involve an investigation process and a decision-making process.  Respected Timorese people should be involved at both levels and take responsibility for key aspects of the allocation.

In the case of competing applications, each application shall be assessed against the criteria set out below (having consideration for the particular facts in each case) and against each other.

3.4.1Investigation

A.INVESTIGATION PROCESS
District Administrations should employ one or more Land Investigations Officers (They should preferably be East Timorese staff).  The tasks of such officers shall be to:
Receive applications for allocation of public or abandoned property on the attached standard Application Form 1.

•Investigate the applicant's due diligence assertion that the property is public or abandoned.

•Investigate the Applicant’s credentials and the ability to carry out the intended use for the term of the Temporary Use Agreement.

•In cases of commercial and private residential applicants, place a public notice on the property in question for a 2-week period inviting applications from other interested parties (see Notice 2).  A waiver of the 14 day notice period can be sought where there are compelling circumstances. (see Application 2 and Annexure 2).

•In cases where a proposed commercial use is a ‘major’ development falling within the National and Planning Development Scheme (an interim version of which is attached to this document), consult with the community as to the proposed development in the manner set out in those Guidelines.  Some criteria have to be developed to determine whether a development project is considered to be “major” or not. Where an Application comes from a foreign investor, the application should be referred to the Joint Committee on Foreign Investment. Information on the Joint Committee on Foreign Investment  (where to contact it? Who is part of it? How it works?…) will be given soon.

•Report the results of the above investigations to the District Land and Property Committee (L&P Committee), and make recommendations as to the application.

B.INVESTIGATION CRITERIA

Applications for residential use
In cases of applications for residential use, the Land Investigations Officer’s recommendations should be based on the following criteria:

•evidence about former use, occupation, owners, etc;
•the availability of alternative housing;
•likelihood of building being left vacant and suffering damage;
•the humanitarian situation of the applicant;
•likelihood of receiving rent from the applicant; and
•the amount of money the applicant is willing to spend on rehabilitation of the property.
•where the applicant is East Timorese, whether he or she should be encouraged to return to their original district.
•Whether the applicant has a claim over the property or not. In case of competing claims/applications over the same property the one who has better right should get the allocation. In case it is not clear it is recommended wait for the Tribunal and keep an open file under the property name.

We emphasize that residential applications from East Timorese should be given priority, particularly in cases of competing applications.  However, this is subject to the need for people to begin returning to their original districts.

Applications for commercial use
In cases of applications for commercial use, the Land Investigations Officer’s recommendations should be based on the following criteria:

•number of Timorese that will be employed;
•the social use and benefit to Timorese society of the service provided; and
•the contribution of the business to the economy of East Timor.
•whether the applicant has lodged a claim over the property to be allocated. In case there are competing claims and applications over the same property, the one with better right should prevail. In case it is difficult to decide so you have to options:
-Keep open file of the claims and wait for the Tribunal or;
-Mediation role: make them meet and try to mediate the best arrangement for the use of the property. This might achieve two important things; solves immediate problem and moves reconstruction forward.
Applications for commercial use by foreigners
Foreign Applicants should be sent to the Investment Promotion Unit where a business proposal may be referred to the Joint Committee on Foreign Investment for consideration and a recommendation made on the Application to the DSRSG-GPA.

If the business proposal is accepted by the East Timorese then the Application can proceed normally.

3.4.2Decision-Making

A.ROLE AND COMPOSITION OF LAND AND PROPERTY COMMITTEE
L&P Committees are responsible for making recommendations to the District Administrators regarding:
(a)allocations of public and abandoned property, and
(b)development proposals on public or abandoned property which are subject to the attached National Planning and Development Guidelines.

The L&P Committee may comprise senior members of the local community who know about properties in the area. For this purpose, the L&P Property Committee should include representatives of CNRT, Church and other representatives of East Timor's civil society.  District Administrators should take time, however, to consider the final makeup of the L&P Committee because local social dynamics may mean that a particular person (despite his or her “official” position in the community) may not have the customary stature that warrants inclusion on the L&P Committee.  In other words, persons should not merely be chosen from a list.  Very careful consideration should be given to the membership of the L&P Committee.

The District Land and Property officer should keep an up-to-date record of the membership of the L&P Committee.

As well as institutionalizing the role of Timorese people in the land allocation process, this model of decision-making allows for an avenue of appeal to the District Administrator.  Allocations of public and abandoned private properties are formally made by the District Administrator and the DA should sign the Temporary Use Agreement.

However, allocations should be made on the recommendation of the local Land and Property Committee, not unilaterally by the DA.

B.PROCEDURES OF LAND AND PROPERTY COMMITTEE
The L&P Committee should elect a Chairperson from within its own ranks; ideally the Chairperson should be East Timorese.

Wherever possible, decisions of the District Land and Property committee should be made by consensus.  If consensus cannot be reached after genuine attempts, decisions can be made on the basis of ordinary majority vote.

Ordinary rules of meeting procedure should apply to L&P Committee meetings.

A meeting of the District Land and Property Committee shall only be valid if more than half of its members are present and voting.

There may be difficulties in convening meetings of the L&P Committee for various reasons.  District Administrators are, therefore, urged to consider the following avenues for make the system work:
•Extra payment for the work at the Land and Property Committee should not apply to any of its members.
•Land Investigation Officers should assist the property allocation process by seeking out L&P Committee members directly and obtaining their views about particular property allocations.

The District Land & Property officer should take detailed minutes of all L&P Committee meetings and circulate the minutes within a fortnight of each meeting.  This practice will serve the dual functions of increasing the Committee members’ familiarity with the Committee process, and clarifying and publicizing the decisions reached by the Committee.

(Please, fins attached to this policy an uniform minute for all Districts)

C.DECISION-MAKING CRITERIA
In making their decisions, District Land and Property Committees must:

(a)consider the recommendations of the Land Investigation Officer, and
(b)decide whether the application satisfies the same criteria applied by the Land Investigations Officer.

Applications for residential use
Therefore, in cases of applications for residential use the Land and Property Committee allocation decision shall be based on the following criteria:

•evidence about former use, occupation, owners, etc;
•the availability of alternative housing;
•likelihood of building being left vacant and suffering damage;
•the humanitarian situation of the applicant;
•likelihood of receiving rent from the applicant; and
•the amount of money the applicant is willing to spend on rehabilitation of the property; and
•where the applicant is East Timorese, whether he or she should be encouraged to return to their original district.

Please note that humanitarian grounds should prevail over purely economic ones.

The same principles must be used when assessing competing applications for the same property.

We emphasize again that residential applications from East Timorese should be given priority over competing applications. However, this is subject to the need for people to begin returning to their original districts.

Applications for commercial use
In cases of applications for commercial use, the Land and Property Committee property allocation decision shall be based on the following criteria:

•number of Timorese that will be employed;
•the social use and benefit to Timorese society of the service provided; and
•the contribution of the business to the economy of East Timor.
•whether the applicant claims the property. In case there are competing claims a quick assessment should be done to find out who has better right.

These same criteria must be used when evaluating cases of competing applications for the same property. Rental bids alone will not be the determinant of a successful applicant, but should of course be factored into the final decision. As with all decisions, a more reliable lower-rent may in the end be the best investment for the community.

In case there is evidence of ownership over the property intending to allocate rent should be of a symbolic amount.

Major development applications
In cases of development proposals to which the National Planning and Development guidelines apply (see attached), the District Land and Property Committee must ALSO apply the procedures and principles set out in the attached National Planning and Development guidelines.

Applications by East Timorese political parties
At this time, we recommend that all applications to political parties outside the CNRT be forwarded to the Land and Property Unit – GPA.

3.4.4Notification
•Where the L&P Committee decides to approve an application, it should (a) issue a Notice 3 to the applicant to authorise the use of the property, and (b) decide on the most appropriate kind of Temporary Use Agreement and execute that Agreement with the applicant.
•Where the L&P Committee decides to reject an application, it should give the applicant written reasons for its decision.

3.4.5Three Categories of Property Allocations

•Once a decision has been made to allocate a specific property to a person, the District L&P Committee must select the most appropriate Temporary Use Agreement from one of three categories of standard form agreements described in detail below.

•The criteria described for each category of use agreement are indicative rather than absolute. Ultimately, District Administrators must balance legitimate requirements for reliable property rights (the basis for investment and social stability) with concern for human rights and community interests.

•In all three categories of property allocation, the process must include community consultation and, if possible, consensus through the L&P Committee.

•District Administrations should not amend these Agreements without careful consideration.   We recommend that, if special terms are required, then they should be included in a side-letter to the tenant rather than amend the standard form Temporary Use Agreement.

•Written records must be kept of all property allocations and these will be duly recorded in a registry of all Temporary Use Agreements that will be maintained at the UNTAET Land and Property Unit GPA.
The three categories of Temporary Use Agreements are as follows:

A.SHORT-TERM ALLOCATIONS (Allocation Form A)

The characteristics of Short-term allocations are as follows.

•Term of up to 3 months.
•May be revoked by UNTAET with one week's notice.
•Are appropriate on balance where:

•relatively little or no investment is required;
•there is a reasonable likelihood of return by the owner(s), and the type of use is such that the property may easily be vacated should the owner(s) return;
•the applicant has indicated willingness to cooperate with UNTAET should a competing owner be found; and
•persons have already moved into someone else's property and need to be brought into the system of property allocation (i.e., "capturing" illegal occupations).

•Examples that may fit these criteria include occupation of vacant houses in reasonable repair by displaced persons; use of premises by humanitarian agencies with short-term needs; and storage of items on vacated land suitable for that type of use.

B.MEDIUM-TERM ALLOCATIONS (Allocation Form B)

The characteristics of Medium-term allocations are as follows.
•Term of 3 to 12 months.
•May be revoked by UNTAET with one month notice.
•Are appropriate on balance where:

•the evidence suggests little reasonable likelihood of return by any owner(s);
•a reasonable degree of investment is required, but generally that investment will involve rehabilitation or repair rather than structural work for commercial activity;
•the applicant has indicated a willingness to accommodate any returning owner(s); and
•the applicant may with reasonable notice vacate the land should there be return by its owner(s).

•Examples that may fit these criteria include occupation involving repair or rehabilitation of significantly damaged business, residential or public premises.

C.LONG-TERM ALLOCATIONS (Allocation Form C)

The characteristics of Long-term allocations are as follows.

•Term of 1 to 5 years, although anything beyond 3 years should be relatively rare and only agreed after referral to Land and Property GPA.
•May be revoked by UNTAET with 3 months’ notice.
•Are appropriate on balance where:
• the evidence suggests little reasonable likelihood of imminent return by any owner(s);
•significant investment or the payment of international rentals is proposed.

•Examples may include business activity involving significant capital input or the rebuilding of badly damaged buildings; uses associated with long-term institutional development of a democratic and independent East Timor (e.g., international missions, long term aid agencies, hospitals etc.).

3.5Receiving Requests to Use Vacant Public and Abandoned Property (see Flow Chart Appendix 3, Annexes 1 and 2)

The following principles should be applied when receiving requests to occupy vacant Public and Abandoned Property.

•Each District Administration should have a system in place for receiving and managing appropriate requests to occupy public and abandoned properties (see Application 1).

•This system need not only be demand driven, but could also be built by the gradual "capture" of existing unauthorized occupations.

•Upon receiving any inquiries regarding occupation of public or abandoned properties, care must be taken to communicate very clearly the relevant UNTAET policies in order to avoid confusion, false expectations and future conflict.

•Priority beneficiaries of UNTAET allocation decisions include:
•humanitarian relief agencies
•UNTAET Administration
•Timorese civil service
•Timorese non-government and community organizations
•internally displaced persons and refugees
•commercial enterprises

•In the case of commercial or private residential applicants, the specific allocation procedures applicable to these categories of applicants should be clearly described (see "Allocation Process"). It may be that commercial activity should in a particular area be given higher priority, especially where the previous use was also commercial.

•It is vital that reasons for all allocation decisions be given to applicants.  The allocation process should be as transparent as possible.

•All applications must comply with UNTAET’s Planning and Development Scheme. An interim draft version of the Planning Scheme is attached to this document.  Note that all development applications will require advertising and consultation as set out in the guidelines.

•Administrative systems must be secure, including proper identification and record keeping. Care must be taken to avoid double allocations of property!

3.6Receiving Requests to Use Occupied Public and Abandoned Property (see Flow Chart Appendix 2)

Where a person applies to use public and abandoned property that is already occupied, the first step is to ascertain whether or not the current occupier has received authorisation from the District Administration to occupy the land (via the usual Application 1 process).  Whether authorisation has issued will determine the procedures to be followed with respect to the new application.

3.6.1Requests to Use Occupied Public and Abandoned Property Where the Current Occupier is Authorised to Occupy the Land

In those circumstances where a person returns to a property to find that it is occupied by an authorized occupier (that occupier having gone through the usual Application 1 process), the claimant can apply to re-occupy the property (Application 5).  In determining whether it is appropriate to allow the re-occupation (which means that the lawful occupier may be displaced) extreme care should be used!  The following principles should be applied.

•consider the basic legitimacy of the claim to an interest in the property (and the extent of that interest) – as a matter of practice, this process should be undertaken first. This is only a preliminary enquiry and should not be interpreted as a final determination of property ownership.  It is vital that, where the claim of the returnee is unclear, or concerns political issues such as the status of pre-1975 Portuguese titles or the validity of acquisition by the Indonesian administration, the claim should be left to be determined by a longer term land claims process.

•consider the nature of the current occupier's use of the property and, in particular:
•whether the occupier has taken physical possession of the property
•the nature of the occupier's Temporary Use Agreement (and how long it has to run either before it expires or can be terminated in accordance with that Agreement)
•the degree of social disadvantage to be suffered by either party
•the extent of the capital works undertaken on the property by the occupier.
•the number of local employees employed by the occupier (where the property is commercial) or whether the business is a joint venture with the East Timorese
•any urgency pertaining to the claim for re-occupation
•whether there is suitable, alternative accommodation available for the occupier, and
•the overall balance of equity in the situation

If it is deemed appropriate to allow re-occupation following negotiations and/or mediation between the parties, then:

•the re-occupant should be encouraged to enter into a Temporary Use Agreement.  In this case, the usual procedures should apply in granting the appropriate Temporary Use Agreement. However, it should be left to the local District Administrator whether a Temporary Use Agreement is advisable or necessary. (For further support of this last point, see reference following the next bullet point, below.)

•notice of termination of the Temporary Use Agreement with the current occupier should be given.  If the occupier refuses to leave the property, it may be necessary to commence the eviction process.

It should be noted that many returnees may not wish to sign a Temporary Use Agreement.  A returnee may consider it obvious that the property is his or hers and therefore be reluctant to sign a document conferring a lesser right.  District Administrations should consider this very delicate issue carefully, particularly when it relates to a residence.  In residential cases, therefore, it may be that a more appropriate way to approach the problem is, instead of providing a Temporary Use Agreement for signing by the returnee, merely provide a policy brochure setting out the occupier’s rights setting out the current uncertainty relating to land ownership and granting the returnee provisional occupation of the property pending final resolution of the ownership.  (The brochure will be available in Tetun, Indonesian and Portuguese languages.) The same policy can be followed where it is believed that an existing occupant of a residence is not the owner, and it is not appropriate to try and have that person sign a Temporary Use Agreement (or the person refuses to sign).

Re-occupation should be granted only with extreme caution!

3.6.2Requests to Use Occupied Public and Abandoned Property Where the Current Occupier is Not Authorised to Occupy the Land

Where a person applies to use public and abandoned property which is occupied by a non-authorised occupier, the District Administration should ascertain whether the current occupation commenced before or after 30 August 1999.  This issue will determine the procedures to be followed with respect to the new application.

A.  Occupation of Public or Abandoned Land Commencing After 30 August 1999

Due diligence may show that land is public, but has been occupied or used, by private parties, after 30 August 1999.  In this case, we repeat a basic principle:

•Generally, internally displaced peoples (IDP's) who are not in their own properties should be asked first to acknowledge that they might have to move (one purpose of the allocation process).  Still, they would ordinarily not be removed from public or abandoned properties without appropriate plans in place regarding their housing needs. District Administration should seek to facilitate a process whereby alternative arrangements are made to satisfy the humanitarian needs of IDP's with a view toward long-term and sustainable solutions. They should also not be moved unless an urgent use for the property can be identified, or it will simply lead to another vacancy, and probably another unauthorized occupation.

Other persons using public or abandoned properties after 30 August 1999 may either (1) be evicted, or (2) lodge a competing application for allocation of the property.  Where the occupier lodges a competing application for a property allocation, the application will be assessed under paragraph 3.4 above.  In the event that the occupier does not make a competing application, or makes an unsuccessful competing application, the eviction process should begin (see 3.8 below).

B. Occupation of Public Land for a Continuous Period Commencing Before 30 August 1999

Due diligence may show that land is public, but nevertheless has been occupied or used, by private parties, prior to 30 August 1999.  (Note:  this section concerns only public land.  Section 7.2 of Regulation 1999/1 only empowers UNTAET to act with respect to private land where it was abandoned after 30 August 1999.)  A surprising number of properties fall within this category.  Generally speaking, they were acquired by the Indonesian administration for future uses, and were then left undeveloped – often for some years – pending that future use.  Not surprisingly, East Timorese then commenced private use or occupation while the land remained undeveloped.  In many cases, the Indonesian administration did not prevent this private use or occupation, but would evict the occupiers – with little or no compensation – when the land was required for its public purpose.

Such cases raise difficult legal and policy questions and should be referred to the Land and Property Unit of UNTAET for resolution.

3.7Collection of Rent

The following principles should be applied in relation to the collection of rent from authorized occupiers of Public and Abandoned Property.

District Administrations should decide whether or not the applicant will be charged rent. Relevant criteria in making this decision include:
•the occupier's ability to pay;
•the nature of use or service delivered (humanitarian, peacekeeping, commercial or residential);
•the feasibility and manner of rent collection (cost, institutional support);
•the existence of any rent culture; and
•community views or objections.

A District Administration may charge what it regards as a reasonable rent, for a provisional period of six months. Thereafter, the agreements provide that rent will be determined on the basis of agreement between UNTAET and the occupant or, (again at the discretion of District Administration), failing agreement, as determined by an independent evaluation arranged by the UNTAET Land & Property Unit.

Rent is to be paid in a manner as directed by UNTAET and agreed.  But, for ease of collection, District Administrations should ask for rent monthly in advance payable on the first day of each calendar month.  This allows for ease of administration when collecting rents and reviewing bank accounts.  Electronic transfer of funds is also permitted and the appropriate account details are available from the Land and Property Unit GPA.  Details of accounting procedures will be provided separately when the Finance Department finalises the procedures.  Until that time, rent should be collected recorded and placed in the District safes until an appropriate time is made to pay the proceeds to the Central Payments authority.  Banking of rents should occur as soon as possible.

The strong presumption is that international organizations and enterprises will pay in Dili, as directed.

In brief, Land and Property Officers should ensure that the following procedures are undertaken when dealing with an allocation of property.

•Proper records and files should be kept for each property allocation made by a District Administration.

•All original Temporary Use Agreements should be kept at the District Administration Office.  TUAs can be signed in duplicate (and one copy given to the occupant) or a photocopy can be given to the occupant.

•A current list of all TUAs should be maintained by the District Administrations.

•The process of allocating properties should be carried out by District Administrations (through the local Land and Property Officers or other authorized UNTAET staff person).  This process should not be given to any other person or organization to do.

•Arrange with the occupant for the rent to be paid monthly in advance payable on the first day of each month. (By doing this it is easy to know who has and has not paid on time).

•Rent should be set in accordance with the Property Allocation Policy and it should be collected.  The accounts to which rent should be paid are on the attached memo from FBEA which has been distributed to District Administrations before.

•District Administrations should see that the rent is paid.  It may be paid directly by the tenant but it should not be collected or accepted by any other person or organization.

•Rent payments should be recorded by District Administrations in the following way:

1.Create a rent payments book that records to name of the occupant, the property identity, the date the payment, the receipt number, the date the payment is made, and the month to which the payment relates.

2.When a payment is made by an occupant, record the payment in the payments book.

3.Issue a numbered receipt to the occupant for the rent paid. (We realize that this raises some security issues but we are discussing these matters with the CPO).

4.As soon as reasonably possible, arrange for the money to be taken to the BNU Bank in Dili where the Rent Payment Records should be stamped by the official upon delivery of the money collected. Then, the Land and Property District Officer (Finance Officer if exists in that District) should bring all the forms stamped by the Bank to Treasury. But before doing this, reconcile your payments book to make sure that the amount of rent collected is the same as the amount being given to Treasury.

5.If the rent is not paid, ask the occupant for it.

3.8Eviction

Eviction is a serious step for a District Administration and should only be taken after very serious consideration.  Circumstances which may justify eviction are:

(a)Where a current occupier refuses to vacate a property after re-occupation is authorised (3.6.1)
(b)Where an unauthorised occupier refuses to vacate a property after it is allocated to an applicant (3.6.2.A)
(c)Where an occupier refuses to vacate a property after termination of the use agreement by the District Administration.

We anticipate that a thorough evictions policy will be developed in the next few months.

The nature of the eviction process depends on whether the occupier is an East Timorese citizen.

Where the occupier is an East Timorese citizen, each District Administration should form and ad hoc Eviction Committee comprising the Land and Property Committee, the Chefe da Suco involved and if possible any shelter agencies such as UNHCR.

The Eviction Committee should only be formed after each District Administration, in consultation with the CNRT, has held public information sessions explaining UNTAET's public and abandoned property policies, and the opportunities/availability for alternative land and shelter, particularly in the original district of "unlawful" occupiers.

The Eviction Committee will negotiate and, wherever possible reach agreement, with the occupier(s) concerning his/her/their departure. Where necessary to convince an occupier that substitute land and shelter is available in their original district, the CNRT representative, chef de suco and/or traditional leaders of that district may be co-opted to negotiate with the occupier.  We repeat that the general principle is that no person should be evicted from land unless they have suitable alternative premises.

Where, despite the best efforts of the Eviction Committee, the occupier(s) refuses to leave the premises, the District Administration will request the assistance of the CNRT regional secretary, and if appropriate other senior representatives of East Timorese civil society (e.g. the Church), in convincing the occupier(s) to vacate the premises.

Where involvement of senior CNRT representatives, or other senior civil society representatives, has failed to convince the occupier to vacate the premises, a District Land Investigation Officer shall make application (Application 6) for an eviction order to the District Administrator (sitting as the Review Authority under this process);

•application would set out the facts, and require occupiers to show cause by a set date why they should not be evicted:

•if some cause is shown, there would be a hearing set down;

•after a hearing, the District Administrator could either refuse the order, or issue it:

•the order (Notice 5) would be passed to CivPol for enforcement.

Where the occupier is not an East Timorese citizen, a District Administration Land Investigation Officer shall make application (Application 6) for an eviction order to the District Administrator (sitting as the Review Authority under this process);

•application would set out the facts, and require occupiers to show cause by a set date why they should not be evicted:

•if some cause is shown, there would be a hearing set down;

•after a hearing, the District Administrator could either refuse the order, or issue it:

the order (Notice 5) would be passed to CivPol for enforcement.

No compensation should be paid in this time of eviction.  Allowing compensation for post-30 August 1999 use of public or abandoned land will (1) undermine our policy that such occupiers must be informed by District Administration that they acquire no rights by virtue of their occupation; (2) encourage opportunistic and/or widespread use of public or abandoned land; and (3) potentially places these unauthorized users in a better position, as regards compensation, than those who receive a temporary property allocation.  This "no compensation" policy for occupations of public land after 30 August 1999 reinforces the need for District Administration's to assert administrative control over all public and abandoned property in their districts.

3.9Protection of Public and Abandoned Properties

The following principles should be applied for the protection of Public and Abandoned Property.

•Properties that fall within UNTAET's administration and that have been rehabilitated in any way must not be left unprotected when an occupant moves out. Expensive damage caused by looting can occur within the first few minutes of a rehabilitated building being vacated, especially if persons leave unhappily. Appropriate arrangements for protection of the property must be made.

•All public property currently occupied by the Peacekeeping Force (PKF) must be secured and protected from looting from the moment PKF vacates the premises. A suggested way to do this would be to ensure a simultaneous handover/takeover process between PKF and any new occupant of the property. In instances where a property is not immediately is reallocated to another user, arrangements must be made to guard the premises.

•Where appropriate, East Timorese staff can be employed as temporary security guards. Please keep in close contact with CivPol, as they may have local staff under contract for this purpose.

3.10Sub-leases

There is no reason for sub-leasing to be discouraged; indeed the practice may assist with the current housing shortage.  The agreements provide, however, that sub-leases may only be granted with the written consent of the District Administrator.

3.11  Review Authority

3.11.1Review following Allocation Decision of the Land and Property Committee

•To ensure transparency in the land and property allocation process, internal review procedures of the allocation decisions taken by Land and Property Commitees should be formalized at the district level.
Who may ask for review:

(a)applicants whose requests to occupy or re-occupy public or abandoned property have been granted who wish to challenge the terms or category of Temporary Use Agreement, or to have the reasons for the allocation explained to them, and
(b)applicants whose requests to occupy or re-occupy land have been denied, who wish to have the reasons for the decision explained to them

•An applicant for review should be asked to fill in forms, or if that is not available, to write their own application

•It is recommended that the review be conducted by a 3-person District Land and Property Review Authority that includes as members the District Administrator and 2 leading members of the Timorese community (or other suitable appointees). The procedure for the review shall be at the discretion of the Review Authority but must allow for those involved to submit their case either in writing or orally.

•Requests to review allocation decisions must be received within 14 days of the date on which the allocation decision was made, or within such longer period as the District Administrator may allow if there is reasonable cause shown for the delay.

•While it will remain entirely in the discretion of the reviewing authority on whether to grant a hearing at which evidence may be presented and witnesses heard if the reviewing authority decides (by a simple majority vote) that the parties to a disputed decision be given an opportunity to be heard, written notice of a hearing date will be given to the party granted occupancy or re-occupancy of the property in question, as well as the challenger

•After a Review, the Review Authority shall advise the parties of its decision, and its reasons for the decision, as soon as possible.

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Index

2011

1. The Rule of Law: Theoretical, Cultural and Legal Challenges for Timor-Leste

2010


2009


2008


1. Justice for Serious Crimes Committed during 1999 in Timor-Leste: Where to From Here?

2. Joint Command for PNTL & F-FDTL Undermines Rule of Law & Security Sector Reform in Timor-Leste

3. Criminal Justice in East Timor and the Constitution of East Timor

4. Commentary on the Draft Arms Law in Timor-Leste

5. Deleted

2007

1. The Law on Political Parties (No 3/2004) & the Decision of the Timor-Leste Court of Appeal in the case of Vitor da Costa & Ors v Fretilin

2. Ethnicity, Violence & Land & Property Disputes in Timor-Leste

3. East Timor: Reconciliation & Reconstruction

4. Legal opinion on the appointment of the Prime Minister and the formation of Government in Timor-Leste

5. A legal opinion on the Formation of an Unconstitutional Government in Timor-Leste

6. Commission for Truth Friendship East Timor Competing Concepts of Justice

7. 25th of May 2006 Massacre & War Crimes in Timor-Leste

2006

1. Some Land Tenure Issues in Post-Conflict East Timor

2. Extradition from Indonesia to East Timor & the Serious Crimes Process in East Timor 1999 - 2005

3. East Timor: Internal Security, States of Seige & Emergency: A Note on the Constitutional Provisions & the Internal Security Law 2003

4. East Timor: The Constitutional Process Governing the Dismissal of the Government

5. Guidelines for Preparation of Outgoing Requests by East Timor for International Judicial Assisstance - Extradition Requests & Letters Rogatory - A Practice Manual

6. Roles of the President and the Prime Minister in the Current Constitutional Crisis in East Timor

7. Institutions & the East Timorese Experience

8. An Early Warning System for Timor-Leste: A Framework Concept of the Need & Possibility of an Early Warning System for the Timorese People

2005

1. The Timor-Leste Maritime Boundaries Case

2. Deleted

3. On the occasion of the International Conference on Traditional Dispute Resolution & Traditional Justice in Timor-Leste

4. General Facts on the Timor Sea & Facts on the Negotiations on a Permanent Maritime Boundary between Timor-Leste & Australia

5. Deleted

6. Morality, Religion & the Law: Abortion & Prosititution in East Timor

2004

1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992

2. UNTAET Land Policy


3. Some Observations on UNTAET Regulation No 27/2000 on the Temporary Prohibition on Transactions in Land by Indonesian Citizens

4. Sandalwood & Environmental Law in East Timor

5. Some Observations on the Report on Research Findings & Policy Recommendations for a Legal Framework for Land Dispute Mediation in East Timor

6. An Overview of East Timor's Law No 1 of 2003 on the Juridical Regime on Immovable Properties

7. Report on Research into Adat Land Law in East Timor

8. Short Analysis of UNTAET Executive Order No 2 of 2002 on the Decriminalisation of Defamation

9. An Overview of the Constitutional Drafting Process in East Timor

10. Some Notes on East Timor Government Decree No 1/2004 on the Orthographical Standard of the Tetum Language

11. UNTAET Guidelines for the Administration of Public & Abandoned Property by District Administrations

12. Tara Bandu: The Adat Concept of the Environment in East Timor

13. Finding Ways of Resolving Land Problems in East Timor