While this issue is a concern in many urban and rural settings, there seems to be precious little “how to” information available. What does exist can provide a roadmap, but the details will be dependent on the goal of your project, the current law, and local and national political will.
The most recent research on the topic that I could find comes out of South Africa. I would recommend a book and an article as a good starting place. The book is, UNTITLED: Securing Land Tenure in Urban and Rural South Africa, edited by Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins, and published in 2017.
The article is, Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Right ’ Holders, and was published in June 2017. The article was written by Dr. Rosalie Kingwill for Association for Rural Advancement (AFRA).
The gist of the idea is this:
• Collect evidence from the ground up to understand the local situation/norms of land use.
• Develop standardized evidentiary principles based on current norms where ‘like units’ can be compared with ‘like units’ across varied tenure landscapes to allow for local variation and diversity.
• Develop a system of adjudication with clear-cut principles against which to test the legality or veracity of individual land rights by authoritative means.
The registry for “off-register” rights could be separate or a part of the main land registry depending on the existing system. Namibia has passed an act designed to create new forms of title to immovable property and to create a register for these forms of title. The system is expected to operate parallel to the existing registration system. Admittedly, including non-ownership rights in an existing registry or creating a new registry will be a slow and difficult process.
Gender Specific Issues
Anytime a census of rights is taken, women are at risk. Women, who use land and depend on it may nonetheless not be considered to have a right to that land. Thus, the evidence collectors will need to be aware that they are collecting information on who has what interest in which land, and that this information should be collected from every adult member in a household, not only the head of household. In addition, a focused effort will be required to ensure that women, as well as men, are provided notice and receive ongoing information and communication throughout the process. Including women often requires separate meetings or other accommodations.
As well, when registering of rights/interests occurs, there is usually a perception of increased value of the land. Where there is a significant power differential between men and women, women can lose their right to use the land, once the value of that land is increased. It will be important to monitor the effect of the information gathering and to communicate with the community about its purpose and the hoped for outcome.