VZCZCXRO4674
RR RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0060/01 0260156
ZNR UUUUU ZZH
R 260156Z JAN 09
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC 0329
INFO RUCNASE/ASEAN MEMBER COLLECTIVE

UNCLAS SECTION 01 OF 04 PHNOM PENH 000060 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EAP/MLS 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM KDEM CB
SUBJECT: LAND IN CAMBODIA, PART I: POSSESSION AND OWNERSHIP 
 
REF: A) 06 PHNOM PENH 348, B) 06 PHNOM PENH 493 
 
SENSITIVE BUT UNCLASSIFIED 
 
THIS IS THE FIRST OF THREE CABLES ON LAND ISSUES IN CAMBODIA. 
 
¶1. (SBU) SUMMARY. Cambodia's 2001 Land Law removed temporary 
possession as a means of acquiring land and introduced regulations 
by which the Royal Government of Cambodia (RGC) could: 1) 
systematically register state and private land in a national 
cadastre; and 2) sporadically register private land at the request 
of a land owner.  Although the law itself is solid, NGO analysts and 
legal experts question the effectiveness of the systematic 
registration process, and a lack of capacity and funding has 
hindered district land offices' abilities to follow the sporadic 
registration process.  As a result, most Cambodians still operate in 
a system of "soft" land ownership with varying degrees of claims to 
their properties.  Land transfers, even for titled property, tend to 
occur without legal documentation.  The land law mandates that the 
National Cadastral Administration resolve disputes, but most land 
dispute cases are still mediated by commune officials or in the 
courts.  As long as land changes hands informally without cadastre 
registration, the number of land disputes in Cambodia will continue 
to increase.  END SUMMARY. 
 
THE 2001 LAND LAW AND STATE VERSUS PRIVATE LAND 
--------------------------------------------- - 
 
¶2. (U) Cambodia's comprehensive 2001 Land Law introduced a new set 
of regulations governing the ownership and transfer of property. A 
major change to the status quo was the removal of temporary 
possession as a means of acquiring land. Land title applicants can 
only claim ownership of land through temporary possession if they 
can demonstrate more than five continuous years of legal possession, 
and prove their legal possession began before the passage of the 
2001 law.  In theory, if not in practice, an individual can no 
longer acquire land by identifying an unoccupied land parcel and 
taking possession of it. 
 
¶3. (U) The land law also further defined categories of land, 
including how land in each of those categories can be acquired and 
used.  The categories include:  1) state public property (areas of 
natural origin such as lakes or islands, general or public use, 
conservation areas, historical or cultural patrimonies, or royal 
properties); 2) state private property (any property belonging to 
the state that does not fall under the definition for state public 
property); 3) private property (non-government, non-collective 
domain); and, 4) collective properties (pagoda or indigenous 
community properties).  State-owned land (both state public and 
state private) accounts for approximately 75-80% of Cambodia's total 
land area. 
 
SYSTEMATIC LAND REGISTRATION AND THE LMAP PROJECT 
--------------------------------------------- --- 
 
¶4. (U) The land law assigns responsibility for classifying, mapping, 
and registering all land parcels in the country to the National 
Cadastral Administration (NCA), which falls under the Ministry of 
Land Management, Urban Planning and Construction (MLUPC).  A land 
owner cannot hold a legal title to a land parcel unless the NCA has 
demarcated and recorded it in the Land Register.  In 2002, the MLUPC 
launched a Land Management and Administration Project (LMAP) with 
support from the World Bank and the Canadian, German and Finnish 
governments.  LMAP seeks to systematically map, register, and issue 
titles for private land parcels in 15 of Cambodia's 24 provinces. 
According to Seng Thany, Deputy Director of LMAP, the project has 
processed over one million land parcels since its inception in 2002. 
 
 
¶5. (SBU) Although the stated goal of the LMAP project is to improve 
land security and create an efficient land market, NGO observers 
note that the project so far only seeks to document the ownership of 
undisputed private land, and that the RGC purposefully chose to 
implement the project in areas with few land disputes (Ref A). 
Another challenge facing LMAP is its increasing scope.  Seng Thany 
said that the MLUPC originally estimated that LMAP would only need 
to provide 7-8 million land titles nationwide, with a target 
completion date of 15-25 years. After recent MLUPC surveys, that 
estimate has almost doubled to a total of 14-15 million land titles 
required.  LMAP's goal is to have 30% of the private land in the 
country titled by 2015.  (COMMENT: Given that it's taken six years 
to reach about 8%, meeting that goal looks unlikely. END COMMENT.) 
 
REGISTRATION OF STATE LAND 
------------------------- 
 
¶6. (U) LMAP also has a mandate to classify and map all state public 
and state private land, which it has not yet completed.  This task 
is important for land management and planning, because there is a 
distinct difference between state public and state private land. 
 
PHNOM PENH 00000060  002 OF 004 
 
 
Per the law, state public land cannot be bought or sold, and it 
cannot be leased in an economic concession.  State private land can 
be leased under concessions, and individuals who can demonstrate 
more than five years of legal possession of state private land, 
beginning before 2001, can claim ownership rights to that land and 
petition the MLUPC for a title. 
 
¶7. (SBU) Because the locations, sizes, and borders of state land 
areas are still unclear, land disputes often involve debates about 
land classification.  Government officials at all levels use state 
land classification to justify development plans and evictions.  In 
one high-profile example, the Phnom Penh Municipal Government 
granted an economic concession to a company to fill and develop 
Boeung Kak Lake in central Phnom Penh.  Lawyers representing the 
communities that circle the lake (and face eviction) argued that the 
concession was illegal, as the land law defines lakes as state 
public properties. (NOTE: This argument also eroded the residents' 
possession claims to the area, since they could not petition for 
ownership of state public land.  END NOTE.) In response, the RGC 
issued a decree converting Boeung Kak from state public to state 
private land, making the concession legal. 
 
¶8. (U) The RGC and local governments can also grant social land 
concessions (SLCs) on state private land to provide poor citizens 
with land tenure and promote productivity on unused state land.  The 
World Bank, viewing SLCs as a tool for poverty alleviation, 
initiated a Land Allocation for Social and Economic Use program in 
July 2008.  The program works with the MLUPC and commune officials 
in three provinces to: 1) identify suitable land and beneficiaries 
for SLCs; and 2) strengthen the MLUPC's capacity for state land 
management.  The project's goals are to transfer land and support 
livelihood investments for 3,000 families by 2013. 
 
SPORADIC PRIVATE LAND TITLING - THE OFFICIAL PROCESS 
--------------------------------------------- ------ 
 
¶9. (U) Individuals who wish to have their private land titled before 
the LMAP process is completed can pay for a one-off, or "sporadic", 
registration.  According to the land law, the process for 
registering and titling a parcel of land is as follows: 
 
  a. The prospective owner applies for a land title 
     with their district land management office. 
  b. The district land management office issues a land 
     application receipt and sends a field officer to 
     demarcate the applicant's land. 
  c. The field officer gathers basic evidence 
     regarding the land's status from property records 
     and testimony from neighbors and commune leaders. 
  d. If there are no disputes during the demarcation 
     process, the district land office posts an 
     announcement of demarcation and title in a public 
     area for 30 days for comment. 
  e. If there are no objections to the acquisition, 
     the land office forwards the application and all 
     supporting documentation to the provincial and 
     central cadastral administrations. 
  f. If the provincial and central cadastral 
     administrations conclude that all documentation 
     is complete and correct, the NCA records the 
     parcel in the Land Register and issues a land 
     title. 
 
PRIVATE LAND TITLING - THE REALITY 
--------------------------------- 
 
¶10. (SBU) Despite having a documented, legal process for land 
titling since 2001, over 90% of Cambodians do not have titles to 
their properties.  NGO analysts, realtors, and attorneys instead 
describe a system of informal land sales and soft ownership. 
Approximately 10-20% of Cambodians have possession certificates 
issued by commune or district officials, but most are reliant on 
varying degrees of proof of possession, from voter records or land 
application receipts to neighbors' testimony. 
 
¶11. (SBU) Provincial and district land offices lack the technical 
capacity and manpower to properly follow the land law's guidelines, 
further hindering the registration process, according to Nhean So 
Munin, a national land law expert with the EU-funded Land Law 
Awareness Campaign.  District-level land officials have not all been 
trained or given the equipment to implement the land law's 
registration guidelines, he explained.  Unless a land owner is 
willing to pay for a qualified surveyor to properly map their land, 
district land offices fall back on pre-2001 registration procedures. 
 
 
¶12. (U) According to NGO analysts, individuals interested in 
registering a piece of land typically apply to their district land 
office for a possession certificate, which is a pre-2001 Land Law 
document.  The district land office then issues an application 
 
PHNOM PENH 00000060  003 OF 004 
 
 
receipt.  At this point, the process varies depending on the 
capacity of the district land office and the financial resources and 
persistence of the applicant. 
 
¶13. (SBU) If the applicant follows through with the possession 
certificate process, they work with the district land office to 
informally demarcate the property under consideration.  This is 
usually an estimated survey or sketch of the property.  In some 
districts there may be a notice of the registration and opportunity 
for public comment, but in many cases this step is skipped.  The 
district land office then gets the applicant's thumbprint and issues 
a possession certificate.  There is no interaction with provincial 
or national cadastral administrations in the process of issuing a 
possession certificate. 
 
FEES, TAXES ARE DISINCENTIVES TO TITLING 
--------------------------------------- 
 
¶14. (SBU) Po Eavkong, a Property Sales Manager with Cambodian firm 
Bonna Realty Group, told Poloff that the possession certificate 
process is followed to some extent even in more urban areas. 
Arranging for a commune chief to sign a possession certificate is 
cheaper and faster than working through a cadastral office, he said. 
 Processing fees for a soft title range from $200-$500, as opposed 
to hard titles, which carry cadastral fees of $800-$1,500 for 
demarcated property, regardless of size, or $1,500-$2,500 for 
property that has not yet been demarcated, depending on size. Po 
Eavkong estimated that about 60% of the properties in Phnom Penh 
have hard titles. 
 
¶15. (SBU) However, the costs for acquiring even a possession 
certificate can be beyond what rural Cambodians are able (or in many 
cases, willing) to pay.  In addition to the processing fees, the RGC 
imposes a 4% of land value tax for transfers and a 2% of land value 
tax for first-time registrations.  If the land is possessed but 
unused, there is a further 0.5% of land value tax per year (the RGC 
is trying to encourage development and use of land). Because of 
these costs, NGO land experts say that most individuals take their 
initial land application receipt as their proof of possession and 
fail to complete the steps required for a possession certificate. 
 
¶16. (SBU) NOTE: Given the lack of reliable data on plot sizes and 
prices, it is difficult to calculate the average tax a Cambodian 
land owner could incur.  Land values in Cambodia can vary greatly, 
depending on factors such as access to major roads and area 
development plans.  According to Bonna Realty Group, a hectare 
(about 2.5 acres) of land in remote rural areas can cost as low as 
$500, and in rural areas with better access and development plans, a 
hectare of land can cost up to $80,000.  Based on the Cambodia 
Development Resource Institute's estimated average rural residential 
plot size (about 9,827 square feet), rural land owners could owe up 
to a one-time tax of $160 for first-time registrations or $320 for 
transferring land. The estimated 2008 GDP per capita in Cambodia is 
$625 (specific data for rural areas is not yet available), so land 
registration or transfer taxes could cost anywhere from a quarter to 
more than half of a rural Cambodian's annual income.  END NOTE. 
 
LAND TRANSFER 
------------ 
 
¶17. (SBU) Land transfers through sale, gift, exchange or succession 
must be recorded on the Land Register (and the 4% transfer tax must 
be paid) in order for new owners to be legally recognized.  Because 
the NCA has not yet registered most of the land in Cambodia, 
district land offices are responsible for tracking land transfers. 
But because many land owners in Cambodia fail to register their 
properties in the first place, land can change hands many times 
without this local legal paper trail. 
 
¶18. (SBU) Even when titles are available, buyers and sellers 
frequently fail to legally change the names on the titles.  For 
example, in 2007 the NGO Forum on Cambodia and the Cooperation 
Committee for Cambodia conducted a land titling study following 
LMAP's completion in Prey Nup District, Sihanoukville Municipality. 
Out of the 59 LMAP-titled plots that were bought and sold in 
May-June 2007, the owner of only one plot registered the transfer 
with the municipal cadastral office.  Hep Sokhannaro, a researcher 
with NGO Forum, said that many people either 1) don't understand 
that the title is specific to their name, and that a new title must 
be issued for each new owner of a piece of property; or 2) 
understand the correct process for transfers but don't want to pay 
the transfer tax.  Seng Thany acknowledged this issue and said that 
LMAP includes public awareness campaigns to explain the importance 
and function of land titles. 
 
DISPUTE RESOLUTION 
------------------ 
 
¶19. (SBU) When a dispute arises, there are three avenues for 
resolution:  1) local or district-level mediation; 2) provincial 
 
PHNOM PENH 00000060  004 OF 004 
 
 
cadastral office or NCA-level adjudication; or 3) adjudication 
through the courts.  However, the same resource and capacity 
constraints that restrict the land registration process also affect 
the NCA and its district offices' ability to resolve land disputes. 
For example, Seng Thany admitted that among the disputes that arise 
in LMAP, his office is only able to resolve about half of them. 
NGOs criticize the NCA for being unable to effectively mediate land 
disputes even in cases where there is a hard title and note that 
most cases are mediated by commune leaders or adjudicated by the 
courts. 
 
¶20. (SBU) In 2006, the RGC issued a royal decree establishing a 
National Authority for Land Dispute Resolution (NALDR) in response 
to the growing number of land disputes nationwide (Ref B).  The 
NALDR is headed by Deputy Prime Minister Sok An and is comprised of 
officials from ten different ministries and representatives of the 
Cambodian Development Council (CDC), Council of Ministers, and the 
National Assembly.  Daniel King, a volunteer lawyer with the 
Community Legal Education Center (CLEC), explained however that the 
NALDR has no guidelines by which to mediate land disputes, and the 
line between its jurisdiction versus the NCA's is unclear. 
 
LAND DISPUTE CASES AND THE COURTS 
-------------------------------- 
 
¶21. (SBU) Hard titles represent the strongest legal evidence of land 
ownership, but they can sometimes be disputed in court cases.  There 
are no available statistics on the number of cases where land titles 
could not serve as definitive proof of ownership, but independent 
court monitors, lawyers, and NGOs consistently describe instances 
where hard titles are questioned by judges.  Land law expert Nhean 
So Munin noted that judges sometimes cannot treat titles as concrete 
proof of ownership because of the frequency of unregistered land 
transfers and the resulting discrepancies in cadastral 
administration records. 
 
¶22. (SBU) Chou Vineath, a court monitor with the Center for Social 
Development, said that in some disputes involving one or more 
wealthy parties, judges have to work closely with the cadastral 
administration to sort through multiple hard titles to a property, 
some of which are bought or forged. NGO Forum representatives and 
lawyers with CLEC agreed and added that the party with the most 
money typically receives a more favorable judgment, because they can 
afford to gather and produce more possession evidence.  In other 
cases, one or more of the parties cannot afford private legal 
counsel, preventing them from effectively defending their land 
claims. 
 
COMMENT 
------ 
 
¶23. (SBU) Despite the gaps in the land titling process, most average 
Cambodians could currently provide enough evidence to defend their 
land possession claims if challenged by their peers. But possession 
claims that are good enough for now will steadily lose their worth 
as land values climb and wealthy or influential speculators encroach 
more on rural and/or poor communities, as we already see in many of 
the current high-profile land disputes. (NOTE: The next report in 
this series will focus on economic land concessions and urban 
development. END NOTE.)  Until the NCA can operate in its intended 
capacity as the owner of the National Land Register, and if the 
trend of undocumented land transfers continues, the number of land 
disputes and Cambodians at risk of losing their land through 
non-transparent processes will continue to rise.  Land grabbing may 
be a part of the Cambodian political landscape for some time to 
come, leading to increased social tension. 
 
 
RODLEY