Rethinking the Anticommons: Usufruct, Profit, and the Urban
From the Series: Temporary Possession
The lens of usufruct is a productive way through which to anthropologically examine experiences of fast rates of urban growth. Within cities, temporary access to land (by developers, construction companies, or governments) forms a nexus that transforms space from public to private and from municipal to corporate. This can begin to blur the boundaries between such dualities, giving rise to varying forms of public–private partnerships and pseudopublic urban spaces. In what follows, I explore the transformational nature of this nexus of usufruct through a discussion of Ulaanbaatar, Mongolia.
There are two land tenure regimes applied within Ulaanbaatar, one organized around ownership and another around use rights. The presence of temporary use rights to land, stemming from postsocialist pastoral land use, reveals an inherent legal flexibility of land tenure that has given rise to an elasticity of urban land (Verdery 1994). This flexibility has also been coopted by powerful networks and political elites in the drive for real-estate profit, a phenomenon also seen elsewhere in Asia (see Shatkin 2017). It also underscores the role of acts of owning and appropriation as fundamental ways in which “people assert and contest rights” (Busse and Strang 2011, 4). Examining this nexus allows a consideration of the interface between built urban forms and the rhythms and flows of material change in the context of growth. Here, usufruct can be a key driver in the commercialization of urban land.
Central to this is the issuing of building permits. Ulaanbaatar’s urban land tenure regimes hinge upon two legal categories: ömchlöl or ownership, and ezemshil or temporary possession rights. While these two distinct categories exist, in reality they often become blurred. Even someone who has an ömchlöl certificate needs to make concerted efforts to physically hold onto land. While ezemshil can ostensibly be transferred to full ownership rights, it can also become a form of longer-lasting ownership. Companies wishing to build apartments can acquire a temporary possession rights certificate (ezemshih erh gerchilgee) and can access a plot of land for five years in order to build a building. This legal mechanism has underpinned Ulaanbaatar’s recent boom in construction, during which this form of temporary possession has provided flexible access to begin building, often in ways that surpass the boundaries of existing land parcels or the conditions of permits. Its flexibility has also, conversely, enabled residents to take construction companies to court in order to have their possession rights canceled, in hopes of obtaining possession rights of the same parcels of land for themselves.
The flexibility that underpins such forms of urban usufruct provides an opportunity to rethink some aspects of the anthropology of urban land commercialization. Here, I take up Michael Heller’s (1998) discussion of the tragedy of the anticommons. The anticommons, Heller (1998, 624) argues, arises when there is too much privatized property, such that “multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use.” This, Carol Rose (2004, 289) argues, results in a “universal exclusion rights that prevent . . . use,” whereby “no one has clear control of the resource, and hence no one is encouraged to manage it prudently.”
While it could be said that there is a proliferation of atomized and contested private access to land for commercial gain in the building of apartment buildings in Ulaanbaatar, the political economy of urban development and the ways residents attempt to access land presents a different instantiation of the anticommons that may not be quite so tragic or exclusionary. Amid speculation about politicians’ involvements in private enterprises and a proliferation of ezemshil temporary possession rights underpinning corporate access as well as individual land claims, in Ulaanbaatar any land could potentially become coopted for private means. While this does indeed give rise to a proliferation of building that locks away land and potentially acts as an exclusionary device, it has also given rise to an environment where many people have successfully built apartment buildings or set up land plots. This porous environment of urban land access can work in counterintuitive ways. Recently, there has been an increase in citizens tweeting pictures of the incursion of new buildings and privatized sectioning-off of land into footpaths to the Ulaanbaatar mayoral office. In response, the municipality has been working in a kind of reactive regulatory capacity by bulldozing some of these incursions, which are seen by the public to block access.
Here, usufruct land access has given rise to states of usufruct expanding outward in reverberating ways that now include politically motivated reactive regulatory enforcement. This pervasive climate of the temporary has given rise not only to the coopting of land by the politically and economically powerful, but also to uneven forms of flexibility. Ulaanbaatar demonstrates the strong theoretical purchase of usufruct as a lens to look at the transformative potential of temporary access as it underpins other forms of urban development elsewhere in Asia. Understandings of temporally limited forms of land access, insofar as they drive processes of “runaway urbanism” (Shatkin 2017, 107), can expose critical forms of governance, power, and changing politics.
Busse, Mark, and Veronica Strang. 2011. “Introduction: Ownership and Appropriation.” In Ownership and Appropriation, edited by Veronica Strang and Mark Busse, 1–19. New York: Berg.
Heller, Michael A. 1998. “The Tragedy of the Anticommons: Property in the Transition from Marx to Markets.” Harvard Law Review 111, no. 3: 621–88.
Rose, Carol M. 2004. “Economic Claims and the Challenges of New Property.” In Property in Question: Value Transformation in the Global Economy, edited by Katherine Verdery and Caroline Humphrey, 275–95. New York: Berg.
Shatkin, Gavin. 2017. Cities for Profit: The Real Estate Turn in Asia’s Urban Politics. Ithaca, N.Y.: Cornell University Press.
Verdery, Katherine. 1994. “The Elasticity of Land: Problems of Property Restitution in Transylvania.” Slavic Review 53, no. 4: 1071–1109.