Tragedy of the anticommons (TOA) in agricultural land partition involving fragmented co-proprietorships: an analysis of Malaysian case laws

Abstract

There is a lack of understanding of the theory of the Tragedy of the Anticommons (ToA), a type of coordination breakdown or a hold-out problem involving multiple fragmented co-proprietorships with undivided shares, in the land partition context. This paper, hence, discusses how ToA occurs particularly in the agricultural land partition that is primarily governed under the National Land Code 1965 and proposes potential legal and non-legal approaches and mechanisms to address the land tragedy. An abductive content analysis of (9) case laws extracted from the LexisNexis database was performed through which themes and codes were developed to explain how ToA hindering land partition takes place. Subsequently, judicial decisions in solving disputes arising from land partition and existing best practices in dealing with the tragedy were reviewed. The case laws review indicated that unsuccessful agricultural land partition associated with high transaction costs in securing co-proprietors consensus is a form of simultaneous ToA, that most of the unpartitioned land (anticommons) may be subject to underinvestment (land mismanagement) and disuse. Key factors leading to disagreement among co-proprietors and consequently ToA are as follows: (i) unequal (unfair) proportion or shares of land; (ii) uneven geographical partition and spatial distribution of government reserves; and (iii) potential damages and negative effects (e.g., loss of income and property). To address ToA, these are legal mechanisms proposed: statutory enforcement of the National Land Code (NLC) 1965 (via land forfeiture and reversion), the Land Acquisition Act (LAA) 1960 on compulsory land acquisition, and judicial decisions (e.g., land partitions may take place if it is fairly distributed and made by the majority shareholders), while non-legal approaches cover negotiation and arbitration; en-bloc sales (partition); collective action through enhanced social capital; and imposition of a tax on underutilised land. By showcasing various agricultural anticommons tragedies and their potential negative externalities in the land partition context, this paper offers policy and management insights that help land officers and local authorities ensure the maximum efficiency and productivity (i.e., highest and best use) of the land.