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Hastings International and Comparative Law Review

Abstract

Property law occupies center stage in the bilateral relations between the United States and Cuba. It represents an emotional flashpoint for foreign investors who lost property under the early years of Fidel Castro's government, and remains a concern for potential future investors, foreign and domestic. Cuban property law is a core concern today for broadly based, sustainable economic development for the Cuban people. Beginning in 1959, Cuba began a series of interventions in the land market designed to favor historically disadvantaged groups. Today, outstanding Cuban expropriations of U.S. property are valued at about $6 billion. This issue will need to be addressed as a precondition to normalization of relations.

The Cuban agrarian reform tracked the Mexican agrarian reform in many respects. It includes the "social function" rather than a market function for land. As in many other Latin American reforms, beneficiaries have limited ownership rights. Similarly, the Cuban authorities designed an urban market structure to benefit the poor, based on paternalistic assumptions. Property rights, both urban and rural, are documented at the Property Registry organized under the folio real system that exists in a number of other Latin American jurisdictions. The condition of property records in this registry may be a significant factor in any attempts to compensate former owners. More importantly, institutional confidence in the registry will be an economic precondition to development.

Finally, bilateral relations between the United States and Cuba are characterized by acrimony and hyperbole. International partners call on the United States to be more conciliatory. Meanwhile, the United States maintains a trade embargo in retaliation for confiscations of property, half of which correspond to ten U.S. claimants, two-thirds of which correspond to the largest fifteen U.S. claimants; most of this loss has been written off already, it is suspected, on U.S. taxes. Both nations need to address development and normalization from technical, rather than ideological perspectives. In the future, it is likely some measure of privatization will be required. Property registry and cadastral reform is urgent. Tenure policy will require close examination to encourage participation in the land market, promote access to housing, preserve the environment, and sustain broadly based economic growth.

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