February 4, 2004
DAR OPINION NO. 04-04
Romeo O. Dela Torre
Municipal Mayor
Municipality of Sibagat
Agusan del Sur
Dear Mayor Dela Torre:
This refers to your letter dated 17 November 2003 addressed to DAR Secretary Roberto M. Pagdanganan, seeking to be enlightened on whether a Local Government Unit (LGU) is considered "government" by technical definition under Section 27 of Republic Act No. 6657 (Comprehensive Agrarian Reform Law).
You stated that the Local Government Unit of Sibagat has acquired parcels of land as resettlement sites for affected families in the clearing of the highway right of way; that the lots acquired are covered under the Comprehensive Agrarian Reform Program (CARP) and are within the ten (10) year prohibitory period; that for these reasons, the Provincial Office of DAR refused to issue clearance for transfer of ownership; that Section 27 of R.A. No. 6657 specifies four (4) eligible entities including the "government" with which transferability of awarded lands can be legally transacted; that in view of this, you would like to know if a "local government unit" — in this case, the Municipality of Sibagat, is considered "government" by technical definition under Section 27, as it would be rightful to seek appropriate clearance for the purpose.
Pertinent to your query are the following provisions of law, rules and regulations:
A. Section 27, R.A. No. 6657
"SECTION 27. Transferability of Awarded Lands. — Lands acquired by beneficiaries under this Act may not be sold, transferred or conveyed except through hereditary succession, or to the government, or to the LBP, or to other qualified beneficiaries for a period of ten (10) years." (emphasis supplied)
B. Item II.1.d of DAR Administrative Order No. 1, series of 1989 (Rules and Procedures Governing Land Transactions):
"1. The following transactions are valid:
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d. Those executed by beneficiaries covering lands acquired under any agrarian reform law in favor of the government, DAR, LBP or other qualified beneficiaries certified by DAR." (emphasis supplied)
C. DAR Administrative Order No. 08, series of 1995 (Rules and Procedures Governing the Transferability of Lands Awarded to agrarian Reform Beneficiaries (ARBs) Pursuant to Presidential Decree No. 27 as Amended by Executive Order No. 228 and Republic Act No. 6657], specifically, Item II.1, 2 and 3 thereof:
"1. Lands awarded to ARBs pursuant to either P.D. No. 27 or R.A. No. 6657 may be transferred and registered by the Register of Deeds only after the issuance of a DAR clearance.
2. It shall be understood that although the transfer of awarded land is allowed, the productivity of the subject land be maintained and any change in the nature of its use shall not be allowed except with the approval of the DAR under its rules on conversion or exemption.
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3. Transfer of awarded lands under P.D. No. 27, as amended by E.O. No. 228 and R.A. No. 6657 may be allowed, provided the following shall be observed:
a. that the productivity of the land shall be maintained;
b. that the buyer will not exceed the aggregate landowner ceiling provided by law; and
c. that the ownership ceiling of five (5) hectares shall be imposed." (emphasis supplied)
D. Province of Camarines Sur vs. Court of Appeals [222 SCRA 173 (1993)]
"Resolution No. 129, series of 1988, was promulgated pursuant to Section 9 of B.P. Blg. 337, Local Government Code, . . . Section 9 of B.P. Blg. 337 does not intimate in the least that local government units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by local government units to the control of the Department of Agrarian Reform.
At the outset, it bears noting that the issuance of a DAR clearance involving the disposition or transfer of agricultural lands coverable under the Comprehensive Agrarian Reform Program (CARP) merely signifies that the transaction is not in circumvention of the Comprehensive Agrarian Reform Law (CARL) and may therefore be registered. It is not synonymous with a DAR Conversion Order/Clearance which is issued only after determination on the merits of a duly filed application for conversion the effect of which is to change the current physical use of a piece of agricultural land into some other use.
Pursuant to the aforequoted provisions of Section 27 of R.A. No. 6657 in relation to Item II.1.d of DAR Administrative Order No. 1, Series of 1989, it is clear that the government (which includes LGUs) falls under the exceptions and should not be interpreted in the light of those falling under the 10-year prohibitory period. However, under the aforequoted provisions of DAR Administrative Order No. 08, Series of 1995, the transfer contemplated is that which will maintain the use of the land for agricultural production or purposes where the buyer should not exceed the aggregate landownership ceiling of five (5) hectares. This is to preclude possible violation and/or circumvention of agrarian laws, rules and regulations.
Thus, since the transfer of awarded lands to the government may be allowed provided the productivity of the land be maintained, and, considering that the transfer of said lands appears to be through a private transaction and not through expropriation, DAR land transfer clearance may be issued but only up to the maximum/aggregate 5-hectare landownership ceiling pursuant to Sections 6 and 73 (a) of R.A. No. 6657 and the abovequoted provisions of DAR Administrative Order No. 08, Series of 1995.
The ruling in Camarines Sur may not be applicable in the instant case since it appears that the subject land was not expropriated by the LGU but was acquired through a private transaction. Only agricultural lands expropriated by local government units (LGUs) pursuant to the power of eminent domain may no longer be the subject of DAR conversion clearance prior to change in use. Thus, an application for conversion and DAR conversion clearance shall still be required if said agricultural lands shall be converted into residential or housing.
On the other hand, should the subject lands be expropriated by the LGU rather than privately acquired, DAR conversion clearance may no longer be required pursuant to the said ruling in Camarines Sur.
Finally, it must be stressed that the rights and interests of CLOA or EP awardees and other farmworkers who may be displaced/affected in the process, if any, should in all cases be protected/safeguarded pursuant to existing laws, rules and regulations. Moreover, they should still be entitled as ARBs/awardees in other landholdings, if qualified.
We hope to have clarified the matter.
Very truly yours,
(SGD.) RICARDO S. ARLANZA
Undersecretary for Policy, Planning and Legal Affairs Office