October 14, 2003
DAR OPINION NO. 21-03
Atty. Nevino R. Cardente
OIC Regional Director and ARDA
DAR Regional Office No. VII
Escano St., Cebu City
Dear Atty. Cardente:
This refers to your letter dated 26 August 2003, requesting for legal opinion regarding DAR Administrative Order No. 1, Series of 1989 (Rules and Procedures Governing Land Transactions), and, on Transferability of Awarded Lands particularly on the following queries, to wit: SHTcDE
"1. Based on the facts presented where the relationship of the transferor and transferee became strained, can we dispense with the requirement of Affidavit of Transferor if it can be shown based on records of DAR that the area subject of sale is the retained area of the Vendor/Transferor?
2. Can the Regional Director issue the DAR clearance if the applicant brings the case to the Regional Office as an appeal?
3. In cases of transferability of awarded lands, the Supreme Court in Corpus vs. Grospe, it held that the sale, transfer or conveyance of land reform rights are, as a rule, void. This case involved lands covered by P.D. 27. Our query is that, is it applicable in cases of CARP-covered lands in the light of Section No. 27 of R.A. No. 6657?"
You stated that V.A. Cabahug, Inc. is a family corporation which owned agricultural lands in Tuburan, Cebu with an area of 182 hectares, that its property was placed under CARP and they applied for a five (5) hectare retention; that in 1994, V.A. Cabahug sold 28 hectares of agricultural land to Sto. Niño Agro Industrial Corporation through a Deed of Sale executed by the President of the former corporation; that Sto. Niño Corporation is another corporation where the president of V.A. Cabahug Corporation is one of its incorporators; that when application for DAR Clearance of Sto. Niño reached the DAR Provincial Office, Cebu Province, the same lacks the Affidavit of Transferor as required by A.O. No. 1, Series of 1989; that when called to comment on such lacking requirement, the applicant contended that the officers involved in the sale are no longer living and the present officers of the Vendor Corporation are not in good terms with the officers of the Vendee Corporation; that the Vendee Corporation sought the advice of the Chief of the Legal Division of DARPO-Cebu who made her own personal view to the applicant to exhaust efforts in producing the required document and if still in vain, to execute an affidavit stating the circumstances why they cannot get the Affidavit of the Transferor from the vendee corporation; that although she did not make an assurance that said affidavit of strained relationship is already sufficient to present in the application in lieu of the Affidavit of Transferor, the vendee corporation relied solely to that advice after failing to secure the Affidavit of Transferor that after submitting the aforementioned affidavit, they are now insisting for the issuance of DAR Clearance for the five (5) hectare retention area; that the same was denied by the PARO of Cebu on the ground that the sale was void as the transaction involved more than five (5) hectares; that the applicant was only asking for the DAR Clearance of the five hectares which is the retained area of the vendor corporation and which is the subject of the sale to the vendee corporation; that the excess of the five hectares is already covered by the Program and issued with a CLOA including the other areas; and that a special civil action of Mandamus with Damages was filed against said PARO to compel her to issue the DAR Clearance.
Anent you first query, pertinent are the provisions of R.A. No. 6657 and other related guidelines:
A. Paragraphs 1 and 4, Section 6, R.A. No. 6657
". . . . In no case shall retention by the landowner exceed five (5) hectares . . . . (emphasis supplied)
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Upon the effectivity of this Act, any sale, disposition, lease, management contract or transfer of possession of private lands executed by the original landowner in violation of this Act shall be null and void. . . ." (emphasis supplied)
B. Section 70, R.A. No. 6657
"SECTION 70. Disposition of Private Agricultural lands. — The sale or disposition of agricultural lands retained by a landowner as a consequence of Section 6 hereof shall be valid as long as the total landholdings that shall be owned by the transferee thereof inclusive of the land to be acquired shall not exceed the landholding ceiling provided in this Act.
Any sale or disposition of agricultural lands after the effectivity of this Act found to be contrary to the provisions hereof shall be null and void." (emphasis supplied)
C. Section 73 (a), R.A. No. 6657
"SECTION 73. Prohibited Acts and Omissions. — The following are prohibited:
(a) The ownership or possession, for the purpose of circumventing the provisions of this Act, of agricultural lands in excess of the total retention limits or award ceilings by any person, natural or juridical, except those under collective ownership by farmer-beneficiaries." (emphasis supplied)
D. Item II.2.a of DAR Administrative Order No. 1, series of 1989 (Rules and Procedures Governing Land Transactions) CAIHaE
"2. The following transactions are not valid:
a) Sale, disposition, lease, management contract or transfer of possession of private lands executed by the original landowner prior to June 15, 1988, which are not registered on or before September 13, 1988, or those executed after June 15, 1988, covering an area in excess of the five-hectare retention limit in violation of R.A. 6657." (emphasis supplied)
E. Item III.1.c and d of DAR Administrative Order No. 1, Series of 1989
"III. OPERATING PROCEDURES
In the issuance of clearance required under these rules, the following procedures shall be followed:
1. A written request shall be filed by the applicant with the Municipal Agrarian Reform Office (MARO) having territorial jurisdiction over the subject land, attaching thereto the following documents:
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c) Affidavit of transferee that he/she and spouse have a total landholding inclusive of the land to be acquired of not more than five (5) hectares if he/she is a non-beneficiary and three (3) hectares if beneficiary. Copy of the affidavit shall be furnished the BARC with proof of service indicated or attached to the copy for the Register of Deeds.
d) Affidavit of transferor stating that the land subject of deed is a retention or portion of the retention area." (emphasis supplied)
In view of the aforequoted express provisions of law, rules and regulations, it is our considered opinion that to preclude possible circumventions/violations thereof, and in order not to set a bad/dangerous precedent, we have to abide by said provisions of law and guidelines. Thus, the requirement of the Affidavit of Transferor as well as the Affidavit of the Transferee pursuant to DAR Administrative Order No. 1, Series of 1989 should not be dispensed with.
Referring to your second query, worthy to note, in addition/relation to the aforequoted provisions, is Item III.4 of DAR Administrative Order No. 1, Series of 1989, quote:
"III. OPERATING PROCEDURES
In the issuance of clearance required under these rules, the following procedures shall be followed:
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4. The PARO shall examine the request and all the attached documents. If in order, to issue a clearance for the registrants of the subjected deed." (emphasis supplied)
It is explicit from the immediately aforequoted provision of said guideline that it is the PARO who is authorized to issue the DAR Clearance. It is worthy to note, moreover, that no appeal process to the DAR Regional Director was provided therein. The Regional Director may not, therefore, issue a DAR Clearance in case the applicant brings the case to the Regional Office on appeal.
Concerning your third query, pertinent are the provisions of Republic Act No. 6657 (Comprehensive Agrarian Reform Law), particularly Sections 73 (f) and 27 thereof:
"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. . . .
If the land has not yet been fully paid by the beneficiary, the rights to the lands may be transferred or conveyed, with prior approval of the DAR to any heir of the beneficiary or to any other beneficiary who as a condition for such transfer or conveyance, shall cultivate the land himself. . . ." (emphasis supplied)
"SECTION 73. Prohibited Acts and Omissions. — The following are prohibited:
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f) The sale, transfer or conveyance by a beneficiary of the right to use or any other usufructuary right over the land he acquired by virtue of being a beneficiary, in order to circumvent the provisions of this Act." (emphasis supplied) CHDTIS
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The conditions, restrictions, and/or prohibitions in the aforequoted provisions of law and the provisions of DAR Administrative Order No. 8, Series of 1993 [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] shall apply and should be observed.
We are furnishing you a copy of DAR Opinion No. 09, series of 2003 for your further information and guidance.
This opinion is rendered on the basis of the facts presented. However, if upon investigation it will be disclosed that the facts are different, then this opinion shall be considered null and void.
We hope to have clarified the matters and please be guided accordingly.
Very truly yours,
(SGD.) RICARDO S. ARLANZA
Undersecretary for Policy, Planning and
Legal Affairs Office