January 2, 1998

DAR OPINION NO. 02-98

Mr. Jaime C . Marquez

J.C. Marquez Architects and Consultants

Rm. 416 COMFOODS Bldg., G. Puyat Ave. Cor.

Pasong Tamo St., Makati City 1200

Dear Mr. Marquez:

This refers to your letter requesting clarification regarding the twenty (20) hectare coconut land located at Barangay Cabolutan, San Agustin, Romblon. As one of the owners thereof, you wish to be clarified on the following:

1.         Can the children of the deceased tenants claim tenancy rights even if they have not been personally and continuously present in the agricultural land as legitimate tenants for almost 20 years prior to the death of their parents?

2.         Can the owners of the agricultural land suspend activities in the production of copra-making operations, and in effect suspend the profit-sharing arrangement between the owner and the tenant?

In reply to your first query, quoted hereunder is the pertinent provision of Republic Act No. 3844 as amended (Agrarian Reform Code):

"Sec. 9.         Agricultural Leasehold Relation Not Extinguished by Death or Incapacity of the Parties. — In case of death or permanent incapacity of the agricultural lessee to work his landholding, the leasehold shall continue between the agricultural lessor and the person who can cultivate the landholding personally, chosen by the agricultural lessor within one month from such death or permanent incapacity, from among the following: (a) the surviving spouse; (b) the eldest direct descendant by consanguinity; or (c) the next eldest descendant or descendants in the order of their age: Provided, That in case the death or permanent incapacity of the agricultural lessee occurs during the agricultural year, such choice shall be exercised at the end of that agricultural year: Provided, further, That in the event the agricultural lessor fails to exercise within the periods herein provided, the priority shall be in accordance with the order herein established."

Applying the aforequoted provision, it is clear that the agricultural leasehold relation between the lessor and the lessee is not extinguished by the death or permanent incapacity of the parties and mandates that the leasehold shall continue between the agricultural lessor and the person who can cultivate the landholding personally, chosen in accordance with the provisions of said Section. Otherwise stated, it is only in the absence of the persons enumerated under Section 9 to succeed the deceased lessee that the agricultural leasehold relation could be extinguished.

Since the land subject of your request is a coconut land personal cultivation is not necessarily required before a person can be considered a tenant. This is so in view of the Supreme Court decisions in the cases of Coconut Cooperative Marketing Association, Inc. vs. Court of Appeals, 164 SCRA 568, August 19, 1988; and Wenceslao Hernandez vs. Hon. Intermediate Appellate Court et al., 189 SCRA 758, September 21, 1990, to quote: "Cultivation is not limited to the plowing and harrowing of the land, but also husbanding of the ground to forward the products of the earth by general industry, the taking care of the land and fruits growing thereon, fencing of certain areas, and the clearing thereof by gathering dried leaves and cutting of grasses. In coconut lands, cultivation includes the clearing of the landholding, the gathering of coconuts, their piling, husking and handling, as well as the processing thereof into copra, although at times with the aid of hired laborers". Simply stated, although the children of the deceased tenants are allegedly not present in the landholding for some years, they may still be considered tenants by virtues of succession (in the tenancy), provided that any of the above instances shall be observed, which includes further the periodic cleaning of the coconut plantation to improve its production (DAR A.O. No. 9, Series of 1991).

Anent your second query, the answer is in the negative. Any existing Production/Profit Sharing once granted by the employer shall remain to be in force and cannot be unilaterally suspended without the approval of the Department of Agrarian Reform. Section 2 of R.A. No. 6657 (otherwise known as the Comprehensive Agrarian Reform Law or CARL) is founded on the right of the farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till, or in the case of other farmworkers, to receive a just share of the fruits thereof. This production and profit sharing plan is in pursuit of this avowed principle of agrarian reform and is in pursuit of this avowed principle of agrarian reform and is mandated under Sections 13 and 32 of R.A. No. 6657 in order that farmworkers can realize an improvement in their farm income.

Thank you for communicating with us and we hope to have enlightened you on the matter.

Very truly yours,

(SGD.) ARTEMIO A. ADASA, JR.

Undersecretary for Legal Affairs, and Policy and Planning