October 18, 2002

DAR OPINION NO. 24-02

MEMORANDUM

TO                :     Director Homer P. Tobias
                          DAR Regional Office No. XI
                          Quimpo Avenue, Ecoland, Davao City

SUBJECT    :     Whether Or Not The Heirs Of Landowners Who Died  After 15 June 1988, Effectivity Of R.A. No. 6657 (Comprehensive Agrarian Reform Law), Are Entitled To 5-Hectare Retention Each

This refers to your memorandum-letter dated 16 July 2002, requesting for a legal opinion particularly on Item No. 1 of the Memorandum dated 28 February 2000 of then DAR Region XI Director Rodolfo T. Inson re: Policy Agenda for Year 2000. Item No. I of said memorandum inquires, quote:

"1.     Are the heirs of the landowners who died after June 15, 1988, entitled to 5-hectare retention each?

Our position is that only registered owners as of the effectivity of CARP are entitled to 5-hectare retention. In cases of landowner's death after June 15, 1988, the heirs shall divide the proceeds of the land covered by CARP in accordance with the law on succession.

However, in some cases, after the death of the landowners (after June 15, 1988) the heirs executed Deed of Extra-Judicial Settlement of Estate, have this registered even without DAR Clearance and eventually titles were issued among the heirs individually.   CaAIES

Another view is for lands whose owners who died after June 15, 1988, the coverability of his landholdings in accordance with Section 7 of R.A. No. 6657 should be duly considered. For instance, if the landowner died in 1992 leaving an aggregate area of 20 hectares, the estate should be settled among the heirs considering that the land is coverable under CARP only in 1994 following the provision of priorities."

Sections 6 (1st and 4th paragraphs) and 73 (a) of R.A. No. 6657 pertinently provide:

A.         Paragraphs 1 and 4, Section 6, R.A. No. 6657

" . . . in no case shall retention by the landowner exceed five (5) hectares.

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 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)

In relation to the aforequoted provisions of law, a policy was already laid by the Department as declared in page 27 of the Handbook for CARP Implementors, quote:

"xxx                      xxx                      xxx

Note, however, that if the parents died after 15 June 1988, the land may be entirely acquired and distributed if the children are neither actual tillers or direct farm managers. If they are, they will each be entitled to an award of three (3) hectares. Otherwise, they will only be entitled to the compensation for the land. But the land will be acquired and distributed under CARP. Moreover, the DAR and the ROD will no longer allow the partition of the property except in favor of the qualified-beneficiaries. This is in line with the fact that as of 15 June 1988, by operation of the law, all lands in excess of the retention limit are already covered by CARP." (emphasis supplied)   SAcaDE

It is clear from the aforecited provisions of law and policy pronouncement that in no case shall the retention limit or landownership ceiling of a landowner exceed five (5) hectares upon the effectivity of R.A. No. 6657 (Comprehensive Agrarian Reform Law) on 15 June 1988. Any agricultural landholding in excess thereof shall perforce, by operation of law, be acquired and distributed to qualified agrarian reform beneficiaries except only if the children of the landowner are qualified beneficiaries or awardees.

It is also worthy to note that pursuant to Item II.C.1 of DAR Administrative Order No. 1, series of 1989 (Rules and Procedures Governing Land Transactions), what is considered as not a prohibited transaction (necessitating no prior clearance from DAR before registration) is a Deed of Extra judicial Partition of the property of a deceased who died prior to June 15, 1988. Thus, conversely, we could infer that a Deed of Extra-judicial Partition of the property of the deceased insofar as the excess of his/her 5-hectare retention limit or landownership ceiling is concerned, who died after June 15, 1988, is a prohibited transaction precisely because said agricultural landholdings are, by operation of law, immediately put under the coverage of CARP upon the effectivity of R.A. No. 6657 on 15 June 1988. His/her heirs will thus only be entitled to the compensation for the land. To hold otherwise would be violative of the provisions of Sections 6 and 73 (a) of R.A. No. 6657 that in no case should the retention limit or landownership ceiling of a landowner exceed five (5) hectares.

We hope to have clarified the matter.

(SGD.) VIRGILIO R. DE LOS REYES
Undersecretary for Policy, Planning and Legal Affairs Office