DLR ADMINISTRATIVE ORDER
NO. 05
SERIES OF 2000
SUBJECT: REVISED
RULES AND PROCEDURES FOR THE EXERCISE OF RETENTION RIGHT BY LANDOWNERS
Pursuant to Presidential
Decree (PD) No. 27, Section 6 of Republic Act (RA) No. 6657, and in view
of the Supreme Court’s ruling in Association of Small Landowners in the
Philippines, Inc. vs. The Honorable Secretary of Agrarian Reform (G.D. No.
78742, 14 July 1989), the rules and procedures governing the exercise
of retention rights under PD 27 and RA 6657 by landowners are hereby revised
as follows:
ARTICLE I
PRELIMINARY PROVISIONS
SECTION 1. Coverage - These rules and procedures shall apply to all applications for
retention under PD 27 and RA 6657.
SECTION 2. Statement of Policies - The exercise
of retention right by landowners shall be governed by the following policies:
(a) The landowner has the right to choose the area to be retained by him which shall
be compact and contiguous, and which shall at least prejudicial to the entire
landholding and the majority of the farmers therein.
(b) The landowner has the obligation to cultivate the land directly or through labor
administration and thereby make the area he retains productive.
(c) In
all cases, all rights previously acquired by the tenant-farmers under PD
27 and the security of tenure of the farmers or farmworkers on the land
prior to the approval of RA 6657 shall be respected. Furthermore, actual
tenant-farmers in the landholding shall not be ejected or removed therefrom.
(d) The sale, disposition, lease or transfer of private lands by the original landowner
in violation of RA 6657 shall be null and void. Transactions executed prior
to RA 6657 shall be valid only when registered with the Register of Deeds
within a period of three (3) months after 15 June 1988 in accordance with
Section 6 of RA 6657.
ARTICLE II
EXERCISE OF RETENTION RIGHT
SECTION 3. Who May Apply for Retention - (a) Any
person, natural or juridical, who owns agricultural lands with an aggregate
area of more than five (5) hectares may apply for a retention area using
Retention Form No. 1. However, a landowner who exercised his right of
retention under PD 27 may no longer exercise the same right under RA 6657.
Should he opt to retain five (5) hectares in his other agricultural lands,
the seven (7) hectares previously retained by him shall be immediately placed
under CARP coverage.
(a) A landowner who owns five (5) hectares or less, or lands which are not yet
subject of coverage based on the schedule of implementation provided in
Section 7 of RA 6657, may also file an application for retention and a Certificate
of Retention issued in his favor.
(b) The right of retention of a deceased landowner may be exercised by his heirs
provided that the decedent landowner must have manifested during his lifetime
his intention to exercise his right of retention prior to 23 August 1990
(the finality of the Supreme Court ruling in the case of Association
of Small Landowners in the Philippines, Inc. vs. The Honorable Secretary
of Agrarian Reform) to allow his heirs to now exercise such right under
these Rules. The heirs must show proof of the original landowner’s intention.
The may also exercise the original landowner’s right of retention if they
can prove that the decedent had no knowledge of the OLT coverage over the
subject property.
SECTION 4. Period to Exercise Right of Retention
- Under the Compulsory Acquisition (CA) scheme, the landowner shall exercise
his right of retention within sixty (60) days from receipt of the Notice
of Coverage;
Under the Voluntary Officer to Sell (VOS) scheme, the right of retention
shall be exercised at the time the land is offered for sale. The offer
should specify and segregate the portion covered by (V0S) and the portion
applied for retention; otherwise, the landowner waives his right of retention
over the subject property.
SECTION 5. Failure to Exercise Right of Retention Within
Specified Period - Failure of the landowner to exercise his right
of retention within the period specified in the next preceding section shall
mean that the landowner waives his right to choose which area to retain.
Thereafter, the Municipal Agrarian Reform Officer (MARO) shall designate
the retained area for the landowner.
If the landowner disagrees with the area selected for retention,
he may file his protest with the MARO pursuant to the Rules of Procedures
for Agrarian Reform Law Implementation (ALI) Cases.
SECTION 6. Where to File Application - Any duly
completed application for retention may be filed with any of the following:
the Bureau of Land Acquisition and Distribution (BLAD), The Regional Director
(RD), the Provincial Agrarian reform Officer (PARO), and the Municipal Agrarian
Reform Officer (MARO). If the application is filed with an office other
than the MARO, the receiving office shall forward the application to the
MARO with jurisdiction over the landholding.
SECTION 7. Waiver of the Right of Retention -
A landowner is deemed to have waived his right of retention over a parcel
of land by any of the following acts:
(a) Executing
an affidavit, letter or any other document duly attested to by the MARO,
PARO, or RD indicating that he is expressly waiving his retention right
over the subject landholding;
(b) Signing
of the Landowner-Tenant Production Agreement and Farmer’s Undertaking (LTPA-FU)
or Application to Purchase and Farmer’s Undertaking (APFU) covering subject
property;
(c) Entering
into a Voluntary Land Transfer/Direct Payment Scheme (VLT-DPS) agreement
as evidenced by a Deed of Transfer over the subject property;
(d) Offering
the subject landholding under VOS scheme and failure to indicate his retained
area;
(e) Signing/submission
of the other documents indicating consent to have the entire property covered,
such as the form letter of the Land Bank of the Philippines (LBP) on the
disposition of the cash and bond portions of a land transfer claim for payment,
and the Deed of Assignment, warranties and undertaking executed in favor
of the LBP;
(f) Performing acts which constitute estoppel
by laches. Estoppel by laches, in a general sense, is the failure
or neglect for an unreasonable or unexplained length of time to do that
which, by exercising due diligence, could or should have been done earlier
warranting a presumption that he has abandoned his right or declined to
assert it (Madeja vs. Pacho, 132 SCRA 540 (1984). The elements of laches
are: (1) conduct of the defendant which gives rise to a cause of action
for which the plaintiff can seek a remedy; (2) delay in asserting the right,
complainant being aware of defendant’s conduct and having the opportunity
to institute a suit; (3); lack of knowledge on the part of defendant that
complainant would assert the right on which he bases his suit; ;and (4)
injury or prejudice to defendant in the event relief is accorded to the
complainant, or the suit is not barred (Chacon vs. Court of Appeals, G.R.
No. 46418-19,29 September 1983); and
(g) Doing
such act or acts as would amount to a valid waiver in accordance with applicable
laws and jurisprudence.
ARTICLE
III
AWARD OF RETENTION AREA
SECTION 8. Criteria/Requirements for Award of Retention
- The following are the criteria in the grant of retention area to landowners:
(a) The
land is a private agricultural land;
(b) The
area chosen for retention shall be compact and contiguous and shall be least
prejudicial to the entire landholding and the majority of the farmers therein;
(c) The
landowner must execute an affidavit as to the aggregate area of his landholding;
and
(d) The
landowner must submit a list of his children who are fifteen (15) years
old or over as of 15 June 1988 and who have been actually cultivating or
directly managing the farm since 15 June 1988;
SECTION 9. Retention
Area - The area allowed to be retained by the landowner shall be
as follows:
(a) Landowners
covered by PD are entitled to retain seven (7) hectares, except those whose
entire tenanted rice and corn lands are subject of acquisition and distribution
under OLT. An owner of tenanted rice and corn lands may not retain those
land under the following, cases:
1) If he, as of 21 October 1972, owned more than twenty - four
(24) hectares of tenanted rice and corn lands; or
2) By virtue of Letter of Instruction (LOT) No. 474, if he, as of 21 October 1972,
owned less than twenty-four (24) hectares of tenanted rice and corn lands
by additionally owned the following:
i. Other
agricultural lands of more than seven (7) hectares, whether tenanted on
not, whether cultivated or not, and regardless of the income derived therefrom,
of
ii. Lands
used for residential, commercial, industrial or other urban purposes from
which he derives adequate income to support himself and his family.
(b) Landowners
affected by PD 27 who filed their applications for retention before 27 August
1985, the deadline set by DAR Administrative order No. 1, Series of 1985,
may retain not more than seven (7) hectares of their landholding regardless
of whether or not they complied with LOT No. 41,45 and 52;
(c) Also
entitled to such seven - hectare retention area are landowners who filed
their application after 27 August 1985 but complied with LOT No. 41, 45
and 52 which provided for the submission of sworn statements containing
the following information:
1.
List of agricultural lands owned by him throughout the country,
indicating therein the area and location of each parcel;
2.
Principal crops to which each parcel of land is devoted. For those area devoted primarily
to rice the/or corn, the landowners shall indicate (i) the portions actually
cultivated by tenants; (ii) the names of such tenants; land (iii) the area
tilled by each tenant as of 21 October 1972; and
3.
The average gross harvest of each tenant (on rice/corn parcel of land) during
the three (3) crop years immediately preceding 21 October 1972; and
4.
Liens and/or encumbrances, if any, the amounts thereof, land the names and addresses
of the parties who have liens and/or encumbrances over such properties as
of 21 October 1972.
(d) Landowners
who filed their applications after the 27 August 1985 deadline and did not
comply with LOT No., 41, 45 and 52 shall only be entitled to a maximum of
five (5) hectares as retention area. Landowners who failed to qualify to
retain under paragraph (a) of this Section also be allowed to retain a maximum
of five (5) hectares in accordance with RA 6657.
(e) A
landowner whose landholdings are covered under CARP may retain an area of
not more than five (5) hectares thereof. In addition, each of his children
whether legitimate, illegitimate, or legally adopted, may be awarded an
area of not more than three (3) hectares provided that the child is at least
fifteen (15) years old as of 15 June 1988 and that he is actually tilling
the land or directly managing the farmholding from 15 June 1988 up to the
filing of the application for retention and/or the time of the acquisition
of the landholding under CARP.
(f) The
original homestead grantees or their direct compulsory heirs who still own
the original homestead at the time of the approval of RA 6657 may retain
the same area as long as they continue to cultivate the said homestead.
(g) For
marriages covered by the New Civil Code, in the absence of an agreement
for the judicial separation of property, spouses who own only conjugal properties
may retain a total of not more than five (5) hectares of such properties.
However, if either or both of them are landowners ion their own respective
rights (capital and/or paraphernal), they may retain not more than five
(5) hectares of their respective landholdings. In no case, however, shall
the total retention of such couple exceed ten (10) hectares.
(h) For
marriages covered by the Family Code, which took effect on 3 August 1988,
a husband owning capital property and / or a wife owning paraphernal property
may retain not more than five (5) hectares each provided they executed a
judicial separation of properties prior to entering into the marriage.
In the absence of such an agreement, all properties (capital, paraphernal
land conjugal) shall be considered to be held in absolute community, i.e.,
the ownership relationship is one, and, therefore, only a total of five
(5) hectares may be retained.
ARTICLE IV
EFFECTS
OF THE EXERCISE OF RETENTION RIGHT
SECTION 10. When Retained Area is Tenanted - (a) in case the area selected
by the landowner or awarded for retention by the DAR is tenanted, the tenant
shall have the option to choose whether to remain therein as lessee or be
a beneficiary in the same or another agricultural land with similar or comparable
features.
(b) In
case the tenant declines to enter into leasehold and there is no available
land to transfer, or if there is, the tenant refuses the same, he may choose
to be paid disturbance compensation by the landowner in such amount as maybe
agreed between the parties taking into consideration the improvements made
on the land. However, in no case shall be agreed amount be less than five
(5) times the average of the gross harvests on their landholding during
the last five (5) preceding calendar years pursuant to Section 36 of RA
3844, as amended by Section 7 of RA 6389. If the parties fail to agree
on the amount of disturbance compensation, either party may file a petition
for fixing of disturbance compensation with the appropriate Provincial Agrarian
Adjudicator (PARAD). In the latter case, the petitioner must show proof
that earnest efforts were exerted by the parties to fix the amount of disturbance
compensation, which efforts proved unsuccessful, before the same was filed
with the PARAD. The tenant shall not be dispossessed or ejected from the
landholding unless disturbance compensation is paid and proof thereof is
submitted to the MARO.
(c) The
tenant must exercise his option within one (1) year from the time the landowner
manifests his choice of the area for retention, or from the time the MARO
has chosen the area to be retained by the landowner or from the time an
order is issued granting the retention.
(d) In case the tenant chooses to remain in the retained area, he shall be considered
a leaseholder and shall lose his right to be an agrarian reformed beneficiary
(ARB) under CARP. In this case, the required lease agreement shall be
executed in accordance with DAR Administrative Order (AO) No. 5, Series
of 1993, entitled "Agricultural Leasehold and the Determination of Lease
Rental for Tenanted Lands", and other relevant issuances on the matter.
(e) The
provisions of preemption and redemption under RA 3844, as amended, shall
apply to the lessee.
SECTION 11. Where
Retained Area is Covered by CLTs, CLOAs or EPs - (a) Where Certificates
of Land Transfer (CLT), Emancipation Patents (Eps ) or Certificates of Land
Ownership Award (CLOAs) have already been issued on the land chosen by the
landowner as retention area, the DAR shall immediately inform the ARBs concerned
and provide them the opportunity to contest the landowner’s claim. Moreover,
the DAR shall ensure that the affected ARBs, should if hey so desire, be
given priority in the distribution of other lands of the landowner or other
lands identified by the DAR for redistribution subject to the rights of
those already in the area. The affected ARBs may choose to avail of the
options provided in the immediately preceding section. The beneficiaries
shall exercise said option within one (1) year from the time the CLTs, Eps
or CLOAs are cancelled.
(b) In
order to prevent or monimize the dislocation of ARBs who have been issued
with CLTs, EPs, CLOAs, a landowner who owns other lands other than rice
and corn shall, in as much as possible, be persuaded to select the area
to be retained from those other lands which have yet to be awarded to beneficiaries.
SECTION 12.
Reimbursement of Amortizations - In cases where CLTs, FPs or CLOAs
are cancelled as a result of the landowner’s exercise of his right of retention,
all amortizations paid by the FBs shall be fully reimbursed to them in addition
to those benefits or rights which are accorded to holders in good faith
under the New Civil Code.
ARTICLE
V
OPERATING PROCEDURES
SECTION 13.
Responsibilities of the MARO - In the processing of applications
for retention, the MARO shall have the following responsibilities:
(a)
Issued a Notice of Coverage informing the landowner that his landholding
is subject of acquisition under CARP; that he may exercise his right of
retention over his properties; and that his qualified children may be awarded
not more than three (3) hectares each. Likewise, th MARO shall receive the
application for retention of landowners who have not yet exercised their
right of retention under PD 27;
(b)
Determine whether or not the original homestead grantees o their
direct compulsory heirs still own and actually cultivate the homestead land;
(c)
Conduct field verification and investigation, together with the landowner
or his authorized representative, to determine the following:
1.
Landholding of the landowner in relation to his application for
retention;
2.
Qualifications of the applicants and their children as their compulsory
heirs;
3.
Tenants, farmworkers and/or actual occupants within subject landholding;
and
4.
Other factors relevant to the application for retention.
(d) Invite
all concerned parties to a conference/dialogue regarding said application
for retention (Retention Form No. 3);
(e) Identify
and facilitate the necessary land transfer for tenants opting to be beneficiaries
in another landholding of the same landowner with similar or comparable
features;
(f) Identify
the tenants opting to be leaseholders and facilitate the execution of the
corresponding leasehold contracts;
(g) Facilitate
the negotiations between the tenants/beneficiaries in the determinations
opt to accept the same from the landowner;
(h)
Prepare a sketch plan of the area to be retained by the landowner in coordination
with the Land Management Bureau (LMB) of the Department of Environment and
Natural Resources (DENR);
(i)
Prepare a Retention Folder indicating therein his findings and recommendations and
submit the same of the PARO);
(j)
Identify prime agricultural areas owned by landowners who waived their right
to choose which area to retain or those who waived their right to exercise
the right of retention using the following factors:
1.
Commodity produced;
2.
Terrain;
3.
Infrastructure available; and
<4.
Soil fertility
(k) Notify
the landowner, through personal service with proof of receipt or by registered
mail with return card, the portion selected as his retention area upon failure
of the landowner to exercise his right of retention within the period specified
in these Rules.
SECTION 14.
Responsibilities of the PARO - The PARO, on the other hand,
shall have the following responsibilities:
(a) Review
and evaluate the report and recommendations submitted by the MARO;
(b) If
the Retention Folder is in order, forward the same, together with his findings
and recommendations, to the Regional Director (RD) for appropriate action.
Otherwise, return the same to the MARO for appropriate action;
SECTION 19. Separability Clause - In the event that any of the provisions
of this Order is declared unconstitutional, the validity of the other provisions
shall not be affected by said declaration.
SECTION 20. Effectivity - This Order shall
take effect ten (10) days after its publication in two (2) national newspapers
of general circulation.
Diliman, Quezon
City, August 30, 2000.
(Sgd.)
HORACIO R. MORALES JR.
Secretary
Published in two (2) national newspapers of general
circulation:
1. THE MANILA
BULLETIN
2. THE SUNSTAR
Date of Publication
- September 7, 2000.
Page Selection
Article I
Article II
Article III
Article IV
Article V
Copyright DAR Region VII, Regional Office©2005