July 3, 1997

DAR OPINION NO. 71-97

Mr. Erwin T . Daga

1308-A Gelinos St.

Sampaloc, Manila

Dear Mr. Daga:

This refers to your letter regarding a parcel of land allegedly owned by your mother Estefania T. Daga located in Palo, Leyte which according to you, was erroneously covered under CARP. In this connection, you now pose the following queries, to wit:

1)        Whether you still have the right to claim the subject property as the lawful owner and possessor; and

2)        What remedy should you avail in order to recover the possession and ownership of the subject property.

You state that on 21 July 1965, Mr. Simon T. Toboso sold to his sister, Ms. Estefania T. Daga, your mother, the subject property which he inherited from his mother by virtue of a Deed of Absolute Sale; that since then Ms. Estefania T. Daga was in possession and in cultivation of the land; that on 15 April 1974 the subject property was mortgaged and subsequently leased; that Mrs. Daga in 1989 released the land from being mortgaged; that on February 1991, the subject property was included among other lands in the Province of Leyte under S.P. No. 3412 with Certificate of Title No. P-25937 in the name of Leyte Sab-a Basin Development Authority; that on 2 January 1991, pursuant to Executive Order No. 407, said Certificate of Title was cancelled and in lieu thereof a Certificate of Land Ownership Award (CLOA) was issued; and that considering the turn of events, the lessee now refuses to pay rentals over the subject land and claims ownership of the same. Hence, your queries.

Taking the facts as alleged in your letter, we observed that your mother is the true and lawful owner of the property by virtue of the Deed of Absolute Sale, thus, she has an established and pre-existing proprietary rights which, under Special Patent No. 3412 (4th paragraph) itself, cannot be prejudiced. Moreover, under the Bill of Rights of the 1987 Philippine Constitution, it is well-settled that no Person shall be deprived of property without due process of law. As such she has all the right to claim ownership over the subject property. Since the property was already issued a CLOA, your only recourse by now is to file a petition for the cancellation of the CLOA for being erroneously issued considering that the subject area of 2.5510 hectares is well-within her retention right and therefore should not be covered under PD 27 or R.A. No. 6657. CLOAs issued to agrarian ownership of the subject agrarian reform beneficiaries (ARBs) may be corrected or cancelled for violation of agrarian laws, rules and regulations. This includes cases of lands which are found to be exempt/excluded from P. D. No. 27/E.O. No. 228 or CARP coverage, or part of the landowner retained area.

With regard to the alleged tenant, we wish to inform you that you can demand payment of rentals of the property, otherwise, you can lawfully eject him. Under the aforementioned circumstances, the tenant cannot assert any right of ownership over the subject property but only that of a possessor-lessee under the legally mandated leasehold system. Be that as it may, we wish to express that the foregoing opinion is merely advisory and does not constitute a decision in any case that may be filed on the same subject.

Thank you for communicating with us.

Very truly yours,

(SGD.) ARTEMIO A. ADASA, JR.

Undersecretary for Legal Affairs, and Policy and Planning