September 8, 1997

DAR OPINION NO. 106-97

Hon. Reynaldo Y . Maulit

Administrator

Land Registration Authority

Quezon City

Dear Administrator Maulit:

This has reference to your letter dated 21 July 1997 requesting the Department of Agrarian Reform to dispense with the DAR Clearance requirement in the transfer, sale, disposition and/or conveyance of agricultural lands involving the retained area of the landowner as per Resolution No. 01-96 passed by the Association of Registrars of Deeds and Deputy Registrars of Deeds.

Section 70 of R.A. No. 6657 (Comprehensive Agrarian Reform Law) provides, quote:

"Disposition of 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 landholding that shall be owned by the transferee thereof inclusive of the land to be acquired shall not exceed the landholding ceilings provided for 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.

Transferees of agricultural lands shall furnish the appropriate Register of Deeds and the BARC an affidavit attesting that their respective total landholdings as a result of said acquisition do not exceed the landholding ceiling. The Register of Deeds shall not register the transfer of any agricultural land without submission of such sworn statement together with proof of service of a copy thereof to the BARC."

From the aforequoted, in relation with Section 6 of R.A. No. 6657 (4th paragraph thereof) and the provisions of DAR Administrative Order No. 1, Series of 1989 (issued pursuant to Section 49 of R.A. No. 6657) entitled: "Rules and Procedures Governing Land Transactions" (herewith attached), it could readily be inferred that the subject DAR Clearance requirement must necessarily be complied with to foreclose possible circumvention or violation of the provisions of R.A. No. 6657. Said requirement was designed to safeguard tenant-lessees on retained areas from undue displacement from their respective tillages, protect their rights of pre-emption and redemption under Sections 11 and 12 of R.A. No. 3844 as amended, and to ensure that only legal transactions are registered with the Register of Deeds.

Moreover, relative thereto, it is submitted that the conditions and/or requirements provided for in the resolution are inadequate for us to safely dispense with the required DAR Clearance. Said conditions or requirements cannot guarantee the non-commission of fraud, collusion, arbitrariness, or serious errors on the Deed of Transfer, sale and/or conveyance that will be brought to the Registrars of Deeds for registration. We note that, except for item 3, the conditions are self-serving declarations of the landowner and buyer, the veracity of which cannot be assured. It is our apprehension that persons with a willful motive to avoid the application of the Comprehensive Agrarian Reform Law will not hesitate to execute or produce spurious documentation.

Lastly, item II-3 of DAR Administrative Order No. 1, Series of 1989 enumerates the transactions that may be registered by the Register of Deeds without clearance from DAR, to wit:

1)        Deed of extrajudicial partition of the property of a deceased who died prior to June 15, 1988;

2)        Deed of partition of property owned in common by co-owners prior to June 15, 1988;

3)        Sub-division of title without change of ownership; and

4)        Deed of Real Estate Mortgage executed by the original landowner or beneficiary.

It is very clear from the above-cited provision that the transfer, sale, disposition and/or conveyance of agricultural lands involving the retained area of the landowner is not among those enumerated or contemplated therein. Basic is the rule of statutory construction that what the law does not include, it excludes.

Accordingly, in view of all the foregoing, it is with deep regret that this Department cannot give due course to your request to dispense with the clearance requirement.

We hope to have clarified the matter with you.

Very truly yours,

(SGD.) ARTEMIO A. ADASA, JR.

Undersecretary for Legal Affairs, and Policy and Planning