November 14, 1997

DAR OPINION NO. 121-97

Dir. Percival C. Dalugdug

Regional Director

Department of Agrarian Reform

Lakandula Drive, Legazpi City

Dear Director Dalugdug:

This has reference to your Memorandum dated 20 September 1997 addressed to the Undersecretary for Legal Affairs, Planning and Policy seeking reconsideration of the previous opinion signed by then OIC-Undersecretary Lorenzo R. Reyes, who opined that landowners cannot legally exercise their right of retention on a landholding they do not own.

As can be gleaned from your Memorandum, it readily reveals that the subject property has an aggregate area of 700 hectares, more or less, located at Pilar, Sorsogon; that it is planted with coconut as the main crop with rice and corn as the secondary intercrops; that during the incumbency of then Director Salvador Pejo of DAR Region V, four lots out of the huge property were covered and placed under Operation Land Transfer (OLT) without specifying the size of the area covered; that then came his successor, Director Romeo Perez who decided that 200 hectares of the property be covered under OLT; that knowing fully well that coconut lands are beyond the coverage of P.D. No. 27, the farmers nonetheless pushed the DAR to cover the area under OLT or even to expropriate the same; that the subject property was subdivided among the heirs of the landowners without the DAR expressing their opposition thereto; that the landowners and their heirs wanted to exercise their right of retention on the landholdings where the gmelina plantation is located which is different from the landholdings earmarked to them as their retained areas; and that the resolution of this problem seems to be a remote possibility because of the existing opinion on the matter which proscribes the exercise of the right of retention on landholdings which landowners do not legally own.

At the outset, we wish to clarify that on the basis of the facts of the instant case as you have narrated, the coverage then of the coconut lands under the Operation Land Transfer (OLT) program of the government appears to be irregular or erroneous. Presidential Decree No. 27 which took effect on 21 October 1972 mandates that only private agricultural lands primarily devoted to rice and corn, under a system of share-crop or lease tenancy, whether classified as landed estate or not, are covered under said program. Thus, the unwarranted acquisition of the Del Rosario properties for distribution to qualified OLT farmer-beneficiaries contravened the intent and even the very letter of the aforecited law.

Considering that the landowner and the heirs cannot legally exercise their right of retention provided under P.D. No. 27 on coconut lands, they can, however, exercise said right under Republic Act No. 6657 (Comprehensive Agrarian Reform Law). Section 6 of R.A. No. 6657 expressly provides that "except as otherwise provided in this Act, no person may own or retain, directly or indirectly, any public or private agricultural land, the size of which shall vary according to factors governing a viable family-sized farm, . . . but in no case shall retention by the landowner exceed five (5) hectares. Three (3) hectares may be awarded to each child of the landowner, subject to the following qualifications: (1) that he is at least fifteen (15) years of age; and (2) that he is actually tilling the land or directly managing the farm". Likewise, Section 6, paragraph 2 of R.A. No. 6657 expressly provides, quote: "the right to choose the area to be retained, which shall be compact or contiguous, shall pertain to the landowner, Provided, however, that in case the area selected for retention by the landowner is tenanted, the tenant shall have the option to choose whether to remain therein or be a beneficiary in the same or another agricultural land with similar or comparable features".

Based on the aforequoted provisions of law and the peculiar circumstances of the instant case, the landowner/s' right of retention should not be accorded a restrictive or narrow interpretation. This liberal interpretation can be inferred from the phrase "that in case the area selected for retention by the landowner is tenanted, the tenant shall have the option to choose whether to remain therein or be a beneficiary in the same or another agricultural land with similar or comparable features". Thus, it is crystal clear that the right of retention previously but erroneously exercised by the landowner/s should not foreclose his/their right to reconsider the same in order to exercise it on another landholding provided that the area chosen for retention shall be compact or contiguous; that it shall be least prejudicial to the entire landholding and the majority of the farmers thereon; and that the application of the provisions of R.A. No. 6657 upon its effectivity thereof on 15 June 1988 is not unduly circumvented as regards the issue on whether or not the heirs have the right to retain as owners thereof or to be awarded the lands as qualified children. In other words, an alternative solution as to the exercise of the landowner/s' right of retention may be permissible on other landholdings, provided that the landowner and/or the heirs (if previously qualified before 15 June 1988 as owners) will relinquish the areas formerly chosen as their retention areas and instead exercise the same in the place where the gmelina plantation is located.

Since both the landowners and the tenants have expressed their willingness to enter into a Memorandum of Agreement which is mutually acceptable to them, it is submitted that all things considered, there is no legal impediment why this proposal should not be granted in conformity with their expressed wishes. Moreover, a proposal of this nature will neither prejudice nor cause additional burden on the tenants because their rights will remain unaltered. DAR Opinion No. 93, Series of 1996 dated 15 October 1996, which declares that the right of retention cannot extend to landholdings whose ownership belongs to different persons, deals with a different matter as per letter-request of Mrs. Purita L. Cabochan. In the instant case, the parties expressed willingness to enter into a Memorandum of Agreement wherein none existed in the previous opinion, which in the final analysis will not cause any diminution or curtailment of their rights as tenants. It bears stressing here likewise that DAR Opinion No. 93, Series of 1996 speaks of different landholdings located in another municipality (Irosin, Sorsogon).

Moreover, apparent confusion, lapses, errors and/or irregularities attended the OLT coverage of the subject landholdings, thus, it behooves us to rectify the same for the common benefit of all concerned and to effect an orderly implementation of the Program. Accordingly, equity exigency, practicability and prudence demand that the supposed previous opinion on the matter raising a relatively and seemingly identical issue (which is actually different) should not be made to apply in this particular case in order to once and for all break the existing impasse and to pave the way for the eventual resolution of this long delayed and unresolved problem.

This opinion is however merely commentary and it does not constitute a decision on the merits of the case which should be duly adjudicated upon before the proper forum. Lastly, this opinion should not be construed as a repeal or amendment of DAR Opinion No. 93, Series of 1996 which, strictly speaking, finds no application in this case.

Please be guided accordingly.

Very truly yours,

(SGD.) ARTEMIO A. ADASA, JR.

Undersecretary or Legal Affairs, and Policy and Planning