June 30, 1994

DAR OPINION NO. 40-94

Atty. Neal J. Chua

3rd Floor, Premiere Shopping

Center Bldg. Sta. Cruz

Manila

Dear Atty. Chua:

This has reference to your letter of 20 June 1994, regarding a 6.000-sq. meter agricultural land which your client purchased in 1973 and which she allowed her sister and her family to live in. You pose the following queries relative thereto:

1.         What law/s apply to the relationship between the landowner (your client) and the possessor/cultivatory (the sister)?

2.         What area the grounds for ejecting the possessor/cultivator from the property?

3.         If the landowner donates the property, can she eject the occupant?

4.         Does the occupant have pre-emptive right to buy the property?

5.         Is the landowner required to pay "disturbance fee" if he intends to eject the occupant?

6.         Is the landowner required to secure the DAR's approval in case she sells the property?

Anent your first query, the relationship between the landowner and her sister is one of agricultural leasehold if all of the following requisites are present, namely:

1.         The Parties are the landowner and the tenant;

2.         There is consent by the landowner for the tenant to work on the land — either conveyed verbally or in writing, expressly or impliedly;

3.         The subject land is agricultural in nature;

4.         The purpose is agricultural production;

5.         There is personal cultivation on the part of the tenant, when he does it in person and/or with the aid of labor within his immediate farm household; and

6.         There is Sharing of harvests or there is a consideration for the lease of the land in an amount certain in money or in produce, or both.

(Rafael Gelos vs. The Honorable Court of Appeals and Ernesto Alzona, G.R. No. 861860, May 8, 1992; Yolanda Caballes vs. DAR. et.al., G.R. No. 78214, December 5, 1988, 168 SCRA 247).

If all of the aforementioned requisites, are present, the landowner is the agricultural lessor while the sister is the agricultural lessee. The latter is entitled to security of tenure on her farmlot and may not be ejected therefrom except by order of the court in a judgment that is final and executory, pursuant to Section 7 of the Code of Agrarian Reform, as amended (R.A. 3844). However, if one of said requisites is absent, there could be no agricultural leasehold relation.

As regards your second query, the grounds for the ejectment of the tenant are found in Section 36 of R.A. 3844, as amended by RA 6389 (copy attached for reference). However, we reiterate that the actual ejectment of the tenant can legally be effected only upon order of the court that is final and executory.

Anent your third query, the donation of the property will not result in the extinguishment the tenancy relations between the agricultural lessor and the agricultural lessee. Under Section 10 of RA 3844, the agricultural leasehold relation is not extinguished by the sale, alienation or transfer of the legal possession of the landholding. In case the agricultural lessor sells, alienates or transfers the legal possession of the landholding, the purchaser or transferee thereof shall be subrogated to the rights and substituted to the obligations of the agricultural lessor.

As to your fourth query, Sec. 11 of the Code provides that in case the agricultural lessor decides to sell the landholding, the agricultural lessee shall have preferential right to buy the same under reasonable terms and conditions.

Anent your fifth query, the landowner has no obligation to pay the lessee "disturbance fee" in case of his ejectment since the same would be for cause.

As regards your last query, the last paragraph of Section 6 of RA 6657 (the Comprehensive Agrarian Reform Law or CARL) provides that upon its effectivity on 15 June 1988 "any sale, disposition, lease, management contract or transfer of possession of private lands executed by the original owner" in violation thereof shall be null and void. Likewise, under the same Section, each landowner can retain a maximum of five (5) hectares of his/her agricultural lands, while the rest shall be acquired and distributed to qualified beneficiaries. To ensure that no property in excess of the 5-hectare retention limit is sold by the landowner in violation of CARL, no registration of the sale with the Register of Deeds can be effected unless there is a DAR clearance to the effect that the property subject of the sale is not covered by CARP.

We hope we have clarified matters for you.

Very truly yours,

(SGD.) HECTOR D. SOLIMAN
Assistant Secretary
Legal Affairs Office