September 16, 1994

DAR OPINION NO. 76-94

    MEMORANDUM

    TO                :     ATTY. WILLIAM C. CABANILLA
                                                  OIC Chief, Legal Division
                                                  DAR, Vigan, Ilocos Sur

    SUBJECT    :     Application for DAR Clearance of Miss Victory Somera, et al.

This has reference to your request for opinion regarding the application  of Miss Victory Somera, et al. for DAR Clearance for the registration of a Deed of Extrajudicial Settlement covering an 18.6272-hectare property under OCT-P-93 Homestead Patent No. V-22802 located at Kiamba, Cabugao, Suyo, Ilocos Sur.

The first paragraph of Section 6 of RA 6657 clearly provides the following:

"Section 6.    Retention Limits. — 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, such as commodity produced, terrain, infrastructure and soil fertility as determined by the Presidential Agrarian Reform Council (PARC) created hereunder, 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; Provided, That landowners whose lands have been covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them thereunder, further, That original homestead grantees or direct compulsory heirs who still own the original homestead at the time of the approval of this Act shall retain the same areas as long as they continue to cultivate said homestead."

Applying said legal provision to the subject matter at hand, it is clear that upon the effectivity of CARL on 15 June 1988, the owner of the property was Prudencio C. Somera. Since the mandate to redistribute agricultural lands came into force upon the effectivity of CARL, the death of Mr. Somera on 2 September 1988 (although opening his estate to succession under Article 777 of the Civil Code) did not affect said mandate. Hence, if the property is found to be within CARP coverage, the same will be acquired and redistributed to qualified beneficiaries, except the 5-hectare portion falling within Mr. Somera's retention. In such a case, the Deed of Extrajudicial Settlement among the heirs would be void for being in violation of CARL.

However, since the property is a homestead, the same may be identified as falling within the landowner's retention if the requisites for the retention of homesteads under Section 6 of RA 6657 are satisfied, in which case the DAR Clearance for Registration of the Extrajudicial Settlement may be issued. Note that a homestead may be retained if it is established that it is untenanted as of 15 June 1988 and the homesteader or his heirs were in cultivation as of said date and will continue to cultivate the same. Note that a field determination and report on non-tenancy must be made in addition to the BARC Certification already issued.

In the futures that level should act/decide on the issue raised applying the pertinent rules and regulations of this Department, instead of directly tossing it to us. The parties adversely affected by your opinion or action may elevate the matter to DARCO for further review.

We are returning herewith your query and its attachments for resolution of the request for DAR Clearance.

For strict and immediate compliance.

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