October 10, 1994

DAR OPINION NO. 85-94

Mr. Cresencio Zacarias

Tambulig, Zamboanga del Sur

Sir:

This has reference to your letter seeking clarification relative to the following:

1)        Can tenancy be transferred by the tenant to his children who are government employees (doctor and school principal, respectively)?

2)        Can the son of the landowner who is a retired employee recover possession of the tenanted farmlot on grounds of personal cultivation?

Anent your first query, please be informed that the following requisites must be present in order for agricultural leasehold relations to exist (as decided by the Supra Court in the case of "Julio Baranda and Roberto Baranda vs. Hon. Alfonso Baguio", Vol. 189 SARA 194):

1)        the parties are the landowner and the tenant;

2)        the subject is agricultural land;

3)        there is consent;

4)        the purpose is agricultural production;

5)        there is personal cultivation; and

6)        there is sharing of harvests.

Please note that if one of the above requisites is absent, no agricultural leasehold relations exist between the parties. Hence, if the cultivation of the farmlot is without the consent of the landowner, there can be no tenancy relations between him and the transferee. Moreover, the tenant is under obligation to personally cultivate his farmlot, performing the major phases of farmwork, except when he is temporarily incapacitated to do so, in which case he may, during such period of temporary incapacity, hire other persons to cultivate the land for him. In "Magallong vs. Yap" (CA-G.R. No. SP-03163-CAR, April 14, 1977), the Court of Appeals held: "We fail to see how a person in the situation of the plaintiff who was employed as a full-time machine operator in a corn mill, working therein from 8:00 a.m. to 12:00 noon and from 2:00 p.m. to 6:00 p.m. everyday excluding Sundays and holidays, could still be a tenant on a parcel of riceland. No matter how industrious he might be, he simply may not devote enough time and attention to the cultivation of the landholding as are called for by the nature of such task."

However, as the query posed relates to an actual situation, it is best for you to visit our Municipal Agrarian Reform Officer (MARO) in the place where the property is situated for further enlightenment. You may also request the MARO to invite the tenant and his children for a conference with you at the DAR Office to clarify the transfer of cultivation to the letter, as such transfer might be merely temporary therefore within the exception aforecited.

As regards your second query, please be informed that personal cultivation as a ground for dispossession of the tenant of his farmholding has been deleted by RA 6389 which amended Section 36 of RA 3844 (Agrarian Reform Code). Thus, although already retired from the government service, you cannot legally recover possession of your tenanted farmlot on the ground that you will personally cultivate the same.

Thank you for writing us.

Very truly yours,

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