January 9, 1998
DAR OPINION NO. 01-98
NORBERTO P. LEAÑO
Project Director, CPMO
Department of Transportation
and Communication
Quezon, City
Dear Director Leaño:
This refers, to your letter dated 03 October 1997 seeking legal opinion on the following queries, to wit:
1. Is the DOTC, a government agency, allowed by law to purchase real property? If in the affirmative, is it legally possible transfer the title over that portion of Mr. Literatus lot to the DOTC?
2. What will be the legal implications if the children or the spouse of transferor decide to exercise their right to repurchase the property from the DOTC within two (2) years from the date of the transfer? Is this right waivable?
3. Assuming that the children of the spouse of the transferor do not exercise their right to repurchase, can the DOTC thru its NTP 1-3 Project, include this property in its privatization program in 1998?
4. Assuming, further, that it will difficult for the DOTC to purchase the subject lot, will it be legally feasible to enter into a contract of lease with the awardee?
You state that the DOTC is currently fast-tracking the implementation of its National Telephone Program 1-3 Project in Mindanao; that this project, which is an international commitment between the Philippines and Italian governments, aims to establish a nationwide telecommunication network to serve the communication needs of the country's remote areas; that as part of this commitment, you are conducting negotiations with both public and private entities to acquire sites necessary for the installation of your radio equipment throughout the Mindanao area; that one of these sites is located in Sampagar, Municipality of Dumulog, Province of Bukidnon; that the subject property was awarded by the Department of Agrarian Reform on 13 December 1994 to one Ruel Literatus by virtue of CLOA No. 00240441; that based on the technical survey and recommendation of your consultants, the subject property is located in an area suitable for your project needs; and that you have already started talks with Mr. Literatus and the latter has expressed his willingness to sell a portion of his: property to you, which is 600 square meters, more or less.
Anent, your first query, DAR Administrative Order No. 8, Series of 1995 expressly provides that lands awarded to agrarian reform beneficiaries pursuant to either Presidential Decree No. 27 or Republic Act No. 6657 may he transferred and registered by the Registry of Deeds only after the issuance of a DAR Clearance. It shall be understood that although the transfer of awarded land is allowed, the productivity of the subject land be maintained and any change in the nature of its use shall not be allowed except with the approval of the DAR under its rules on conversion or exemption. Corrolarily and consistent with the government's policy to preserve prime agricultural lands, irrigated or irrigable lands under Administrative Order No. 20, Series of 1992 of the Office of the President shall be non-negotiable for conversion. The non-negotiability shall be annotated at the back of the Transfer Certificate of Titles (TCT) by the Registry of Deeds (ROD).
Administrative Order No. 8, Series of 1995 further provides that transfer of awarded lands under P.D. No. 27 as amended by E.O. No. 228 and R.A. No. 6657 may be allowed, provided the following shall be observed:
a. that the productivity of the land shall be maintained;
b. that the buyer will not exceed the aggregate landowner ceiling provided by law; and
c. that the ownership ceiling of five (5) hectares shall be imposed.
The DOTC, therefore, must comply with the provisions of Section 65 of the Comprehensive Agrarian Reform Law (CARL) and as a prerequisite must secure the approval of the DAR through an Order of Conversion.
Anent your second query, Section 27 of R.A. No. 6657 provides that if the land has been transferred to the government or to the Land Bank of the Philippines, the children or spouse of the transferor-beneficiary shall still have the right to repurchase the land within two (2) years from the date of transfer from the mandatory tenor of the said provision of law, giving the children or spouse the right to redeem the land within the 2-year redemption period, it could readily be inferred that said right is not waivable for it would be unduly prejudicial to the beneficiary and his family.
Anent your third party query, the DOTC may include the said property in its privatization program in 1998 but only after it is able to secure a DAR clearance as required by law. Upon failure to exercise the right of redemption, the ownership thereof may be consolidated in the name of DOTC subject to existing agrarian laws, rules and regulations.
As regards your last query, the DOTC cannot legally enter into any contract with the awardee without the approval or intervention of the DAR. The intercession of the DAR is required obviously to safeguard the rights of farmer-beneficiaries affected, without which they may be entering into a contract which might be grossly prejudicial to them. To obviate such possibility and place farmer-beneficiaries on equal footing, intervention of the DAR is imperative and necessary.
Thank you for communicating with us and we hope to have clarified the matters with you.
Very truly yours,
(SGD.) ARTEMIO A. ADASA, JR.
Undersecretary for Legal Affairs, and Policy and Planning