April 8, 1998

DAR OPINION NO. 45-98

Atty. Jose P. Aguas

31 Paz St., Tugatog,

Malabon, Metro Manila

Dear Atty. Aguas:

This has reference to the following queries you posed, to wit:

1.         Should the homelot be within the landholding being tilled by the agricultural lessee?

2.         Which should prevail as regards the area of the landholding: is it the area as determined by the parcellary mapping or is it the area as per the subdivision plan?

With regard to your first query, pursuant to Administrative Order No. 12, Series of 1991 (copy herein attached), an agrarian reform beneficiary (ARB) under the CARP may be awarded the homelot he actually occupies if it is subject of land distribution under the Program, provided said homelot does not form part of the retained area of the landowner. Administrative Order No. 12, Series of 1991, further provides, quote:

"A tenant beneficiary who is awarded a farmlot but has his homelot within the retained area of the landowner may be made to transfer his dwelling in his farmlot or other area designated for his homelot which shall be mutually agreed upon by both parties. Provided however, that the landowner shoulders the cost of the transfer of his dwelling and the agreed cost of other improvements introduced by the tenant-beneficiary on the said homelot."

From the foregoing, it is clear that the subject homelot should not be located within the retained area of the landowner.

However, if the tenant chooses to remain in the retained area, he shall be considered a leaseholder and shall lose his right to be a beneficiary under R.A. No. 6657 (Section 6, paragraph 2). In this instance, the homelot actually occupied by the agricultural lessee shall be considered included in the leasehold. Hence, said homelot being an integral part of his farm and is an indispensable factor in his farm operation may be located within the retained area where the landholding he is tilling is as it is likewise located.

With regard to your second query, the area of the landholding shall be determined based on the duly approved survey plan or sketch/subdivision plan of the property prepared and undertaken by legitimate authorities, for it is presumably more reliable than that of mere parcellary mapping. This is without prejudice, however, to more conclusive proofs or titles of ownership specifying the metes and bounds and the specific area of the landholding in issue as officially and duly validated and verified or declared by the courts.

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