September 4, 1998
DAR OPINION NO. 83-98
Mr. Miguel S. Viola
2039 Oroquieta St.,
Sta. Cruz, Manila
Dear Mr. Viola:
This has reference to your letter dated 04 June 1998 seeking opinion on the following queries, to wit:
a. Can a landowner donate his landholding in excess of retention area without violating agrarian laws, rules and regulations? and
b. Whether said transaction can be registered validly with the Register of Deeds?
As culled from your letter, the subject property has an aggregate area of Fifty One Thousand One Hundred Thirty Eight (51,138) square meters situated at Barangay Cawayan Bugtong, Candaba, Pampanga and registered in your name under Transfer Certificate of Title (TCT) No. 76092-R; that since you are now at your advanced age, you are contemplating to donate the entire property, in favor of your son, however, Section 6 of Republic Act No. 6657 (Comprehensive Agrarian Reform Law) sets the maximum ceiling of the retention area to only five (5) hectares; and that considering the abovementioned prohibition you are in doubt as to the legality and validity of the intended donation.
Anent your first query, Section 6 of R.A. No. 6657 is very explicit by providing that in no case shall retention by the landowner exceed five (5) hectares. Corollarily, Section 70 of the same law likewise provides that the sale or disposition of agricultural lands retained by landowner as a consequence of Section 6 hereof shall be valid as long as the total landholdings that shall be owned by the transferee thereof inclusive of the land to be acquired shall not exceed the landholding ceilings provided for in said Act. Taken together, the language of the aforementioned provisions of law are couched in mandatory terms, which means that any excess thereof is subject to compulsory acquisition by the government through the Department of Agrarian Reform (DAR) for distribution to qualified farmer beneficiaries. Clearly, the law sets the maximum ownership ceiling at only five (5) hectares.
Furthermore, since the excess area of 1,138 square meters is already beyond the legally allowed retention limit or landownership ceiling, the entire property cannot be the subject of a valid donation for it would violate Section 73 (a) of R.A. No. 6657 making it a prohibited act and omission the ownership or possession, for the purpose of circumventing the provisions of said Act, of agricultural lands in excess of the total retention limits or award ceilings by any person, natural or juridical, except those under collective ownership by farmer beneficiaries.
Anent your second query, the proposed donation of the entire area of 5.1138 hectares cannot be registered with the Register of Deeds since it contravenes Sections 6 and 73 (a) of R.A. No. 6657 on retention limits and ownership ceilings. Thus, to thwart possible circumvention of said law, DAR Administrative Order No. 01, Series of 1989 (copy attached) compulsorily requires that the transferees of agricultural lands shall furnish the appropriate Register of Deeds and the Barangay Agrarian Reform Council (BARC) an affidavit attesting that their respective total landholdings as a result of the said acquisition do not exceed the landholding ceiling. The Register of Deeds shall not register the transfer of any agricultural land without the submission of such sworn statement together with proof of service of a copy thereof to the BARC.
Finally, it bears stressing here that notwithstanding the intended donation or transfer of the land, the agricultural productivity thereof shall 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. Moreover, the security of tenure of the farmers or farmworkers, if any, on the land shall in all cases be respected (3rd paragraph, Section 6 of R.A. No. 6657).
We hope to have clarified the matters with you.
Very truly yours,
(SGD. ) DANILO T. LARA
Undersecretary for Legal Affairs, and Policy and Planning
Copy furnished:
The Regional Director
DAR Regional Office
San Fernando, Pampanga
The Provincial Agrarian Reform Officer
DAR Provincial Office
San Fernando, Pampanga
The Municipal Agrarian Reform Officer
DAR Municipal Office
Candaba, Pampanga
The Register of Deeds
Candaba, Pampanga