September 4, 1998

DAR OPINION NO. 89-98

DIRECTOR DOMINADOR B. ANDRES

DAR — Region VI

Balantang, Jaro, Iloilo City

Dear Director Andres:

This refers to the letter of PARO Teodolfo Abiera dated 23 March 1998 which was addressed to you and copy furnished this Office.

His letter is in reaction to your Memorandum issued to him on 13 February 1998 regarding the issuance of a clearance for registration of lands with an area of five (5) hectares and below. He believes that requiring private owners of agricultural lands with five (5) hectares or less to apply for retention as a condition precedent before they can be issued a clearance under Administrative Order No. 1, Series of 1989 is a procedural flaw that ought to be reexamined. It is his contention that only owners of private agricultural lands belonging to or falling within the land size category of more than five (5) hectares, except those who have been already granted full retention (7 hectares) under P.D. No. 27 and original homestead grantees or their heirs who still own or actually cultivate the land, may apply for retention. This is so because they belong to the category of landowners whose landholdings may be subject to acquisition under CARP.

It is likewise his contention that since the right to retain an area of not more than five (5) hectares is a substantive right provided for by law (R.A. No. 6657) and our Constitution itself, private owners of agricultural lands five (5) hectares or less should no longer be required to apply for retention before they sell or otherwise dispose of their lands. It is sufficient that the MARO and PARO, after ascertaining the accuracy and truthfulness of the documentary evidences, i.e., Listasaka I & II, Ownership Title, and more importantly, Certifications of Assessors as to his or her aggregate or total landholdings, affidavits or testimonial evidence, are convinced that such landowner belongs to said category. Moreover, he also believes that the provision in A.O. No. 11, Series of 1990, to quote: "A landowner who owns five (5) hectares or less of lands which are not yet subject of coverage based on the schedule of implementation provided in Section 7, R.A. No. 6657 may also file an application for retention for the purpose of issuance of a Certificate of Retention", is a redundancy. Granting that it is not, its spirit and intent is clearly directory. Hence, to require such owners to file for retention is a contravention of that intent.

PARO Abiera further states that during the incumbency of Directors Antonio S. Maraya and Jose C. Llames in DAR, Region VI, when A.O. No. 11, Series of 1990 was already in force, private owners under these land size category were not required to file an application for retention as a condition precedent to the issuance of a DAR Clearance of non-coverage from CARP for registration at ROD of a Deed of Conveyance executed by them.

We are in accord with the opinion of PARO Abiera that only landowners owning agricultural lands of more than five (5) hectares may apply for retention before they can sell or otherwise dispose of the same. As regards landholdings covering an area of five (5) hectares or less, we submit that the owners thereof are no longer required to apply for retention before they can sell or otherwise dispose of the same. It is sufficient that the evaluating officer (in this case the MARO) establishes with certainty the accuracy and truthfulness of the evidences presented, i.e., Listasaka, Ownership Title, Affidavit of transferor stating that the land subject of deed is a retention or portion of the retention area, Affidavit of the transferee that he/she has a total landholding inclusive of the land to be acquired of not more than five (5) hectares, as well as the Certifications of Assessors as to the total aggregate area of the landholdings to be acquired which do not exceed the 5-hectare retention limit. If he finds said documents to be in order, he shall forward the same to the PARO with his comments and recommendations. The PARO, upon examination of all the attached documents and finding the same to be in order, shall then issue a clearance for the registration of the subject deed.

It has to be made clear, however, that any, intended sale or disposition of agricultural lands by landowners, whether they are allegedly owning more than or less than five (5) hectares, shall always be subject to DAR Clearance before the same could be validly registered with the Register of Deeds, to prevent possible circumvention of the provisions of R.A. No. 6657 and its related implementing guidelines.

We hope to have clarified the matter with you and please be guided accordingly.

Very truly yours,

(SGD.) DANILO T. LARA

Undersecretary for Legal Affairs, and Policy and Planning

Copy furnished:

OSEC
Doc. No. 98030608

PARO Teodolfo V: Abiera
DAR — Provincial Office

Binirayan Hills, San Jose

Antique