November 17, 1998

DAR OPINION NO. 112-98

DIRECTOR RENATO F . HERRERA

DAR Region III

San Fernando, Pampanga

Dear Director Herrera:

This refers to the Memorandum of Legal Officer Imelda U. Matarlo which was indorsed by PARO Linda G. Hermagino requesting for opinion regarding the 18.9619 hectare landholding of San Antonio Development Corporation which was placed under the coverage of CARP on 5 March 1997. However, the Legal Division of DAR Bulacan doubts the coverage as there are restrictions annotated at the back of the titles which state that "the property conveyed shall be used for residential purposes only and for no other purpose or purposes".

A scrutiny of the records reveals the following, to wit: that the 18.9619-hectare landholding covered by TCT No. T-226173, registered in the name of San Antonio Development Corporation and located at Kaybanban, San Jose Del Monte, Bulacan was compulsorily acquired in March 1997; that in 1992, said title was cancelled and further subdivided into 17 titles covering TCT Nos. 12795 to 12811; that it was surveyed in favor of 23 qualified farmer beneficiaries; that it appears that in Titles Nos. T-226171, T-226172 and T-226173, there were annotations at the back thereof stating that "the property shall be used for residential purposes only and for no other purpose" which said annotations were made in 1976; that said restrictions were carried over in the titles subsequently issued in the name of San Antonio Development Corporation; and that because of said restrictions, the transfer of the subject landholding particularly TCT No. T-2216173 consisting an area of 19.9619 hectares to the Department of Agrarian Reform is now pending with the Register of Deeds, Meycauayan, Bulacan.

We wish to state, at the outset, that pursuant to Department of Justice Opinion No. 44, Series of 1990, agricultural lands that have been classified as non-agricultural prior to the effectivity of CARL on 15 June 1988 shall be excluded from CARP coverage upon proper application for exemption and approval thereof by DAR. It is essential, however, that said classification of an agricultural land into non-agricultural use must have been validly made by the courts or proper government agency concerned legally authorized for that purpose and not by private individuals themselves. In this regard, we submit that the mere annotation stating that "The property shall be used for residential purposes only and for no other purpose or purposes" is not sufficient to form a belief that the same is indeed classified as such by proper authority or upon lawful order of a court. A careful scrutiny of the records does not show under what authority the above restriction was made since there might be the possibility that said restriction was unwittingly or matter of factly annotated by the Register of Deeds merely upon the request of the private parties to reflect the terms and conditions unilaterally set forth by said private parties in the sales of alienations that transpired without the requisite authorization or approval by the proper court or government agency concerned. Hence, in the absence of clear and conclusive proof by what authority the restriction in the annotation was made, the subject landholding could be deemed as not validly and legally classified as residential within the contemplation of Section 3 (c) of R.A. No. 6657, thus, DOJ Opinion No. 44 is not applicable, and, accordingly the same is still an agricultural land as it really is. It has to be stressed here, as gleaned from the records, that the landholding in issue was formerly and actually an agricultural public land awarded pursuant to a Free Patent covered under TCT No. T-30597.

Furthermore, it is noteworthy to mention the findings and observations, based from the records submitted, that the present actual use of the property is agricultural, and this is supported by the following:

a)         The Field Investigation Report dated 02 December 1996 of MARO Marcelino P. Frago, assisted by the BARC Chairman and Agrarian Affairs Specialist, Gina Grace Reyes, categorizing said property as agricultural which is presently being cultivated by farmer-beneficiaries who have introduced permanent crops therein;

b)         The Joint Ocular Inspection and Verification Report dated 07 May 1997 by Engr. Ibrado R. Cellez of DENR, CENRO — Bulacan, along with the representatives of DAR, LBP and DA, stating that the property is below eighteen percent (18%) slope and suitable for agricultural crops; and

c)         The Certification dated 02 May 1997 issued by Provincial Agricultural Officer, Jesus B. De Guzman, certifying that the subject property is an established mixed orchard and suited for agricultural purposes.

In view of the foregoing, we submit that the transfer of the property to the DAR may be given due course pursuant to the provisions of Section 4 of R.A. 6657, unless clear and conclusive proof of valid classification into residential land as authorized and approved by legitimate authority is presented. In the absence of said proof, proper petition should be made by DAR before the proper forum to nullify and/or cancel the subject restrictions annotated at the back of the titles, and, forthwith, the coverage and documentation process shall immediately proceed even pending the formal nullification or cancellation of the same so as not to further delay the implementation of the CARP over the landholdings in issue, in line with the legal mandate of the need to distribute lands to the tillers at the earliest practicable time (5th paragraph, Section 7, R.A. No. 6657).

Please be guided accordingly and 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:

ATTY. JOSEPH NOEL C. LONGBOAN

Chief, LAD

Provincial Agrarian Reform Office

Baliuag, Bulacan

The Provincial Agrarian Reform Officer

DAR, Baliuag, Bulacan

The Municipal Agrarian Reform Officer

DAR, San Jose Del Monte, Bulacan