2013
18% SLOPE EXCLUSION TEMPLATE
I. INTRODUCTION
This template serves as a guide to the decision maker in resolving issues pertaining to cases where the main issue is whether the subject landholding is exempted on the ground that it is 18% slope or over, and is undeveloped.
II. CHECKLIST OF DOCUMENTARY REQUIREMENTS
[ ] Sworn Application for CARP Exemption or Exclusion duly accomplished;
INDIVIDUAL Applicant:
• If the applicant is not the registered owner, original and current Special Power of Attorney (SPA) dated within one year from presentation of SPA
o If the registered owner is a resident abroad-authenticated SPA by the Philippine consulate office where he is a resident
o If the registered owner is a resident of the Philippines-notarized SPA
CORPORATION
• Notarized Secretary's Certificate authorizing representative to file CARP exemption
[ ] Certified True copy of the OCT or TCT, certified by the ROD not earlier than 30 days prior to application filing date;
• If land is UNTITLED:
o Certification from the DENR Community Environment and Natural Resources Officer (CENRO) that the landholding has been classified as alienable and disposable, and
o Certification from the DENR CENRO (for administrative confirmation of imperfect title) or the Clerk of Court (for judicial confirmation of imperfect title) that the titling process/proceedings has commenced and there are no adverse claimants;
[ ] Certification from the DENR/CENRO survey decision that the area is 18% slope or over;
[ ] Joint DAR, DA, LBP, DENR on-site investigation report. (Basis: Pasco vs. Pison-Arceo Agricultural and Development Corporation, (G.R. No. 165501, March 28, 2006)
[ ] Topographical Map of the subject area duly certified by NAMRIA and/or DENR-Survey Division;
• In case of conflict between the opinion of NAMRIA and the DENR Survey Division, the opinion of NAMRIA shall prevail.
[ ] Prior Forest Reclassification of the land (Basis; Revised Forestry Code);
[ ] Photographs of the landholding accompanied with an affidavit of the person who took the same.
[ ] Certification from the MARO or PARO on whether or not a Notice of Coverage has already been issued over the property. (If NOC has been issued, copy of the NOC showing the date of receipt)
[ ] Certified Copy of the Report/findings of the composite team report, if any
[ ] Certification of the PARO that the petitioner has manifested intention for exemption from CARP coverage within 30 days
III. JURISDICTION
A. The landowner may file a Manifestation for Exclusion from CARP coverage, on the ground that the landholding is undeveloped lands with 18% slope and over, before the PARO within a non-extendible period of thirty (30) days from his/her/its/their receipt of the NOC.
B. The Application/Petition for Exclusion from CARP coverage may be filed together with the above-mentioned Manifestation. If it is not filed jointly, the landowner can file it, together with the documents required by the rules on exemption or exclusion, within sixty (60) days from receipt of the NOC.
C. Despite the pendency of a protest against coverage, the land acquisition process shall nevertheless continue until the issuance of the Memorandum of Valuation (MOV) with the attached Land Valuation Worksheet (LVW) by the LBP, unless otherwise suspended sooner through a Cease and Desist Order (CDO) by the RD or the Secretary.
D. Notwithstanding a Petition for Certiorari filed with the courts, the PARO shall issue and serve the Notice of Land Valuation and Acquisition (NLVA) and proceed with the rest of the land acquisition and distribution process thereafter as soon as the protest against coverage or petition for exemption or exclusion has been denied by the RD, or if appealed, by the Secretary, or if further appealed, by the President of the Republic of the Philippines, unless otherwise ordered suspended by the Supreme Court.
Reference for this Section: DAR A.O. No. 07-2011, Effective October 15, 2011
IV. STANDING
Landowner or person duly authorized by the landowner may apply for exemption.
V. TIMELINESS
Within a non-extendible period of thirty (30) days from his/her/its/their receipt of the NOC, the landowner may file a Manifestation for Exemption from CARP coverage before the PARO
• The failure to file the said Manifestation within the 30-day reglementary period shall be construed as a waiver on the part of the landowner of the right to file a petition for exemption from CARP coverage. All manifestations made after this period shall no longer be accepted.
The Application/Petition for Exemption from CARP coverage may be filed together with the above-mentioned Manifestation. If it is not filed jointly, the landowner can file it, together with the documents required by the rules on exemption or exclusion, within sixty (60) days from receipt of the NOC.
• Non-submission thereof within this reglementary period shall be construed as a waiver or abandonment of his/her/its right to file said Petition for Exemption or Exclusion from CARP coverage with respect to the landholding covered.
• For landholdings under VOS, the LO is deemed to have waived his/her/its right to file such a Petition for Exemption or Exclusion from CARP coverage upon DAR's acceptance of his/her/its offer.
Reference for this Section: DAR A.O. 07, Series of 2011
VI. DETERMINATION OF APPROPRIATE ACTION
1. Check if the following requirements are present:
a. That the subject landholding is 18% slope or over, and
b. That the same is undeveloped.
o Definition of developed: Presence of agricultural activity. Agricultural activity is defined under Section 3 (b), R.A. 6657, as amended, as the cultivation of the soil, planting of crops, growing of fruit trees, raising of livestock, poultry or fish, including the harvesting of such farm products, and other farm activities and practices performed by a farmer in conjunction with such farming operations done by person whether natural or juridical. Therefore, the kind of crops and the value of the income raised are not controlling.
• If land is 18% slope or over and undeveloped- GRANT the application
• If land is 18% slope or over and the same is developed, DENY the application
VII. APPEAL TO THE SECRETARY
A. When to appeal (Section 27)
• Within fifteen (15) days from receipt of the adverse decision pursuant to Section 51 of R.A. No. 6657.
B. Where to appeal (Section 28)
• Appeals from the decision of the Regional Director shall be made by filing in the same regional office which issued the adverse decision, a notice of appeal with proof of payment of the requisite appeal fee. Official cashiers of any DAR office may receive payment of the requisite appeal fee. Non-perfection of the appeal within the reglementary period merits dismissal of the appeal.
C. Grounds (Section 25)
• No appeal shall be given due course unless the decision of the Regional Director is final, disposing of the case on the merits, and only on the following grounds:
i. Serious errors in the findings of fact or conclusion of law which may cause grave and irreparable damage or injury to the appellant; or
ii. Coercion, fraud, or clear graft and corruption in the issuance of a decision.
Reference for this Section: Rule IV of DAR A.O. No. 03, Series of 2003
VIII. APPLICABLE LAWS, RULES, AND POLICIES
1. LAWS
a. Section 10 (c) Republic Act 6657, as amended by R.A. 7881
(c) Lands actually, directly and exclusively used and found to be necessary for national defense, school sites and campuses, including experimental farm stations operated by public or private schools for educational purposes, seeds and seedlings research and pilot production center, church sites and convents appurtenant thereto, mosque sites and Islamic centers appurtenant thereto, communal burial grounds and cemeteries, penal colonies and penal farms actually worked by the inmates, government and private research and quarantine centers and all lands with eighteen percent (18%) slope and over, except those already developed, shall be exempt from the coverage of this Act. (As amended by R.A. 7881)
b. Revised Forestry Code (P.D. 705) Section 15 (Topography)
No land of the public domain eighteen per cent (18%) in slope or over shall be classified as alienable and disposable, nor any forest land fifty per cent (50%) in slope or over, as grazing land.
Lands eighteen percent (18%) in slope or over which have already been declared as alienable and disposable shall be reverted to the classification of forest lands by the Department Head, to form part of the forest reserves, unless they are already covered by existing titles approved public land application, or actually occupied openly, continuously, adversely and publicly for a period of not less than thirty (30) years as of the effectivity of this Code, where the occupant is qualified for a free patent under the Public Land Act: Provided, That said lands, which are not yet part of a well-established communities, shall be kept in a vegetative condition sufficient to prevent erosion and adverse effects on the lowlands and streams: Provided, further, That when public interest so requires, steps shall be taken to expropriate, cancel defective titles, reject public land application, or eject occupants thereof.
c. Section 3 (b) of R.A. 6657, as amended
(b) Agriculture, Agricultural Enterprise or Agricultural Activity means the cultivation of the soil, planting of crops, growing of fruit trees, raising of livestock, poultry or fish, including the harvesting of such farm products, and other farm activities and practices performed by a farmer in conjunction with such farming operations done by person whether natural or juridical.
2. IMPLEMENTING RULES AND REGULATIONS
a. DAR A.O. NO. 07 Series of 2011, Revised Rules and Procedures Governing the Acquisition and Distribution of Private Agricultural Lands under Republic Act (R.A.) No. 6657, as Amended (Effective 15 October 2011)
b. DAR A.O. No. 03, 2003 — Rules for Agrarian Implementation Cases. (Effective February 8, 2003)
c. DAR A.O. No. 6 Series of 2000 — Rules of Procedure of Agrarian Law Implementation Cases (Effective September 15, 2000)
d. DAR Memorandum Circular No. 34 Series of 1997 — For lands subject of VOS and CA of lands unsuitable for agricultural purposes (Effectivity January 1, 1998)
e. DAR Administrative Order 10, Series 1994 — Amending Administrative Order (A.O.) No. 13, Series of 1990 Entitled "Rules and Procedures Governing Exemption of Lands from CARP Coverage under Section 10, RA 6657", To Authorize All Regional Directors to Hear and Decide Applications for Exemption for All Land Sizes (Effective — September 30, 1994)
f. DAR Administrative Order 13, S. 1990 — Rules and Procedures Governing Exemption of Lands from CARP Coverage under Section 10, RA 6657 (Issued August 30, 1990, Effectivity Date 10 days after publication)
IX. JURISPRUDENCE
A. PAULINO REYES, ET AL, VS. FIL-ESTATE PROPERTIES AND (CA, 148967, FEB. 9, 2007)
"One of the reasons why petitioners are objecting to the cancellation of their CLOAs and the exclusion of the ten parcels of land from CARP coverage is because these lots are agricultural and developed. While it is true that the DAR officials have generally found the lots to have an average slope of 18%, the contention that the same have been cultivated and are actually agriculturally developed so as to make them subject to CARP is a factual matter that must be looked into."
"[A]s a general rule, lands which are above 18% slope are exempt from CARP, but their land use should be compatible with the underlying basis for exemption, meaning reforestation and soil conservation. Therefore, as a general rule also, these areas should not be converted to uses other than agro-forestry, reforestation, or other environmentally sustainable uses."
B. SPS. JESUS AND EVANGELINE PASCO V. PISON-ARCEO AGRICULTURAL AND DEVELOPMENT CORPORATION, (G.R. NO. 165501, MARCH 28, 2006)
Should there be a variance between the findings of the DAR and the LBP as to whether the land be placed under agrarian reform, the land's suitability to agriculture, the degree or development of the slope, etc., the conflict shall be resolved by a composite team of the DAR, LBP, DENR and DA which shall jointly conduct further investigation.
SRRDC also contends that the property has an 18% slope and over and therefore exempt from acquisition and distribution under Section 10 of R.A. No. 6657. What SRRDC opted to ignore is that Section 10, as implemented by DAR Administrative Order No. 13 dated August 30, 1990, also provides that those with 18% slope and over but already developed for agricultural purposes as of June 15, 1988, may be allocated to qualified occupants. Hence, even assuming that the property has an 18% slope and above, since it is already developed for agricultural purposes, then it cannot be exempt from acquisition and distribution. Moreover, the topography maps prepared by Agricultural Engineer Rosalina H. Jumaquio show that the property to be acquired has a 5-10% flat to undulating scope; that it is suitable to agricultural crops; and it is in fact already planted with diversified crops.
X. STRUCTURE OF THE DECISION
A. NATURE OF THE CASE
• The opening paragraph should discuss the nature of the case. The reader then knows specifically what the RD is being asked to decide. State how the matter is before the RD. Identify the parties and the nature of the proceedings.
Example:
"This is a case involving a Petition for Exclusion from CARP Coverage filed by ________________________ on the ground that the subject landholding with TCT ________________ located at ____________________ with an area _________________ has an 18% slope and undeveloped."
B. FACTS
• Those facts necessary to a disposition of the matter under consideration should be set forth. Facts should be stated logically and concisely. A decision need not and should not set forth all the facts that may be involved in the case. Only a narrative statement of the controlling facts should be made. Controlling facts are facts which, when added together, enable the judge to come to some factual conclusion that affects the outcome of the case. The writer has to be selective; the RD must know which facts are material to his readers and their understanding of the decision. There must be no misstatement of facts. An improper factual recitation can result in irreversible miscarriage of justice.
Example:
"Petitioner is the registered landowner of the subject landholding. The area was covered under CARP through the issuance of NOC dated ___________________ which was received on ________________ by _______________. The verified petition for exemption was filed on ________________ at the ___________________ which is _____ days from ______________."
C. ISSUE/S
• Once these preliminary matters have been covered, the writer must identify the specific legal or factual issues to be discussed. State the issues simple enough that even a non-lawyer, can read and understand. Discuss each issue individually.
Example:
"1.) Whether or not the subject landholding is an undeveloped land with 18% slope;
2.) Whether or not the subject landholding is excluded from CARP coverage."
D. LAW, RULES AND REGULATIONS AND JURISPRUDENCE
• Next, systematically analyze the law, rules and jurisprudence (if there's any), as it pertain to the facts of the case leading to the conclusions.
Example:
"Under R.A. 6657, as amended ____________________. This is further clarified by Section 7 of DAR A.O. 7 Series of 2011 which provides that undeveloped lands with 18% slope are among those excluded from CARP coverage. The Supreme Court decided in the case of _____________________________ (G.R. ___________) that ________________________________."
E. DECISION
• Having covered each issue, the RD should summarize the dispositions by bringing together the conclusions into a decision.
Example:
"The petition was filed within the reglementary period pursuant to DAR A.O. No. 07-2011. However, from the records of the case, while the subject landholding has 18% slope, the said land is already developed for agricultural purposes. Since ______________, the petitioner has already been planting _______________ on the land. To be excluded from the coverage, the land must not only be 18% slope but must also be undeveloped. Therefore, the petitioner's landholding cannot be excluded from the CARP coverage."
XI. SAMPLE APPLICATION OF THE TEMPLATE BASED ON AN ACTUAL CASE
MABAYO FARMS INCORPORATED,
herein represented by RORAIMA D. SILVA, Applicant.
xxx xxx xxx
ORDER
NATURE OF THE CASE
This resolves an application for exemption from CARP coverage, pursuant to DAR Administrative Order No. 13, Series of 1990, as amended by DAR Administrative Order No. 10, Series of 1994.
FACTS
The pertinent facts are, as follows:
The landholding being applied for exemption pertains to a parcel of land with an area of 143.1970 hectares, more or less, located at Barangay Mabayo, Morong, Bataan, more particularly described as follows:
Registered Owner Transfer Cert. of Title Lot No. Date Registered Area (has.)
Mabayo Farms, Inc. OCT No. 326 1379 21 August 2001 143.1970
In support of its application, the applicant, through its representative, submitted the following documents:
1. Certified copy of Title;
2. Certified copies of Tax Declarations;
3. Sketch plan/Topographic map;
4. DENR Certification, stating that, based on actual verification, subject landholding is generally above 18% slope; and
5. Department of Agriculture Certification, stating that: "a) the area generally occurs on a moderately to strongly sloping hill to mountainous landscape generally under open grassland and savanna type of vegetation with small portion planted to mango; b) the area is solely dependent on rainwater for its irrigation needs and found to be highly susceptible to drought and soil erosion; and c) the area is classified poorly suited to cultivated crops and would require complex management practices to maintain productivity."
Records reveal that an Order was issued by this Office on 29 July 2005, the dispositive portion of which reads, as follows:
"In view of the foregoing premises, an Order is hereby issued DECLARING the property of Mabayo farms Incorporated covered by OCT No. 326, Lot No. 1379 consisting of 143.1970 hectares and located at Morong, Bataan to be covered under CARP without prejudice to the possible exercise of right of retention by the corporation, if qualified, as well as to the outcome of the exemption if one would be filed. Thus, until such time, the CARP coverage of the said landholding shall proceed immediately.
SO ORDERED."
On 18 October 2005, acting on the Motion for Reconsideration filed by the applicant, this Office issued an Order, the dispositive portion of which is, as follows:
"WHEREFORE, finding that the Motion for Reconsideration had not presented any compelling, convincing, or substantial arguments for this Office to modify or change, much less to reverse the decision dated July 29, 2005, the same is hereby AFFIRMED and the instant motion is accordingly DENIED for utter lack of merit."
SO ORDERED."
On 17 November 2005, Mabayo Farms, Inc. filed its application for exemption from CARP coverage before this Office, with the attached Certification dated 19 September 2005, issued by the CENRO of Bagac, Bataan, attesting that the land is generally above 18% in slope.
ISSUES
The issue to be resolved is whether or not the subject landholding is exempt from CARP on the ground that it is above 18% slope.
LAW, RULES AND REGULATIONS AND JURISPRUDENCE
Section 10 of RA 6657 excludes and/or exempts lands with 18% slope or over from the coverage of CARP. However, those lands having a slope of more than 18% but already developed before 15 June 1988 shall be placed under the coverage of CARP and the provisions of DAR A.O. No. 13, series of 1990, shall be applied.
A perusal of the records shows that the applicant has substantially complied with all the documentary requirements necessary for the approval of the instant application. This Office deems the instant application meritorious.
Upon careful deliberation and evaluation of the instant case, this Office is inclined to give respect and credence to the findings of the DENR and the Department of Agriculture, both of which are in the best position and with the necessary expertise to determine the slope and suitability or productivity of lands for agriculture. This Office likewise takes cognizance of the findings of the Municipal Agriculturist and the MARO. A Certification, dated 14 February 2006 was issued by the Municipal Agriculturist and the MARO, stating that a considerable portion of the area falls below 18% in slope and is suited to the cultivation of high value crops and agro-forestry.
DECISION
WHEREFORE, in view of the foregoing premises, ORDER is hereby issued:
GRANTING the application for exemption, pursuant to DAR Administrative Order No. 13, Series of 1990, as amended by DAR Administrative Order No. 10, Series of 1994, involving portions of the property covered by OCT No. 326, located in Mabayo, Morong, Bataan, registered in the name of Mabayo Farms, Incorporated, found to be 18% and above in slope and undeveloped;
DECLARING those portions found to be below 18% in slope to be covered under agrarian laws, rules and regulations;
DIRECTING the applicant to pay disturbance compensation to affected claimant(s), should there be any qualified, in cash or in kind, as may be mutually agreed upon under the premises, involving those portions found exempt in relation to the preceding paragraph;
Any misrepresentation of facts material to the issuance of this Order shall cause the nullity of this Order without need for court action.
SO ORDERED.
City of San Fernando Pampanga, 17 June 2009.
TEOFILO Q. INOCENCIO
OIC-Regional Director
Cc:
Parties or their counsel
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