May 7, 1997

DAR OPINION NO. 50-97

Dra. Mercedes Pine Santillan

650 Montaña St.

Sampaloc, Manila

Dear Dra. Santillan:

This has reference to your letter dated 11 April 1997 seeking opinion on whether a landholding which has an aggregate area of less than five (5) hectares could be placed under the coverage of the agrarian reform program of the government.

You state that the subject property has an aggregate area of 48,184 square meters situated at San Leon, Umingan, Pangasinan; that said landholding was the conjugal property of your parents, the late Angel Pine and Magdalena Bince, whose title is still registered in their names; that it was donated to you and your sister Pacita Pine through a quitclaim; and that a letter has been sent to the DAR requesting for the retention of the subject landholding but to this date no response has yet been received from our Department.

At the outset, we wish to clarify that the retention area of the landowner under Presidential Decree No. 27 (Decreeing the Emancipation of Tenants from the Bondage of the Soil Transferring to Them the Ownership of the Land They Till and Providing the Instruments and Mechanism Therefor) is a maximum of seven (7) hectares. Specifically, DAR Administrative Order No. 04, Series of 1991 expressly provides that landowners covered by PD 27 are entitled to retain seven hectares, except those whose entire tenanted rice and corn lands are subject of acquisition and distribution under Operation Land Transfer (OLT). An owner of tenanted rice and corn lands may not retain these lands under the following cases:

a.)        If he as of 21 October 1972 owned more than 24 hectares of tenanted rice or corn lands; or

b.)       By virtue of LOI 474, if he as of 21 October 1976 owned less than 24 hectares of tenanted rice or corn lands but additionally owned the following:

1.         Other agricultural lands of more than seven hectares, whether tenanted or not, whether cultivated or not, and provided he derives adequate income therefrom; or

2.         Lands used for residential, commercial, industrial, or other urban purposes, from which he derives adequate income to support himself and his family.

Landowners who filed their applications for retention before 27 August 1985, the deadline set by DAR Administrative Order No. 1, Series of 1985; may retain not more than seven hectares of their landholdings covered by PD 27 regardless of whether or not they complied with LOI Nos. 41, 45 and 52. Landowners who filed their applications for retention after 27 August 1985 but complied with the requirements of LOI Nos. 41, 45 and 52 shall likewise be entitled to such seven-hectare retention area. However, landowners who filed their applications for retention after the 27 August 1985 deadline and did not comply with the requirements of LOI Nos. 41, 45, and 52 shall only be entitled to a maximum of five hectares as retention area.

On the other hand, R.A. No. 6657 (Comprehensive Agrarian Reform Law) provides for a maximum retention area of five (5) hectares only. The aforementioned retention areas as mandated by law are beyond the scope of the agrarian reform program of the government and are not subject to compulsory acquisition by the government for distribution to qualified beneficiaries because the law has reserved the same to landowners purposely to be the source of their livelihood. No less than the Constitution grants landowners the right to retain a portion of their lands covered by agrarian reform. This is in line with the State's policy of respect for the rights of small landowners and recognition of their rights to reasonable retention limits. However, be that as it may, retained areas of the landowners are not covered only insofar as the land acquisition and distribution aspect of the agrarian reform program is concerned but the same are still covered with respect to the other provisions of agrarian laws, rules and regulations, particularly that of leasehold.

On the assumption that your aggregate agricultural landholding is only 48,184 square meters, subject to proper proof thereof, the same is beyond the coverage of agrarian reform program of the government either under the provisions of P.D. No. 27 or R.A. No. 6657. As such, it is exempt and continues to be exempt from coverage. Thus, being the owner thereof, you possess the right, to sell, transfer or convey the same to another you wish to transact with, provided the legally mandated 5-hectare agricultural landownership ceiling is observed by the transferee and provided, further, that the sale or transfer would not defeat the right to security of tenure of the tenants affected therein (maintaining them in the peaceful possession and cultivation of their respective tillages) and according them their rights of pre-emption and redemption.

Lastly, in order that your application for retention will be acted upon with dispatch, you are hereby advised to properly file the same in our DAR Field Office where the subject property is located.

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

Copy furnished:

Municipal Agrarian Reform Officer

DAR, Umingan, Pangasinan

Provincial Agrarian Reform Officer

DAR, Urdaneta, Pangasinan