De los requisitos y responsabilidades del liquidador

17.1 LAWS AND ISSUANCES GOVERNING AGRICULTURAL LAND TRANSACTIONS What are the laws governing land transaction?

17.1.1 RA 6657 contains several specific provisions on land transactions. They are the following:

a. Section 6 provides that upon effectivity of the law, any sale, disposition, lease, management contract or transfer of possession of private lands executed by the original landowner in violation of the Comprehensive Agrarian Reform Law (CARL) shall be null and void.

However, those transactions executed prior to the enactment of the law shall be valid if registered with the Register of Deeds within a period of three (3) months after the effectivity of the law, or on 13 September 1988;

b. Section 70 allows the sale or disposition of agricultural lands retained by a landowner provided that the total landholding, including the land being acquired by the buyer/transferee shall not exceed the landholding ceiling of five (5) hectares, subject, however, to the right of pre-emption and/or redemption of tenant/lessee under Sections 11 and 12 of RA 3844, as amended

c. Section 73 prohibits the sales, transfer, conveyance or change of the nature of lands outside of urban centers and city limits either in whole or in part after the effectivity of RA 6657;

The same section also prohibits the sale, transfer or conveyance by a beneficiary of the right to use or any other usufructuary right over the land he/she acquired by virtue of being a beneficiary, in order to circumvent the provisions of CARL;

d. Section 27 of RA 6657 further provides that the lands acquired by beneficiaries may not be sold, transferred or conveyed except through hereditary succession or to the government or to other qualified beneficiaries for a period of ten years. Provided, however, that the children or the spouse of the transferor shall have a right to repurchase the land from the government or LBP within a period of two (2) years; and

e. Presidential Decree No. 27 originally prohibited the transfer of title to land acquired pursuant to

this Decree except by hereditary succession or to the government in accordance with the provisions of PD 27, the Code of Agrarian Reform and other existing laws and regulations.

However, Section 6 of Executive Order No. 228 now allows the transfer of ownership of lands acquired by farmer- beneficiaries after full payment of amortiz ation. What are the relevant AOs on land transaction?

a. Administrative Order No. 01, Series of 1989 entitled "Rules and Procedures Governing Land Transactions" provided the implementing guidelines for RA 6657's provisions on land transaction.

b. Administrative Order No. 04, Series of 1994 entitled "Guidelines on the Development of Agro-Tourism Areas in Accordance with the Tourism Master Plan".

Under this new AO, DAR allows in meritorious cases, the lease or joint venture arrangement of lands acquired by agrarian reform beneficiaries under CARP for agro- tourism development purposes. This is in line with the general objective of agrarian reform in terms of uplifting the quality of life of the ARBs. Guidelines and safeguards should, however, be adhered to strictly.

17.2 LAND TRANSACTIONS INVOLVING AGRO-TOURISM DEVELOPMENT

What are the conditions which must be present to allow lease or joint venture arrangements for agro-tourism development involving lands distributed under CARP? The following conditions must be present:

1. The area has been identified by government as priority development area under the Medium Term Philippine Development Plan, or certified by the Department of Tourism as a priority area for tourism development;

2. The dominant use of the area should still be agricultural such that the area to be developed for tourism shall be less than 50% of the total area subject to CARP. Irrigated or irrigable lands are further ineligible for these purposes;

3. The agricultural area of the project shall be continuously maintained by the ARBs who shall supply the tourism project with agricultural products; 4. The ARBs or their direct descendants shall be given preference in employment in the tourism project;

5. All improvements related to tourism shall accrue to the ARBs or their association at the expiry of the lease period;

6. Profit- sharing and other benefits may be negotiated by DAR in behalf of the ARBs, depending on the exigencies of the situation;

7. The lease agreement shall specify the time frame for development of the subject property but not to exceed five (5) years reckoned from the date of approval of the lease or joint venture agreement;

pursuant to Section 27 of RA 6657. (AO 04, Series of 1994).

What kind of arrangements can be entered into by the ARBs if the above conditions are fulfilled? 1. Direct lease to the investor/developer under RA 7652;

2. Lease to a responsible government entity, who in turn may sublease the property to the investor/developer; 3. Lease back to the former landowner, who in turn will develop the area for tourism purposes; or

4. Joint venture agreement whereby ARB's lease rights shall be exchanged for shares of stocks, provided the ARBs shall organiz e into a farmers cooperative. 17.3 LAND TRANSACTIONS AFTER 15 JUNE 1988

A vendee bought a parcel of agricultural land consisting of fifty (50) hectares prior to 15 June 1988. However, the deed of sale was not registered within the three-month period as provided for in Section 6 of RA 6657. The vendee now wants to have the transaction registered and is willing to have the land covered by CARP. Should the ROD register the transaction?

Yes, the transaction should be registered even if beyond the prescribed period. Anyway, the vendee is willing to have it covered under CARP. To disallow registration and rescind the contract will result in a legal nightmare to the prejudice of the vendee/transferee. DAR can give clearance for the registration. (DOJ Opinion No. 41, Series of 1992). Can agricultural lands be mortgaged to guarantee any loan obligation secured to develop or to improve such lands?

Yes, there are lands that may be the subject of mortgage, lien or encumbrance. These are the following: EAISDH a. Lands not yet acquired by DAR in accordance with the schedule of acquisition mentioned in Section 7 of RA 6657. b. Those lands chosen by the landowners as their retention areas; and

c. Lands already awarded/allocated to the agrarian reform beneficiaries.

Can banks and other financial institutions acquire title to agricultural lands subject of a mortgage right or interest?

Banks and other financial institutions allowed by law to hold mortgage right or security interest in agricultural lands may acquire title to those mortgaged properties, regardless of areas, subject to existing laws on compulsory transfer of foreclosed assets and acquisition as prescribed under Section 16 of RA 6657.

Can government financing institutions and government-owned or controlled corporations sell or dispose their lands which are suitable for agriculture directly to private individuals? No. Executive Order No. 360, Series of 1989 enjoins them to grant the DAR the right of first refusal in the sale or disposition of their lands which are suitable for agriculture. This was further amended by EO 407 which mandates all government instrumentalities to surrender to the DAR all landholdings suitable for agriculture including all pertinent documents in their custody. In certain instances, they may avail of the VLT mode of transferring ownership of agricultural lands to qualified beneficiaries subject to the review and approval of DAR.

17.4 RIGHT OF PRE-EMPTION What is the right of pre-emption?

Under Section 11 of RA 3844, in case the landowner/lessor decides to sell his tenanted/leased land, he/she must first offer to sell the landholding to the tenant or lessee thereof who has the preferential right to buy the same under reasonable terms and conditions imposed therein.

If the land has two or more agricultural tenants or lessees in the same landholding, how will they exercise their right of pre-emption?

Section 11 of RA 3844 provides that if there are two or more agricultural tenants or lessees, each shall be entitled to said preferential right only to the extent of the area actually cultivated by him/her.

What is the prescribed period imposed by law in the exercise of the right of pre-emption?

The right of pre- emption may be exercised within one hundred eighty (180) days from notice in writing, which shall be served by the owner to all tenants or lessees affected. 17.5 RIGHT OF REDEMPTION

What is the right of redemption?

Under Section 12 of RA 3844, in case the landholding is sold to a third person without the knowledge of the tenant or agricultural lessee, the latter shall have the right to repurchase said landholding at a reasonable price and consideration.

If there are two or more tenants or agricultural lessees in the same landholding, how will they exercise their right of redemption?

If there are two or more tenants or agricultural lessees in the same landholding, each shall be entitled to said right of redemption only to the extent of the area actually cultivated by him/her.

What is the prescriptive period imposed by law in order to avail of the right of redemption?

The right of redemption may be availed of within one hundred eighty (180) days from notice in writing which shall be served by the buyer on all tenants/lessees affected and the DAR upon the registration of the sale, and shall have priority over any other right of legal redemption.

17.6 VALID TRANSACTIONS

What are the valid transactions under the CARP? The following transactions are valid:

a. Those executed by the original landowner in favor of a qualified beneficiary from among those certified by DAR; b. Those in favor of the government, DAR or the LBP;

c. Those covering lands retained by the landowner under Section 6 of RA 6657, executed in favor of the transferee whose total landholdings inclusive of the land to be acquired do not exceed five hectares, subject, however, to the right of pre- emption and/or redemption of tenant/lessee under Sections 11 and 12 of RA 3844, as amended; d. Those executed by ARBs covering lands acquired under any agrarian law in favor of the government, DAR, LBP or other qualified beneficiaries certified by DAR; and e. Those executed after ten (10) years from the issuance and registration of the Emancipation Patent (EP) or Certificate of Land Ownership Award (CLOA).

17.7 INVALID TRANSACTIONS

What are the invalid transactions under CARP? The following transactions are not valid:

a. Sale, disposition, lease, management contract or transfer of possession of private lands executed by the original landowner prior to 15 June 1988, which are not registered on or before 13 September 1988, or those executed after 15 June 1988 covering an area in excess of the five (5) hectare retention limit in violation of RA 6657; b. Those covering lands acquired by the beneficiary under RA 6657 and executed within ten (10) years from the issuance and registration of the Emancipation Patent (EP) or Certificate of Land Ownership Award (CLOA) except through hereditary succession, to the DAR, LBP or to other qualified beneficiaries;

c. Those executed in favor of a person or persons not qualified to acquire land under Section 22 of RA 6657;

d. Sale, transfer, conveyance or change of nature of land outside of urban centers and city limits either in whole or in part after 15 June 1988, except as provided for under the rules on land conversion; and

e. Sales, transfer or conveyance by an ARB of the right to use or any other usufructuary right over the land he acquired by virtue of being a beneficiary in order to circumvent the law.

What are the transactions that may be registered with the Register of Deeds without clearance from the DAR? The following are the transactions that can be registered without clearance from the DAR:

a. Deed of extra- judicial partition of the property of a deceased who died before 15 June 1988; b. Deed of partition of property owned in common by co- owners prior to 15 June 1988; c. Subdivision of title without change of ownership; and

d. Deed of Real Estate Mortgage executed by the original landowner or beneficiary. CHAPTER 18