Retention Rights, Exemption and Exclusion

Retention Rights, Exemption and Exclusion

TopicsSection(s) 3c, 6 (6-a,6-b), 10Republic Act 7881 (1995) Exempting Prawn Farms and Fishpond from CARP

Section 3cAgricultural Landrefers to land devoted to agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land.

Section 6. Retention LimitRetention right of the ownerCan a landowner who has already exercised his retention rights under Presidential Decree No. 27 be entitled to retention right under Comprehensive Agrarian Reform Law?

Can spouses retain 5 hectares each under the agrarian reform law?Who has the right to choose the retention area?Can a landowner exercise his right to retention over the land which has already been covered Emancipation Patent or Certificate of Land Ownership Award?Sance4Section 6. Retention LimitSuppose the retention area chosen by the landowner is tenanted, what happens to the tenant?Effect if the tenant chooses to remain in the retained areaSance5Section 6. Retention LimitsWhat is the term of the lease?

Leasehold extinguished:

a. Abandonment or voluntary surrender

b. Absence of successor (death or permanent disability)i.e., surviving spouse, eldest direct descendants by consanguinity, or next eldest of deathlessor chooses continuesnot terminated through expirationAgricultural lessor : transferee

Hannah6Section 6. Retention LimitEffect if the Tenant Chooses to be a beneficiaryin the same or another agricultural land, he loses his right to be a lessee of the land retained by the owner Children of the Landowner are Entitled to 3 hectares each

Conditions:a. 15 years oldb. Actually tilling the land or directly managing the farm

Hannah7Section 6. Retention LimitIn General : Children (a)Qualified children who owns less than 5 hectares of land is still entitled to an award of his parents landholding; where total shall not exceed ownership ceiling. (Sec. 2, DAR Administrative Order No. 06-66)

(b) Land awarded cannot be sold, transferred or conveyed; 10 years, except:- hereditary succession- to the government- to the Land Bank of the Philippines- other qualified beneficiaries (repurchase within the period of 2 years) Section 6. Retention LimitRight of Homesteaders vis--vis Right of Tenants- Section 6 Article 13 of the Constitution; Respects the superiority of the rights of the homesteaders (ancestral) - Section 6 CARL; remedial measure Commonwealth Act. 141 (homestead grants or Free Patents.

..continue to cultivate

Section 6-A. Exception to Retention LimitsExpropriation of Private Agricultural Lands By Local Government Units (LGU); DAR should first subject it to agrarian reform coverage where;

LGU10Section 6-B. Review of Limits of Land SizeThe Import of the Law

- implied recognition that the uniform setting of a 5-hectare limit for all agricultural landholding may not be feasible due to economic difference.

Section 10. Exemptions and ExclusionsLand classification in the tax declaration is not conclusiveTax declarations are not the sole basis of land classification

Lands classified as non-agricultural prior to the effectivity of the Comprehensive Agrarian Reform Law (CARL) are not coveredIndeed, lands not to agricultural activity are outside the coverage of CARL

Section 10. Exemptions and ExclusionsLands with at least 18% slope

a. Exempted to prevent adverse effects on the lowlands and streams resulting from soil erosion

b. If the land (18% slope, at least), previously classified as alienable/disposable but not yet titled, shall be reverted back to the category of public forest.

c. If the land (covered, approved public land application or occupied openly, continuously and publicly) period of not less than 30 days as of the effectivity of the Forestry Reform Code are alienable and disposable.

Section 10. Exemptions and ExclusionsSchool sites and campuses

a.The school is in the best position to determine whether the land is necessary for use as school sites or campuses.b.DAR has no right to substitute the judgment/discretion for that of the school.

Who has jurisdiction to exempt a property from agrarian reformThe Secretary of Agrarian Reform

REPUBLIC ACT NO. 7881An act amending certain provisions of R.A. 6657(Effective March 12, 1995)

Exempting Prawn Farms and Fishponds from the coverage of Comprehensive Agrarian Reform Program (CARP)RJ & Oliver

15REPUBLIC ACT NO. 7881 (Amendments)Sec. 3, par. (b). Definitions(b)Agriculture, Agricultural Enterprise or Agricultural Activity means the cultivation of the soil, planting of crops, growing of fruit trees,[REMOVES THE PHRASE: 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 persons whether natural or juridical.(as amended bySection 1, RA 7881)

Basis: Luz Farms v. Secretary of Agrarian Reform; 192 SCRA 51(livestock, poultry and swine are classified as industrial, not agricultural, hence, exempt from CARP)

REPUBLIC ACT NO. 7881 (Amendments)Sec. 10, par. (b) Exemptions and Exclusions(b)Private lands actually, directly and exclusively used for prawn farms and fishponds shall be exempt from the coverage of this Act:Provided, That said prawn farms and fishponds have not been distributed and Certificate of Land Ownership Award (CLOA) issued to agrarian reform beneficiaries under the Comprehensive Agrarian Reform Program.In cases where the fishponds or prawn farms have been subjected to the Comprehensive Agrarian Reform Law, by voluntary offer to sell, or commercial farms deferment or notices of compulsory acquisition, a simple and absolute majority of the actual regular workers or tenants must consent to the exemption within one (1) year from the effectivity of this Act.When the workers or tenants do not agree to this exemption, the fishponds or prawn farms shall be distributed collectively to the worker-beneficiaries or tenants who shall form a cooperative or association to manage the same.In cases where the fishponds or prawn farms have not been subjected to the Comprehensive Agrarian Reform Law, the consent of the farm workers shall no longer be necessary, however, theprovision of Section 32-A hereof on incentives shall apply. (as amended by,Section 2, RA 7881)

REPUBLIC ACT NO. 7881DiscussionNOTE: R.A. No. 7881 is regulated by DAR Administrative Matter No. 03-95 (Rules and Regulations Governing the Exemption/Exclusion of Fishpond and Prawn farms from the coverage of the Comprehensive Agrarian Reform Law (CARL)

REPUBLIC ACT NO. 7881What are exempt from CARL?(b) Private lands actually, directly and exclusively used for prawn farms and fishponds as of March 12, 1995 (effectivity of R.A. 7881) shall be exempt from the coverage of CARL.REPUBLIC ACT NO. 7881When do lands used for prawn farms and fishponds become NOT EXEMPT from CARL?

Lands devoted to prawn farms and fish ponds which have already been distributed to Agrarian Reform Beneficiaries with the corresponding Certificate of Land Ownership Awards(CLOAs) issued, being a consummated transaction, shall no longer be exempt from coverage of CARL.

REPUBLIC ACT NO. 7881What will happen to the fishponds and prawn farms which become subjected to compulsory acquisition by CARL before the effectivity of R.A. 7881?

Fishponds or prawn farms which have already been subjected to the Comprehensive Agrarian Reform Law (CARL) by voluntary offer to sell (VOS) or under Commercial Farm Deferment (CFD) or for which Notices of Acquisition (NOA) have already been issued to the landowner under the compulsory acquisition scheme, SHALL BE EXEMPT from CARP coverage, only upon the consent of a simple and absolute majority of the actual regular workers of tenants within one (1) year from March 12, 1995. In the event the one year period has elapsed and the required consent has not been obtained, the property becomes subject to CARL.

REPUBLIC ACT NO. 7881What if the simple and absolute majority is obtained?

In case the said workers or tenants object to the exemption, the subject fishponds or prawn farms shall be distributed collectively to the worker-beneficiaries or tenants who shall form a cooperative or association to manage the same.The Land Bank of the Philippines (LBP) shall extend financial assistance to the said cooperatives or associations through its countryside loan assistance program.CASES

CASESGABINO ALITA, et.al. vs. COURT OF APPEALS (27 FEBRUARY 1989)

Section 6. Retention Limits.. Provided further, That original homestead grantees or their direct compulsory heirs who still own the original homestead at the time of the approval of this Act shall retain the same areas as long as they continue to cultivate said homestead.'

CASESNATALIA REALTY, INC. and ESTATE DEVELOPERS AND INVESTORS CORP. vs. DEPARTMENT OF AGRARIAN REFORM, et.al. (12 AUGUST 1993)Based on the foregoing, it is clear that the undeveloped portions of the Antipolo Hills Subdivision cannot in any language be considered as "agricultural lands." These lots were intended for residential use. They ceased to be agricultural lands upon approval of their inclusion in the Lungsod Silangan Reservation.

CASESDEPARTMENT OF AGRARIAN REFORM vs. DELIA T. SUTTON, et.al. (19 OCTOBER 2005)In the case at bar, after the passage of the 1988 CARL, Congress enacted R.A. No. 7881 which amended certain provisions of the CARL. Specifically, the new law changed the definition of the terms agricultural activity and commercial farming by dropping from its coverage lands that are devoted to commercial livestock, poultry and swine-raising.

CASESMILESTONE FARMS, INC. vs. OFFICE OF THE PRESIDENT (23 FEBRUARY 2011)

To succumb to petitioner's contention that "when a land is declared exempt from the CARP on the ground that it is not agricultural as of the time the CARL took effect, the use and disposition of that land is entirely and forever beyond DAR's jurisdiction" is dangerous, suggestive of self-regulation.

CASESDEPARTMENT OF AGRARIAN REFORM vs. DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (23 MARCH 2004)Section 10 of R.A. No. 6657 enumerates the types of lands which are exempted from the coverage of CARP as well as the purposes of their exemption, viz: 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, , shall be exempt from the coverage of this Act.CASESROXAS & COMPANY, INC. vs. DAMBA-NFSW and DEPARTMENT OF AGRARIAN REFORM (4 DECEMBER 2009)

It bears emphasis that a mere reclassification of an agricultural land does not automatically allow a landowner to change its use since there is still that process of conversion before one is permitted to use it for other purposes

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