RETENTION RIGHT TEMPLATE
This template shall apply to issues and cases pertaining to the retention rights of landowners (LOs).
II. CHECKLIST OF DOCUMENTARY REQUIREMENTS
1. For landowners who own lands of five (5) hectares or less requesting for the issuance of a Certification of Retention:
[ ] CARP-LAD Form No. 13 (Request for Certification of Retention);
[ ] Landowner's affidavit of sole and aggregate ownership of agricultural land nationwide.
2. For landowners whose lands consist of more than five (5) hectares and are subject of Compulsory Acquisition:
A. To determine if the right of retention was exercised on time:
[ ] Notice of Coverage (NOC);
[ ] Proof of receipt of NOC to the landowner or;
[ ] Publication of NOC.
B. To determine if the applicant is the proper party to exercise the right of retention:
[ ] Certified true copy of title/tax declaration of parcel of land which is the subject of application for retention, and other proof of ownership if the applicant claims to be the owner of the property;
[ ] Special Power of Attorney and the document listed above, if the applicant is a representative of the landowner;
[ ] Articles of Incorporation and/or Secretary's Certificate of Authorization, if the applicant is a juridical person;
[ ] Certified true copy of marriage certificate, prenuptial agreement, judicial decree of separation of property, if the exercise of retention rights will touch on the landowner and his or her spouses' property regime;
[ ] Sworn statement of personal cultivation and Barangay Agrarian Reform Council (BARC) attestation to such fact, if the applicant is a homestead grantee or is an heir of said grantee.
Additional requirements if the applicant is an heir of the landowner:
[ ] Death Certificate of the landowner;
[ ] Birth Certificate of the applicant;
[ ] A manifestation of the landowner's intention to exercise his right of retention prior to 23 August 1990.
C. To determine the choice of area to be retained and other matters:
[ ] Sketch map of the entire property with a delineation or shading or general indication of the retained area as manifested by the landowner or as chosen by the Municipal Agrarian Reform Officer (MARO);
[ ] Sworn Application for Retention, which requires information on the following:
• Names of occupants on the land, their status, and the crops growing on the property;
• Description of the parcels of land surrounding the chosen retention area, particularly the land use, crops cultivated, productivity level, etc.;
• Complete list of children (if applicable), with copies of their birth certificates;
• Previous land sales where the applicant was a seller or buyer;
• Indicate where the area to be retained is located.
[ ] MARO's field verification and investigation report pertaining to information alleged in the application for retention;
[ ] Landowner's affidavit of aggregate landholding nationwide.
D. If the retention area was chosen by the MARO due to the landowner's failure to timely select his retention area and there is opposition thereto, the following documents may be considered:
• NOC to and proof of receipt of NOC by the landowner;
• MARO's field verification and investigation report pertaining to the determination of aggregate landholdings of the landowner, description of the area chosen for retention, and identification of occupants/tenants on the property;
• MARO's notice to the landowner of his chosen retention area and proof of receipt of such notice.
3. For untitled private agricultural lands, certification from the Department of Environment and Natural Resources Office (CENRO) (for administrative confirmation of imperfect title) or the clerk of court (for judicial confirmation of imperfect title) that the titling process or proceeding has commenced and there are no adverse claimants;
4. Note: For untitled land, there must be a showing that (a) the same forms part of alienable and disposable land of public domain; (b) that the one claiming ownership thereof or his predecessors-in-interest have been in open, continuous, exclusive and notorious occupation of the property (c) land is under bona fide claim of ownership since June 12, 1945 or earlier. If later than 12 June 1945, the occupation must be at least 30 years which must be counted from the time the land is declared alienable and disposable and there must be a declaration by the DENR that the land is no longer intended for public service or development of national wealth (see: Republic vs. Rizaldo, G.R. No. 172011, March 7, 2011).
References for this Section:
DAR Administrative Order No. 02, Series of 2003 and its attached Sworn Application for Retention Under Republic Act No. 6657.
1. Under Rule II, Section 7 of Department of Agrarian Reform Administrative Order (DAR A.O.) No. 3, Series of 2003, the Regional Director (RD) shall exercise primary jurisdiction over all agrarian law implementation (ALI) cases except when a separate special rule vests jurisdiction in a different DAR office.
2. As regards appeals, Rule II, Sec. 10 of DAR A.O. 3, Series of 2003, provides that the Secretary shall exercise appellate jurisdiction over all ALI cases, and may delegate the resolution of the appeals to the Undersecretary.
1. Any person, natural or juridical, who owns agricultural lands with an aggregate area of more than five (5) hectares, may apply for a retention area.
This includes the husband or the wife as regards their exclusive properties. In case of lands that form part of the conjugal property, the statutes and administrative issuances are silent as to whether one spouse may validly apply for retention or whether there is a need for the concurrence of the other spouse.
Exception: A landowner who exercised his right of retention under Presidential Decree (P.D.) No. 27 may no longer exercise the same right under Republic Act (R.A.) No. 6657.
If he has other agricultural lands — that is, aside from his retained area under P.D. No. 27 — he can opt to retain five (5) hectares of these lands and the seven (7) hectares previously retained by him under P.D. No. 27 shall be placed under the Comprehensive Agrarian Reform Program (CARP).
2. A landowner who owns five (5) hectares or less of land which is not yet the subject of CARP coverage based on the schedule of implementation in Section 7 of R.A. No. 6657, may also file an application for retention. A Certificate of Retention will be issued in his favor.
3. The right of retention of a deceased landowner may be exercised by his heirs provided that the decedent landowner, during his lifetime, manifested his intention to exercise his right of retention prior to 23 August 1990 (the finality of the Supreme Court ruling in the case of Association of Small Landowners in the Philippines, Inc. vs. The Honorable Secretary of Agrarian Reform; G.R. No. 78742, 14 July 1989).
4. If there are CLOA/EP holders over the land subject of the petition for retention, they must be personally notified and must be asked to comment on the petition.
1. For lands five (5) hectares and below:
i. The law provides for an automatic exclusion from coverage, hence there is no need to file an application for retention.
ii. In any case, the landowner may opt to request for the issuance of a Certification of Retention from the PARO.
2. For lands of more than five (5) hectares under Compulsory Acquisition (CA):
i. The landowner shall choose his retained area within thirty (30) days from receipt of Notice of Coverage (NOC) or date of publication of NOC.
Note: The thirty (30)-day period shall be used for cases where the applicable issuance is DAR Administrative Order No. 02, Series of 2009, which was approved on 15 October 2009. For other cases, a sixty (60)-day period shall be used, as provided for in DAR Administrative Order No. 02, Series of 2003, which took effect on 07 February 2003.
ii. Failure to exercise the right to choose within the prescribed period shall constitute a waiver thereof. In which case the DAR, through the MARO, shall automatically choose for the landowner his/her retention area.
3. For landholdings under Voluntary Offer to Sell (VOS), the landowner shall exercise his right of retention simultaneously at the time of the offer for sale of the subject landholding.
References for this Section:
STEP 1: Determine the applicant's standing:
• If a juridical person, check the secretary's certificate or other proof of its capacity to apply for a retention area. If there is none, deny the application for retention. If there is, proceed with the application.
• If a co-owner, check if there is an agreement to partition the property.
- If yes, the retention area will be confined to the portion of the property allotted to him.
- If no, he will be allowed to choose his retained area.
In both cases, proceed with the application for retention.
• If married, check if the spouses executed a judicial separation of property.
- If they did, check if the landholding was transferred to the applicant. If it was, proceed with the application for retention. If it was not, deny the application.
- If they did not execute a judicial separation of property, check if the landholding is exclusive or conjugal.
- If the property is exclusive, proceed with the application for retention.
- If conjugal, check if the application for retention was filed with the concurrence of the other spouse.
• If single, proceed with the application.
• If the heirs of the landowner, determine if their predecessor-in-interest manifested an intention to exercise the right of retention under R.A. No. 6657 prior to 23 August 1990. If he did not, deny the application. If yes, proceed with the application for retention.
• If a homestead grantee or an heir or heirs of said grantee, proceed with the application.
STEP 2: Determine if the landholding was acquired through CA, VOS, or was covered under Operation Land Transfer (OLT).
• If acquired through CA, proceed with the application.
• If acquired through VOS, check if the landowner manifested his intention to exercise the right of retention simultaneously with the offer to sell. If not, deny the application for retention. If yes, proceed with the application.
• If covered under OLT, proceed to the third option in Step 4.
STEP 3: Determine the timeliness of the application for retention:
• If the application was filed within thirty (30) days from receipt or date of publication of NOC, proceed with the application for retention.
• If filed beyond this period, consider the MARO's report and other documents he/she presented in determining the retained area.
STEP 4: Determine if the applicant had exercised his right of retention under P.D. No. 27.
• If yes, and the applicant was granted seven (7) hectares as retention area, determine if the applicant is aware that if he opts to retain five (5) hectares of the properties covered under CARP, he will lose the seven (7)-hectare retention area granted to him under P.D. No. 27. Proceed with the application.
• If his landholding was covered under OLT but he has not yet exercised his right of retention, determine if the applicant's actions are barred by laches or if he is disqualified under Letter of Instruction (LOI) No. 474. If yes in either circumstance, deny the application for retention. Otherwise, proceed with the application.
STEP 5: Factors to be considered in granting the choice of retained area:
• The retained area must be compact and contiguous.
• If there exists a waiver of the right to choose the retained area, the MARO must select a parcel of land in such a way that it would be least prejudicial to the entire landholding and the majority of the farmers on the property.
• The retained area must not exceed five (5) hectares, unless:
- The application for retention involves property covered under OLT and was filed before 27 August 1985, in which case the landowner will be entitled to seven (7) hectares of retained area.
- The application for retention involves property covered under OLT, was filed after 27 August 1985, and the landowner complied with LOI Nos. 41, 45, and 52, in which case he will also be entitled to seven (7) hectares of retained area.
- The property regime of spouses whose marriage is not covered by the Family Code is involved, in which case, the table in Section IX (2) of this template will be followed.
• Retention will not be granted at this stage if:
- The applicant committed acts which constitute a waiver of the right to retain or those specified in Section X of this Template.
- The property was covered under OLT, the applicant would not be qualified to retain because of the provisions in LOI No. 474, and he is now opting to exercise his right of retention under R.A. No. 6657.
• If there are tenants on the retained area:
- And the tenant, within one (1) year from the time the retained area was chosen, opted to remain on the land as a lessee, order the execution of leasehold contracts.
- If the tenant, within one (1) year from the time the retained area was chosen, opted to become a farmer beneficiary in another part of the landholding not chosen as a retention area, order the local DAR officers to process his application as farmer-beneficiary of a portion of the property with similar or comparable features.
- If the tenant, within one (1) year from the time the retained area was chosen, opted to become a farmer beneficiary in a landholding owned by another party, order the local DAR officers to process his application as farmer-beneficiary in a portion of that property with similar or comparable features.
VII. APPEAL TO THE SECRETARY
A. When to appeal: Within fifteen (15) days from receipt of the adverse decision.
B. Where to appeal: The notice of appeal shall be filed with the Regional Director (RD) with proof of payment of the requisite appeal fee. The appeal fee may be received by official cashiers of any DAR office.
Non-perfection of the appeal within the fifteen (15)-day period merits dismissal of the appeal.
C. No appeal shall be given due course unless the decision of the RD is final, disposing of the case on the merits, and only on the following grounds:
(a) Serious errors in the findings of fact or conclusion of law which may cause grave and irreparable damage or injury to the appellant; or
(b) Coercion, fraud, or clear graft and corruption in the issuance of a decision.
VIII. APPLICABLE LAWS, RULES, AND POLICIES
1. Legal Provisions
Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till, or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing. (emphasis added)
ii. Republic Act (R.A.) No. 6657 (effective 15 June 1988), as amended by R.A. No. 9700 (effective 01 July 2009)
Section 6. Retention Limits. — Except as otherwise provided in this Act, no person may own or retain, directly or indirectly, any public or private agricultural land, the size of which shall vary according to factors governing a viable family-size farm, such as commodity produced, terrain, infrastructure, and soil fertility as determined by the Presidential Agrarian Reform Council (PARC) created hereunder, but in no case shall retention by the landowner exceed five (5) hectares. Three (3) hectares may be awarded to each child of the landowner, subject to the following qualifications: (1) that he is at least fifteen (15) years of age, and (2) that he is actually tilling the land or directly managing the farm; Provided, That landowners whose lands have been covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them thereunder, further, That original homestead grantees or 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.
The right to choose the area to be retained, which shall be compact or contiguous, shall pertain to the landowner, Provided, however, That in case the area selected for retention by the landowner is tenanted, the tenant shall have the option to choose whether to remain therein or be a beneficiary in the same or another agricultural land with similar or comparable features. In case the tenant chooses to remain in the retained area, he shall be considered a leaseholder and shall lose his right to be a beneficiary under this Act. In case the tenant chooses to be a beneficiary in another agricultural land, he loses his right as a lease holder to the land retained by the landowner. The tenant must exercise this option within a period of one (1) year from the time the landowner manifests his choice of the area for retention.
In all cases, the security of tenure of the farmers or farmworkers on the land prior to the approval of this Act shall be respected.
Upon the effectivity of this Act, any sale, disposition, lease, management contract or transfer of possession of private lands executed by the original landowner in violation of this Act shall be null and void; Provided, however, That those executed prior to this Act shall be valid only when registered with the Register of Deeds within a period of three (3) months after the effectivity of this Act. Thereafter, the Register of Deeds shall inform the DAR within thirty (30) days of any transaction involving agricultural lands in excess of five (5) hectares.
Section 6-A. Exception to Retention Limits. — Provincial, city, and municipal government units acquiring private agricultural lands by expropriation or other modes of acquisition to be used for actual, direct and exclusive public purposes, such as roads and bridges, public markets, school sites, resettlement sites, local government facilities, public parks and barangay plazas or squares, consistent with the approved local comprehensive land use plan, shall not be subject to the five (5)-hectare retention limit under this Section and Sections 70 and 73(a) of Republic Act No. 6657, as amended: Provided, That lands subject to CARP shall first undergo the land acquisition and distribution process of the program: Provided, further, That when these lands have been subjected to expropriation, the agrarian reform beneficiaries therein shall be paid just compensation.
Section 6-B. Review of Limits of Land Size. — Within six (6) months from the effectivity of this Act, the DAR shall submit a comprehensive study on the land size appropriate for each type of crop to Congress for a possible review of limits of land sizes provided in the Act.
iii. Presidential Decree (P.D.) No. 27 (effective 21 October 1972)
In all cases, the landowner may retain an area of not more than seven (7) hectares if such landowner is cultivating such area or will now cultivate it;
Section 6. Powers. — In pursuance of the policy in the enunciated section two hereof, the Administration is authorized to:
(2) Initiate and prosecute expropriation proceedings for the acquisition of private agricultural lands in proper cases, for the same purpose of resale at cost: Provided, That the power herein granted shall apply only to private agricultural lands as to the area in excess of three hundred hectares of contiguous area if owned by natural persons and as to the area in excess of six hundred hectares if owned by corporations: Provided, further, That land where justified agrarian unrest exists may be expropriated regardless of its area.
2. Implementing Rules and Regulations
Approval date: 15 October 2009. It was provided for in the A.O. that the issuance was to take effect ten (10) days after publication in two (2) national newspapers of general circulation.
Approval date: 26 April 1991. It was provided for in the A.O. that the issuance was to take effect ten (10) days after publication in two (2) national newspapers of general circulation.
Approval date: 30 August 1990. It was provided for in the A.O. that the issuance was to take effect ten (10) days after publication in two (2) national newspapers of general circulation.
IX. CONDITIONS SURROUNDING THE EXERCISE OF RETENTION RIGHTS
1. Under agrarian reform statutes:
A. P.D. No. 27
i. A landowner is entitled to retain a maximum of seven (7) hectares if he filed his application for retention on or before 27 August 1985. If he filed his application after that date, he will still be entitled to seven (7) hectares, provided that he complied with LOI Nos. 41, 45, and 52.
ii. If he filed his application for retention after 27 August 1985 but did not comply with LOI Nos. 41, 45, and 52, he shall be entitled to a maximum of five (5) hectares as retention area.
iii. The following can no longer exercise their right to retain:
(a) Those who, as of 21 October 1972, owned more than twenty-four (24) hectares of tenanted rice and corn lands;
(b) Those who owned less than twenty-four (24) hectares of tenanted rice and corn lands but additionally owned:
• other agricultural lands of more than seven (7) hectares, whether tenanted or not, whether cultivated or not, and regardless of the income derived therefrom,
• lands used for residential, commercial, industrial, or other urban purposes from which he derives adequate income to support himself and his family.
i. The landowner has the right to choose the area to be retained.
ii. The area chosen for retention must be compact and contiguous.
iii. The retained area must not exceed five (5) hectares.
Exception: Original homestead grantees under the Homestead Act or their direct compulsory heirs, who still own the original homestead at the time R.A. No. 6657 took effect, may retain the same area as long as they continue to cultivate the land.
iv. In case there is a waiver by the landowner to choose his/her retained area, the MARO shall choose the retained area, which choice must be least prejudicial to the entire landholding and the majority of the farmers on the land. The MARO shall consider the following factors in choosing the retained area: (a) commodity produced, (b) terrain, (c) infrastructure available, and (d) soil fertility.
v. The five (5)-hectare retention limit applies to all lands regardless of how acquired (i.e., by purchase, award, succession, donation) as the law does not distinguish.
Sample Illustration: A child of the landowner who was awarded three (3) hectares as preferred beneficiary and who subsequently acquired a five (5)-hectare landholding of his parent through succession, can retain only five (5) hectares of the total landholding.
vi. The sale, disposition, lease or transfer or private lands by the original landowner in violation of R.A. No. 6657 shall be null and void. Transactions executed prior to R.A. No. 6657 shall be valid only when registered with the Register of Deeds (ROD) within a period of three (3) months after 15 June 1988.
vii. In case of multiple or a series of transfers/sales, only the first five (5) hectares sold/conveyed and the corresponding titles issued by the ROD in the name of the transferee shall be considered valid and be treated as the transferor's retained area, but in no case shall the transferee exceed the five (5)-hectare landholding ceiling.
viii. The provisions of LOI No. 474 also apply to landowners whose properties were covered under OLT but who exercised their right of retention under R.A. No. 6657 (Reyes vs. Garilao; G.R. No. 136466, 25 November 2009).
References for this Section:
Part IV. B. Section 7 of DAR Administrative Order No. 02, Series of 2009.
Article II of DAR Administrative Order No. 02, Series of 2003.
Bacuñgan, Agrarian Law and Jurisprudence, 2000.
C. R.A. No. 1400 or the Land Reform Act of 1955, which dealt with the acquisition and distribution of landed estates, provided for a retention area of three hundred (300) hectares of contiguous land if owned by natural persons and six hundred (600) hectares if owned by corporations. Exempt from this rule are lands where justified agrarian unrest existed.
In Republic of the Philippines vs. Mariano Lichauco, et al., (G.R. No. L-21436, 18 August 1972), the Land Tenure Administration (LTA) and the landowners merely executed an Agreement and Joint Motion where the LTA granted retention areas to the co-owners — one co-owner, for instance, was given a retention area of 144.1449 hectares and another, 5.5375 hectares.
Since R.A. No. 1400 did not specify who was to choose the retained area, it was held that the landowner and the Land Tenure Administration were expected to try to reach an agreement on the choice of retained area. In the event of disagreement, the courts of justice would settle the issue (Land Tenure Administration vs. Ceferino Ascue and Felisa Ramos De Ascue; G.R. No. L-14969, 29 April 1961).
2. Under DAR Administrative Orders:
Regarding Property Regimes
A. For marriages not covered by the Family Code, the spouses may retain a total of not more than five (5) hectares if:
i. There is no agreement for the judicial separation of property between them, and
ii. Their agricultural lands are all conjugal.
If either spouse or both of them are landowners in their own right (capital and/or paraphernal), each of them may retain not more than five (5) hectares, subject to the condition that the couples' total retention shall not exceed ten (10) hectares.
B. For marriages covered by the Family Code, a total of not more than five (5) hectares may be retained by the spouses, unless:
i. The couple executed a judicial separation of properties prior to entering into the marriage, and
ii. The spouses own exclusive property,
In such case, the husband and wife may retain not more than five (5) hectares each.
Guide for Retention Limits for Spouses Without Valid Agreement for Judicial Separation of Properties (in hectares)
Paraphernal Maximum
Capital Property Property Conjugal Property Retention
Marriages Covered
by the Civil Code
Case 1 0 0 30 5
Case 2 10 10 30 10
Case 3 10 0 30 10
Case 4 3 0 30 8
Case 5 0 30 0 5
Case 6 0 30 3 8
Case 7 3 4 30 10
Case 8 0 4 30 9
Marriages Covered
by the Family Code 5
Reference for this Section: DAR Administrative Order No. 11, Series of 1990
Regarding Retention of Heirs
If the deceased landowner died before 15 June 1988 and the NOC was sent after his death, each of his compulsory heirs is entitled to a maximum of five (5) hectares as retention area.
It was provided in Part IV. B (5) of DAR Administrative Order No. 2, Series of 2009 that the "[h]eirs of deceased landowners who died after 15 June 1988 and whose lands are covered under CARP are only entitled to the five (5) hectare retention area of the deceased landowner." (emphasis added)
X. CIRCUMSTANCES SHOWING A WAIVER OF THE RIGHT TO RETAIN
(1) Executing an affidavit, letter or any document duly attested to by the MARO, Provincial Agrarian Reform Officer (PARO), or RD indicating that the landowner is expressly waiving his retention right over the subject landholding;
(2) Signing of the Landowner-Tenant Production Agreement and Farmer's Undertaking (LTPA-FU) or Application to Purchase and Farmer's Undertaking (APFU) covering the subject property;
(3) Entering into a Voluntary Land Transfer/Direct Payment Scheme (VLT-DPS) agreement as evidenced by a Deed of Transfer over the subject property;
(4) Offering the subject landholding under VOS scheme and failure to indicate his retained area;
(5) Signing/submission of other documents indicating consent to have the entire property covered, such as the form letter of the Land Bank of the Philippines (LBP) on the disposition of the cash and bond portions of a land transfer claim for payment, and the Deed of Assignment, warranties and undertaking executed in favor of the LBP;
(6) Performing acts which constitute estoppel by laches;
(7) Doing such act or acts as would amount to a valid waiver in accordance with applicable laws and jurisprudence.
XI. EFFECTS OF THE EXERCISE OF RETENTION RIGHTS OVER TENANTED AREAS
If the retained area is tenanted, the tenant, within one (1) year from the time the landowner chooses the retained area, shall exercise either of the following options:
i. To remain as a lessee on the property, in which case a leasehold agreement will be entered into, or
ii. To become an agrarian reform beneficiary in another part of the landholding not chosen as a retention area, with similar or comparable features, or
iii. To become an agrarian reform beneficiary in a landholding owned by another party, with similar or comparable features.
These options are mutually exclusive so that if a tenant chooses to be a lessee of the retained area, he shall no longer qualify as a beneficiary under CARP. Conversely, if he chooses to be a beneficiary, he can no longer be a leaseholder in the retained area.
XII. POLICY RECOMMENDATIONS
(a) It is recommended that the manner of granting retention rights to co-owners be specifically defined. For instance, if there are several co-owners of an unpartitioned property and only one of them files an application for retention, will the DAR allocate only five (5) hectares as retained area of the applicant or will five (5) hectares for each co-owner be set aside, counting the retention area of those who did not manifest an intention to retain?
(b) It is also recommended that the manner of filing an application for retention as regards conjugal properties be addressed — specifically, whether or not the application should be filed by both spouses.