DOJ 44 CASE TEMPLATE

I. INTRODUCTION

This template serves as a guide in resolving exemption cases which fall under DOJ Opinion No. 44, specifically exemptions based on reclassification to industrial, residential and commercial zones. DOJ Opinion no. 44 states that the authority of the DAR to approve or disapprove conversions of agricultural lands to non-agricultural uses applies only to conversions made on or after June 15, 1988, the date of effectivity of R.A. No. 6657. II. CHECKLIST OF DOCUMENTARY REQUIREMENTS Section 2, A.O. No. 4, Series of 2003

Official Receipt (O.R.) of filing fee OR of inspection fee Sworn

Application for CARP Exemption or Exclusion, duly accomplished, and subscribed and sworn to before a notary public or any person authorized to administer oaths.

Special

Power of Attorney (SPA) if the applicant is not the registered owner nor one of the co-owners of the property;

Notarized

secretarys certificate of a corporate or cooperative board resolution authorizing the applicants representative to file the Sworn Application for CARP Exemption if the applicant is a corporation or cooperative or some other juridical entity.

Latest notarized General Information Sheet (GIS) copy of the Original Certificate of Title (OCT) or Transfer Certificate of Title (TCT) of the subject land, certified by the Register of Deeds not earlier than thirty (30) days prior to the application filing date.

True

In case of untitled land:

 Certification from the DENR Community Environment and Natural

Resources Officer (CENRO) that the landholding has been classified as alienable and disposable, and

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/proceeding has commenced and there are no adverse claimants. from the Housing and Land Use Regulatory Board (HLURB) Regional Officer on the actual zoning or classification of the subject land in the approved comprehensive land use plan, citing the municipal or city zoning ordinance number, resolution number, and date of its approval by the HLURB or its corresponding board resolution number. of the National Irrigation Administration (NIA) that the area is not irrigated nor scheduled for irrigation rehabilitation nor irrigable with firm funding commitment. of the Municipal Agrarian Reform Officer (MARO) attesting compliance with the public notice requirement in Part III hereof and its corresponding report in 7.6 hereof. inches by seven [7] inches), using color film, and taken on the landholding under sunlight. The applicant shall attach the pictures to a paper background and the photographer who took said pictures shall sign on said paper background to certify the authenticity of the pictures. On each background paper shall be written a short description of each picture. The pictures shall consist of:

Certification

Certification

Certification

Photographs, size 5R (five [5]

Four

(4) photographs taken from the center of the landholding: one (1) facing north, one (1) facing east, one (1) facing south, and one (1) facing west; (1) photograph per corner, taken from each corner of the landholding's borders; (2) photographs each for all distinct man-made structures existing on the land, taken from opposite angles;
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One

Two

 Two

(2) photographs each of the front view of the billboard(s) required in Section 11 hereof. number of photographs of the most conspicuous landmarks from the nearest barangay center and leading to and from the ingress and egress routes at the subject landholding, for the purpose of assisting the ocular inspection team in locating the site.

Sufficient

Proof

of receipt of payment of disturbance compensation or a valid agreement to pay or waive payment of disturbance compensation.

Affidavit/Undertaking in a single document of the applicant

stating:

The

number and names of the farmers, agricultural lessees, share tenants, farmworkers, actual tillers, and/or occupants in the landholding; if there are no such persons, a statement attesting to such fact;

That the applicant has erected the required number of billboards

and undertakes not to remove, deface or destroy said billboard, and that he shall repair or replace the same when damaged, until after the approving authority disposes of the application with finality;

That he has not committed any act of forum shopping as defined

in the rules governing Agrarian Law Implementation (ALI) cases; and

That

when there is a dispute on the fixing of disturbance compensation pending before the Provincial Agrarian Reform Adjudicator (PARAD) or Regional Agrarian Reform Adjudicator (RARAD) or DAR Adjudication Board (DARAB), the applicant shall abide with the decision of the Adjudicating Authority on the fixing of disturbance compensation.

Lot plan Vicinity or directional map

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PROOF FOR CLASSIFICATION:

Certifications issued by HLURB on the actual zoning or

classification of the subject land in the approved comprehensive land use plan, citing the municipal or city zoning ordinance number, resolution number, and date of its approval by the HLURB or its corresponding board resolution number

For lands classified as mineral: certification issued by the DENR

Mines and Geosciences Bureau or the proper DENR office attesting that the subject land is classified as mineral and covered by a mining permit issued by said Bureau or proper Local Government Unit in case of small scale mines.

For lands classified as forest: certification issued by the DENR

Forestry Sector or the proper DENR office attesting that the subject land is classified within the forest zone. Tourism (note: this template applies by analogy but this is not covered by DOJ opinion no. 44): Requisites for Conversion:

Presidential Decree/Law Certification from the Philippine Tourism Authority Covered by Zoning Ordinance
Find out if the application was accompanied by the required supporting documents in the checklist above. 1. If the documents are complete, proceed with the decision of the case. 2. If the documents are incomplete: The RCLUPPI/CLUPPI must return the application to the applicant and require him to submit the lacking documents (see accompanying flowchart) 3. If the incomplete application was inadvertently accepted, the RCLUPPI/CLUPPI may issue an interlocutory order, within a specific period, requiring
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the applicant to complete the documentary requirements. If the order was not complied with, DISMISS. III. AO 4 2003 Art. V, Sec. 5.1-5.4 Regional Director upon recommendation of Regional Center for Land Use Policy Planning and Implementation (RCLUPPI), if Land has an area of less than or equal to five hectares, or a fraction above five (5) hectares. The Secretary upon recommendation of Center for Land Use Policy Planning and Implementation 2 (CLUPPI-2), if the land has area larger than five (5) hectares. The Secretary acting upon the recommendation of CLUPPI-2, when the applicant owns (or represents the owner of) two (2) or more parcels of land within the same barangay or within two (2) or more barangays that are adjacent to each other and the sum of the areas of said parcels of land exceeds five (5) hectares. IV. STANDING JURISDICTION

Who may file an Application for Exemption 1. Any landowner 2. Duly authorized representative of the landowner Must present a duly notarized Special Power of Attorney (within 1 year from execution)

3. Heirs of the landowner (if deceased) * not in the A.O. a. If estate is settled, present Deed of Settlement/Partition, or decree of partition issued by the court; b. If estate is not yet settled, present death certificate and SPA which authorizes him/her to represent all the heirs.

Who may file an opposition to the Application for Exemption Any person may file a written protest against the application within thirty (30) days from posting of the requisite billboard(s) or within fifteen (15) days from the conduct of ocular inspection whichever is later. (Item IX, 9.1 of DAR A.O. 4, Series of 2003) V. TIMELINESS If the application for exemption is in response to a Notice of Coverage (NOC), determine if the application is filed within thirty (30) days from receipt or date of publication of NOC. Upon DAR receipt of the protest for coverage, landowner is given another thirty (30) days to substantiate his or her application for exemption from CARP coverage. Landowners failure to comply with the 30-day reglementary periods shall be construed as a waiver or abandonment of the right to file an application for exemption. [Item IV (A) (13) last par of A.O. 2, Series of 2009] If there are CLOAs/EPs registered over the land, consider the indefeasibility principle. Deny if the application was filed more than 1 year from registration. VI. DECISION
(Basis: Administrative Order No. 03, series of 1995 and R.A. No. 6657, as amended)

ELEMENTS OF A DOJ 44 CASE: 1. The land involved was reclassified for non-agricultural use. 2. The reclassification was done prior to 18 June 1988.
FOR CONTENTIOUS ISSUES a. If the subject landholding is within the protected area but its use is agricultural (or not actually, directly, and exclusively and not found to be necessary for protected areas) If the agricultural use is still consistent with its being a protected area as in agro-forestry, the landholding is exempt 6

from CARP. Otherwise, deny the application for exemption and place the subject landholding under the coverage of CARP. b. If the subject landholding is within the buffer zone of a protected area Deny the application for exemption. The use of the land may still be regulated in order to avoid or minimize harm to the protected area. c. If there is an allegation that the title of the application is void on the ground that the subject landholding has not been declared alienable and disposable The issue is a prejudicial question which cannot be determined by the Regional Director. In such case, the Regional Director shall dismiss the application for exemption (without prejudice) on the ground of lack of jurisdiction.

CONTENTIOUS ISSUES WITH SUGGESTED ANSWERS: 1. What if the land was reclassified prior to 15 June 1988 but the actual use is still for agricultural purposes? (If it is still an irrigated land?) Answer: a) Exempt if there is valid reclassification prior to 15 June 1988. Legal Basis: DOJ 44 b) Yes, basis is not on actual use but on the reclassification 2. What if there are tenants occupying the land or Notice of Coverage was already issued when the exemption application was filed? Answer: a) If the land is tenanted, the tenants have the right to be paid disturbance compensation. b) If Notice of Coverage has already been issued, the application will serve as an opposition/protest. - Note: There is a 60-day protest period. However, outside 60 days, application cannot be denied. The rationale being that the 60-day period is too short and unreasonable.
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Note further that Notice of Coverage is different from Notice of Valuation and Acquisition. The latter being a Notice that the property has already been transferred to the government.

3. What if the land is covered under OLT of P.D. No. 27? Answer: The prefatory statement in A.O. 4-2003 provides that, the reclassification of lands to non-agricultural uses shall not operate to divest tenant-farmers of their rights over lands covered by P.D. No 27, which have been vested prior to 15 June 1988. Also, Anderson Co. vs IAC (G.R. No. L-65928, June 21, 1988) provides that the ordinance should be given prospective operation only. No exemption/conversion. Possible remedy: File a new Petition for Conversion 4. What if the land was reclassified for non-agricultural use prior to 15 June 1988, but then subsequently reclassified for agricultural use after 15 June 1988? Answer: Reverted to agricultural classification. Take note of the time when the Order of Reversion was issued and the exemption clearance. 5. Question: Can the reversion annul the exemption clearance? Answer: If there are already improvements on the land to the effect that it can no longer be used for agricultural purposes, NO. If the land has never been touched or used for purposed other than agricultural, YES. 6. What if the basis for reclassification is only a resolution (instead of the original question referring to an ordinance) which is in turn a general Land Use Plan without specifying the metes and bounds for such reclassification?
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Answer: DENY. There must be an Ordinance and not merely a Resolution. 7. What if the basis for reclassification was a defective ordinance? Note that the DAR does not have jurisdiction to determine the validity of an ordinance. In such a case where the oppositor goes to court in an effort to determine the validity of the ordinance, what will the DAR do in the meantime? Answer: Refer to the HLURB Certification. The HLURB Certification is controlling. 8. Question: If details are not complete, what will DAR do? Answer: a) Deny Application b) Accept? - If already accepted, deny application without basis. - If only applying- advice to complete within 15 days. If not complied, return application. 9. What if city approves before June 15, 1988 but HLURB certification states only after June 15, 1988? DENY. Two requirements must be complied with before June 15, 1988. DENYING THE APPLICATION FOR EXEMPTION CLEARANCE Grounds for Protest/Denial (section 9) 1. The subject landholding is classified as within the agricultural zone based on the Zoning Ordinance or Comprehensive Land Use Plan (CLUP) of the LGU approved by the HLURB prior to 15 June 1988. A protest based on this ground shall not be given due course unless the oppositor invoking said ground submits the necessary certification from the HLURB Regional Office or the proper government agency. 2. The subject property has been covered by Operation Land Transfer (OLT) under P.D. No. 27 VII. APPEALS
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The Secretary of the Department of Agrarian Reform shall exercise appellate jurisdiction over decisions of the Regional Director. The appeals from the decision of the Regional Director may be filed within fifteen (15) days from receipt of said decision in the same regional office which issued the adverse decision.

VIII. APPLICABLE PRINCIPLES, LAWS, RULES, POLICIES, JURISPRUDENCE 1. LAWS a. Section 3 (C) of RA 6657, Agricultural Land refers to land devoted to agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land. b. Section 4, of RA 6657, The Comprehensive Agrarian Reform Law of 1989 shall cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture. More specifically the following lands are covered by the Comprehensive Agrarian Reform Program: (a) All inalienable and disposable lands of the public domain devoted to or suitable for agriculture. No reclassification of forest or mineral lands to agricultural lands shall be undertaken after the approval of this Act until Congress, taking into account ecological, developmental and equity considerations, shall have determined by law, the specific limits of the public domain. (b) All lands of the public domain in excess of the specific limits as determined by Congress in the preceding paragraph; (c) All other lands owned by the Government devoted to or suitable for agriculture; and (d) All private lands devoted to or suitable for agriculture regardless of the agricultural products raised or that can be raised thereon. 2. RULES Administrative Order No. 4, Series of 2003. 2003 Rules on Exemption of Lands from CARP Coverage under Section 3 (c)
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of Republic Act No. 6657 and Department of Justice (DOJ) Opinion No. 44, Series of 1990. [9 February, 2003] Administrative Order No. 6, Series of 1994.Guidelines for the Issuance of Exemption Clearances Based on Section 3 (c) of R.A. 6657 and the Department of Justice (DOJ) Opinions No. 44, Series of 1990 [23 June 2004] DOJ Opinion no. 44 Series of 1990 The authority of the DAR to approve or disapprove conversions of agricultural lands to nonagricultural uses applies only to conversions made on or after June 15, 1988, the date of effectivity of R.A. No. 6657 3. JURISPRUDENCE: Lands already classified for residential, commercial or industrial use, and approved by HLURB and its precursor agencies prior to 15 June 1988 are not covered by R.A. No. 6657. Sec. 4 of R.A. No. 6657 states that the CARL covers regardless of tenurial arrangement and commodity produced, all public, and, private and agricultural lands and as the transcripts of the Constitutional Commission, agricultural lands covered by agrarian reform refers only to those which are arable and suitable lands and do not include commercial, industrial and residential lands. The land subject of the controversy has been set aside for the Lungsod Silangan Reservation by Proclamation No. 1637 priror to the effectivity of R.A. No. 6657 and in effect converted these lands into residential use. Since the Natalia An exemption clearance from DAR is still necessary to confirm or declare its exempt status as per DAR A.O. No. 6, Series of 1994 HLURB certification must contain actual zoning or reclassification approved comprehensive land use plan, citing the municipal or city zoning ordinance number, resolution number and date of its approval by the HLURB or its corresponding board resolution number

lands were converted prior to 15 June 1988, DAR is bound by such conversion, and thus it was an error to include these within the coverage of CARL. (Natalia Realty, Inc. vs. DAR, 225 SCRA 278) After the passage of Republic Act No. 6657, otherwise known as Comprehensive Agrarian Reform Program, agricultural lands, though reclassified, have to go through the process of conversion, jurisdiction
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over which is vested in the DAR. However, agricultural lands already reclassified before the effectivity of Rep. Act No. 6657 are exempted from conversion. (Ros v DAR, 468 SCRA 471) The requirement that agricultural lands must go through the process of conversion despite having undergone reclassification was underscored in the case of Alarcon v. Court of Appeals, (G.R. No. 152085, 08 July 2003) where it was held that reclassification of land does not suffice: In the case at bar, there is no final order of conversion. The subject landholding was merely reclassified. Conversion is different from reclassification. Conversion is the act of changing the current use of a piece of agricultural land into some other use as approved by the Department of Agrarian Reform. Reclassification, on the other hand, is the act of specifying how agricultural lands shall be utilized for non-agricultural uses such as residential, industrial, commercial, as embodied in the land use plan, subject to the requirements and procedure for land use conversion. Accordingly, a mere reclassification of agricultural land does not automatically allow a landowner to change its use and thus cause the ejectment of the tenants. He has to undergo the process of conversion before he is permitted to use the agricultural land for other purposes. Reclassification done after 15 June 1988 requires a conversion clearance issued by DAR

Thus, the DAR Regional Office VII, in coordination with the Philippine Tourism Authority, has to determine precisely which areas are for tourism development and excluded from the Operation Land Transfer and the Comprehensive Agrarian Reform Program. And suffice it to state here that the Court has repeatedly ruled that lands already classified as non-agricultural before the enactment of RA 6657 on 15 June 1988 do not need any conversion clearance. (DAR v. Franco, G.R. No. 147479, September 26, 2005, 471 SCRA 74) The power to determine whether Haciendas Palico, Banilad and Caylaway are non-agricultural, hence, exempt from the coverage of the Comprehensive Agrarian Reform Law lies with the Department of Agrarian Reform, not with this Court.
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The DAR, an administrative body of special competence, denied, by Order of October 22, 2001, the application for CARP exemption of Roxas & Co., it finding that PP 1520 did not automatically reclassify all the lands in the affected municipalities from their original uses. It appears that the PTA had not yet, at that time, identified the specific geographic areas for tourism development and had no pending tourism development projects in the areas. Further, report from the Center for Land Use Policy Planning and Implementation (CLUPPI) indicated that the areas were planted with sugar cane and other crops. A proclamation that merely recognizes the potential tourism value of certain areas within the general area declared as tourist zone clearly does not allocate, reserve, or intend the entirety of the land area of the zone for non-agricultural purposes . Neither does said proclamation direct that otherwise CARPable lands within the zone shall already be used for purposes other than agricultural. (Roxas Co., Inc. vs CA, 607 SCRA 34)

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