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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 nonagricultural 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 secretary's certificate of a corporate or cooperative board
resolution authorizing the applicant's 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)

[ ]
True 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.

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.

[ ]
Certification 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.

[ ]
Certification of the National Irrigation Administration (NIA) that the area is
not irrigated nor scheduled for irrigation rehabilitation nor irrigable with firm funding
commitment.

[ ]
Certification 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.

[ ]
Photographs, size 5R (five [5] 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:

[ ]
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;

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One (1) photograph per corner, taken from each corner of the landholding's
borders;

[ ]
Two (2) photographs each for all distinct man-made structures existing on
the land, taken from opposite angles;

[ ]
Two (2) photographs each of the front view of the billboard(s) required in
Section 11 hereof.

[ ]
Sufficient 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.

[ ]
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

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
the applicant to complete the documentary requirements. If the order was not
complied with, DISMISS.

III.

JURISDICTION

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 an 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

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.

Landowner's 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 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.

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 purposes 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?

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

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.

1.

APPLICABLE PRINCIPLES, LAWS, RULES, POLICIES, JURISPRUDENCE

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) 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) Opinion 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 non-agricultural 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 show, "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 prior to the effectivity of R.A. No. 6657 and in
effect converted these lands into residential use. Since the Natalia 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)

An exemption 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.

After the passage of Republic Act No. 6657, otherwise known as


Comprehensive Agrarian Reform Law, agricultural lands, though reclassified, have
to go through the process of conversion, jurisdiction 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.

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)