I.

Introduction

Public lands suitable for agricultural purposes can be disposed of only as for homestead
settlement, by sale, by lease, and by confirmation of imperfect or incomplete titles, through judicial
legalization or by administrative legalization (free patent). This paper focuses on the prohibition against
alienation of lands acquired through homestead patents and free patents.

II. Definition of terms

A. Homestead patent
The law provides that any citizen of the Philippines over the age of eighteen years, or the
head of a family, may enter a homestead of not exceeding twelve hectares of agricultural land of
the public domain. The applicant must have cultivated and improved at least one-fifth of the land
continuously since the approval of the application and resided for at least one year in the
municipality in which the land is located, or in a municipality adjacent to the same, and then, upon
payment of the required fee, he shall be entitled to a patent

B. Free patent
Any natural-born citizen of the Philippines who is not the owner of more than twelve (12)
hectares and who, for at least thirty (30) years has continuously occupied and cultivated, either
by himself or through his predecessors-in-interest a tract or tracts of agricultural public lands
subject to disposition, who shall have paid the real estate tax thereon while the same has not
been occupied by any person shall be entitled, to have a free patent issued to him for such tract
or tracts of such land not to exceed twelve (12) hectares.

II. Patent Provisions in the Public Land Act (CA 141)

Section 118
Except in favor of the Government or any of its branches, units or institutions, or legally
constituted banking corporations, lands acquired under the free patent or homestead provisions
shall not be subject to encumbrance or alienation from the date of the approval of the application
and for a term of five years from and after the date of issuance of the patent or grant, nor shall
they become liable to the satisfaction of any debt contracted prior to the expiration of said period;
but the improvements or crops on the land may be mortgaged or pledged to qualified persons,
associations, or corporations.

No alienation, transfer, or conveyance of any homestead after five years and before
twenty-five years after issuance of title shall be valid without the approval of the Secretary of
Agriculture and Natural Resources, which approval shall not be denied except on constitutional
and legal grounds.

Section 121
Except with the consent of the grantee and the approval of the Secretary of Agriculture
and Natural Resources, and solely for commercial, industrial, educational, religious or charitable
purposes or for a right of way, no corporation, association, or partnership, may acquire or have
any right, title, interest, or property right whatsoever to any land granted under the free patent,
 homestead or individual sale provisions of this Act or to any permanent improvement on such
land.

Section 122
No land originally acquired in any manner under the provisions of this Act, nor any
permanent improvement on such land, shall be encumbered, alienated or transferred, except to
persons, corporations, association, or partnerships who may acquire lands of the public domain
under this Act or to corporations organized in the Philippines authorized therefore by their
charters.

Except in cases of hereditary successions, no land or any portion thereof originally

acquired under the free patent, homestead, or individual sale provisions of this Act, or any
permanent improvement on such land, shall be transferred or assigned to any individual, nor shall
such land or any permanent improvement thereon be leased to such individual, when the area of
said land, added to that of his own, shall exceed one hundred and forty-four hectares. Any
transfer, assignment, or lease made in violation hereto shall be null and void.

Section 124
Any acquisition, conveyance, alienation, transfer, or other contract made or executed in
violation of any of the provisions of sections one hundred and eighteen, one hundred and twenty,
one hundred and twenty-one, one hundred twenty-two and one hundred twenty-three of this act
shall be unlawful and null and void from its execution and shall produce the effect of annulling
and canceling the grant, title, patent, or permit originally issued, recognized, or confirmed,
actually or presumptively, and cause the reversion of the property and its improvements to the
State.

IV. Prohibition against alienation of lands acquired under the homestead and free patent
provisions.

The law proscribes the encumbrance of a parcel of land acquired under a free patent or
homestead within five years from the grant of such patent. Such encumbrance results in the cancellation
of the grant and the reversion of the land to the public domain. Even if only part of the property has been
sold or alienated within the prohibited period of five years from the issuance of the patent, such alienation
is a sufficient cause for the reversion of the whole estate to the State.

As a condition for the grant of a free patent to an applicant, the law requires that the land should
not be encumbered, sold or alienated within five years from the issuance of the patent. The sale or the
alienation of part of the homestead violates that condition.

A. Prohibition starts from date of approval up to fifth year from issuance of patent

Alienation of lands acquired by homestead or free patent grants are forbidden from the
date of approval of the application up to and including the fifth year from and after the date of
the issuance of the patent or grant (Beniga v. Bugas GR No. L-28918, Sept. 29, 1970, 35 SCRA 111).
The purpose of such prohibition, as provided is to give the patentee a place where to live with his
family so he may become a happy citizen and useful member of our society.
 The law does not exempt patentees and their purported transferees who had no
knowledge of the issuance of the patent from the prohibition against alienation; for the law does
not say that the five years are to be counted from knowledge or notice of issuance of the patent
or grant. The prohibition against any alienation or encumbrance of the land grant is a proviso
attached to the approval of every application. Prior to the fulfillment of the requirements of law,
the applicant has only an inchoate right to the property; such property remains part of the public
domain and, therefore, not susceptible to alienation or encumbrance.

The latest rulings of the Supreme Court emphasize that the patent is considered issued
once the order for its issuance is promulgated and, therefore, the five year period is computed
from this date and not from the date of registration with the Register of Deeds or from the date
of the certificate of title (Decolongon v. Court of Appeals, GR No. L-46495, June 24, 1983, 122 SCRA
843).

The provision of law which prohibits the sale or encumbrance of the homestead, except
in favor of the government or any of its branches, units or institutions, within five years is
mandatory. Thus, a sale of homestead within the five year prohibitive period is void ab initio and
the same cannot be ratified nor can it acquire validity through the passage of time.

B. Policy of the law

The original period of five years from the issuance of the patent, within which period
conveyance or sale thereof by the homesteader or his heirs was prohibited is now extended to
twenty-five years if no approval of the Secretary of Environment and Natural Resources is secured.
Provision has also been inserted authorizing the repurchase of the homestead when properly sold
by the homesteader within five years from the date of the sale.

This legislative intent and policy is also sought to be carried out, as may be seen from the
fact that transfer of homestead rights from a homesteader can only be justified upon proof
satisfactory to the Director of Lands that the homesteader cannot continue with his homestead
through no fault of his own. This is not the only requirement; a previous permission of the
Secretary of Environment and Natural Resources should first be obtained, as it is also expressly
provided that any transfer made without such previous approval is null and void and shall result
in the cancellation of the entry and the refusal of the patent.

C. Approval of Secretary merely directory

In Raffiñan v. Abel (GR No. L-17082, April 30, 1962, 4 SCRA 1260), it was held that the
requirement for the approval of the Secretary of Environment and Natural Resources is merely
directory, and its absence does not invalidate any alienation, transfer or conveyance of the
homestead after five years and before the twenty-five year period. Such approval may be secured
at any time in the future.

D. Agreements that are considered a circumvention of the law

The prohibition applies as well to the sale of the land to the homesteader’s own son or
daughter as a clever homesteader who wants to circumvent the ban. It was also held that where
the homesteader sold a portion of the homestead to the plaintiffs on the understanding that the
 actual conveyance of the said portion would be made only after the lapse of the five-year
prohibitory period, the agreement is clearly illegal and void ab initio as it is intended to
circumvent and violate the law.

In Manzano v. Ocampo, (GR No. L-14778, Feb. 28, 1961, 1 SCRA 691), it was held that the
law prohibiting any transfer or alienation of homestead land within five years from the issuance
of the patent does not distinguish between executory and consummated sales.

The rationale against the alienation of a homestead is equally applicable to land acquired
under a free patent, except that in the latter, the alienation after five years from the order for the
issuance of patent does not need the approval of the Secretary.

V. Repurchase by applicant or his heirs

Every conveyance of land acquired under the free patent or homestead provisions, when proper,
shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from
the date of the conveyance.

The right to repurchase attaches to every alienation or encumbrance, and that right can be
exercised even in the absence of any stipulation in the deed of sale (Vallangaca v. Court of Appeals, GR
No. 55336, May 4, 1989, 173 SCRA 42). Such right cannot be waived since the law is designed to distribute
disposable agricultural lots of the State to land-destitute citizens for their home and cultivation.

A. Period of repurchase under Section 119

The five-year period for legal redemption starts from the date of the execution of the
deed of sale, and not from the date of registration in the office of the Register of Deeds. This is
true even if full payment of the purchase price is not made on the date of conveyance, unless
there is a stipulation in the deed that ownership shall not vest in the vendee until full payment of
the price

The five-year period within which a homesteader or his widow or heirs may repurchase a
homestead sold at public auction or foreclosure sale under Act No. 3135, as amended, begins not
at the date of the sale when merely a certificate is issued by the sheriff or other official, but rather
on the day after the expiration of the period of repurchase, when the deed of absolute sale is
executed and the property formally transferred to the purchaser. In short, the period of
redemption begins to run from the day after the expiration of the one-year period of repurchase
allowed in an extrajudicial foreclosure.

B. Repurchase may be barred by laches

While the rule is that the right to repurchase may not be waived, a patentee or his heirs
may however lose that right by virtue of laches. Thus, in Lucas v. Gamponia (GR No. L-9335, Oct.
31, 1956, 100 Phil. 277), where land acquired under a free patent was sold only eleven days after
the issuance of the patent, but the original patentee or his heirs did not bring an action to
repurchase the land until after 37 years from the sale, it was held that the equitable defense of
laches barred the action.
VI. Effect of a void conveyance

Any acquisition, conveyance, alienation, transfer, or other contract made or executed in violation
of any of the provisions shall be unlawful and null and void from its execution and shall produce the effect
of annulling and cancelling the grant, title, patent, or permit originally issued, recognized or confirmed,
actually or presumptively, and cause the reversion of the property and its improvements to the State.

VII. Rule of pari delicto not applicable

In De los Santos v. Roman Catholic Church of Midsayap (GR No. L-6088, Feb. 25, 1954, 94 Phil.
405), the Court rejected the argument that the heirs of the patentee may not maintain an action for the
nullification of the void conveyance, firstly, because it is the government which is the proper party, and
secondly, the action is barred by the principle of pari delicto.

The principle underlying pari delicto as known here and in the United States is not absolute in its
application. It recognizes certain exceptions one of them being when its enforcement or application runs
counter to an avowed fundamental policy or to public interest Because the subject of the transaction is a
piece of public land, public policy requires that (the heirs of the patentee) be not prevented from re-
acquiring it because it was given by law to his family for his home and cultivation.

The sale of a homestead within the prohibitory period is unlawful and null and void from its
execution by express provision of law. The contract of sale is inexistent and the action or defense for
declaration of such inexistence does not prescribe. However, reversion is not automatic, and so long as
the government has not chosen to act, the rights of the patentee stand and must be recognized in the
courts of law.

VIII. Conclusion

As stated the law provides for the protection of the persons who acquired grants or the patentee.
With this it provides prohibitions and rules that must be taken into account. It requires that such lands
cannot be alienated with a certain period of time after its grant. Further it provides additional
requirements of the necessary approvals and signatures of the officers concerned.
The law does not end with just these requirements for the protection of the grantees. It also
provides that such individuals and their heirs may reacquire the lands through legal redemption.
The main purpose of these prohibition, as provided is to give the patentee a place where to live
with his family so he may become a happy citizen and useful member of our society.