a2 land law volume 1-libre

8/11/2019 A2 Land Law Volume 1-Libre

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Philippines-Australia Land Administration andManagement Project

LAND LAWS AND REGULATIONS

POLICY STUDY


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University of the Philippines

The support and assistance of the University of the Philippines Law Centre in thepreparation of this report is gratefully acknowledged. In particular the Universityprovided the background position papers, the inventory of laws and the workshopnotes.


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ABBREVIATIONS AND ACRONYMS

A&D Alienable and Disposable (land)AusAID Australian Agency for International DevelopmentCACADTCALT

Commonwealth ActCertificate of Ancestral Domain TitleCertificate of Ancestral Land Title

CARL Comprehensive Agrarian Reform LawCARP Comprehensive Agrarian Reform Program

CENRO Community Environment and Natural Resources OfficeCLOA certificate of land ownership awardCREBA Chamber of Real Estate and Builders AssociationsDA Department of AgricultureDAR Department of Agrarian ReformDENR Department of Environment and Natural ResourcesDILG Department of Interior and Local GovernmentDOJ Department of Justice

FMB Forest Management BureauFMS Forest Management ServiceGEP Geodetic Engineers of the PhilippinesGIS Geographic information systemha hectare (10,000 square meters)HLRB Housing and Land Use Regulatory BoardHUDCCIPRALAM

LAMP

Housing and Urban Development Coordinating CouncilIndigenous Persons Rights ActLand Administration and Management

Land Administration and Management Project


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This report is a result of technical assistance managed by Land Equity Internationalto the Government of Philippines. The TA was funded by AusAID and the views

expressed in this work do not necessarily represent the views of theCommonwealth of Australia.

CONTENTS

VOLUME 1

Executive summary

1. Proposals

1.1. Recommendations on Key Principles

1.2. Supporting Recommendations

2. Introduction

2.1. Background

2.2. Terms of reference

2.3. Scope of Study

2.4. Study Methodology

3. Current Legal Infrastructure

3.1. Legal Infrastructure

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4. Summary of Inventory of Laws Related to Land Administration

5. Summary Report on Workshop Outcomes

6. Questionnaire to Courts

VOLUME 2

Position Papers Prepared by University of the Philippines

1. Examining the 1987 Constitution Relative to Land Policies and Principles

2. Land Use

3. Land Registration

4. Land Use Regulation and Control

5. Land Tenure Rights in the Philippines: Terrain and Trajectory

6. Public Land Laws of the Philippines

Inventory of Land Administration Laws prepared by University of the Philippines

Supreme Court Cases (2000-2002)

Position Paper Prepared by Atty Hector FabrosF A i t t Di t DENR LMB


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EXECUTIVE SUMMARY

This study is significant for the wide consultation that has taken place involving manysectors of society - civil society, public sector, private sector, academia and landadministration experts. All these groups have been involved in both individual discussionsand workshops and seminars. The proposals contained in this report are based on thisinteraction, the results of previous studies in the same area and on internationaldevelopments and best practice.

During the course of the study a number of significant issues relating to land administration

in the Philippines have been identified. Many of these issues relate to the existing legalinfrastructure in the country. Much of the law is outdated and supports processes andprocedures that are not in keeping with international best practice. In particular, the lawsand processes to provide secure title to persons in long term possession and occupationof land have not served the community well.

Currently, there is an abundance of laws governing the administration of land, especiallyrelating to A & D land. The laws are administered by different agencies. Many of the lawshave been introduced over a long period of time without consideration of consequentialamendments that their introduction will have on existing legislation. Operating an efficient

and equitable land administration system under this framework has been difficult and hasresulted in long delays in adjudication and registration of land rights, and in considerablejurisdictional overlap and duplication of functions. There has been a much greateremphasis on the use of the overloaded Court system for land registration matters than inmany other countries.

There is an urgent need to simplify the laws and processes, not only to facilitate the issueof titles to land and subsequent transactions with land, but also to reduce the opportunitiesfor informal fees currently associated with such processes. Experience has shown that

the development of a simple and transparent system has this effect


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1 PROPOSALS

1.1 Recommendations on Key Principles

This Chapter contains brief supporting information for the various recommendations.Further detail is contained in the following Chapters.

1.1.1 All land registration matters currently required to be dealt with by the Courtsshould be dealt with by simple administrative processes in the first instance.

The Philippines is fairly unique in requiring the intervention of the Courts in even quitesimple and straightforward matters which, in other jurisdictions, would be handled morequickly and at less cost to all concerned through administrative processes. Not only wouldthe delays in the Court process be avoided, but also the delays involved in the checking ofthe Court process by LRA. Most importantly, this proposal would enable the accelerationof the issue of titles for unregistered land as proposed under the LAM Program. However itwould also simplify other land registration processes. The proposal would cover:

Confirmation of incomplete or imperfect titleReconstitution of lost or destroyed certificates of titleRemoval of reservations on reconstituted titlesReplacement of lost or destroyed duplicate certificates of titleAmendment and alteration of certificates of title

In so far as confirmation of incomplete or imperfect title is concerned, there is alreadyprovision for administrative adjudication through the free patent process. This currentproposal would replace the present badly coordinated dual system with a single simple,

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1.1.3 The confirmation of incomplete or imperfect title should be based onpossession for the same period as provided in the Civil Code for

prescription in good faith i.e. 10 years.

The possession periods for both judicial and administrative titling have been continuallychanging, but overall are becoming longer and more difficult to prove. From initialrequirements at the turn of the last century of around 10 years possession, the periodrequired has progressively increased to the point where currently possession since June12, 1945 is required for judicial confirmation, and possession for 30 years prior to March28, 1990 for free patents. These periods are therefore 57 years and 42 years respectivelyand getting longer with every passing year. It is becoming unrealistic to expect landholders

to be able to prove possession for these periods.

1.1.4 The land classification system and definitions should be reviewed to betterreflect the reality of land use and occupation as well as to formally free up A& D land that is already in sustainable use or has the potential to be so used.

Article XII, Section 3 of the 1987 Constitution of the Philippines provides that lands of thepublic domain are to be classified into agricultural, forest or timber, mineral lands, andnational parks. Alienable lands of the public domain are limited to agricultural lands.

Agricultural lands of the public domain may be further sub-classified by law according tothe uses to which they may be devoted There has been a tendency to presume thatunclassified lands are forest lands. In turn, forest lands are classified primarily according tothe 18% slope rule. This has had the effect of failing to recognize the reality that there areestablished agricultural and urban settlements that have existed for some time. Exampleswould be the IP rice-terrace lands that have existed for centuries and the situations inCebu and Benguet that necessitated Presidential Decree No 1998 of 1985 because therewere established agricultural and town settlements above the 18% slope. There is also thematter of strengthening the meaning of section 8 of CA 141 known as the Public Land Act,to clarify the instances when land has clearly become private land and is therefore beyondth it f l ifi ti


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1.1.6 Rights over titled land based on prescription should be recognised.

Many of the original Torrens Title statutes prohibitedthe acquisition of title to Torrens Titleland by adverse possession or prescription. However, many overseas jurisdictions havechanged their basic Torrens Title laws to permit the acquisition of title by this means. Theyhave done this because they have recognised that, over the years, many parcels ofTorrens Title land have fallen into the ownership of persons who acquired the land, eitherby taking possession of abandoned land or by informal transfer. In either case theownership could not be recorded in the Registry records and the land would remainoutside the official system unless a change was made in the law. Given the public benefitin bringing this land back into the system, changes were made in the law to accommodate

this. If the Torrens Title register in the Philippines is to accord with the reality of actuallandholdings on the ground, such a change will be necessary. Such a change would bebased on the prescriptive provisions of the Civil Code, which allows for a prescriptiveperiod of 10 years if possession was in good faith or 30 years if possession was in badfaith.

It is recognised that while many countries allow prescription over land as a means ofstabilising property rights and quieting titles and there is a need in the Philippines to bringthe Register into line with reality, there is also a need to avoid the encouragement ofsquatting. Accordingly it is suggested that prescription should only apply in cases wherepossession has already commenced and that there should be a period of grace before thelaw takes effect in order to enable registered owners of land under adverse possession torecover the land if they so wish.

1.1.7 All registered rights of ownership should be evidenced by the one documentto be known as a Certificate of Title.

Currently there is confusion over the status and relative merits of various rights in land e.g.CLOAs, Patents, Original Certificates of Title, Transfer Certificates of Title etc. Thus for

l P t t i id l d d l titl th C tifi t f Titl i d


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1.1.9 The Assurance Fund established under the Property Registration Decreeshould be strengthened to act as a proper system for insurance against

losses occurring through the operation of the title registration system.

While the Torrens Title system is acclaimed as a Government guaranteed system, thereis a lack of confidence in the title registration system in the Philippines based onperceived lack of security. This is due, in part, to the fact that the Assurance Fund is notworking as it was originally intended. The fact that no person can recall the last time aclaim was made against the Fund is an indication not of a perfect system, but of anineffective Fund.

The Fund should be made more effective by:

removing the current P500,000 limit on the amount of money that may be retainedin the Fund;

increasing the contributions to the Fund and extending the responsibility forcontributions to all transactions with land lodged for registration;

extending the liability of the Fund to cover loss caused by the subsequentregistration of any other person as owner of an interest in the land; and

enabling claims to be settled without litigation in clear cut cases of liability.

1.1.10 The Torrens Title register should be a comprehensive record of all land inthe Philippines in which all rights relating to the land are recorded.

A comprehensive record of all land parcels, together with the interests attaching to thoseparcels is a powerful record for the Government, the private sector and the communitygenerally, particularly when it is linked to the cadastral maps for the land parcels, and mostdeveloped countries are moving towards this objective. It should be recognised as anobjective in the Philippines and the system progressively developed to meet that objective.

Th t ld th t l d f th bli d i b i l d d i th d


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compulsory registration process. Thus unregistered parcels would progressively bebrought within the registration system.

The advantage of the system is that the Government register can more quickly and atminimum cost become a reflection of the situation on the ground. It also provides theGovernment with better land ownership information for revenue purposes.

1.1.12 In carrying out the amendments to the law to give effect to the aboverecommendations, the opportunity should be taken to rationalise and codifythe laws on public land disposition and land registration.

There is currently a lack of clarity in the law due to the fact that there are numerous lawsaffecting the individual sectors of land administration and there has been a failure toeffectively repeal and replace earlier laws when new laws have been introduced.Interpretation and understanding of the law is also made more difficult by the fact that thePublic Lands Act is now inconsistent with the Constitution 1987 and must be read inconjunction with that legislation. Modern codes covering the areas of public landdisposition and land registration are needed and should be developed.

1.2 Supporting Recommendations

1.2.1 The Constitution should recognise the acquisition of lands of the publicdomain by confirmation of incomplete or imperfect title based oncontinuous, exclusive possession and occupation of agricultural lands.

The Constitution currently stipulates that citizens may acquire alienable lands of the publicdomain by purchase, homestead or grant. It is recognised that the Constitution cannot bequickly amended. Nevertheless, for the sake of clarity and completeness, recognitionh ld b i t th i ht f iti t bt i titl b fi ti f i f t titl


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The opportunity should now be taken to abolish the deadline altogether. It does not serveany useful purpose. Every time Congress fails to renew the period, and this has happened

many times, it creates a hiatus, causing unsettling effect on the owners of the land.

1.2.3 In addition to existing methods of determining possession for title issuepurposes, information available from the communities themselves should beconsidered when determining possession as well as boundary definition.

A brief study has been made to determine whether there are sources of data aboutoccupation (apart from traditional sources such as tax declarations) that are available fromamong the informal communities themselves or from other outside sources that could beused to determine type of possession and length of possession with a view to supportingthe formalisation and titling of their rights.

Preliminary assessments indicate that there are alternative sources of information fromwithin and outside the community about possession, boundaries and ownership that couldbe considered. These would probably vary from area to area:

In urban areas: National Census conducted every 4-5 years; Barangay Census conducted annually; Barangay membership card; Homeowners Association register of members with address and maps; Purok leaders have list of namesand sketch map of members locations; utilities records; Deed of Sale; Affidavit ofQuick Claim; Community Mortgage Program.

In rural areas: Barangay census; Barangay leaders/elders; Deed of Sale;identification byother members of community.

1.2.4 The Guidelines on Surveys DENR EO 98-12 should be amended to providefor simpler, speedier and lower cost survey methods appropriate to ruraland IP lands.

The Guidelines on Surveys do not provide for alternative, quicker and lower cost methodsf d ti b d i f l d IP l d I th f l l d th id li


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1.2.7 Government and private landowners should be encouraged to enter into

long-term leases of 10-15 years with informal settler communities. Theleases would be registered with the land registration agency and the rightwould be transferable within the period of the lease. A formal lease wouldalso have the advantage of holding any periods of prescription in abatement.

It is of course understandable that private landowners would be reluctant to give up theirtitles and their full ownership. This is the issue at the heart of landowners concerns aboutprescription. Since it is also understood that what urban squatters desire most is securityof tenure in whatever form, then a suggested win-win situation would be for landownersto enter into long-term leaseholds agreements with the informal settlers on their land.There have already been successful long-term lease agreements on public lands. Aleasehold agreement would have the added advantage for the landowner of holding anyperiod of prescription in abatement. The informal settlers would have the advantage ofbecoming legitimate tenants with the security of long-term leasehold tenure.

The leasehold rights would be transferable by fact of occupation and simple registration.For ease of administration, the time for the lease would run in a cumulative manner witheach new tenant and thus the lease for an entire area would be due for renewal at thesame time.

1.2.8 Where land is defined by a plan on public record, the certificate of title forthat land should not be required to contain a technical description. The landshould simply be described by reference to the plan.

Certificates of title are required to contain a technical description of the land in the title thatis complicated, tedious and costly to produce, prone to error and not readily understood bythe public. The practice is more in keeping with an outdated deeds registration systemthan a modern title registration, where the emphasis should be on simplicity and efficiency.


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1.2.11 Original certificates of title should be signed by the Register of Deeds only

and not the Administrator of LRA.

PD 1529 currently requires all original certificates of title to be signed by the Administrator,LRA at the time of registration. This requires the workflow for issue of titles to be highlycentralised and creates a bottleneck to the rapid decentralised issue of certificates of title,particularly in the case of mass issue of titles as proposed under LAMP. An alternativeapproach would be for the delegation of authority for the ROD to enter a facsimile of theAdministrators signature on the title. The Administrator, as chief executive officer of theagency, should not be wasting his valuable time with mundane tasks like personallysigning titles and plans.

1.2.12 The provisions of Sec.70 of PD 1529 relating to adverse claims should bestrengthened to place a greater onus on the claimant to support the claim.

Currently it is relatively easy for a person to make an adverse claim on a title and difficultfor the registered owner to have the claim removed. Because of this the claims are oftenfrivolous and vexatious and used as a form of harassment. A greater onus should beplaced on the claimant to support the claim by:

a) requiring the claim to be supported by an affidavit stating that the claimant has aproprietary interest in the land and stating the nature of the interest; and

b) providing that, after lapsing of the claim it may be removed from the title by theROD on application of the registered owner, unless the claimant has obtained aCourt order sustaining the claim.

1.2.13 There should be a single agency responsible for the preparation andmaintenance of cadastral index maps and that agency should have specificstatutory responsibility for the maintenance of such maps.


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2 INTRODUCTION

2.1 Background

The LAM Program is a long term commitment by the government of the Philippines. Theoverall goal of the program is to alleviate poverty and enhance economic growth byimproving the security of land tenure and fostering efficient land markets in rural and urbanareas, through the development of an efficient system of land titling and administration,which is based on clear, transparent, coherent and consistent policies and laws, and issupported by an appropriate institutional structure.

The long term program is intended to achieve:

A clear, coherent and consistent set of land administration policies and laws;

Accelerated programs that would formally recognize the rights of eligiblelandholders and facilitate the recording of these rights in a strengthened landadministration system;

An efficient land administration system operating throughout the Philippines in

d ith G t li d i t th d f th l


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2. In this first period new laws or regulations are not to be prepared as therecommendations of all the studies will need to be harmonized first, and in principle

agreement reached by stakeholders on the thrust of the changes prior to legal drafting.3. The advisers will:

Conduct wide consultation including with community groups and special interestgroups.

Use workshops to engage a core group of interested parties.

Obtain lessons from the LAMP prototypes at Leyte and Quezon City and theLAMP M&E system.

Propose changes and obtain ideas and opinions from many sources.

Refine the recommendations and link with allied policy studies of institutional andfinance and others for possible synergy and to minimize possible conflict ofrecommendations.

4. The main output in this assignment is to prepare a preliminary report containingrecommendations for improvement in the legal framework as a basis for a future system ofland administration that is more efficient and delivers services to government, businessand the community more effectively.

Also included in this assignment was a review of informal laws relating to land ownership.This was done in order to enable the consideration of the feasibility of incorporating intothe legal framework community-acknowledged processes for recognizing possession insupport of registration of title.

2.3 Scope of Study

The scope of the laws and regulations study was defined by reference to the purpose and

bj ti f th P j t


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Again, in accordance with LAM Program goals, the study was long term in its outlook ie.the primary focus was on a long term vision of the ideal legal infrastructure.

In addition, as indicated in the terms of reference above, the study was subsequentlywidened to include a study of the informal laws whereby communities recognize rights inland.

Each of the PA LAMP policy studies was due for completion by 30 June 2002. In thefollowing six weeks their individual findings and recommendations are to be integrated inorder to produce a coordinated and consolidated set of recommendations to theGovernment by mid-August.

Some of these studies (and two related studies to be funded by the World Bank) haveimplications for future legal infrastructure. While every effort was made to liaise closelywith counterpart advisers during the conduct of the studies, the initial Laws andRegulations policy study could not realistically be expected to fully anticipate, analyse andincorporate in its own recommendations the final findings and recommendations of theother studies. That will happen in the period July to mid-August.

2.4 Study Methodology

The key aspects of the methodology were:

1. A compilation and review of previous studies and other literature on this issue.

2. Preparation of an inventory of all relevant laws and regulations.

3. A review of the identified laws and regulations and an examination of theireffectiveness based on:

Position papers on key aspects prepared by local legal experts.Discussions with individual public sector agencies, private sector stakeholders and

it


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3 CURRENT LEGAL INFRASTRUCTURE

3.1 Legal Infrastructure

3.1.1 Generally

An inventory of the laws relevant to public land disposition and land registration has beenundertaken and is contained in Volume 2 of this report, with a summary of the inventoryattached as Annexure 4 in Volume 1. This inventory identifies more than 60 laws andregulations touching on these particular aspects of land administration. Many of these laws

have been in existence for a long time and have not been adapted to meet modern needs.

One reason for the proliferation of laws is the practice of introducing new laws withoutspecifically repealing previous laws. Instead, a general statement has been included in thenew law that all laws, decrees, orders, rules and regulations, or parts thereof, in conflictor inconsistent with any of the provisions of this Act are hereby repealed or modifiedaccordingly. Thus it becomes a matter of interpretation as to whether a provision in anearlier law has been repealed or modified. In addition, to the extent that the provisions ofan earlier law are consistent with a later law, they remain in force with the result that there

can be several laws governing the same subject matter.

An example of this is in the land registration laws where PD 1529, the express intent ofwhich was to codify the laws relating to land registration, did not repeal or replace many ofthe provisions of Act 496, Act 2259 or RA 26 even though it dealt with the same subjectmatter. Similarly in relation to CARP, the latest law RA 6657 did not replace previous lawssuch as RA 3844, PD 27 and PD 2766 and these laws continue to exist and havesuppletory effect. In so far as the CA 141 the Public Lands Act is concerned, there aresubsequent acts dealing with the same subject matter e.g. RA 730, which did not amend

th i i f CA 141 b t th l t bli h d ti t th i i


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3.1.2 Public Land Classification

Various laws govern public land classification and disposition in the Philippines. Foremostof these is the Constitution of 1987, which enunciates the principles, policies and tenets ofthese functions.

Article XII, Section 3 of the 1987 Constitution of the Philippines provides that lands of thepublic domain are to be classified into agricultural, forest or timber, mineral lands, andnational parks. Alienable lands of the public domain are limited to agricultural lands.Agricultural lands of the public domain may be further classified by law according to theuses which they may be devoted. Taking into account the requirements of conservation,ecology, and development, and subject to the requirements of agrarian reform, theCongress shall determine, by law, the size of lands of the public domain which may beacquired, developed, held, or leased and the conditions therefor.

Public land classification is relevant to the land administration system because section 8 ofCA 141 (the Public Lands Bill) provides that land is alienable and disposable from thepublic realm for acquisition by private hands provided it is classified as such and providedit is not exempted from classification under that same section. As in Act 926 and Act 2874,Sec. 6 of CA 141 classifies lands of the public domain into:

alienable and disposable

timber

mineral

The President shall from time to time declare what lands are open to disposition orconcession, but only those lands shall be declared open to disposition or concessionwhich (Section 8, C.A. No. 141):

Have been officially delimited and classified


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No 1998 of 1985 declared that in the Provinces of Cebu and Benguet, lands with 18%slope or more were still to be declared alienable and disposable if they met any or all ofthe following criteria:

developed area planted to agricultural crops using effective erosion controlpractices or measures like terracing; and/or

established and developed townsite within barangays or communities where basicstructures, e.g., roads, schools, church are already existing.

Also Presidential Letter of Instruction of 1982 No. 1262 provided that there should be aSub-Classification of Forest Land Committee tasked to establish a set of criteria for theselection and definition of specific classification schemes for forest and other public lands.Land classification is currently the responsibility of NAMRIA.

There is also the matter of strengthening the meaning of section 8 of CA 141 known as thePublic Land Act, to clarify the instances when land has clearly become private land and istherefore beyond the necessity for classification.

The need to review the method of classification of forest lands is a serious issue as a largenumber of people are living within what is regarded as forest in areas which have for manyyears been established agricultural and residential areas. These people cannot currentlyobtain a secure title. The issue will be further considered in the forthcoming study on forestboundaries.

3.1.3 Public Land Disposition

There are a number of ways by which public land may be converted to privately ownedland. A graphical illustration of the various processes is shown in Figure 1. The principalmethods are those provided by CA 141, the Public Lands Act, but another means isprovided in the CARP law, RA 6657 where, in addition to private lands, certain public land

b t f d t f b fi i i Oth l l t d t l d di iti A t


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16

ORIGINAL LAND TITLING SYSTEM

Alienation of Lands of Public

Domain to PrivateOwnership

(Administrative)DENRCA 141

Confirmation of existing

rights to title based on

evidence of ownership(Judicial)

SC & LRA PD1529, Act

496, Act 2259

Comprehensive Agrarian

Reform Program(Administrative)DARRA6657

Certification of Indigenous

PeoplesRights

(Administrative)

NCIP RA8371

Disposition of A&D lands ofthe Public Domain

Processed thru SC & LRA Processed through NCIP

Rights to IndigenousCommunities/People who

claim to have establishedownership of land

Processed through DAR

Distribution of Ownership to

landless farmers andSettlement

Applications to DENR by

landless farmers

Survey by DAR (private

practice)

Petition by ICC/IP to NCIP

for Delineation ofAncestral Domain or

Delineation by NCIP withconsent of ICC/IP

Application for

Identification andDelineation of Ancestral

Land

Survey verification andrecords by DENR

Administrative adjudication-DAR

Certificate of Land

Ownership Award

Rights to those who claim to

have established ownershipof land

Processed through DENR

CompulsoryVoluntaryApplications for grant forland settlement

Applications for purchase

Applications for title by

possession in composition withthe State

Survey by private practiceSurvey by DENR (private

practice)

Survey verification andrecords by LRA/DENR

Survey verification andrecords by DENR

Application to SC by

claimant

Application to SC by

DENR

Survey by DENR (private

practice)

Survey verification and

records by DENR

Judicial adjudication byRTC/MTC

Judicial adjudication byRTC/MTC

DecreeDecree

Administrative adjudication

following auction. Subject toconditions

Administrative adjudication

to ownership claimants bypossession

Free PatentSales Patent

Administrative

adjudication. Grant toapplicant subject to

conditions

Homestead Patent

Records kept by LRA and ROD

CT prepared by ROD

Land is private land within the TitleRegistration System

Certificate of Ancestral

Domain Title

Certificate of Ancestral

Land Title

Survey by NCIP (DENR)

Administrative

adjudication - NCIP

Survey by NCIP (DENR)

Administrative

adjudication - NCIP

Figure 1


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The Homestead Patent is a form of holding that was introduced in the first Public LandsAct and has now become largely obsolete and inappropriate. The process for disposition istedious and the conditions attaching to the holding are overly restrictive

2.

The following lands may be the subject of sale or lease:a) agricultural lands;b) lands for residential, commercial or industrial purposes and other similar purposes; andc) lands for educational, charitable and other similar purposes.

In the case of a sale a sales patent will be issued. In the case of both sales and leases CA141 specifies various conditions attaching to the holding.

Futher details on the above holdings is contained in Public Land Laws of the Philippines,Ramon N. Casanova, Volume 2 of this report.

Administrative and judicial legalisation of imperfect title to public agricultural land partakeof the nature of statutory grant of public lands. This form of acquisition of title grant is notfound in the Constitution which provides only for grants by homestead, sale or lease.

Both free patent and judicial confirmation of imperfect or incomplete title are dealt withunder the following heading Confirmation of Imperfect Title.

RA 6657

Subject to certain exemptions, the Comprehensive Agrarian Reform Law covers in itsoperation all lands suitable for agriculture, both private and public. Suitable lands of thepublic domain may be acquired and distributed under the program.

A more detailed review of the CARP program is contained under the heading Other

T


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One of the major reasons that there has not been a completion of the formalization of titleto many of these landholdings is the problems involved in formalization processes. Thereare three processes by which a formal title may be obtained voluntary judicialproceedings, compulsory judicial proceedings and voluntary administrative proceedings.

Voluntary Judicial Proceedings (s.48 CA 141, s.14 PD 1529)

This is open to persons who, by themselves or through their predecessors-in-interest havebeen in open, continuous, exclusive and notorious possession and occupation ofagricultural land of the public domain under a bona fide claim of acquisition of ownershipsince June 12, 1945. The process involves obtaining a decree from the Court forconfirmation of the claim to title and issuance of a certificate of title. However, the time andcost of this process is a deterrent to many claims. A claimant must engage an attorney torepresent him in the Court proceedings which are extremely time-consuming, not onlybecause of the number of steps involved but also because of the delays due to anoverloaded Court system and the inability of the Courts to allocate sufficient time to landtitling matters. There are also further delays and duplication of activities involved in theinvestigation carried out by LRA into the matter before issue of the decree.

THE JUDICIAL TITLING PROCESS

CA 141, Act 496, PD 1529Fig. 2


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ORIGINAL REGISTRATION BY COURT PROCESS LEGAL EXPENSES

Acceptance fee P20,000 for regular sized land

Retainer fee about 4-5x more than the acceptance fee i.e. P80-100,000 (more ifcommercial or industrial land or high-value agricultural)

Retainer fee includes filing of the application (P10,000); completion of presentationof evidence (P10,000-20,000); appearance for every trial or conference attendedthe amount would vary depending on where and the time required for travel;miscellaneous costs.

Applicant also has to pay cost of publication: P5,000-10,000 (including in thenewspaper would need at least P6,000-7,000; Gazette P1000-2000).

Sometimes the lawyer and client would agree on a success fee (% fixed).

The other difficulty involved in the process is the period for which the possession must beproved. The original provisions on judicial confirmation required possession for a period of10 years. This was later extended to a period of 30 years and finally to a periodcommencing June 12, 1945. Thus with every passing year it becomes more difficult for anapplicant to prove occupation and possession for the requisite period.

Apart from these difficulties, claimants are not assisted by the attitude of the Government,which considers the land as still part of the public domain and, through the SolicitorGeneral, regularly opposes the granting of the decrees by the Court.

One attorney with whom this issue was discussed had also experienced the frustration ofgetting to the completion of Court proceedings only to find that the applicants, despitehaving occupied the land for the statutory period, could not count all that period as some ofit was prior to the land being classified.


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to these matters has been found to be lacking so that two competing claims can berunning at once in different proceedings as the following example shows.

Land at Cavite containing 14,253 sq.m.

1. Land bought by F on 27 April 1996 under Absolute Deed of Sale.2. On 22July 1997 F lodged a petition for registration at the Tagaytay Regional Trial Court.3. On 23 February 1999 C lodged an application for a Free Patent over the same land.4. On 22.May 1999, while the Court case was still pending, the Free Patent was issued.5. F must now seek to have the Free patent set aside by the Court.

While the Free Patent process is quicker and cheaper than the judicial process, it still hasits problems as the following example shows:

Emerenciana, Barangay Catariwan, Dagami, Leyte

1. Emerenciana is 66 years old. She has lived on the same land since her birth.2. She was always interested in getting a title because she knows it is important for

security.3. She had tried to get a Free Patent by filing an application in the 1970s. She wentto the then District Land Office and submitted an application along with her taxdeclarations. When she submitted her application she received a list ofrequirements and she complied with all of them. She even planted more trees on

her property because she understood that would help her to get the patent. Nothing has happened since. She went to follow-up the progress of her application every few years.4. The last time she went was last year when she went to the CENRO. She was told

that they could no longer find her file. In the list of pending cases provided by


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Government which advances the expenses and covers an entire municipality. Ordinaryland registration proceedings under Act No. 496 are voluntary in nature as the filing of theapplication depends upon the initiative of the landowner, while cadastral proceedings arecompulsory in the sense that the landowner is compelled to file his answer to the petitionfiled by the Government, otherwise he loses his rights over the land. In proceedings underAct No. 496, if the applicants evidence is not sufficient to prove ownership, the applicationis simply dismissed and the applicant may still have another chance to put up a successfulclaim. On the other hand, in cadastral proceedings if the claimant fails, the property isdeclared public land. PD 1529 now supersedes part of the Cadastral Act.

While the concept of systematic adjudication of title was good its implementation has leftsomething to be desired. The surveys have never been completed, some of them havebeen lost and much of the work of judicial inquiry and decree has not been carried out dueto lack of funds. Although the cost to the landowner is less than with the voluntary judicialproceedings, the process still suffers from the delays and complications inherent in Courtprocesses.

As part of this study, a questionnaire was prepared (see Annexure 6) and submitted to theSupreme Court for circulation in mid-May 2002. It was agreed that the questionnaire wouldbe completed within 3 weeks by the Supreme Court itself as well as the courts in QuezonCity, Leyte, Negros Occidental, Nueva Ecija, Mindanao Occidental, Mindanao Oriental,

Baguio City, Cebu and Davao City. As at the date of this report, the surveys have not beenreturned. There was also a brief study by the UP Law Centre on the types of landregistration cases decided by the Supreme Court for the period 2000-2002 (refer Volume2).

3.1.5 Other Tenures

Figure 3 shows the various land tenures available in the Philippines.


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22

Figure

2


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Certificate of Land Ownership - Agrarian Reform (RA 6657)

The position papers Land Tenure Rights in the Philippines: Terrain and Trajectory4and

Land Use5 outline the history of agrarian reform laws in the Philippines. The latestagrarian reform law is the Comprehensive Agrarian Reform Law (CARL) of 1988 (RA6657) that facilitated distribution of all agricultural lands regardless of tenure and crop andalso included provision of support services for farmer-beneficiaries. The CARL goesfurther than PD27, which only covered rice and corn lands and resulted in the issuance ofEmancipation Patents.

Under the CARL, farmer-beneficiaries receive titles to the redistributed lands and thesetitles are called Certificates of Land Ownership, which are registered at the Registry of

Deeds. There is an initial ten year period in which the land cannot be disposed of exceptthrough hereditary succession, or to the government or to the LBP or other qualifiedbeneficiaries (Section 27, CARL).

The Department of Agrarian Reform is charged with implementation of the CARL and thusDAR may dispose of public or private agricultural lands. The CARL specifically covers(Section 4, RA 6657; PP 131 and EO 229):

All A&D lands of the public domain devoted to or suitable for agriculture;

All lands of the public domain in excess of specific limits as determined byCongress;

All other lands owned by the Government devoted to or suitable for agriculture;

All private lands devoted to or suitable for agriculture regardless of the agriculturalproducts raised or that can be raised thereon.

A landowner may retain an area not exceeding five hectares (Section 6, RA 6657).

Section 16, RA 6657: Procedure for Acquisition of Private Lands. For purposes ofacquisition of private lands, the following procedures shall be followed:


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f) Any party who disagrees with the decision may bring the matter to the court ofproper jurisdiction for final determination of just compensation.

Private land identified by DAR

PROCEDURE FOR ACQUISITION OF PRIVATE LANDS BY DAR

Section 16, RA 6657

DAR Notice of Offer to Owners

Owner Rejects Offer Owner Accepts Offer

LBP pays Owner the purchase price for the

land in cash or LBP Bonds.

DAR Summary Administrative

Proceedings to determine just

compensation for land.

Deed of Transfer by Owner to DAR

and surrender of Certificate of Title etc

DAR Decision within 30 days

DAR - immediate possession of land

Option to

appeal to

Court

Registration of CLOA at ROD

ROD assigns TCT number

DAR Issues CLOA with CLOA number

VOLUNTARY LAND TRANSFERS UNDER THE CARP

Sections 20 & 21, RA 6657

Private lands identified by DAR

Voluntary Agreement for Direct Transfer between

Owner and Beneficiariesshall not be less favorable to the transferee than thoseof the government's standing offer to purchase from the

landowner and to resell to the beneficiaries

Agreement checked by DAR within 30

days (deemed acceptable if no response)

Notice of Voluntary Transfer made by Owner to

DAR within 1 year

Direct negotiations between Owner andBeneficiaries

Agree on purchase price within 1 year of

negotiations starting

No agreement on purchase price within

1 year of negotiations starting

Transfer of land from Owner to the RP

Payment to Owner by LBP

Payment direct to Owner

by Beneficiaries

DAR distributes to beneficiaries

Registration of CLOA at ROD

ROD assigns TCT number

Payment to Owner by LBP

DAR Issues CLOA with CLOA number


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common equivalent to not more than the applicable retention limit. The beneficiaries maycollectively decide on the continued operation of the parcel/estate as a whole or tosubdivide the same into individual lots and determine the manner in which suchsubdivision is to be implemented.

Land awarded pursuant to the CARL are to be paid for by the beneficiaries to the LBP inthirty annual amortizations at 6% interest per annum (Section 26, CARL).

A preliminary study of the lending practices of a sample of banks has shown that judicialtitles, patents and CLOAs are accorded differential treatment even when the prescribedperiods for restrictions have run their course. The judicial titles are usually accorded themaximum allowable percentage of the appraised value whilst patents (that are free of their

restriction) may be granted loans at 10-20% less and as far as the interviewees couldrecall there had not been a loan to a CLOA title holder even after the ten-year prescriptionperiod had passed. Refer reports in Volume 2 by Attorney Berlin Berba. Parliamentary billsin existence as at the time of the writing of this report also highlight this issue:

Senate Bill number 1597 entitled An Act allowing the titling of lands covered by aCertificate of Land Ownership Award (CLOA) granted under the Agrarian ReformProgram and utilizing its use as collateral for purposes of securing agriculturalloans and similar other financial, amending the pertinent provisions of RepublicAct 6657, otherwise known as the Comprehensive Agrarian Reform Law, and for

other purposes; and Senate Bill number 197 entitled An Act allowing the sale, transfer, conveyance,

lease, usufruct, or mortgage of the land awarded under the ComprehensiveAgrarian Reform Law, amending for the purpose Section 27 of Republic Act 6657and for other purposes;

House of Representatives Bill entitled An Act providing measures to enhance theacceptability of agricultural lands as security for loans obtained from banks andother financial institutions thereby promoting access to rural credit and providingmechanisms therefore and for other purposes.


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Valuations of land by the Land Bank of the Philippines have often been thesubject of appeals to the courts by the landowners.

CLOA holders have limited options to obtain credit. This is apparently related tothe restriction on disposition as well as the various restrictions as set out in RA3844 as amended by RA 6389, PD 27 as amended by EO 228 and 229 and assubsumed in RA 6657.

Indigenous Peoples Tenures RA 8371 (IPRA)

IPRA provides for the recognition of indigenous peoples rights through the issue of titlesknown as Certificates of Ancestral Domain Title (CADT) and Certificates of AncestralLands Title (CALT). The IP titles would provide priority rights in the harvesting, extraction,development or exploitation of any natural resources within the ancestral domains (Section57 IPRA). Areas within the ancestral domains shall be presumed to be communally held(Section 55 IPRA). This provision leaves some flexibility for IPs to further define rightswithin their ancestral domains in accordance with customary laws.

For the purpose of title issue IPRA requires the Ancestral Domains Office to undertakesurveys to delineate the perimeters of ancestral domain lands and those parcels ofancestral lands which are not within ancestral domains. At this stage the only guidelinesfor such surveys are those in DENR AO 98-12 which prescribe surveys to an order of

accuracy which is not appropriate for IP lands. Compliance with the existing guidelineswould make the time and cost of carrying out such surveys unrealistic. The mainrequirement should be that the plans of the land surveyed should be capable of beingintegrated into the national mapping system and copies of the plans should go to theagencies such as DENR and LRA.

According to PAFID, which is a non-government organisation for indigenous peoples, theyhave surveyed about 1 million hectares of indigenous peoples (IP) lands in the last 8-9


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is placed in the jurisdiction of the Fisheries Bureau. If it originated from forest or public landthen it remains so and will revert back when it is no longer used for fisheries.

Fisheries leases are conditional and usually for a term of 25 years with option to renew forfurther 25 years. There were instances prior to 1972 when fisheries tenants could apply fora free patent. PD 43 and PD 704 prohibit disposition of public lands through sale of fishfarms i.e. only leases. A representative of the Fisheries Bureau explained that somefisheries lessees have been able to obtain free patents by connivance at CENRO andPENRO levels.

Pursuant to the Local Government Act, jurisdiction over shores and shorelines devolvedaway from the Fisheries Bureau to LGUs. LGU jurisdiction stretches out 15 km from

shoreline after that, it is Fisheries Bureau jurisdiction. Conditions of leases are forpreservation of forests and lands up to 20m from the shore but some tenants only leave a1m buffer zone and there is seldom proper bank protection.

Once an application for a fisheries permit is received, there is a need for survey which inturn has to be approved by DENR. There is also a requirement for EnvironmentCompliance Certificate from CENROs (these unofficially charge up to P20,000 or evenP50,000). Now, instead of ECC an exemption may be issued if there is an existing fishfarm and on condition it does not unduly harm the environment.

Mineral Tenures

Mineral lands are a classification of land referred to in the Constitution.

The Philippine Mining Act of 1995 (RA 7942) states that (Section 4) Mineral resources areowned by the State and the exploration, development, utilization, and processing thereofshall be under its full control and supervision. Section 4 also provides that the State shallrecognize and protect the rights of the indigenous cultural communities to their ancestral


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b) Timber Licence Agreement natural forest, now in second cycle of cutting and somehave plantations within the TLA parameters. Most of the TLAs can apply for an IFMAsubject to regulations, for 25 + 25 years.

c) Forest Land Grazing Lease Agreements for grazing. Also 25 + 25 years orsometimes less

d) Community Based Forest Management Agreement (CBFMA), which is a productionsharing agreement designed to ensure that participating communities enjoy thebenefits of sustainable utilization, management and conservation of forestlands andnatural resources therein;

e) Certificate of Stewardship Contract (CSC), which are contracts awarded to individualsor families actually occupying or tilling portions of forest lands; and

f) Certificate of Ancestral Domain/Land Claim-Community Based Forest Management

Agreement (CADC-CBFMA or CALT-CBFMA), which are holders of ancestraldomains/land claims who wish to participate in the program.

The history of the various social forestry programs is set out in the position paper LandTenure Rights in the Philippines: Terrain and Trajectory, Volume 2 of this report.

Urban Land Reform and Informal Settlements (PD 1517; Urban Land Rules; PD 757;PD 7279)

As set out in the position paper on Land Use

7

, there is a range of programs under theUrban Land Rules to convey public and private lands to the urban poor that arealternatives to land purchase and expropriation such as:

a) Land Assembly which refers to the acquisition of lots of varying ownership through,among others, expropriation or negotiated purchase, for the purpose of planning anddevelopment unrestricted by individual property boundaries.

b) Land Banking which refers to the acquisition of land in advance of actual need for the


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grant of residential land within an urban zone made by the State upon compliance withdevelopment use and related conditions. Tenure in improvements is a system whereby theMinistry retains title to certain parcels of land while enabling occupants to own occupant-introduced improvements on such as dwelling units.

Expropriation by the government is done by filing a petition before the Regional Trial Courtand deposit of the amount equivalent to ten percent of the declared assessment value ofthe land in 1975 with the Philippine National Bank.

PD 1517 (Section 18) and the Urban Land Rules (Rule XII, Section 42) seek to ensure andencourage private participation in land development and management activities, theGovernment, with appropriate public and private agencies shall develop program which

will mobilize land development funds from private individual groups, government financialinstitutions, joint public-private ventures, and private financial institutions.

The Urban Land Reform Law depends on the President to issue proclamationsdesignating specific parcels or urban and urbanizable lands for urban land reform. Withinthese zones, right of first refusal is given to legitimate tenants who have resided there forten years or more.

Certificates of Title to the Poor

PD 757 (National Housing Authority) and RA 7279 (Socialized Housing) provide for theissuance of Certificates of Title to the Urban Poor. As illustrated by the following diagram,which was prepared by the Land Registration Authority, some are handled by the NationalHousing Authority and others by the Housing and Urban Development and CoordinatingCouncil (HUDCC). The diagram sets out the steps in the processes. In the socializedhousing program, housing is purpose-built for the urban poor and funds are provided onloan for the purchase of these units. To qualify for socialized housing, the applicant(Section 16, RA 7279):


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The Torrens System

Although the Torrens System was developed in Australia, the legislation for the Torrens

System in the Philippines came via the U.S.A., as it was a copy of the legislation adoptedin Massachusets. The American version of the legislation was similar in many respects tothe version that was developed in Australia and adopted in many other countries, but withone major difference. The American version required the intervention of the Courts in thetitle registration process, whereas the system adopted in other countries did not. Thisrequirement for time-consuming and expensive processes has ultimately led to the demiseof the Torrens system in most of America and has contributed to the informality and lack ofcoverage of the system in the Philippines. The cost of these proceedings placesregistration beyond the reach of many landholding Filipinos, while the delays contribute to

the lack of credibility of the system. An example of the process was shown in Fig.1.

The requirement for judicial determination is not confined to original registration. It includesmatters such as reconstitution of lost original titles, replacement of lost duplicate titles,removal of notifications on administratively reconstituted titles and correction of errors(including even minor clerical errors) on titles. In enacting these requirements thePhilippines made a major departure from the original aim of the Torrens System, whichwas to provide a simple, inexpensive administrative process. A comparison of systems incountries in the region shows the following:

COUNTRY REGISTRATION PROCESS

Thailand Administrative

Malaysia Administrative

Indonesia Administrative

Cambodia Administrative

Laos Administrative

Philippines Judicial and Administrative


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(iii) The limitations on the amount and source of funds to maintain the AssuranceFund; and

(iii) The necessity for a Court determination even in clear cut cases of liability.

One other feature of the Torrens system in the Philippines which distinguishes it fromTorrens Title systems elswhere, particularly modern Torrens systems, is the inclusion of atechnical description (otherwise known as a metes and bounds description) in thecertificate of title. Under the Torrens system the land in a certificate of title is normallydefined by a plan on public record and no technical description is necessary as the land isdescribed by reference to the plan and the title may sometimes show a diagram based onthe plan. Experience has shown that technical descriptions are not readily understood bylay people and that they are tedious to produce and prone to error.

The Land Registration Authority is currently undertaking a Land Titling ComputerisationProject to automate its title registration and records management systems. In order tofacilitate and support the new systems the LRA is currently considering various changes tothe land registration laws.

The Torrens System and Prescription

Many of the original Torrens Title statutes adopted in countries throughout the world

prohibited the acquisition of title to Torrens Title land by adverse possession orprescription. Other countries with title registration e.g. England have always permittedprescription. However, many of the countries that originally prohibited prescription havesince changed their basic Torrens Title laws to permit the acquisition of title by this means.They have done this because they have recognised that, over the years, many parcels ofTorrens Title land have fallen into the ownership of persons who acquired the land, eitherby taking possession of abandoned land or by informal transfer. In either case theownership could not be recorded in the Registry records and the land would remainoutside the official system unless a change was made in the law. Given the public benefit


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titles and their full ownership. This is the issue at the heart of landowners concerns aboutprescription. Since it is also understood that what urban squatters desire most is securityof tenure in whatever form, then a suggested win-win situation would be for landownersto enter into long-term leaseholds agreements with the informal settlers on their land. Thiswould overcome concerns about transfer of ownership due to prescription because thelandowner can rest secure that the period for prescription would not run for the duration ofthe leasehold agreement, whilst the informal settlers would become legitimate tenants withthe security of long-term leasehold tenure.

The Torrens System and Qualified or Provisional Titles

The concept of the qualified or provisional certificate of title has been used in manycountries in the region (Malaysia, Singapore, Laos, Australia) as a means of quicklybringing lands within the registration system in situations where:

the title may not have been fully investigated;

the period for acquisition of a title may not have run, or

the land may not be accurately defined by survey.

It means that a title can the issued, the land is included in the public record and it can bedealt with and be the subject of transactions that can be recorded in the register. It simplydoes not carry with it the same degree of indefeasibility as a normal registered title, a factwhich is made clear on the title. However, such a title can be capable of maturing into anordinary registered title. If the qualifications relate to title, such as incomplete or uncleartitle, the title can become clear through lapse of time and the application of the laws onpossession and prescription under the Civil Code. If the qualification relates to imprecisedefinition of boundaries, the title can be cleared by the lodgment of a plan of surveydefining the boundaries. In the meantime, the title carries a clear warning about its natureso that persons wanting to deal with that land by way of purchase, mortgage etc. have to


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As originally conceived only instruments or deeds establishing, transmitting,acknowledging, modifying or extinguishing rights with respect to unregistered landswherein the parties have agreed to have the same registered under Act 3344 could be

admitted for record. In other words, this system of registration was applicable exclusivelyto voluntary instruments resulting from the agreement of the parties. The law found noapplication to involuntary transactions. Thus, it was held that a sheriffs deed conveyingunregistered land that had been sold under execution was not registerable under thissystem

9. However, under Section 113 of P.D. 1529, by express provision thereof, tax

sale, attachment and levy, notice of lis pendens, adverse claim and other instruments inthe nature of involuntary dealings with respect to unregistered lands, if made in the formsufficient in law, shall likewise be admissible to record under this section.

As the law now stands, both voluntary and involuntary instruments involving unregisteredlands may be recorded under this system of registration. Registration is designed to bindthird parties through constructive notice. However, the law itself declares that anyrecording made under this section shall be without prejudice to a third party with a betterright. Under this situation an earlier unregistered instrument prevails over a laterinstrument notwithstanding registration of the latter. The rule of preference to the one oftwo deeds which is first recorded, contained in Article 1544 of the Civil Code, does notapply to unregistered land.

10The constructive notice resulting from registration is effective

and binding only to future and subsequent dealings on the land. In short, registration does

not afford full protection and the inducement to registration is less.

Issues in Land Registration

Facilitation Fees

A preliminary study was conducted as part of the general PA-LAMP project to describe theexperiences of six randomly selected people who had followed through the steps in thelegal procedures in the transfer of title. Refer report Transfer of Titles: Realities on the


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According to AO20 of 1992, all irrigated lands for rice and other crop production or withinareas programmed for irrigation facility rehabilitation by the Department of Agriculture (DA)and National Irrigation Administration (NIA) shall not be available for conversion from

agricultural land classification.

As set out in the position papers by Ernesto Mendiola12

, Dante Gatmaytan13

and MyrnaFeliciano

14, there are a variety of ways in which reclassification and conversion can take

place. On top of all these would be the reclassification and zoning ordinances of LocalGovernments, which the Constitution authorizes through the Local Government Code tohave local autonomy and mandates Congress to enact a local government code, the taskof the Department of Environment and Natural Resources (DENR) to delineate forestboundaries from the alienable and disposable lands, and the role of the Department of

Agrarian Reform (DAR) to convert agricultural lands to other uses (Sec 65 of RA 6657,Executive Order 129-A, Series of 1987, Administrative Order No.12. Series of 1994). R.A.No. 7160, the Local Government Code (1991) empowers cities and municipalities toreclassify agricultural lands to non-agricultural uses where 1) the land has ceased to beeconomically feasible and sound for agricultural purposes as determined by thedepartment of agriculture or 2) the land shall have substantially greater economic value forresidential, commercial or industrial purposes as determined by the Sanggunianconcerned, provided that such reclassification shall be limited to the following percentageof total agricultural land area at the time of the passage of the ordinance: 1) for highly

urbanized and independent component cities fifteen percent (15%); 2) for component citiesand first to third class municipalities, ten percent (10%); and for fourth to six classmunicipalities, five percent (5%). R.A. 7160, also provides that the local government units(LGUs) shall, in conformity with existing laws, continue to prepare their respectivecomprehensive land use plans (CLUPs) enacted thru zoning ordinances which shall be theprimary and dominant bases for future use of land resources. Although there are maximumpercentages in the Local Government Code, there is ambiguity as to how often thesereclassifications may take place. As Gatmaytan highlighted, there have been instanceswhen local government officials and DAR officials have benefited from their power to


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The overall aim of this preliminary study was to determine whether there are sources ofdata about occupation (apart from traditional sources such as tax declarations) that areavailable from among the informal communities themselves or from other outside sources

that could be used to determine type of possession and length of possession with a viewto supporting the formalisation and titling of their rights.

Background

(a) Urban Areas

In the Metro Manila area alone, figures as at 1995 indicate an estimated 2.4-2.5 millionsquatters (UPA, 1995) and that 55% of those living in urban areas are living below the

poverty line (NHA, 1994).

The Barangays in the urban areas studies are part of the Prototype 1 of the LAMP. One isthe Barangay Holy Spirit and the other the Barangay Payatas.

Meetings were conducted with local leaders in urban and rural barangays to explore thehistory of their informal settlement and the existence of records (if any) of the possessorsand subsequent possessors in their settlement. The following are accounts of the historyof these settlements as related by the local leaders and senior residents who attended the

consultation meetings.

Barangay Holy SpiritThe area now known as Barangay Holy Spirit was previously Friar Lands and known asLot 805. The community first moved to the area in 1977/1978. These were mostlyveterans who had been granted these plots of land to plant crops and to build a housepursuant to a residential use permit, so these were not titles as such. This was part of theGreen Revolution proclaimed by Imelda Marcos through the Bureau of Forest Land of thattime. Although this area was meant to be exclusively for veterans and came to be called


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formalizing their petition to claim the land. Eventually they were successful in beinginformally declared a Barangay and appointed a Barangay committee. From that point theywere able to apply for government funds for wells, road construction and electricity but not

a school. They were able to pool their own funds to build a school. They were able tohold the first Barangay election in 1982.

In 1983 a group of people from the Bureau of Lands under Director Argalos approachedthe Barangay and stated that it is still forest land and encouraged the settlers to apply forresidential use permits. At the same time government was concerned because the areawas designated for the NGCR. Also around that time there were claimants who were notknown to the current settlers, surfaced with titles issued by the Registry of Deeds that hadbeen obtained based on tax declarations. Through a census process carried out under

President Aquinos administration 18,000 families were identified on site and medium-density housing was prepared for them at a different site but they were not prepared tomove there. Under President Estradas administration the east side of the NGCR wasdeclared alienable and disposable land. As a result of hearing about these initiatives,many other families invaded the area. The disposition of lands was to take place throughthe National Government Centre Housing Project. Under that scheme, Certificates of LotAssignments were to be issued by HUDCC as long as they had been surveyed and thecommunity had developed its mapping and development plan.

(b) Rural Areas

The rural barangays included in this study were Barangay Cabariwan, Barangay Kagawadand Barangay Hinulogan, Dagami, Leyte. The elders interviewed could not recall the earlyhistory of their settlements except that these settlements had existed for as long as theycould remember.

Reality


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4. VIEWS ON CURRENT LEGAL INFRASTRUCTURE

4.1 Experience From PA-LAMP Prototypes

The prototype most affected by the legal infrastructure is PIO 1. Although it has not yetbeen possible to test all titling procedures, the following issues have arisen from theexperience to date.

The Homestead Patent has been found to have many limitations and disadvantagesas a means of systematic registration of title under LAMP.

The Free Patent is more appropriate than the Homestead Patent but it still hasrestrictions, maximum area limitations and is not applicable to most residential land. Inany event, the provisions for Free Patents have expired and cannot be used until suchtime as an extension is enacted.

Free Patent should be extended in time and it should also cover residential areas.

Currently the only acceptable approach to systematic registration appears to bejudicial titling, which is now to be trialed, but it is still a tedious process and one whichis hard to simplify.

The evidence of possession required in cadastral proceedings must go back to 1945.

This is an onerous requirement for most landholders. There are many inconsistencies between the various forms of land disposition. For

example the maximum area requirements (some of which are also inconsistent withthe Constitution) and the rights of natural born v naturalised citizens.

There is a need to be able to implement new surveying procedures for adjudicationand subdivision. The Cadastral Act No. 2259, DENR AO 98/12 and the Manual andGuidelines require full surveys to a high order of accuracy, which is both timeconsuming and expensive. There should be scope for lower order surveys in ruralareas.


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land laws should be brought together in a code. NRMDP also made manyrecommendations for improvements to the land registration system.

The LAMP PPR also recommended that consideration be given to the adoption of anadministrative process for the systematic adjudication and registration process and also forminor corrections on certificates of title and the issuance of replacement duplicatecertificates of title. This study was concerned that the state guarantee was not workingproperly in the title registration system and recommended that the Assurance Fund bestrengthened. This study also made many recommendations for improvements to the landregistration system.

4.3. Stakeholder Views

This study is significant for the wide consultation that has taken place involving manysectors of society - civil society, public sector, private sector, academia and landadministration experts. All these groups have been involved in both individual discussionsand workshops and seminars. The proposals contained in this report are largely based onthis interaction. Details of the persons and groups with whom individual discussions wereheld are contained in Annex.2. In addition, workshops were held with:

public sector representatives;

private sector representatives;

civil society representatives (NGOs); land administration experts;

LAMP prototype teams,and details of these workshops are set out in Annex. 5.

Easily discernible from the workshops was the discussants awareness that variousproblems currently confront the system of land administration and management.Commonly identified as problems were that there are so many antiquated laws,procedures for getting a title being long, cumbersome, and expensive, that there are


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5. CHANGE CONSIDERATIONS

5.1 Legislative and Congressional Factors

In discussions with persons experienced in land administration and law reform a number ofpeople have cautioned against attempting to implement major law reform in a singleinitiative. It was suggested that a piecemeal approach would have a better chance ofimplementation because of the reluctance of politicians to consider and pass majorlegislative items such as a new code. Certainly the history of reform of land laws does notengender confidence in a quick passage of the laws. It is generally accepted that the

existing Public Land Act is archaic and outdated and there have been a number ofattempts to introduce new legislation. Attempts to update the Act started in the 1970s andcontinued into the 80s and 90s. The farthest that the revised Act reached in congress wasthe third reading in the Lower House. During that session of Congress (10

th) the proposed

bill was not even touched by the Senate. A similar bill has currently been in Congress forsome time without any prospect of an early finalization. Similarly, a proposed new NationalLand Use Act has been before Congress for some time. Given that the present study leadsto the conclusion that greater reforms of public lands legislation are needed than thoseproposed in the Public Lands Bill presently before Congress, the delays in the passage of

new legislation is a matter of concern. Nevertheless, the introduction of new legislation ona piecemeal basis is not the answer to the problem of fragmented and inconsistent laws.

5.2 Leadership Factors

Although the problems in the present system have been recognized for many years, nochange has been able to be achieved despite various attempts. Apart from the attempts toreform the law referred to above, there was an attempt in 1991 to merge the functions ofthe land administration agencies, the LRA and the LMB into one agency known as the


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Annex 1

TERMS OF REFERENCE

Fragmented Laws and Regulations Study

There is a proliferation of land laws and regulations administered by different agencies in thePhilippines that govern the administration of land. Their introduction and subsequent amendmenthas occurred over a significant period of time without consideration of the resultant impacts onexisting legislation. Many of these laws and regulations are in conflict and it has been difficult tooperate an efficient and equitable land administration system under this framework. This has led tolong delays in the land registration process, jurisdictional overlap, a duplication of functions, a lack oftransparency, and confusion in the community concerning legal interpretations of the law, agencyresponsibilities and mandates. The problem has a long history and the fragmented nature of the lawsand regulations has been well documented by previous projects and reports (see Section 2.1.1 and

2.1.6 and Part B: Working Papers 3 and 4). There is, however, general agreement by all theagencies involved that rationalisation and/or consolidation of the laws and regulations is needed.

The aim of this study is to:

1. examine the land laws and regulations at a high level, evaluate their effectiveness andappropriateness and to identify areas and options for improvements;

2. work with the senior executives of the stakeholder agencies to build consensus to a series ofrecommendations for improvement and change, and to develop plans for the implementation of

that change; and

3. work with the senior executives of each stakeholder agency to start the implementation of thechanges that can be achieved within the authority level of the individual agency.

The prime objective of this study is to gain interagency agreement to the implementation ofimprovements and change. The simple preparation of another report identifying recommendationswill not achieve this objective.

It has been agreed by all agencies that the lead agency for this study will be the DOJ. The results ofthis study will be reported to and examined by the IACC. The Law Centre of the University of the


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Annex 1

Throughout this study, wide consultation and involvement of the stakeholder agencies and otherstakeholders such as the legal profession and the surveying profession will be necessary. It is vitalthat the stakeholder agencies are involved in every step of the study so that ownership and

consensus can be developed and agreement to the areas for improvement can be reached.


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Annex 2

SCHEDULE OF ORGANISATIONS CONTACTED

Organisation Registry of Deeds, Leyte Date 16 April 2002

Interviewee/s Name Position Contact details

1 Emeterio Villanosa Deputy Register of Deeds

Organisation Department of Agrarian Reform Date 23 April 2002


1 Gloria Fabia Director, Bureau of LandAcquisition

926 8963

2 Narciso Villapando Consultant 371 8872

Organisation Land Management Bureau Date 24 April 2002


1 Alberto Ricaldi Deputy Director, Legal Division

Organisation Cuervo Appraisers Date 26 April 2002


1 Federico Cuervo Chief Information Officer 631 1645

Organisation National Housing Authority (NHA) Date 29 April 2002


1 Josephine Angsico Director, Corporate PlanningOffice

9284961/9263523

Organisation Housing Land and Urban RedevelopmentBureau (HLURB)

Date 29 April 2002



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2 Nick Gibe Business Process Manager

3 Conradio Legsapi Project Director 0918 921 9949

4 Butch Bernabe Data Conversion

5 Jess Espina Data Conversion6 Lyraliza Malern Data Conversion-LARES

(Mapping)

7 Karlo Marbella Technical Team

8 Kathy Laynoen Systems Rollout

9 Sarah Espinosa Business Process

10 Katherine Santiago Business Process

11 Rico Ersando Business Process

Organisation Taskforce Mapalad18C Manurong Street, Barangay Central, Q.C.

Date 9 May 2002


1 Mabel Arias Legal Counsel 09193645246

2 Rori Fajardo Media Relations

Organisation Legal Rights and Natural Resources Centre7, Marunong St, Central East Village, Quezon

City

Date 14 May 2002


1 Japs Hatta Para-legal 436 1101; 9281372

Organisation Kaisahan3 Mahabagin Street, Teachers Village, QuezonCity

Date 14 May 2002


1 Magistrado Mendoza Executive Director 433 0760; Fx: 926


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1 Thelma Bahia Court Administrator 523 6479, 525 7196

2 Justice PresbiteroVelasco

Court Administrator 525 1238; Fx 5237385

Organisation Habitat Date 20 May 2002


1 Jose Mendosa Managing Director 638 8010

Organisation Land Registration Authority Date 21 May 2002


1 Alexander Acosta Reconstitution of TitlesSection

9211174; 0917 5368007

Organisation Green Circle Properties Date 21 May 2002


1 Daniel Tenefrancia Secretary 0917 838 3134

2 Romeo Roxas Executive Director 886 0226/9Fx: 886 0229

Organisation Register of Deeds, Paranacque Date 23 May 2002

Interviewee/s Name Position Contact details1 Ramon Ramos Deputy Register 820 2587

Organisation Meeting of Experts (Sulo Hotel) Date 25 May 2002


1 Prof Ramon Casanova UP Law Centre Professor;former Director, Bureau ofLands

921 5807

2 Narciso Villapanda Consultant to DAR; formerly


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2 Edward Pedrero Records Officer

Organisation CENRO, DENR, Palo, Leyte Date 3 June 2002

Interviewee/s Name Position Contact details1 Gilbert L Mabansag LMO-III 323-3837; 323 8602

Organisation Interviews with ordinary people Date 3 June 2002


1 Anacorita Onglico Land claimant in NarangayHimulogan and Bayabas,Dagami, Leyte

Barangay Libas,Burawen, Leyte

2 Teresa Ong Barangay Cabariwan,Dagami,, Leyte

Poblacion, Townproper of Dagami

3 Emerenciana Cortez Barangay Cabariwan,Dagami,, Leyte

Barangay Cabariwan,Dagami,, Leyte

Organisation DAR Date 3 June 2002


1 Engineer Villas Assistant Regional Director (053) 325 5139

Organisation Tacloban City Hall, Leyte Date 4 June 2002Interviewee/s Name Position Contact details

1 Ralph Iriarte Chief Assessor (053) 325 7078Fx: 321 2036

Organisation Land Bank of the Philippines, Leyte Date 4 June 2002


1 Norberta Paloma Acting Division Chief/ClaimsProcessing and Payment


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5 Arturo Murielo (Treasurer/Spokesman,Manapavet-6)

Organisation Community leaders, Barangay Payatas Date 15 June 2002Interviewee/s Name Position Contact details

1 Montano Florida President, Sama-Sama

2 Nemita Castillo-Digura President, Roseville HomeOwners Association andSecretary, Payatas CommunityBased Association-PACOMBA

3 Lolita C Perez Purok Leader

Organisation HUDCC6

thfloor, HUDCC, Makati Avenue, Makati

Date 18 June 2002


1 Alvin Navarro 811 4117

Organisation PAFID71 Malakas Street, Quezon City

Date 18 June 2002


1 Bruce Young Mapping Section Coordinator 9274580; 9286267

0918 521 9466

Organisation Institute on Church and Social Issues2

ndfloor, ISO Bldg, Social Development

Complex, Ateneo de Manila University, LoyolaHeights, QC

Date 18 June 2002


1 Jing Karaos 4266134-37

2 Ana Marie O. Dizon 0916 462 1586


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Annex 3

LAND ADMINISTRATION AND MANAGEMENT PROJECT

Laws and Regulations Study

PREVIOUS LAND ADMINISTRATION STUDIES REVIEWED AND UPDATED

1. Natural Resources Management and Development Project 1991 (NRMDP)

Legislative Framework for Reform (Natural Resources Management and

Environmental Protection Laws Sub-component) Vol. 1

Legislative Proposal to Support Reforms in the Land Tenure System of thePhilippines (Cadastral Laws Sub-component) Vol. 1

Legal Framework for Reform (Main Report)

Report on Land Tenure and Titling Laws in the Philippines

2. Land Records Management and Information Systems, Feasibility Study andConceptual Design. TSARRD Project FAO, UN 21.8.1992

3. Guidelines for Land Allocation and Conversion AIDAB Program of TechnicalAssistance to Physical Planning in NEDA, January 1993.

4. Land Resource Planning Master Plan, April 1995


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(a) Adverse possession or acquisitive prescription, including those held underSpanish Titles.

(b) Accretion along the banks of the river under Article 457 of the Civil Code.

(c) Avulsion under Article 458 of the Civil Code.(d) Change of river bed under Article 461 of the Civil Code.(e) Formation of islands in non-navigable rivers under Article 465 of the Civil Code.(f) Reclamation if expressly authorised by the State.(g) Ancestral lands.

All lands not within the above enumeration should be presumed to be part of the publicdomain by virtue of the Regalian Doctrine. If these lands have been in opencontinuous, exclusive and notorious possession for 30 years under a bona fide claim

of acquisition of ownership, the legalisation and confirmation of imperfect title to suchlands should be removed from the Courts and transferred to the DENR which shallexercise its quasi-judicial power in adjudicating these lands to the actual possessors.

Registered land suitable for food production is sometimes left idle and abandoned.A subsequent occupant cannot get title as the land is protected by the provisions of theLand Registration legislation against prescription.

Prescription should be permitted against abandoned land.

3. Specific Aspects

Section 2, Chapter 1 of PD 1529, which conferred upon the courts of First Instance (now RTC) exclusive jurisdiction over all applications for original registration of title tolands and over all petitions filed after original registration, did not clarify that suchexclusive jurisdiction is conferred on the RTC is not in its capacity as Regional TrialCourt but as a Land Registration Court. Unless this matter is clarified, there will alwaysbe confusion on jurisdiction especially over actions and petitions subsequent to


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The preparation and dissemination of the notice of hearing could be done by the localclerk of court instead of the LRA which could be very far away from the scene of theaction.

The publication of the notice of initial hearing in the Official Gazette which does notserve any useful purpose should be discarded and for jurisdictional purposes once in anewspaper of general circulation should be enough.

More emphasis should be placed on service by actual delivery by registered mail topersons whose interests are most likely to be affected by the petition, such as theactual possessors or occupants in whatever capacity, the adjoining owners and otherpersons claiming ownershi

a2 land law volume 1-libre

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