The Law On Natural Resources MEANING OF NATURAL RESOURCES & LAWS COVERED Refer to the material objects of economic value and utility to man produced by nature. They constitute the “patrimony of the nation Public Land Act (C.A. No. 141) The Phil. Mining Act of 1995 (R.A. 7942) The Petroleum Act of 1949 (R.A. 387) The Coal Land Act and P.D. 972 Revised Forestry Code (P.D. 389 & 705) The Water Code of the Phil (P.D. 1067) Fisheries Code of 1998 (R.A. 8550) IPRA (R.A. 8371) MANILA PRINCE HOTEL v. GSIS & MANILA HOTEL, ET. AL [GR No. 122156, Feb. 3 1997] “When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos” DOCTRINE OF CONSTITUTIONAL SUPREMACY If a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. 1
Transcript
The Law On Natural Resources
MEANING OF NATURAL RESOURCES & LAWSCOVERED
Refer to the material objects of
economic value and utility to manproduced by nature.
They constitute the “patrimony of the
nation
Public Land Act (C.A. No. 141)
The Phil. Mining Act of 1995 (R.A. 7942)
The Petroleum Act of 1949 (R.A. 387)
The Coal Land Act and P.D. 972
Revised Forestry Code (P.D. 389 & 705)
The Water Code of the Phil (P.D. 1067)
Fisheries Code of 1998 (R.A. 8550)
IPRA (R.A. 8371)
MANILA PRINCE HOTEL v. GSIS & MANILAHOTEL, ET. AL [GR No. 122156, Feb. 31997]
“When the Constitution speaks of
national patrimony, it refers not only tothe natural resources of the Philippines,as the Constitution could have very wellused the term natural resources, butalso to the cultural heritage of theFilipinos”
DOCTRINE OF CONSTITUTIONAL SUPREMACY
If a law or contract violates any norm of
the constitution that law or contractwhether promulgated by the legislativeor by the executive branch or enteredinto by private persons for privatepurposes is null and void and withoutany force and effect.
Since the Constitution is the
fundamental, paramount and supremelaw of the nation, it is deemed written inevery statute and contract.
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Justice (now CJ) Puno dissenting:
2nd par. of section 10, Article XII of the
Constitution is pro-Pilipino but not anti-alien;
It is pro-Filipino for it gives preference to
Filipinos
CJ Puno’ dissent (cont.)
It is not, however, anti-alien per se for it
does not absolutely bar aliens in thegrant of rights, privileges andconcessions covering the nationaleconomy and patrimony.
In the absence of qualified Filipinos, the
State is not prohibited from grantingthese rights, privileges and concessionsto foreigners if the act will promote theweal of the nation.
CONCEPT OF JURA REGALIA
It is the universal feudal theory that all
lands were held from the Crown. (Carinov. Insular Govt, 41 Phil. 935)
It is the foundation of the 1st sentence of
Sec. 2, Art. XII, 1987 Constitution.
As adopted in the Republican system,
the medieval concept of jura regalia hasbeen stripped of its regalian overtones.(Lee Hong Kok v. David, 48 SCRA 372)
CONSTITUTIONAL PROVISIONS ON JURAREGALIA
1st Sentence, Sec. 2, Art. XII, 1987
Constitution: ALL LANDS OF THE PUBLICDOMAIN, WATERS, MINERALS, COAL,PETROLEUM AND OTHER MINERAL OIL,ALL FORCES OF POTENTIAL ENERGY,FISHERIES, FORESTS OR TIMBER,WILDLIFE, FLORA AND FAUNA, ANDOTHER NATURAL RESOURCES AREOWNED BY THE STATE.
2nd Sentence, Sec. 2, Art. XII: WITH THE
EXCEPTION OF AGRICULTURAL LANDS,ALL OTHER NATURAL RESOURCES SHALLNOT BE ALIENATED
3rd Sentence (Ibid): THE EXPLORATION,
DEVELOPMENT, AND UTILIZATION OFNATURAL RESOURCES SHALL BE UNDERTHE FULL CONTROL AND SUPERVISIONOF THE STATE
4th Sentence (Ibid): THE STATE MAY
DIRECTLY UNDERTAKE SUCH ACTIVITIES,OR IT MAY ENTER INTO CO-PRODUCTION, JOINT VENTURE, ORPRODUCTION-SHARING AGREEMENTSWITH FILIPINO CITIZENS, ORCORPORATIONS OR ASSOCIATIONS ATLEAST 60% OF WHOSE CAPITAL IS OWNEBY SUCH CITIZENS.
5th Sentence (Ibid): SUCH AGREEMENTS
MAY BE FOR PERIOD NOT EXCEEDINGTWENTY-FIVE YEARS, RENEWABLE FORNOT MORE THAN TWENTY-FIVE YEARS,AND UNDER SUCH TERMS ANDCONDITIONS AS MAY BE PROVIDED BYLAW
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6th Sentence (Ibid): IN CASE OF WATER
RIGHTS FOR IRRIGATION, WATER SUPPLY,FISHERIES, OR INDUSTRIAL USES OTHERTHAN THE DEVELOPMENT OF WATERPOWER, BENEFICIAL USE MAY BE THEMEASURE AND LIMIT OF THE GRANT
Beneficial use of water is the utilization ofwater in the right amount during the periodthat the water is needed for producing thebenefits for which the water is appropriated.
2nd Par. (Ibid): THE STATE SHALL
PROTECT THE NATION’S MARINE WEALTHIN ITS ARCHIPELAGIC WATERS,TERRITORIAL SEA, AND EXCLUSIVEECONOMIC ZONE, AND RESERVE ITS USEAND ENJOYMENT EXCLUSIVE TO FILIPINOCITIZENS.
3rd Par. (Ibid): THE CONGRESS MAY, BY
LAW, ALLOW SMALL-SCALE UTILIZATIONOF NATURAL RESOURCES BY FILIPINOCITIZENS, AS WELL AS COOPERATIVEFISH FARMING, WITH PRIORITY TOSUBSISTENCE FISHERMEN ANDFISHWORKERS IN RIVERS, LAKES, BAYS,AND LAGOONS
4th Par. (Ibid): THE PRESIDENT MAY
ENTER INTO AGREEMENTS WITHFOREIGN-OWNED CORPORATIONSINVOLVING EITHER TECHNICAL ORFINANCIAL ASSISTANCE FOR LARGE-SCALE EXPLORATION, DEVELOPMENT,AND UTILIZATION OF MINERALS,PETROLEUM, AND OTHER MINERALOILS . . .
ACCORDING TO THE GENERAL TERMS
AND CONDITIONS PROVIDED BY LAW,BASED ON REAL CONTRIBUTIONS TOTHE ECONOMIC GROWTH AND GENERALWELFARE OF THE COUNTRY. IN SUCHAGREEMENTS, THE STATE SHALLPROMOTE THE DEVELOPMENT, AND USEOF LOCAL SCIENTIFIC AND TECHNICALRESOURCES
Last par. (Ibid): THE PRESIDENT SHALL
NOTIFY THE CONGRESS OF EVERYCONTRACT ENTERED INTO INACCORDANCE WITH THIS PROVISION,WITHIN THRITY DAYS FROM ITSEXECUTION.
JURE IMPERII vis-à-vis JURE GESTIONIS
See U.S. v. Ruiz, 136 SCRA 487
In public law, ‘Imperium’ is the
government authority possessed by theState which is expressed in the conceptof sovereignty; ‘Dominium’ is thecapacity of the State to own or acquireproperty.
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PRESUMPTION OF STATE OWNERSHIP OVER PUBLIC LANDS
Oh Cho v. Dir. Of Lands, 75 Phil 890: All
lands that were not acquired from thegovernment either by purchase or grant,belong to the public domain.
Exception: possession since time
immemorial.
NATURE OF POSSESSION BY THE NATIVES(Cruz v. Secretary, GR 135385, Dec. 6,2000)
be exclusively occupied by indigenouscultural communities but to which theyhad traditionally had access for theirsubsistence and traditional activities
Ancestral Lands
Narrower in concept;
Refers to those land held under the
same conditions of ancestral domain
BUT LIMITED TO LANDS THAT ARE NOT
MERELY OCCUPIED AND POSSESSED BUTARE ALSO UTILIZED BY CULTURALCOMMUNITIES UNDER THE CLAIM OFINDIVIDUAL OR TRADITIONAL GROUPOWNERSHIP.
Includes [but not limited to]: Residential
lots, Rice terraces or paddies, privateforests, farms and tree lots.
CONVERSION TO ALP: EXECUTIVEPREROGATIVE
In Republic v. Reg. of Deeds of Q.C., 244
SCRA 537: The classification of publiclands is, thus, an exclusive prerogativeof the Executive Department through theOffice of the President.
Courts have no authority to convert
lands of public domain into alienable anddisposable lands.
TITLE OVER LAND PART OF FOREST IS VOID
In Sunbeam v. CA, 181 SCRA 443: Before
any land may be converted intoalienable or disposable land foragricultural or other purposes, theremust be positive act from the govt.
The mere fact that a title was issued by
the Dir. Of Lands does not confer owner-ship where it is part of the public forest.
See also Ituralde v. Falcasantos, G.R. No.
128017, Jan. 20, 1999.
CONSTITUTIONAL LIMITS ON JURAREGALIA NO. 1
General Rule: All natural resources shall
not be alienated.
Exception: Only agricultural lands of the
public domain may be alienated.
GOVERNMENT LANDS NOT ALL PUBLICLANDS
Montano v. Insular Govt, 12 Phil. 572
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Government lands and public lands are
not synonymous terms.
GL is more extensive and embraces not
only PL but also other lands of the govtalready reserved or devoted to publicuse.
Friar lands not included as public lands.
Nature of Friar Lands(Strong v. Repide, 213 U.S. 419 [1909])
Friar Lands are those lands of certain
haciendas which were acquired by theU.S. government from religiousorders/corporations or organizationsacquired on July 5, 1903 at a price of $6,043,219.47 in gold.
Philippine Sugar Estates Development
Company, Ltd. owned the title overthese lands.
Dominican lands form more than ½ of
Friar Lands.
HOW FRIAR LANDS MAY BE DISPOSED OF
In Alonso v. Cebu Country Club, G.R.
130876, Jan. 31, 2002
Under Act No. 1120, which governs the
administration and disposition of friarlands, the purchase by an actual andbona fide settler or occupant of anyportion of friar land shall be "agreedupon between the purchaser and theDirector of Lands, subject to theapproval of the Secretary of Agricultureand Natural Resources .
ALONSO v. CEBU COUNTRY CLUB, G.R.130876, Jan. 31, 2002
Approval by the Secretary of Agriculture
and Commerce of the sale of friar landsis indispensable for its validity, hence,the absence of such approval made thesale null and void ab-initio
Necessarily, there can be no valid titles
issued on the basis of such sale orassignment.
HOW LANDS OF THE PUBLIC DOMAINCLASSIFIED?
Agricultural
Forest or Timber
Mineral
National Parks
CAN THERE BE MIXED CLASSIFICATION?
No. In Republic v. CA, 160 SCRA 228
(1988)
The rights over the land are indivisible
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No such thing as half agricultural, half
mineral
Once mining claim is perfected, forest
land ceased to be so; it now becomescompletely mineral land
SURFACE OWNER NO RIGHT OVER THEMINERALS UNDERNEATH
No. In the exercise of the State’s
sovereign prerogative, use of the surfaceland may be discontinued once mineralsare discovered underneath.
For his loss, the owner is entitled to
compensation under the Mining Law orin appropriate expropriationproceedings.
HOW ARE MANGROVE SWAMPS(MANGLARES) CLASSIFIED?
Forest Lands
In Director of Forestry v. Villareal, G.R.
32266, Feb. 27, 1989: “Theclassification by the Administrative Codeof the Phil. manglares as forest lands hasnot been changed”
RIGHTS OF NATURAL-BORN FILIPINOWHO HAVE LOST THEIR CITIZENSHIP
Under R.A. 8179, former natural-born
Filipino citizens may acquire thefollowing:
500 sq. m. – Urban land
3,000 sq. m. – Rural land
For business or other purposes
CONSTITUTIONAL LIMITS ON JURAREGALIA NO. 2
Exploration, Development and Utilization
of Natural Resources must be under FullControl and Supervision of the Stateunder the constitutionally allowedmodes
ALLOWED MODES IN EDUOF NATURAL RESOURCES
Direct Undertaking
Co-Production Agreement
Joint-Venture Agreement
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Production-Sharing Agreement
Financial or Technical Assistance
Agreement
MEANING OF FULL CONTROL(La Bugal-B’laan Tribal Assn. vs. Ramos, G.R.127882, Dec. 1, 2004)
Full control is not anathematic to day-to-
day management by the contractor,provided that the State retains thepower to direct overall strategy; and toset aside, reverse or modify plans andactions of the contractor. The idea of fullcontrol is similar to that which isexercised by the board of directors of aprivate corporation: the performance ofmanagerial, operational, financial,marketing and other functions may bedelegated to subordinate officers orgiven to contractual entities, but theboard retains full residual control of thebusiness.
“full control and supervision” cannot be
taken literally to mean that the Statecontrols and supervises everything downto the minutest details and makes allrequired actions, as this would renderimpossible the legitimate exercise by thecontractor of a reasonable degree ofmanagement prerogative and authority,indispensable to the proper functioningof the mining enterprise.
Control, as utilized in Section 2 of Article
XII, must be taken to mean a degree ofcontrol sufficient to enable the State todirect, restrain, regulate and govern theaffairs of the extractive enterprises.
Control by the State may be on a macro
level, through the establishment ofpolicies, guidelines, regulations, industrystandards and similar measures thatwould enable government to regulatethe conduct of affairs in variousenterprises, and restrain activitiesdeemed not desirable or beneficial, withthe end in view of ensuring that theseenterprises contribute to the economicdevelopment and general welfare of thecountry, conserve the environment, anduplift the well-being of the local affectedcommunities.
Such a degree of control would be
compatible with permitting the foreigncontractor sufficient and reasonablemanagement authority over theenterprise it has invested in, to ensureefficient and profitable operation.
In fine, the FTAA provisions do not
reduce or abdicate State control.
MEANING OF CO-PRODUCTIONAGREEMENT
An agreement between the
Government and the contractorwherein the Government shallprovide inputs to the miningoperations other than the mineralresource. (Sec. 26[b], R.A. 7942, ThePhilippine Mining Act of 1995)
MEANING OF JOINT VENTUREAGREEMENT
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An agreement where a joint-venture
company is organized by theGovernment and the contractor withboth parties having equity shares.Aside from earnings in equity, theGovernment shall be entitled to ashare in the gross output. (Sec. 26[c], R.A. 7942, The Philippine Mining Actof 1995)
MEANING OF PRODUCTION SHARINGAGREEMENT
An agreement where the Government
grants to the contractor the exclusiveright to conduct mining operationswithin a contract area and shares in thegross output. The contractor shallprovide the financing, technology,management and personnel necessaryfor the implementation of thisagreement. (Sec. 26 [c], R.A. 7942, ThePhilippine Mining Act of 1995)
MEANING OF FTAA
Sec. 3[r], R.A. 7942:
Financial or technical assistance
agreement means a contract involvingfinancial or technical assistance forlarge-scale exploration, development,and utilization of mineral resources.
FTAA CONSTRUED IN LA BUGAL (G.R. No.127882 DEC. 1, ’04)
The agreements involving either
technical or financial assistance referredto in paragraph 4 are in fact servicecontracts, but such new servicecontracts are between foreigncorporations acting as contractors on theone hand, and on the other handgovernment as principal or “owner” (ofthe works), whereby the foreigncontractor provides the capital,technology and technical know-how, andmanagerial expertise in the creation andoperation of the large-scalemining/extractive enterprise, andgovernment through its agencies (DENR,MGB) actively exercises full control andsupervision over the entire enterprise.
Such service contracts may be entered
into only with respect to minerals,petroleum and other mineral oils. Thegrant of such service contracts is subjectto several safeguards, among them: (1)that the service contract be crafted inaccordance with a general law settingstandard or uniform terms, conditionsand requirements; (2) the President bethe signatory for the government; and(3) the President report the executedagreement to Congress within thirtydays.
ARE FTAA’s SOLELY FOR FOREIGNCORPORATIONS?
No. There is no basis to believe that the
framers of the Constitution, a majority ofwhom were obviously concerned withfurthering the development andutilization of the country’s naturalresources, could have wanted to restrictFilipino participation in that area. Thispoint is clear, especially in the light ofthe overarching constitutional principleof giving preference and priority toFilipinos and Filipino corporations in thedevelopment of our natural resources.
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WHO ARE QUALIFIED TO UNDERTAKEEDU?
Filipino citizens
Private Corp./Assn. at leash 60% of
whose capital is owned by Filipinocitizens
CONSTITUTIONAL LIMITS ON JURAREGALIA NO. 3
All agreements in respect to EDU of
Natural Resources should not exceed 25years
Renewable for another 25 years
WATER RIGHTS NOT COVERED BY THE 25-YR LIMIT
Last sentence, 1st par., Sec. 2, Art. XII
IN CASES OF WATER RIGHTS FOR
IRRIGATION, WATER SUPPLY, FISHERIES,OR INDUSTRIAL USES OTHER THANDEVELOPMENT OF WATER POWER
MEASURE AND LIMIT OF THE GRANT:
BENEFICIAL USE
CONSTITUTIONAL LIMITS ON JURAREGALIA NO. 4
The use and enjoyment of the MARINE
WEALTH of the archipelagic waters,territorial sea and EEZ reserved forFILIPINO CITIZENS ONLY.
MEANING OF ARCHIPELAGIC WATERS
The waters around, between and
connecting the islands of the archipelago
MEANING OF TERRITORIAL SEA
The belt of the sea located between the
coast and internal waters of the coastalstate on the one hand, and the high season the other extending up to 12 NM fromthe low water mark, or in case ofarchipelagic states, from the baselines.
MEANING OF CONTIGUOUS ZONE
The area of the sea extending up to 12
NM from the territorial sea. Technically, itis not part of the territory of the state;the coastal or archipelagic state mayexercise jurisdiction over the area toprevent infringement of its customs,fiscal and immigration or sanitary laws.
MEANING OF EXCLUSIVE ECONOMICZONE (EEZ)
Area of the sea extending up to 200 NM
from the low-water mark or thebaselines, as the case may be.Technically, not part of the territory.
Coastal/Archipelagic state may exercise
SOVEREIGN RIGHTS over the economicresources of the sea, the seabed andsubsoil.
Other states have freedom of navigation
& overflight, to lay submarine cables andpipelines, & other lawful uses.
THE EEZ OF THE PHILIPPINES
CONSTITUTIONAL LIMITS ON JURAREGALIA NO. 5
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Utilization of natural resources in rivers,
lakes, bays and lagoons.
Allowed only on a small scale to Filipino
citizens or cooperative.
Priority given to subsistence fishermen
and fisherfolk.
MARGINAL FISHERMAN VIS-À-VISSUBSISTENCE FISHERMAN
Marginal fisherman is an individual
engaged in fishing whose margin ofreturn or reward in his harvest of fish asmeasured by existing price levels isbarely sufficient to yield a profit or coverthe cost of gathering the fish.
Subsistence fisherman is one whose
catch yields but the irreducible minimumfor his livelihood.
TANO V. SOCRATES, G.R. NO. 110249, AUG. 21, 1997
The so-called "preferential right" of
subsistence or marginal fishermen to theuse of marine resources is not at allabsolute.
Under the general welfare clause of the
LGC, local government units have thepower, inter alia, to enact ordinances toenhance the right of the people to abalanced ecology.
SOME IMPORTANT LEGAL DEFINITIONSOF A STATE’S FLUVIAL DOMINION
Bay – a well-marked indentation whose
penetration is in such proportion to thewidth of its mouth as to contain land-locked waters and constitute more thana mere curvature of the coast. Anindentation shall not, however, beregarded as a bay unless its area is aslarge as, or larger than, that of the semi-circle whose diameter is a line drawnacross the mouth of that indentation.(Sec. 2, Art. 10, UNCLOS)
Lagoon –A small lake, the hollow bed of
which is bounded by elevations of land.(The Gov’t of the Phil. Islands vs. Colegiode San Jose, et al., G.R. L-30829, Aug.28, 1929)
Lake - a body of water formed in
depressions of the earth. Ordinarily freshwater, coming from rivers, brooks, orsprings, and connected with the sea bythem. (Ibid)
River - is a natural waterway that
transits water through a landscape fromhigher to lower elevations. It is anintegral component of the water cycle. Ariver may have its source in a spring,lake, from damp, boggy landscapeswhere the soil is waterlogged, fromglacial melt, or from surface runoff ofprecipitation.
THE PUBLIC LAND ACT (C.A. 141)
Approved: Nov. 7, 1936
Coverage: Lands of the public domain
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Excludes: Timber and mineral lands;
Friar Lands
Executive Officer charged to carry out
the Act: DENR Secretary
Director of Lands has ‘direct executive
control of the survey, classification,lease, sale or any other land of thepublic domain
Decisions of BL Director on questions of
fact appealable to Secretary
Doctrine of Indefeasibility of Torrenstitle
Sec. 32, PD 1529: The decree of
registration and the certificate of titleissued shall become incontrovertibleafter the lapse of one year from the dateof entry
However, the State is not precluded from
bringing an action for reversion of PublicLand even after the lapse of 1 year ifprocured through fraud andmisrepresentation. (Republic vs. CA, G.R.No. 104296, Mar. 29, 1996)
Actions for Reversion Do Not Prescribe[Manese v. Sps. Velasco, G.R. 164024, Jan. 29,2009]
In all actions for the reversion to the
Government of lands of the publicdomain or improvements thereon, theRepublic of the Philippines is the realparty in interest.
The action shall be instituted by the
Solicitor General or the officer acting inhis stead, in behalf of the Republic of thePhilippines.
Such action does not prescribe.
Prescription and laches will not baractions filed by the State to recover itsproperty acquired through fraud byprivate individuals.
PRE-REQUISITE FOR DISPOSITION OF ALP
Before any public land may be alienated
or disposed of, it is indispensable thatthere be a formal declaration by thePresident upon the recommendation ofthe DENR Secretary to the effect thatsuch lands are open to disposition orconcession, and whenever practicablethe lands should have been previouslysurveyed. (Sec. 7, CA 141)
Excluded from disposition or concession:
Those reserved for public or quasi-publicuses; those that have become privateproperty or subject to private right. (Sec.9, Ibid)
MEANING OF ALIENATION ORDISPOSTION
Alienation”, “disposition”, or
“concession” - means any of themethods authorized by the C.A. 141 forthe acquisition, lease, use or benefit ofthe lands of the public domain otherthan timber or mineral lands. (Sec. 10,Ibid)
MODES OF DISPOSITION OF ALP
Homestead
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By Sale
By Lease; and
By confirmation of imperfect or
incomplete titles through:
a) Judicial legalization
b) Administrative legalization or freepatent
MATERIAL ALLEGATIONS IN APPLICATIONS FORGRANT OF PUBLIC LAND
Personal circumstances of the applicant
and that he/it has all the legalqualifications and none of thedisqualifications.
Purpose: use of the land according to the
object specified in the application andfor other purpose, and that the land issuitable for the purpose contemplated.
For the exclusive use of the applicant.
Description and location of the land.
Occupancy, cultivation, improvements
on the land, if any.
Allegation that the land is not timber or
mineral land and does not contain guanoor deposits of salt or coal.
Easement of 40 meters in width from
bank of any river or stream for plantingof trees of known economic value;applicant prohibited to make anyclearing on or utilize the easement areafor ordinary farming
REQUIREMENT ON PERSONAL TILLAGE (P.D.152)
Applicant or his transferee must enter
and work upon, improve and cultivatethe land by himself within the periodsprescribed for the various mode ofconcession under the Public Land Act.
Share tenancy prohibited; violation will
result to cancellation of the grant andforfeiture of the improvements on theland in favor of the government.
REMEDIES FROM ADVERSE DECISION OF BL DIRECTOR
Motion for reconsideration based on any
grounds for new trial under Rule ___; or
Appeal to the DENR Secretary
If affirmed by DENR Secretary, file a
motion for reconsideration;
If MR is denied, file special civil action on
certiorari under Rule 65.
Notes: (a) Decision of the BL cannot be
collaterally attacked; (b)
MODE NO. 1: HOMESTEAD
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Concept: It is the home, the house and
the adjoining land where the head of thefamily dwells, the home farm; the fixedresidence of the head of a family, withthe land and buildings surrounding themain house.
It is a legal fiction of law, an artificial
estate in land, devised to protect thepossession and enjoyment of the owneragainst the claims of his creditors, bywithdrawing the property from executionand forced sale, so long as the land isoccupied as a home
Statutory Privileges Accorded to HomesteadLand
Exempt from execution (see Sec.
13[a],Rule 39, Rules of Court and );
Cannot be held liable for satisfaction
of an obligation within (5) years fromissuance of patent (Saltiga v. CA, G.R.No. 109307, Nov. 25, 1999);
3. If validly mortgaged, right ofredemption granted within (5) yearsfrom the date of sale, not from dateof registration at the RoD. The 5-yearperiod to be reckoned from theexpiration of the one-year periodunder Act. 3135;
4. If validly mortgaged to a Rural bank,the 5-year period to commence to runafter the expiration of the two-yearperiod of redemption allowed underR.A. 720 or the Rural Banks Act
THE PREVAILING RULE: HOMESTEAD LANDSNOT EXEMPT FROM COVERAGE OF AGRARIANREFORM LAW
In Paris v. Alfeche, [G.R. No. 139083,
Aug. 30, 2001):
“Homesteads are not exempt from the
operation of the Land Reform Law.
The right to retain (7) hectares of land is
subject to the condition that thelandowner is actually cultivating thatarea or will cultivate it upon theeffectivity of the said law.
Rural Bank of Davao City vs. Court of Appeals,217 SCRA 554, Jan. 27, 1993
If the land is mortgaged to a rural bank
under R.A. No. 720, as amended, themortgagor may redeem the propertywithin two (2) years from the date offoreclosure or from the registration ofthe sheriff's certificate of sale at suchforeclosure if the property is not coveredor is covered, respectively, by a Torrenstitle.
If the mortgagor fails to exercise such
right, he or his heirs may still repurchasethe property within five (5) years fromthe expiration of the two (2) yearredemption period pursuant to Sec.119 of the Public Land Act (C.A. No. 141.
If the land is mortgaged to parties
other than rural banks, the mortgagormay redeem the property within one (1)year from the registration of thecertificate of sale pursuant to Act No.3135;
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If he fails to do so, he or his heirs may
repurchase the property within five (5)years from the expiration of theredemption period also pursuant toSec. 119 of the Public Land Act.
QUALIFIED TO OBTAIN HOMESTEAD
Filipino
18 yrs old or head of the family
Must not own more than (12) has. of
land nor has had the benefit of anygratuitous allotment of more than (12)has. of land
If applicant is a married woman:
She must be living separately from her
husband and not dependent on him forsupport; or
Her husband is insane or physically
incapacitated to work;
When her husband is in prison, serving a
term of such duration as would preventhim from complying with therequirements of the law regardingresidence of land.
homesteader must start to improve andcultivate the land;
Within a period of not less than 1 year or
more than 5 years from date of approvalof application – homesteader must havecultivated at least 1/5 of the land;
Continuous residency in the same
municipality where homestead is locatedor in an adjacent municipality for at least1 year; and
Non- abandonment (voluntary) for more
than 6 months at any one time duringperiod of required residency andoccupation.
When vested right in homestead fixed
In Balboa vs. Farrales,G.R. No. L-27059,
Feb. 14, 1928:
‘After Buenaventura Balboa had
submitted his final proof and after thesame had been approved by theGovernment, and while Act No. 926 wasstill in force, he became the owner of theland and "entitled to a patent."
At least on that date his right to the
land, as owner, ripened into a vestedright. It was no longer expectant asdepending on the continuance ofexisting circumstances, or contingent asdepending on some events or theperformance of some conditions.’
WHEN HOMESTEAD IS DEEMEDCONJUGAL PROPERTY (De Ocampo v.Delizo, G.R. No. L-32820, Jan. 20, 1976)
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The fact that a parcel of land was
acquired as homestead during theperiod of the first marriage does notnecessarily mean that it should beconsidered as property of the firstmarriage. The decisive factor indetermining whether a parcel of landacquired by way of homestead isconjugal property of the first or secondmarriage, is not necessarily the issuanceof the homestead patent but the time ofthe fulfillment of the requirements of thepublic land law for the acquisition ofsuch right.”
CONDITIONS BEFORE APPLICANT MAYVALIDLY TRANSFER HIS RIGHTS BEFOREISSUANCE OF PATENT
He has already complied with all the
requirements;
His non-continuance is of no fault of his
own;
Made to a bona fide purchaser legally
qualified to apply for homestead;
Not for speculative purpose; and
Approved by the Director, Bureau of
Lands
RESTRICTIONS ON SUBSEQUENTALIENATION AND ENCUMBRANCE (Sec.118, C.A. 141 as amended by C.A. 456)
Homestead cannot encumbered or
alienated during the period from date ofapproval up to the date of issuance ofpatent;
Encumbrance or alienation within 5
years from date of issuance of patent orgrant is prohibited;
Homestead cannot be liable to the
satisfaction of any debt contracted priorto the expiration of said period;
Exception: Improvements or cropson the homestead land
Alienation, transfer, or conveyance after
5 years and before 25 years requiresapproval of the DENR Secretary (deemedas directory and formality)
Nature of Proceedings in Homestead
Not in rem, hence a homestead patent
issued is not binding upon the wholeworld;
However, when a homestead patent is
registered under the Torrens System, itstitle becomes indefeasible.
RULES ON THE EXERCISE OF THE RIGHTOF REDEMPTION/REPURCHASE OFHOMESTEAD LAND
5 years – if mortgaged or sold to a
private person or the subject of saleunder pacto de retro;
6 years – If mortgaged covered under
Act 3135;
7 years – If mortgaged to a Rural Bank;
None – If sold to immediate member of a
family.
17
None – If land is no longer devoted to
agriculture, patentee is already 71 yearsold not anymore residing in the propertyand his motivation for the repurchasewas purely for profit. (Santana v.Marinas, G.R. No. L-35537, Dec. 27,1979)
Note: Period must be reckoned from the dateof conveyance or sale.
R.A.10023 [Free Patents To ResidentialLands] March 9, 2010
Coverage :
1. All lands that are zoned as residentialareas, including townsites as definedunder the Public Land Act. Exception:Forest Areas
2. Zoned residential areas located insidea delisted military reservation orabandoned military camp, and those oflocal government units (LGUs) ortownsites which preceded Republic ActNo. 7586 or the National IntegratedProtected Areas System (NIPAS) law.
Qualified Applicants: Any Filipino citizen
who is an actual occupant of aresidential land.
Maximum Area:
Highly urbanized cities – 200 square
meters
Other cities – 500 square meters
First class and second class
municipalities – 750 square meters
All other municipalities – 1,000 square
meters.
Provided that the land applied for is not
needed for public service and/or publicuse.
How to Apply
Application should be supported by:
A map based on an actual survey
conducted by a licensed geodeticengineer and approved by theDepartment of Environment and NaturalResources (DENR)
A technical description of the land.
Affidavit of two (2) disinterested persons
who are residing in the barangay of thecity or municipality where the land islocated;
Attesting to the truth of the facts
contained in the application to the effectthat the applicant thereof has, either byhimself or through his predecessor-in-interest, actually resided on andcontinuously possessed and occupied,under a bona fide claim of acquisition ofownership, the land applied for at leastten (10) years and has complied with therequirements prescribed in Section 1hereof.
Special Patents [Sec. 4, RA 10023]
18
Any public land actually occupied and
used for public schools, municipal halls,public plazas or parks and othergovernment institutions for public use orpurpose can be issued with SpecialPatents.
Conditions:
Issuance is not contrary to law; and
Subject to private rights
Lands issued Special Patents cannot be
disposed of unless sanctioned byCongress if owned by the nationalagency or sanctioned by the sanggunianconcerned through an approvedordinance if owned by the LGU.
Miscellaneous Sales Patent [R.A. 730]
Permits sale without public auction of
alienable and disposable lands of thepublic domain for residential purpose.
The application to purchase the land is
called the Miscellaneous SalesApplication and the correspondingpatent is called the Miscellaneous SalesPatent.
Qualified to apply:
1. Filipino citizen of lawful age, married (ifsingle, applicant must be the head orbread winner of the family)
2. Not the owner of a home lot in themunicipality/city where the landapplied for is located
3. He must have occupied in good faith theland applied for and constructed ahouse thereon where he/she and familyis actually residing.
Requirements under R.A. 730
Application Filing fee of P50.00;
Approved plan and technical
description of the land applied for;
Affidavit of the applicant stating that:
He is not the owner of any other
home lot in the municipality/citywhere he resides.
He is requesting that the land be
sold to him under the provision ofR. A. No. 730.
If the applicant is single, he must submit
an affidavit stating that he is the head orbread winner of the family;
The land is not needed for public use.
The applicant can only be granted a
maximum area of 1,000 square meters.
Presidential Decree No. 2004 dated
December 30, 1985 amended Section 2of Republic Act 730 thus, lands acquiredunder this Act before and after theissuance of patent thereon are no longersubject to any restriction.
MODE NO. 2 : SALE OF PUBLIC AGRICULTURALLANDS
19
Qualified to purchase:
Filipino citizens, legal age or head of the
family;
Maximum area: 12 hectares
Note: Corporations cannot acquire bypurchase Public Agricultural Lands byexpress prohibition under Sec. 3, Art. XII,1987 Constitution
PREFERENCE GIVEN TO ACTUALOCCUPANTS (Sec. 25, CA 141)
Conditions:
ALP must not be located: (a) within 10
kms from the boundaries of the cityproper in chartered cities; or (b) within 5kms from the municipal hall or townplaza of any municipality.
There must actual occupation on the
lands.
Total landholdings must not exceed 5
hectares
EXCESS LANDHOLDING WHEN ALLOWED
In case of foreclosure sale;
However, the excess must be disposed
of within 5 years;
Failure to dispose of within the period –
surtax of 50% will be charged over theordinary real property tax.
WHAT IS DEEMED EXCESS LANDHOLDING?
For qualified individuals: the area in
excess of 12 hectares.
For corporations: Any land acquired by
virtue of foreclosure is deemed in excessof landholding hence must be disposedof within 5 years.
PROCEDURE IN THE SALE OF ALP
Filing of application in prescribed form.
Appraisal conducted by the BL Director
and approved by the DENR Secretary.
Publication of the notice of sale: Once a
week for 3 consecutive weeks in theO.G., and in 2 newspapers, onepublished in Manila and the other in themunicipality or province where the landis situated.
Posting in the Bulletin Board of the LMB,
Q.C. and in 3 conspicuous places in theprovincial capitol and the municipal hallwhere the land is situated
Submission of Bids in sealed envelope,
addressed to the BL Director togetherwith the 10% amount of the bid in cash,certified check, treasury warrant, orpostal money order.
Opening of bids and awarding to the
highest bidder.
20
PREFERENCE GRANTED TO APPLICANT INAWARDING OF ALP
In case of two or more highest equal
bids and one belongs to applicant, latterwins;
If the highest bid is not that of applicant,
Oral Bidding is called and the highestoral bidder is awarded;
In all instances, applicant is given the
option to equal the highest bidder.
Payment of price may be in full or in 10
equal annual installments reckoned fromthe date of the award.
Overdue installment subject to 4%
interest P.A.
Purchaser’s right over the ALP is still
inchoate until such time the patent hasalready been issued.
CONDITIONS IN SALE ARE OBLIGATORY(Jimenez v. Macaraig, G.R. 94542, Mar. 1,1993)
Facts: Jimenez was awarded by way of saleALP for town site in 1955. It was subjectto condition that he will commenceconstruction of improvements within 6months and complete all within 18months from date of award. In 1972,Guirnalda occupied the land, cleared itand introduced levelling and riprapping.She also built a shack which was used byher and her family. In 1984, the daughterof Jimenez asked her to vacate the land.Guirnalda filed a protest with the BL assought for cancellation of the award. In1986, BL cancelled the award. On MR, itwas reversed but set aside by the DENRSecretary.
Ruling:
Jimenez was not able to prove that the
improvements were commenced, hencethe rescission of the award was proper;
But, the rescission did not amount to
recognition of other occupant’s claim onthe subject land. Whatever claim thatGuirnalda has over the land must still bepresented before the proper forum andmust under proper procedure as set bylaw.
TWO INSTANCES WHEN ORAL BIDDING ALLOWED
When two or more of such sealed bids
turn out to be equal and the highest, andthat of the applicant is not one of them.In such case, the Director of Lands willcall for an oral bidding, without need forapplicant to participate in it since he hasthe option to put up a bid to equal thatof the highest bidder; and
Where the ALP to be sold has been
declared to be vacant and no applicantis recognized to have preferential rightsover it.
21
PRE-REQUISITES BEFORE SALES PATENT IS ISSUED
He must have occupied the land applied
for;
He must have cultivated at least 1/5 of
the land within 5 years after the date ofaward;
Where the application is for pasture, he
must have grazed on the land with hisown cattle numbering at the rate of onehead for every 2 hectares;
Failure to comply or any voluntary
abandonment for ore than one year atany given time, the land may bereverted and all prior paymentsforfeited.
CONVEYANCE OF LAND PRIOR TOISSUANCE OF SALES PATENT VALID
Sec. 29 allows applicant to convey or
encumber his rights after cultivation hasstarted;
CONDITIONS:
It does not affect the interest of the
government;
The transferor is not delinquent in
paying the installment due; and
There must be prior approval of the
DENR Secretary
EFFECT OF SALE WITHOUT DENR APPROVAL(Javier v. C.A., et al., 231 SCRA 498, Mar. 28,1994)
The sale pending issuance of patent
without approval of the BL violates Sec.29, C.A. 141.
The effect is annulment of the sales
application as if none had been filed.
JOINT VENTURE ALLOWED IN SALE OF PUBLICLAND [Barreo v. Rivera, 61 O.G. 14, April5, 1965 CA]
Where one person contributes his
capital, consisting of his duly approvedsales application and recognized right ofpossession over a parcel of public landwhich he has begun cultivating and overwhich he has already spent time andeffort, and another contributes his laborand money to finalize the cultivation ofthe same land, with the understandingthat both shall divide the land in theproportion agreed upon by them, a jointventure or partnership is formed underArt. 1767 of the Civil Code, and eachpartner is bound as a trustee to be everloyal to his partner under Art. 1807 ofthe same Code.”
BUT JOINT VENTURE NOT SANCTIONED INHOMESTEAD [Addun v. De Yro, 62 O.G. 37,Sept. 12, 1966 CA]
In the case of homestead, however, the
treatment of a similar situationapparently is different.
A homestead applicant is required by
law to occupy and cultivate the land forhis own and his family’s benefit, and notfor the benefit of someone else.
22
If the homesteader occupies and
cultivates the land on behalf of anotherperson and obtains title on theunderstanding that a portion would betransferred to the latter, it is INVALID,hence bars issuance of the patent;
Even if patent is already issued and title
becomes indefeasible, the sameagreement is still null and void sinceSec. 118 prohibits the encumbrance oralienation of a homestead except infavor of the government or any of itsbranches from the date of the approvalof the application and for a term of 5years from the date of issuance ofpatent.
RESTRICTIONS IN SALE OF PUBLIC LAND
Survey plan must be made before
issuance of sales patent;
Mineral deposits not included in
conveyance;
Land subject to legal servitudes;
Subject to ROW not exceeding 60 m
in width for public highways,railroad, irrigation canals, aqueduct,etc.;
After grant of title, subsequent
transfer within 10 years from grantor cultivation is not valid withoutconsent from the state.
WHEN LAND BECOMES OF PRIVATEOWNERSHIP [Visayan Realty Inc. v. Meer,96 Phil 515]
It is only upon issuance of the sales
patent that the Government is divestedwith its title.
Approval of the application merely
authorizes applicant to take possessionof the land in order for him to complywith the requirements set by law.
Meanwhile, the Government still remains
the owner; the application can still becancelled and the land awarded toanother if it is shown the requirementsare not complied with.
WHEN LAND UNDER SALES PATENT ISDEEMED EXCLUSIVE PROPERTY [Fiel, et al. v.Wagas, et al., 48 O.G. 195]
Where the balance of the purchase price
of the land applied for sales patent waspaid by applicant after the dissolution ofthe marriage due to death of his spouse,the land is considered exclusive propertyof the applicant;
This is true even if the sales patent
application was filed and approvedduring the subsistence of the marriage.
ANNULMENT OF PATENT AND TITLE ISJUDICIAL IN NATURE
True that the Director of Lands can
investigate violations even while thepatent and the corresponding title havealready been issued;
23
But he cannot render a decision
annulling the sales patent and title forthe alleged violations since annulment ofa title under Sec. 101 of CA 141 is ajudicial process.
MODE NO. 3: LEASE OF ALP
Qualified to lease ALP:
Filipino citizen of legal age (up to 500
hectares); and
Private corporation or association
registered under the laws of thePhilippines whose capital stock of atleast 60% is owned by Filipinos (up to1,000 hectares).
LIMITATIONS IN THE LEASE OF ALP
Any officer, employee, stockholder, etc.
of a corporation/association alreadyholding ALP may not apply for lease ofsuch land. In case it may be allowed, itmust be reasonably necessary to carryon his business, in case of an individualor the business for which the corporationis created under its Articles ofIncorporation.
PROCEDURE IN THE LEASE OF ALP(Substantially the same as in sale)
Filing of application in prescribed form.
Appraisal conducted by the BL Director
and approved by the DENR Secretary.
Publication of the notice of sale: Once a
week for 3 consecutive weeks in theO.G., and in 2 newspapers, onepublished in Manila and the other in themunicipality or province where the landis situated.
Posting in the Bulletin Board of the LMB,
Q.C. and in 3 conspicuous places in theprovincial capitol and the municipal hallwhere the land is situated
Submission of Bids in sealed envelope,
addressed to the BL Director togetherwith the 10% amount of the bid in cash,certified check, treasury warrant, orpostal money order.
Opening of bids and awarding to the
highest bidder.
In addition:
No bid will be considered if the
proposed rent is less than 3% of theappraised value of the land or the bidderdid not deposit rental equivalent to atleast the first 3 months of the lease.
If the land applied for is for grazing,
annual rental must not be less than 2%.
OTHER CONDITIONS IN LEASE OF ALP
24
Rental: to be paid in advance starting
from the date of approval of the lease;subject to automatic increase if the rentfalls below 3% in case of re-appraisal.
Period: 25 years, renewable for another
25 years. Extension is not a matter ofright. Lessee must justify the extensionby showing he has introduced importantimprovements on the leased land.
Cultivation: Applicant must have broken
and cultivated at least 1/3 of the landwithin 5 years from approval.
RESTRICTION TO SUB-LEASE
Lessee cannot assign, encumber, or
sublet his right over the leased landwithout approval from the DENRSecretary.
Reason: To avoid speculation purposes
or situation where the land is used byother persons not legally qualified tolease ALP.
CAN THE LESSEE SUBLEASE THEIMPROVEMENTS ON THE LAND WITHOUTCONSENT FROM GOV’T?
No. In Bachrach Motor Co. Inc. v.
Universal Trading Co. Inc., et al., 62 O.G.30, July 25, 1966, it was ruled:
In lease contract of ALP, a provision is
found that ‘upon the breach thereof bythe lessee, the gov’t as lessor may electto declare the lease forfeited and enterand take possession of the premises andALL IMPROVEMENTS actually existingthereon.’
conditions and restriction imposed onsale of ALP regarding taxes, servitudes,easements, mines and water rights
PREFERENCE OF LESSEE TO BUY LEASEDLAND
If the ALP leased is to be sold by the
Government during the subsistence ofthe lease, LESSEE will have the option topurchase the property, subject toconditions and restrictions governingsale of ALP.
LESSEE HAS LEGAL STANDING TOOPPOSE REGISTRATION OF ALP OBJECTIN LEASE
If lessee has already introduced
substantial improvements on the leasedland, he is considered a party in interestentitled to file opposition in applicationfor registration of the same land.
The trial court may be compelled by
mandamus to allow the lessee and hiscounsel to appear and oppose theapplication (Director v. Del Rosario, 58O.G. 3, Jan. 15, 1962)
25
REGISTRATION OF LEASE CONTRACT NOTNECESSARY
True that any alienation, grant,
conveyance on public lands is noteffective unless registered in the officeof the RD (Sec. 122, Act 496)
However, a contract of lease of ALP does
not constitute title or deed ofconveyance within the meaning of theabove provision.
What the law contemplates are those
transfers of ownership, not documentstransferring mere possession (Dagdag v.Nepomuceno, 10 Phil. 216).
MODE NO. 4: CONFIRMATION OF IMPERFECTOR INCOMPLETE TITLE
BY JUDICIAL LEGALIZATION
- When application is filed withthe proper RTC in the province orcity where the land lies; or
BY FREE PATENT – When the
application is filed with theBureau of Lands.
JUDICIAL LEGALIZATION
When to file: Until Dec. 31, 2020 (period
extended by R.A. 9176)
Where to file: RTC in the province or city
where the land lies.
Notice of the application with the survey
plan must be furnished the OSG, theBureau of Lands.
Publication of the notice of initial hearing
once a week for 3 consecutive weeks inthe O.G., and in 2 newspapers, onepublished in Manila and the other in themunicipality or province where the landis situated.
Posting in the Bulletin Board of the LMB,
Q.C. and in 3 conspicuous places in theprovincial capitol and the municipal hallwhere the land is situated
PERSONS ENTITLED TO JUDICIALLEGALIZATION/ CONFIRMATION OFIMPERFECT/INCOMPLETE TITLE
(a) Those who prior to the transfer ofsovereignty from Spain to the US haveapplied for the purchase, composition orother form of grant of lands of the publicdomain under the laws and royaldecrees then in force and have institutedand prosecuted the proceedings inconnection therewith, but have, with orwithout default upon their part, or forany other cause, not received titletherefor, if such applicants or granteesand their heirs have occupied andcultivated said land continuously sincethe filing of their application;
(b) Those who by themselves or throughtheir predecessors-in-interest have beenin open, continuous, exclusive, andnotorious possession and occupation ofagricultural lands of the public domain,under a bona fide claim of acquisitionof ownership, SINCE JUNE 12, 1945,immediately preceding the filing of theapplication of confirmation of title,except when prevented by war or forcemajeure. These shall be conclusivelypresumed to have performed all theconditions essential to a Governmentgrant and shall be entitled to acertificate of title under the provision ofP.D. 1073; and
26
(c) Members of the national culturalminorities who by themselves or throughtheir predecessors-in-interest have beenin open, continuous, exclusive andnotorious possession and occupation oflands of the public domain suitable toagriculture, whether disposable or not,under a bona fide claim of ownershipsince June 12, 1945.
REGISTRATION UNDER LANDREGISTRATION ACT V. REGISTRATIONUNDER THE PUBLIC LAND ACT
Under the Land Registration Act:
- presumption that title already existsand the court is there only to confirm;
- dismissal may be with or withoutprejudice to refiling; and
- applicant does not risk losing hisproperty.
Under the Public Land Act:
- land applied for presumed to belong tothe State and applicant is claiming it byvirtue of his open, continuous, exclusiveand notorious possession amounting toimperfect title;
- court hearing the application hasjurisdiction and power to adjudicate theland in favor of the conflicting claimants,and if none is entitled, land is declared infavor of the Government; and
- applicant runs the risk of losing theland applied for, without opportunity ofrefiling the application.
PRESCRIPTION LIES AGAINST ALP (Jabutay v.Dir. Of Lands, CA G.R 16969, Nov. 7 1958)
“In the case where the applicant was
able to establish that he and hispredecessors-in-interest had been inactual, peaceful, public, open andcontinuous possession of certain publicland under claim of ownership for morethan 65 years, he is deemed to havebeen conferred effective title and thesubject land had ceased to a part of thepublic domain and had become a privateproperty.”
Note: Generally, 30 years possession withouttitle and in bad faith is enough inacquisitive prescription. However, inALP, possession must be traced sinceJune 12, 1945.
ACQUISITION BY ADMIN LEGALIZATION ORFREE PATENT
Persons entitled:
- Natural-born Filipino;
- Not owner of more than 24 hectares(now 12 hectares;
- Since July 4, 1945 or prior thereto, hascontinuously occupied and cultivated,either by himself or through hispredecessors-in-interest, such publiclands as may be subject of disposition;
- In lieu of continuous cultivation,applicant may show that he has paidreal estate taxes on the property for thesame period and the land has not beenoccupied by other persons.
LIMITATIONS IN AREA
Royal decrees: 1,000 hectares;
R.A. 6236 & P.D. 1073: 144 hectares;
27
1973 Constitution: 24 hectares; and
1987 Constitution: 12 hectares.
PROCEDURE IN OBTAINING FREE PATENT
Filing of Application with BL,
accompanied with a map and technicaldescription of the land, and affidavitssubscribed by two disinterested personsresiding the same municipality orbarangay where the land lies;
Posting of notices in conspicuous places
in the provincial capital, the municipalityand barangay where the land is situatedfor 2 consecutive weeks. Notice shallrequire those having interests to filetheir objection or adverse claim; and
Action by the BL.
WHEN FREE PATENT BECOMES FINAL ANDCONCLUSIVE
General rule: 1 year after issuance of the
free patent, title over the land becomesindefeasible and incontrovertible.
Exception: Where the land granted is not
part of the public domain, but a privateland, the patent and Torrens Title issuedare a nullity.
IMPORTANT RESTRICTION ON FREE PATENT
Land cannot be encumbered or
alienated within 5 years from date ofissuance, except in favor of thegovernment or its instrumentalities.
Improvements or crops not covered.
After 5 years, the land may be alienated
without need of approval from the DENR.
But it buyer is a juridical person, there
must be consent from the grantee andapproval from DENR
Any alienation is subject to right of
repurchase by the patentee, his heirswithin 5 years from date of sale.
ALIENABLE PUBLIC LANDS OTHER THANTIMBER, MINERAL OR AGRICULTURAL
Reclaimed lands;
Foreshore;
Marshy land or land covered with water
bordering upon the shores or banks ofnavigable lakes or rivers; and
Other lands not included in above
classification.
28
Note: The foregoing may be disposed of forresidential, commercial, industrial orother productive purposes.
MEANING OF TERMS
Residential land: To be construed in its
prospective and objective purposestaking into account the influx ofpopulation and the impact ofcommercial, industrial and socialintercourse thereon. A truly residentiallot could not be converted into anagricultural land simply by reserving aplot for cultivation; conversely, anagricultural land cannot be consideredresidential simply because a portion of ithas been crisscrossed with roads andbuilding here and there.
Reclaimed land: refers to submerged
land which by deliberate act of dredgingand filling has emerged to the surface. Itbelongs to the State. It may be declaredproperty of adjoining owners only whereit is no longer needed for public use orpublic service.
Foreshore: refers to that part of the land
adjacent to the sea which is alternatelycovered and uncovered by the ordinaryflow of the tides. It belongs to the State.
Note: R.A. 1899, Reclamation Act of 1957declares as property of the LGU allreclaimed land undertaken by them.
Marshy land: that which borders on
shores and banks of navigable rivers andlakes; it is generally swampy or soft wetland.
Note: All foregoing may be subject, as a rule,only of lease unless declared so by thePresident upon recommendation of theDENR or by legislation, i.e. R.A. 293, asamended by R.A. 1899 (June 22, 1957)allowing sale of marshy land withsubsisting lease of at least 5 years to thelessee.
CASES ON RECLAIMED LANDS
Republic v. C.A. & Republic Real Estate
Corp, G.R. No. 105276, November 25,1998.
Chavez v. PEA & Amari, G.R. No. 133250,
July 9, 2002, en banc decision;
REPUBLIC V. CA & REPUBLIC REAL ESTATECORP., G.R. No. 105276, November 25, 1998
The duty of the court is to interpret the
enabling Act, RA 1899. In so doing, wecannot broaden its meaning, much lesswiden the coverage thereof.
If the intention of Congress were to
include submerged areas, it should haveprovided expressly. That Congress didnot so provide could only signify theexclusion of submerged areas fromthe term "foreshore lands".
CHAVEZ vs. PEA and AMARI [G.R. No. 133250,July 9, 2002, en banc decision]
Facts:
29
November 20, 1973: Commissioner of
Public Highways, signed a contract withthe Construction and DevelopmentCorporation of the Philippines ("CDCP"for brevity) to reclaim certain foreshoreand offshore areas of Manila Bay. Thecontract also included the constructionof Phases I and II of the Manila-CaviteCoastal Road. CDCP obligated itself tocarry out all the works in considerationof fifty percent of the total reclaimedland.
February 4, 1977: Marcos issued
Presidential Decree No. 1084 creatingPEA with primary mandate "to reclaimland, including foreshore and submergedareas," and "to develop, improve,acquire, x x x lease and sell any and allkinds of lands."
On the same date, Presidential Decree
No. 1085 was signed transferring to PEAthe "lands reclaimed in the foreshoreand offshore of the Manila Bay" underthe Manila-Cavite Coastal Road andReclamation Project (MCCRRP).
December 29, 1981: Pres. Marcos issued
a memorandum directing PEA to amendits contract with CDCP directing that allfuture works in MCCRRP shall be fundedand owned by PEA.
January 19, 1988: Pres.Aquino issued
Special Patent No. 3517, granting andtransferring to PEA the parcels of landalready reclaimed under the Manila-Cavite Coastal Road and ReclamationProject (MCCRRP) containing a total areaof one million nine hundred fifteenthousand eight hundred ninety four(1,915,894) square meters.
April 9, 1988: Parañaque RD issued TCT
Nos. 7309, 7311, and 7312, in the nameof PEA, covering the three reclaimedislands known as the "Freedom Islands"located at the southern portion of theManila-Cavite Coastal Road, ParañaqueCity.
The Freedom Islands have a total land
157.841 hectares.
April 25, 1995: PEA entered into a JVA
with AMARI to develop the FreedomIslands. The JVA also required thereclamation of an additional 250hectares of submerged areassurrounding these islands to completethe configuration in the MasterDevelopment Plan of the SouthernReclamation Project-MCCRRP. The JVAwas entered without public bidding.
April 28, 1995: PEA Board confirmed the
JVA.
June 8, 1995, Pres. Ramos approved the
JVA.
30
November 29, 1996: then Senate Pres.
Maceda delivered a privilege speechcalling the JVA as the "grandmother of allscams.“ A senate investigation followed.
April 27, 1998: petitioner Chavez, as
taxpayer, filed a petition for mandamuscontending that the government standsto lose billions of pesos in the sale byPEA of the reclaimed lands to AMARI.
Petitioner assails the sale to AMARI of
lands of the public domain as a blatantviolation of Section 3, Article XII of the1987 Constitution prohibiting the sale ofalienable lands of the public domain toprivate corporations.
March 30, 1999: PEA and AMARI signed
the Amended Joint Venture Agreement.
May 28, 1999: President Estrada
approved the Amended JVA.
The Amended JVA covers a reclamation
area of 750 hectares. Only 157.84hectares of the 750-hectare reclamationproject have been reclaimed, and therest of the 592.15 hectares are stillsubmerged areas forming part of ManilaBay.
Under the Amended JVA, AMARI will
reimburse PEA the sum ofP1,894,129,200.00 for PEA's "actualcost" in partially reclaiming the FreedomIslands.
AMARI will also complete, at its own
expense, the reclamation of the FreedomIslands. AMARI will further shoulder allthe reclamation costs of all the otherareas, totaling 592.15 hectares, still tobe reclaimed.
AMARI and PEA will share, in the
proportion of 70 percent and 30 percent,respectively, the total net usable areawhich is defined in the Amended JVA asthe total reclaimed area less 30 percentearmarked for common areas.
Under the Amended JVA AMARI will
acquire and own a maximum of 367.5hectares of reclaimed land which will betitled in its name.
PRINCIPAL ISSUE
WHETHER THE STIPULATIONS IN THE
AMENDED JOINT VENTURE AGREEMENTFOR THE TRANSFER TO AMARI OFCERTAIN LANDS, RECLAIMED AND STILLTO BE RECLAIMED, VIOLATE THE 1987CONSTITUTION.
31
RATIO DECIDENDI
The ownership of lands reclaimed from
foreshore and submerged areas is rootedin the Regalian doctrine which holds thatthe State owns all lands and waters ofthe public domain.
Commonwealth Act No. 141, also known
as the Public Land Act, which authorizedthe lease, but not the sale, of reclaimedlands of the government to corporationsand individuals. CA No. 141 continues tothis day as the general law governingthe classification and disposition of landsof the public domain.
The State policy prohibiting the sale to
private parties of government reclaimed,foreshore and marshy alienable lands ofthe public domain, first implemented in1907 was thus reaffirmed in CA No. 141after the 1935 Constitution took effect .
Foreshore lands became inalienable as
natural resources of the State, unlessreclaimed by the government andclassified as agricultural lands of thepublic domain, in which case they wouldfall under the classification ofgovernment reclaimed lands.
After the effectivity of the 1935
Constitution, government reclaimed andmarshy disposable lands of the publicdomain continued to be only leased andnot sold to private parties.
These lands remained sui generis, as the
only alienable or disposable lands of thepublic domain the government could notsell to private parties.
Since then and until now, the only way
the government can sell to privateparties government reclaimed andmarshy disposable lands of the publicdomain is for the legislature to pass alaw authorizing such sale.
CA No. 141 does not authorize the
President to reclassify governmentreclaimed and marshy lands into othernon-agricultural lands under Section 59(d).
Lands classified under Section 59 (d) are
the only alienable or disposable lands fornon-agricultural purposes that thegovernment could sell to private parties.
Most importantly, Section 60 of CA No.
141 expressly requires congressionalauthority before lands under Section 59that the government previouslytransferred to government units orentities could be sold to private parties
One reason for the congressional
authority is that Section 60 of CA No.141 exempted government units andentities from the maximum area ofpublic lands that could be acquired fromthe State.
32
These government units and entities
should not just turn around and sellthese lands to private parties in violationof constitutional or statutory limitations.
The 1987 Constitution continues the
State policy in the 1973 Constitutionbanning private corporations fromacquiring any kind of alienable landof the public domain. Like the 1973Constitution, the 1987 Constitutionallows private corporations to holdalienable lands of the public domain onlythrough lease.
One purpose of the constitutional
prohibition against purchases of publicagricultural lands by privatecorporations is to equitably diffuse landownership or to encourage 'owner-cultivatorship and the economic family-size farm'. Huge landholdings bycorporations or private persons hadspawned social unrest."
The Amended JVA covers not only the
Freedom Islands, but also an additional592.15 hectares which are stillsubmerged and forming part of ManilaBay.
There is no legislative or Presidential act
classifying these submerged areas asalienable or disposable lands of thepublic domain open to disposition.
There can be no dispute that these
submerged areas form part of the publicdomain, and in their present state areinalienable and outside the commerce ofman.
The mere fact that alienable lands of the
public domain like the Freedom Islandsare transferred to PEA and issued landpatents or certificates of title in PEA'sname does not automatically make suchlands private.
To allow vast areas of reclaimed lands of
the public domain to be transferred toPEA as private lands will sanction a grossviolation of the constitutional ban onprivate corporations from acquiring anykind of alienable land of the publicdomain.
SUMMARY OF THE RULING:
The 157.84 hectares of reclaimed lands
comprising the Freedom Islands, nowcovered by certificates of title in thename of PEA, are alienable lands of thepublic domain. PEA may lease theselands to private corporations but maynot sell or transfer ownership of theselands to private corporations. PEA mayonly sell these lands to Philippinecitizens, subject to the ownershiplimitations in the 1987 Constitution andexisting laws.
33
The 592.15 hectares of submerged areas
of Manila Bay remain inalienable naturalresources of the public domain untilclassified as alienable or disposablelands open to disposition and declaredno longer needed for public service. Thegovernment can make suchclassification and declaration only afterPEA has reclaimed these submergedareas. Only then can these lands qualifyas agricultural lands of the publicdomain, which are the only naturalresources the government can alienate.In their present state, the 592.15hectares of submerged areas areinalienable and outside the commerce ofman.
Since the Amended JVA seeks to transfer
to AMARI, a private corporation,ownership of 77.34 hectares of theFreedom Islands, such transfer is void forbeing contrary to Section 3, Article XII ofthe 1987 Constitution which prohibitsprivate corporations from acquiring anykind of alienable land of the publicdomain.
Since the Amended JVA also seeks to
transfer to AMARI ownership of 290.156hectares of still submerged areas ofManila Bay, such transfer is void forbeing contrary to Section 2, Article XII ofthe 1987 Constitution which prohibitsthe alienation of natural resources otherthan agricultural lands of the publicdomain. PEA may reclaim thesesubmerged areas. Thereafter, thegovernment can classify the reclaimedlands as alienable or disposable, andfurther declare them no longer neededfor public service. Still, the transfer ofsuch reclaimed alienable lands of thepublic domain to AMARI will be void inview of Section 3, Article XII of the 1987Constitution which prohibits privatecorporations from acquiring any kind ofalienable land of the public domain.
CHAVEZ vs. PEA and AMARI [G.R. No. 133250,November 11, 2003 Resolution of MR]
Submerged lands, like the waters (sea or
bay) above them, are part of the State’sinalienable natural resources.Submerged lands are property of publicdominion, absolutely inalienable andoutside the commerce of man. This isalso true with respect to foreshore lands.Any sale of submerged or foreshorelands is void being contrary to theConstitution.
Commonwealth Act No. 141, "foreshore
and lands under water were not to bealienated and sold to private parties,"
PEA is the central implementing
agency tasked to undertake reclamationprojects nationwide
34
PEA took the place of the Department of
Environment and Natural Resources("DENR" for brevity) as the governmentagency charged with leasing or sellingall reclaimed lands of the publicdomain.
In the hands of PEA, which took over the
leasing and selling functions of DENR,reclaimed foreshore (or submergedlands) lands are public lands in the samemanner that these same lands wouldhave been public lands in the hands ofDENR
To allow vast areas of reclaimed lands of
the public domain to be transferred toPEA as private lands will sanction a grossviolation of the constitutional ban onprivate corporations from acquiring anykind of alienable land of the publicdomain.
PEA will simply turn around, as PEA
has now done under the AmendedJVA, and transfer several hundreds ofhectares of these reclaimed and still tobe reclaimed lands to a single privatecorporation in only one transaction.
This scheme will effectively nullify the
constitutional ban in Section 3, Article XIIof the 1987 Constitution which wasintended to diffuse equitably theownership of alienable lands of thepublic domain among Filipinos, nownumbering over 80 million strong.
As we held in our 9 July 2002 Decision,
the Amended JVA "violates glaringlySections 2 and 3, Article XII of the 1987Constitution.“
In our 6 May 2003 Resolution, we
DENIED with FINALITY respondents’Motions for Reconsideration. Litigationsmust end some time. It is now time towrite finis to this "Grandmother of AllScams."
SURVEY OF RECLAMATION LAWS ANDREGULATIONS
The Spanish Law of Waters of 1866
Civil Code of 1889
Act No. 1654
Act No. 2874 ;
Commonwealth Act No. 141;
R.A. 1899
PD No. 1084
R.A. 7160
Executive Order 525, February 14, 1979
(Designating PEA as the Agencyprimarily responsible for all reclamationprojects)
35
Executive Order 543, June 24, 2006
(Delegating to PRA the power to approvereclamation projects)
Executive Order No. 380, Oct. 26, 2004
(Transforming PEA into PRA)
Executive Order No. 586
Executive Order No. 654
Presidential Decree No. 1085
THE SPANISH LAW OF WATERS OF 1866
Article 5. Lands reclaimed from the sea
in consequence of works constructed bythe State, or by the provinces, pueblosor private persons, with properpermission, shall become the property ofthe party constructing such works,unless otherwise provided by the termsof the grant of authority.
CIVIL CODE OF 1889 (Arts. 339 & 341)
Art. 339. Property of public dominion is:
1. That devoted to public use, such as roads,canals, rivers, torrents, ports andbridges constructed by the State,riverbanks, shores, roadsteads, and thatof a similar character;
2. That belonging exclusively to the Statewhich, without being of general publicuse, is employed in some public service,or in the development of the nationalwealth, such as walls, fortresses, andother works for the defense of theterritory, and mines, until granted toprivate individuals.
Art. 341. Property of public dominion,
when no longer devoted to public use orto the defense of the territory, shallbecome a part of the private property ofthe State.
ACT NO. 1654, PHILIPPINE COMMISSION(MAY 8, 1907)
Section 1. The control and disposition of
the foreshore as defined in existing law,and the title to all Government or publiclands made or reclaimed by theGovernment by dredging or filling orotherwise throughout the PhilippineIslands, shall be retained by theGovernment without prejudice to vestedrights and without prejudice to rightsconceded to the City of Manila in theLuneta Extension.
Section 2.
(a) The Secretary of the Interior shallcause all Government or public landsmade or reclaimed by the Governmentby dredging or filling or otherwise to bedivided into lots or blocks, with thenecessary streets and alleyways locatedthereon, and shall cause plats and plansof such surveys to be prepared and filedwith the Bureau of Lands.
(b) Upon completion of such plats andplans the Governor-General shall givenotice to the public that such parts ofthe lands so made or reclaimed as arenot needed for public purposes will beleased for commercial and businesspurposes, x x x.
36
(e) The leases above provided for shallbe disposed of to the highest and bestbidder therefore, subject to suchregulations and safeguards as theGovernor-General may by executiveorder prescribe.
Synopsis: Act 1654
Act No. 1654 mandated that the
government should retain title to alllands reclaimed by the government. TheAct also vested in the governmentcontrol and disposition of foreshorelands. Private parties could lease landsreclaimed by the government only ifthese lands were no longer needed forpublic purpose.
Act No. 1654 mandated public bidding in
the lease of government reclaimedlands. Act No. 1654 made governmentreclaimed lands sui generis in that unlikeother public lands which the governmentcould sell to private parties, thesereclaimed lands were available only forlease to private parties.
Act No. 1654 did not repeal Section 5 of
the Spanish Law of Waters of 1866. ActNo. 1654 did not prohibit private partiesfrom reclaiming parts of the sea underSection 5 of the Spanish Law of Waters.Lands reclaimed from the sea by privateparties with government permissionremained private lands.
ACT 2874 [Nov. 29, 1919]
Sec. 6. The Governor-General, upon the
recommendation of the Secretary ofAgriculture and Natural Resources, shallfrom time to time classify the lands ofthe public domain into ?
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the
government and disposition of alienableor disposable public lands, the Governor-General, upon recommendation by theSecretary of Agriculture and NaturalResources, shall from time to timedeclare what lands are open todisposition or concession under this Act."
Sec. 8. Only those lands shall be
declared open to disposition orconcession which have been officiallydelimited or classified x x x.
Sec. 55. Any tract of land of the public
domain which, being neither timber normineral land, shall be classified assuitable for residential purposes or forcommercial, industrial, or otherproductive purposes other thanagricultural purposes, and shall be opento disposition or concession, shall bedisposed of under the provisions of thischapter, and not otherwise.
Sec. 56. The lands disposable under this
title shall be classified as follows:
(a) Lands reclaimed by the Governmentby dredging, filling, or other means;
(b) Foreshore;
37
(c) Marshy lands or lands covered withwater bordering upon the shores orbanks of navigable lakes or rivers;
(d) Lands not included in any of theforegoing classes.
Sec. 58. The lands comprised in classes
(a), (b), and (c) of section fifty-six shallbe disposed of to private parties bylease only and not otherwise, as soon asthe Governor-General, uponrecommendation by the Secretary ofAgriculture and Natural Resources, shalldeclare that the same are not necessaryfor the public service and are open todisposition under this chapter. The landsincluded in class (d) may be disposed ofby sale or lease under the provisions ofthis Act.
C.A. 141 [PUBLIC LAND ACT] Nov. 7, 1936
Sec. 58. Any tract of land of the public
domain which, being neither timber normineral land, is intended to be used forresidential purposes or for commercial,industrial, or other productive purposesother than agricultural, and is open todisposition or concession, shall bedisposed of under the provisions of thischapter and not otherwise.
Sec. 59. The lands disposable under this
title shall be classified as follows:
(a) Lands reclaimed by the Governmentby dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered withwater bordering upon the shores orbanks of navigable lakes or rivers;
(d) Lands not included in any of theforegoing classes.
Sec. 60. Any tract of land comprised
under this title may be leased or sold, asthe case may be, to any person,corporation, or association authorized topurchase or lease public lands foragricultural purposes.
Sec. 61. The lands comprised in classes
(a), (b), and (c) of section fifty-nine shallbe disposed of to private parties bylease only and not otherwise, as soon asthe President, upon recommendation bythe Secretary of Agriculture, shalldeclare that the same are not necessaryfor the public service and are open todisposition under this chapter. The landsincluded in class (d) may be disposed ofby sale or lease under the provisions ofthis Act.
Section 61 of CA No. 141 readopted,
after the effectivity of the 1935Constitution, Section 58 of Act No. 2874prohibiting the sale of governmentreclaimed, foreshore and marshydisposable lands of the public domain.
All these lands are intended for
residential, commercial, industrial orother non-agricultural purposes. Asbefore, Section 61 allowed only the leaseof such lands to private parties.
38
The government could sell to private
parties only lands falling under Section59 (d) of CA No. 141, or those lands fornon-agricultural purposes not classifiedas government reclaimed, foreshore andmarshy disposable lands of the publicdomain. Foreshore lands, however,became inalienable under the 1935Constitution which only allowed thelease of these lands to qualified privateparties.
The Civil Code of 1950
Art. 420. The following things are
property of public dominion:
(1) Those intended for public use, suchas roads, canals, rivers, torrents, portsand bridges constructed by the State,banks, shores, roadsteads, and others ofsimilar character;
(2) Those which belong to the State,without being for public use, and areintended for some public service or forthe development of the national wealth.
x x x.
Art. 422. Property of public dominion,when no longer intended for public useor for public service, shall form part ofthe patrimonial property of the State.
Government must formally declare that
the property of public dominion is nolonger needed for public use or publicservice, before the same could beclassified as patrimonial property of theState.
In the case of government reclaimed
and marshy lands of the public domain,the declaration of their being disposable,as well as the manner of theirdisposition, is governed by theapplicable provisions of CA No. 141.
Like the Civil Code of 1889, the Civil
Code of 1950 included as property ofpublic dominion those properties of theState which, without being for publicuse, are intended for public service orthe "development of the nationalwealth."
Thus, government reclaimed and marshy
lands of the State, even if not employedfor public use or public service, ifdeveloped to enhance the nationalwealth, are classified as property ofpublic dominion.
Dispositions under the 1973 Constitution[Sec. 8, Art. XIV]
Sec. 8. All lands of the public domain,
waters, minerals, coal, petroleum andother mineral oils, all forces of potentialenergy, fisheries, wildlife, and othernatural resources of the Philippinesbelong to the State.
39
With the exception of agricultural,
industrial or commercial, residential, andresettlement lands of the public domain,natural resources shall not be alienated,and no license, concession, or lease forthe exploration, development,exploitation, or utilization of any of thenatural resources shall be granted for aperiod exceeding twenty-five years,renewable for not more than twenty-fiveyears, except as to water rights forirrigation, water supply, fisheries, orindustrial uses other than thedevelopment of water power, in whichcases, beneficial use may be themeasure and the limit of the grant."
Both the 1935 and 1973 Constitutions
prohibit the alienation of all naturalresources except agricultural lands ofthe public domain.
However, the 1973 Constitution limits
the alienation of lands of the publicdomain to individuals who were citizensof the Philippines.
Private corporations, even if wholly
owned by Philippine citizens, were nolonger allowed to acquire alienable landsof the public domain unlike in the 1935Constitution.
PD No. 1084, Feb. 4, 1977 [PEACHARTER]
Sec. 4. Purpose. The Authority is hereby
created for the following purposes:
(a) To reclaim land, includingforeshore and submerged areas, bydredging, filling or other means, orto acquire reclaimed land;
(b) To develop, improve, acquire,administer, deal in, subdivide, dispose,lease and sell any and all kinds oflands, buildings, estates and otherforms of real property, owned, managed,controlled and/or operated by thegovernment;
(c) To provide for, operate or administersuch service as may be necessary forthe efficient, economical and beneficialutilization of the above properties.
Sec. 5. Powers and functions of the
Authority. The Authority shall, in carryingout the purposes for which it is created,have the following powers and functions:
(a) To prescribe its by-laws.
x x x
(i) To hold lands of the publicdomain in excess of the area permittedto private corporations by statute.
(j) To reclaim lands and to constructwork across, or otherwise, any stream,watercourse, canal, ditch, flume x x x.
x x x
(o) To perform such acts and exercisesuch functions as may be necessary forthe attainment of the purposes andobjectives herein specified.
PD No. 1084 authorizes PEA to reclaim
both foreshore and submerged areas ofthe public domain.
Foreshore areas are those covered and
uncovered by the ebb and flow of thetide.
40
Submerged areas are those permanently
under water regardless of the ebb andflow of the tide.
Foreshore and submerged areas
indisputably belong to the public domainand are inalienable unless reclaimed,classified as alienable lands open todisposition, and further declared nolonger needed for public service.
The ban in the 1973 Constitution on
private corporations from acquiringalienable lands of the public domain didnot apply to PEA since it was then, anduntil today, a fully owned governmentcorporation.
In order for PEA to sell its reclaimed
foreshore and submerged alienablelands of the public domain, there mustbe legislative authority empowering PEAto sell these lands pursuant to Sec. 60,C.A. 141.
Without such legislative authority, PEA
could not sell but only lease itsreclaimed foreshore and submergedalienable lands of the public domain.
Reclaimed alienable lands of the public
domain would still be subject to theconstitutional ban on privatecorporations from acquiring alienablelands of the public domain.
Hence, such legislative authority could
only benefit private individuals.
Dispositions under the 1987 Constitution
Section 2. All lands of the public domain,
waters, minerals, coal, petroleum andother mineral oils, all forces of potentialenergy, fisheries, forests or timber,wildlife, flora and fauna, and othernatural resources are owned by theState. With the exception ofagricultural lands, all other naturalresources shall not be alienated. Theexploration, development, and utilizationof natural resources shall be under thefull control and supervision of the State.x x x.
Section 3. Lands of the public domain
are classified into agricultural, forest ortimber, mineral lands, and nationalparks. Agricultural lands of the publicdomain may be further classified by lawaccording to the uses which they may bedevoted. Alienable lands of thepublic domain shall be limited toagricultural lands. Privatecorporations or associations maynot hold such alienable lands of thepublic domain except by lease, for aperiod not exceeding twenty-fiveyears, renewable for not more thantwenty-five years, and not toexceed one thousand hectares inarea. Citizens of the Philippines maylease not more than five hundredhectares, or acquire not more thantwelve hectares thereof by purchase,homestead, or grant.
Taking into account the requirements of
conservation, ecology, anddevelopment, and subject to therequirements of agrarian reform, theCongress shall determine, by law, thesize of lands of the public domain whichmay be acquired, developed, held, orleased and the conditions therefor.
Rationale Of The Constitutional Ban
41
Without the constitutional ban,
individuals who already acquired themaximum area of alienable lands of thepublic domain could easily set upcorporations to acquire more alienablepublic lands.
An individual could own as many
corporations as his means would allowhim. An individual could even hide hisownership of a corporation by putting hisnominees as stockholders of thecorporation.
The corporation is a convenient vehicle
to circumvent the constitutionallimitation on acquisition by individuals ofalienable lands of the public domain.
The Revised Administrative Code of 1987
A later law than either PD No. 1084 or
EO No. 525, vests in the Department ofEnvironment and Natural Resources("DENR" for brevity) the followingpowers and functions:
"Sec. 4. Powers and Functions. The
Department shall:
(1) x x x
x x x
(4) Exercise supervision and control
over forest lands, alienable anddisposable public lands, mineralresources and, in the process ofexercising such control, imposeappropriate taxes, fees, charges, rentalsand any such form of levy and collectsuch revenues for the exploration,development, utilization or gathering ofsuch resources;
x x x
(14) Promulgate rules, regulations and
guidelines on the issuance of licenses,permits, concessions, lease agreementsand such other privileges concerning thedevelopment, exploration and utilizationof the country's marine, freshwater, andbrackish water and over all aquaticresources of the country and shallcontinue to oversee, supervise andpolice our natural resources; cancel orcause to cancel such privileges uponfailure, non-compliance or violations ofany regulation, order, and for all othercauses which are in furtherance of theconservation of natural resources andsupportive of the national interest;
(15) Exercise exclusive jurisdiction on
the management and disposition of alllands of the public domain and serve asthe sole agency responsible forclassification, sub-classification,surveying and titling of lands inconsultation with appropriate agencies."
42
DENR is vested with the power to
authorize the reclamation of areas underwater.
PEA is vested with the power to
undertake the physical reclamation ofareas under water, whether directly orthrough private contractors.
DENR is empowered to classify lands of
the public domain into alienable ordisposable lands subject to the approvalof the President.
PEA is tasked to develop, sell or lease
the reclaimed alienable lands of thepublic domain.
PEA's Authority to Sell Reclaimed Lands
PEA's charterexpressly tasks PEA "to
develop, improve, acquire, administer,deal in, subdivide, dispose, lease andsell any and all kinds of lands x x xowned, managed, controlled and/oroperated by the government.“
There is legislative authority
granted to PEA to sell its lands,whether patrimonial or alienablelands of the public domain.
PEA may sell to private parties its
patrimonial properties in accordancewith the PEA charter free fromconstitutional limitations.
The constitutional ban on private
corporations from acquiring alienablelands of the public domain does notapply to the sale of PEA's patrimoniallands.
43
PEA may also sell its alienable or
disposable lands of the publicdomain to private individuals since,with the legislative authority, there is nolonger any statutory prohibition againstsuch sales and the constitutional bandoes not apply to individuals.
PEA, however, cannot sell any of its
alienable or disposable lands of thepublic domain to private corporationssince Section 3, Article XII of the 1987Constitution expressly prohibits suchsales.
The legislative authority benefits only
individuals. Private corporations remainbarred from acquiring any kind ofalienable land of the public domain,including government reclaimed lands.
The provision in PD No. 1085 stating that
portions of the reclaimed lands could betransferred by PEA to the "contractor orhis assignees" would not apply to privatecorporations but only to individualsbecause of the constitutional ban.
Otherwise, the provisions of PD No. 1085
would violate both the 1973 and 1987Constitutions.
Requirement of public auction in the sale ofreclaimed lands
PEA must observe the provisions of
Sections 63 and 67 of CA No. 141requiring public auction, in the absenceof a law exempting PEA from holding apublic auction.
Section 79 of PD No. 1445 otherwise
known as the Government AuditingCode, requires government to sellvaluable government property throughpublic bidding.
44
It is only when the public auction fails
that a negotiated sale is allowed, inwhich case the Commission on Auditmust approve the selling price
At the public auction sale, only Philippine
citizens are qualified to bid for PEA'sreclaimed foreshore and submergedalienable lands of the public domain.
Private corporations are barred from
bidding at the auction sale of any kind ofalienable land of the public domain.
Republic Act No. 6957 [BOT Law]
Sec. 6. Repayment Scheme. - For the
financing, construction, operation andmaintenance of any infrastructureprojects undertaken through the build-operate-and-transfer arrangement orany of its variations pursuant to theprovisions of this Act, the projectproponent x x x may likewise be repaidin the form of a share in the revenue ofthe project or other non-monetarypayments, such as, but not limited to,the grant of a portion or percentage ofthe reclaimed land, subject to theconstitutional requirements withrespect to the ownership of theland: x x x.
R.A. 1899 [Authorizing Chartered Cities& Municipalities to reclaim]
All municipalities, and chartered cities
may undertake and carry out at theirown expense the reclamation bydredging, filling, or other means, of anyforeshore lands bordering them, andmay establish, provide, construct,maintain and repair proper andadequate docking and harbor facilitiesas such municipalities and charteredcities may determine in consultationwith the Secretary of Finance and theSecretary of Public Works andCommunications.
45
Any and all lands reclaimed shall
become property of the respectivemunicipalities or chartered cities.
However, the new foreshore along the
reclaimed areas shall continue to be theproperty of the National Government.
Municipalities and chartered cities are
authorized to contract indebtedness withany person, association, corporation, orlending institution and may issue bondsin such amounts and under such termsand conditions as may be fixed by theSecretary of Finance.
Such bonds shall be guaranteed by the
Government of the Philippines and theirissue, servicing and liquidation shall beundertaken by the Central Bank of thePhilippines.
All lands reclaimed, except such as may
be necessary for wharves, piers andembankments, roads, parks and otherpublic improvements, may be sold orleased under such rules and regulationsas the municipality or chartered city mayprescribe.
All proceeds derived from such sale or
lease, and all berthing and other feesand such other earnings as themunicipality or chartered city shallderive from the use of the port facilitiesand improvements, shall be credited to aspecial fund which shall accrue in thefirst instance to the sinking fund.
Any balance thereof in excess of periodic
sinking fund requirements shall beavailable for other permanent publicimprovements of the municipality orchartered city.
46
Republic Act 7160 [Local Gov’t Code]
"Section 302. Financing, Construction,
Maintenance, Operation, andManagement of Infrastructure Projectsby the Private Sector.
In case of land reclamation or
construction of industrial estates, therepayment plan may consist of the grantof a portion or percentage of thereclaimed land or the industrial estateconstructed.
Although Section 302 of the Local
Government Code does not contain aproviso similar to that of the BOT Law,the constitutional restrictions on landownership automatically apply eventhough not expressly mentioned in theLocal Government Code.
Either the BOT Law or the Local
Government Code, the contractor ordeveloper, if a corporate entity, can onlybe paid with leaseholds on portions ofthe reclaimed land.
If the contractor or developer is an
individual, portions of the reclaimedland, not exceeding 12 hectares of non-agricultural lands, may be conveyed tohim in ownership in view of thelegislative authority allowing suchconveyance.
Registration of lands of the publicdomain
Registration of land under Act No. 496 or
PD No. 1529 does not vest in theregistrant private or public ownership ofthe land. Registration is not a mode ofacquiring ownership but is merelyevidence of ownership previouslyconferred by any of the recognizedmodes of acquiring ownership.
Registration does not give the registrant
a better right than what the registranthad prior to the registration.
The registration of lands of the public
domain under the Torrens system, byitself, cannot convert public lands intoprivate lands.
EXECUTIVE ORDER NO. 525
PEA shall be primarily responsible for
integrating, directing, and coordinatingall reclamation projects for and on behalfof the National Government.
All reclamation projects shall be
approved by the President uponrecommendation of the PEA, and shallbe undertaken by the PEA or through aproper contract executed by it with anyperson or entity; Provided, that,reclamation projects of any nationalgovernment agency or entity authorizedunder its charter shall be undertaken inconsultation with the PEA upon approvalof the President.
