Land Registration

Philippines-Australia Land Administration and Management Project

LAND LAWS AND REGULATIONS POLICY STUDY

FINAL REPORT Volume 1

July 2002 REPORT A2

Department of Justice

University of the Philippines The support and assistance of the University of the Philippines Law Centre in the preparation of this report is gratefully acknowledged. In particular the University provided the background position papers, the inventory of laws and the workshop notes.

ABBREVIATIONS AND ACRONYMS A&D AusAID CA CADT CALT CARL CARP CENRO CLOA CREBA DA DAR DENR DILG DOJ FMB FMS GEP GIS ha HLRB HUDCC IPRA LAM LAMP LGU LMB LRA NAMRIA NCIP NGO NHA NIPAS NRMDP PARC PAWB PD PENRO RA ROD sq m UDHA UP

Alienable and Disposable (land) Australian Agency for International Development Commonwealth Act Certificate of Ancestral Domain Title Certificate of Ancestral Land Title Comprehensive Agrarian Reform Law Comprehensive Agrarian Reform Program Community Environment and Natural Resources Office certificate of land ownership award Chamber of Real Estate and Builders Associations Department of Agriculture Department of Agrarian Reform Department of Environment and Natural Resources Department of Interior and Local Government Department of Justice Forest Management Bureau Forest Management Service Geodetic Engineers of the Philippines Geographic information system hectare (10,000 square meters) Housing and Land Use Regulatory Board Housing and Urban Development Coordinating Council Indigenous Persons Rights Act Land Administration and Management Land Administration and Management Project Local Government Unit Land Management Bureau Land Registration Authority National Mapping and Resource Information Authority National Commission for Indigenous Peoples Non-government organization National Housing Authority National Integrated Protected Areas System Natural Resources Management and Development Project (AusAID funded project completed in DENR in 1994) Presidential Agrarian Reform Council Protected Areas and Wildlife Bureau Presidential Decree Provincial Environment and Natural Resources Office Republic Act Registry of Deeds square meter Urban Development and Housing Act University of the Philippines

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This report is a result of technical assistance managed by Land Equity International to the Government of Philippines. The TA was funded by AusAID and the views expressed in this work do not necessarily represent the views of the Commonwealth 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 3.1.1.

Generally

3.1.2.

Public Land Classification

3.1.3.

Public Land Disposition

3.1.4.

Confirmation of Imperfect Title

3.1.5.

Other Tenures

3.1.6.

Land Registration

3.1.7.

Land Transactions

3.2. Informal or Extra-legal Infrastructure 4. Views on Current Legal Infrastructure 4.1. Experience from PA-LAMP Prototypes 4.2. Findings of Previous Studies 4.3. Stakeholder Views 5. Change Considerations 5.1. Legislative and Congressional Factors 5.2. Leadership Factors ANNEXURES 1.

Full Terms of Reference for Study

2.

People Met/Processes for Consultation

3.

Summary of Outcomes from Previous Studies

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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 Fabros Former Assistant Director, DENR-LMB A Revisitation of the Public Land Disposition in the Philippines Report by Atty Berlin Berba Report by Carlos Isles

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EXECUTIVE SUMMARY This study is significant for the wide consultation that has taken place involving many sectors of society - civil society, public sector, private sector, academia and land administration experts. All these groups have been involved in both individual discussions and workshops and seminars. The proposals contained in this report are based on this interaction, the results of previous studies in the same area and on international developments 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 legal infrastructure in the country. Much of the law is outdated and supports processes and procedures that are not in keeping with international best practice. In particular, the laws and processes to provide secure title to persons in long term possession and occupation of land have not served the community well. Currently, there is an abundance of laws governing the administration of land, especially relating to A & D land. The laws are administered by different agencies. Many of the laws have been introduced over a long period of time without consideration of consequential amendments that their introduction will have on existing legislation. Operating an efficient and equitable land administration system under this framework has been difficult and has resulted in long delays in adjudication and registration of land rights, and in considerable jurisdictional overlap and duplication of functions. There has been a much greater emphasis on the use of the overloaded Court system for land registration matters than in many other countries. There is an urgent need to simplify the laws and processes, not only to facilitate the issue of titles to land and subsequent transactions with land, but also to reduce the opportunities for “informal fees” currently associated with such processes. Experience has shown that the development of a simple and transparent system has this effect. This study has resulted in a wide ranging series of recommendations for improvement. The key findings are that: (a) the system should be greatly improved by the abolition of the judicial processes associated with the issue and registration of title to land in favour of simple administrative processes; (b) the rights of persons in occupation of land to obtain a registered land title should be clarified, particularly as to the period of possession required; (c) the process of issue of titles to land should be simplified; (d) these changes should be complemented by changes in the institutional structure to reduce the number of agencies involved; and (e) the laws on public land disposition and land registration should be rationalized, updated and placed in modern codes. Whilst strongly recommending changes in the legal infrastructure to support a system which is simpler, cheaper and more certain, at this stage of the study the recommendations are confined to the higher level principles to be incorporated in the legislative changes, without the supporting detail. This has been done in the expectation that approval to the basic principles should be gained in the first instance. It should also be emphasized that not all problems lie with the law itself. One of the problem areas in relation to providing landholders with secure titles lies with land classification. In this regard a greater effort needs to be made classify as alienable and disposable those lands which are capable of classification within the existing law.

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1 1.1

PROPOSALS

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 Courts should 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 quite simple and straightforward matters which, in other jurisdictions, would be handled more quickly and at less cost to all concerned through administrative processes. Not only would the delays in the Court process be avoided, but also the delays involved in the checking of the Court process by LRA. Most importantly, this proposal would enable the acceleration of the issue of titles for unregistered land as proposed under the LAM Program. However it would also simplify other land registration processes. The proposal would cover: Confirmation of incomplete or imperfect title Reconstitution of lost or destroyed certificates of title Removal of reservations on reconstituted titles Replacement of lost or destroyed duplicate certificates of title Amendment and alteration of certificates of title In so far as confirmation of incomplete or imperfect title is concerned, there is already provision for administrative adjudication through the free patent process. This current proposal would replace the present badly coordinated dual system with a single simple, quick and low cost system. This proposal would not altogether remove the Courts from the registration processes as they would still hear any appeals resulting from administrative actions. There would, of course, need to be transitional provisions to cover situations such as matters currently before the Courts. 1.1.2

The current free patent process for confirmation of incomplete or imperfect title should be replaced with a simple process based on the issue of a certificate of title to landholders who can establish possession and occupation for a fixed period.

The current free patent mechanism for administrative confirmation of title based on long term possession is not appropriate. A patent, being a grant by the State, relies on the presumption that the land the subject of the grant is public domain. There is ample case law to suggest that the lands are already in the nature of private lands by virtue of the rights acquired by possession. In addition, there are various conditions attaching to patents, such as a prohibition against sale or mortgage for 5 years after the date of issuance of the patent and a right of repurchase for a period of 5 years after the land is sold. Neither of these conditions is appropriate to a situation where the landholders and their predecessors have been in possession of the land for many years, and both conditions operate against a free land market. Replacing the free patent with the direct issue of a certificate would simplify and speed up the process and reduce the cost. There would, of course, still be provision for notice and a period for objection to the proposed title issue.

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1.1.3

The confirmation of incomplete or imperfect title should be based on possession 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 continually changing, but overall are becoming longer and more difficult to prove. From initial requirements at the turn of the last century of around 10 years possession, the period required has progressively increased to the point where currently possession since June 12, 1945 is required for judicial confirmation, and possession for 30 years prior to March 28, 1990 for free patents. These periods are therefore 57 years and 42 years respectively and 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 better reflect 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 the public domain are to be classified into agricultural, forest or timber, mineral lands, and national 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 to the uses to which they may be devoted There has been a tendency to presume that unclassified lands are forest lands. In turn, forest lands are classified primarily according to the 18% slope rule. This has had the effect of failing to recognize the reality that there are established agricultural and urban settlements that have existed for some time. Examples would be the IP rice-terrace lands that have existed for centuries and the situations in Cebu and Benguet that necessitated Presidential Decree No 1998 of 1985 because there were established agricultural and town settlements above the 18% slope. There is also the matter 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 beyond the necessity for classification. 1.1.5

In assessing the period of possession of land for the purpose of confirmation of title, possession and occupation prior to classification of the land as A & D should be taken into account.

The date of release of the land from the forest zone is very material in titling of lands by free patent under Chapter VII or by judicial confirmation of imperfect or incomplete title to public agricultural land under Chapter VIII of the Public Land Act, because the law requires prior possession and occupation of the land since March 28, 1960, and June 12, 1945, respectively. In Vallarta vs. IAC, 151 SCRA 679, a case for judicial confirmation of imperfect or incompetent title to public agricultural land, the Supreme Court held that: “If the land was formerly within the forest zone, it is only from the date it was released as agricultural land for disposition under the Public Land Act that the period of occupancy for purposes of confirmation of imperfect or incomplete title may be counted. The possession of the land by the applicant prior to such release or reclassification can not be credited as part of the requisite period, and could not ripen into private ownership, however long it was.” For practical considerations, applicants for free patent and for judicial confirmation of imperfect title should be credited for their possession prior to the release, upon a proper showing that the land is truly agricultural by reason of its slope and actual use especially where the release or classification of the land as alienable and disposable was delayed because of lack of funds or because the land does not occupy high priority in the government’s program of land classification.

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1.1.6

Rights over titled land based on prescription should be recognised.

Many of the original Torrens Title statutes prohibited the acquisition of title to Torrens Title land by adverse possession or prescription. However, many overseas jurisdictions have 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 of Torrens Title land have fallen into the ownership of persons who acquired the land, either by taking possession of abandoned land or by informal transfer. In either case the ownership could not be recorded in the Registry records and the land would remain outside the official system unless a change was made in the law. Given the public benefit in 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 actual landholdings on the ground, such a change will be necessary. Such a change would be based on the prescriptive provisions of the Civil Code, which allows for a prescriptive period of 10 years if possession was in good faith or 30 years if possession was in bad faith. It is recognised that while many countries allow prescription over land as a means of stabilising property rights and quieting titles and there is a need in the Philippines to bring the Register into line with reality, there is also a need to avoid the encouragement of squatting. Accordingly it is suggested that prescription should only apply in cases where possession has already commenced and that there should be a period of grace before the law takes effect in order to enable registered owners of land under adverse possession to recover the land if they so wish. 1.1.7

All registered rights of ownership should be evidenced by the one document to 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 example a Patent is widely regarded as a lesser title than a Certificate of Title issued on a judicial decree. Courts have not respected the indefeasibility of registered Patents to the same degree as other titles, while some Banks will not lend as much money on them. The problem is not so much in the law itself but in people’s minds and this has been brought about by the different names given to the holdings and the different processes under which the title is created. The elimination of the Free Patent as recommended in Rec.2 above will overcome some of the problem. However, the opportunity should be taken to ensure that the original registration of all rights is done by way of the issue of a simple Certificate of Title. On adoption of this principle, rights created under CARP, for example, would be registered by an instruction from DAR to the ROD to issue a Certificate of Title. The conditions attaching to this form of title would be recorded on the Certificate of Title. 1.1.8

There should be a single agency to undertake all initial titling (except under IPRA), subsequent registration of land transactions, the approval and recording of plans of survey and the maintenance of cadastral records.

There is currently a duplication of activities carried out by DENR and LRA. This is clearly apparent in the case of titling of land where administrative confirmation of title is carried out by DENR, while judicial confirmation of title is carried out by the Courts with the involvement of LRA. In this situation it has even been the case that these parallel activities have been carried out in respect of the same parcel of land. In the case of approval of surveys, both DENR and LRA have authority to approve plans of subdivision and both agencies keep cadastral maps, although neither agency has a complete set of maps. If the recommendation for a single administrative process for confirmation of imperfect or incomplete title by the issue of a certificate of title is adopted it follows that there should only be a single agency to carry out this process, which includes elements of activities presently carried out by both DENR and LRA. In carrying out its title registration functions this agency should be vested with quasi-judicial powers, rather than mere Ministerial powers.

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1.1.9

The Assurance Fund established under the Property Registration Decree should 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, there is a lack of confidence in the title registration system in the Philippines based on perceived lack of security. This is due, in part, to the fact that the Assurance Fund is not working as it was originally intended. The fact that no person can recall the last time a claim was made against the Fund is an indication not of a perfect system, but of an ineffective Fund. The Fund should be made more effective by: • • • •

removing the current P500,000 limit on the amount of money that may be retained in the Fund; increasing the contributions to the Fund and extending the responsibility for contributions to all transactions with land lodged for registration; extending the liability of the Fund to cover loss caused by the subsequent registration 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 in the Philippines in which all rights relating to the land are recorded. A comprehensive record of all land parcels, together with the interests attaching to those parcels is a powerful record for the Government, the private sector and the community generally, particularly when it is linked to the cadastral maps for the land parcels, and most developed countries are moving towards this objective. It should be recognised as an objective in the Philippines and the system progressively developed to meet that objective. The concept would mean that lands of the public domain be included in the record provided that there are plans of survey to define the land parcels and that any tenure relating to such lands, such as forestry or fisheries leases be recorded. The concept does not diminish the right of the individual agencies to mange the land and create the rights but simply ensures that there is a central easily accessible record of such rights. 1.1.11 In order to expedite the conversion of all land to the Torrens registration system, the concept of qualified or provisional titles should be introduced. This concept has been used in many countries in the region (Malaysia, Singapore, Laos, Australia) as a means of quickly bringing 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 be dealt with and be the subject of transactions that can be recorded in the register. It simply does not carry with it the same degree of indefeasibility as a normal registered title, a fact which is made clear on the title. However, such a title can be capable of maturing into an ordinary registered title. If the qualifications relate to title, such as incomplete or unclear title, the title can become clear through lapse of time and the application of the laws on possession and prescription under the Civil Code. If the qualification relates to imprecise definition of boundaries, the title can be cleared by the lodgment of a plan of survey defining the boundaries. There are a number of possible situations in which the concept could be used in the Philippines to bring land into the registration system. One example would be where transactions with unregistered land are lodged for registration. The opportunity could be taken at that time to create a qualified title for that land under what would be a virtual

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compulsory registration process. Thus unregistered parcels would progressively be brought within the registration system. The advantage of the system is that the Government register can more quickly and at minimum cost become a reflection of the situation on the ground. It also provides the Government with better land ownership information for revenue purposes. 1.1.12 In carrying out the amendments to the law to give effect to the above recommendations, the opportunity should be taken to rationalise and codify the 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 laws affecting the individual sectors of land administration and there has been a failure to effectively 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 the Public Lands Act is now inconsistent with the Constitution 1987 and must be read in conjunction with that legislation. Modern codes covering the areas of public land disposition and land registration are needed and should be developed.

1.2 1.2.1

Supporting Recommendations The Constitution should recognise the acquisition of lands of the public domain by confirmation of incomplete or imperfect title based on continuous, exclusive possession and occupation of agricultural lands.

The Constitution currently stipulates that citizens may acquire alienable lands of the public domain by purchase, homestead or grant. It is recognised that the Constitution cannot be quickly amended. Nevertheless, for the sake of clarity and completeness, recognition should be given to the rights of citizens to obtain title by confirmation of imperfect title based on possession and occupation in any Constitutional review. 1.2.2

The time limit on applications for confirmation of incomplete or imperfect titles should be abolished.

In relation to applications for free patents and petitions for judicial confirmation, the first Public Land Act (Act 926 of 1903) did not prescribe a deadline for filing applications . The second Public Land Act (Act 2874 of 1919) prescribed a time limit up to December 31, 1938. The current Public Land Act (C.A. No. 141 of 1936) prescribed a period up to December 31, 1938. Under C.A. No. 292, the period was extended to December 31, 1941. Under R.A. No. 107, the period was extended up to December 31, 1957. Under R.A. No. 2061, the period was extended up to December 31, 1968. Congress failed to enact a law extending the period before its expiration, thus, there was hiatus for 3 years. In 1971, Congress enacted R.A. No. 6236 extending the period for another ten (10) years up to December 31, 1976. On January 5, 1977, P.D. 1073 extended the period to December 31, 1987. Congress failed to extend the period before expiry date. It was only in 1990 that Congress passed R.A. 6940 extending the period to December 31, 2000. Again, Congress failed to passed a law extending the period before its expiration, hence, we have Senate Bill No. 1695. The period to file free patent application under Chapter VII and judicial confirmation of imperfect or incomplete title to public land under Chapter VIII of the Public Land Act used to be co-terminus and this is so provided under C.A. 292, R.A. Nos. 107, 2061, 6236, P.D. 1073 and R.A. No. 6940. The fact that the period of availment has been repeatedly extended indicates recognition by Congress that much of the lands of the public domain have been occupied and cultivated for a long time and that there is need to give the occupants the opportunity to legalize their claims and secure titles to the lands under the Public Land Act, viz-a-viz, the Torrens System of land registration.

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The opportunity should now be taken to abolish the deadline altogether. It does not serve any 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 issue purposes, information available from the communities themselves should be considered when determining possession as well as boundary definition.

A brief study has been made to determine whether there are sources of data about occupation (apart from traditional sources such as tax declarations) that are available 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 view to supporting the formalisation and titling of their rights. Preliminary assessments indicate that there are alternative sources of information from within and outside the community about possession, boundaries and ownership that could be 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 names and sketch map of members locations; utilities records; Deed of Sale; Affidavit of Quick Claim; Community Mortgage Program. • In rural areas: Barangay census; Barangay leaders/elders; Deed of Sale; identification by other members of community. 1.2.4

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

The Guidelines on Surveys do not provide for alternative, quicker and lower cost methods of demarcating boundaries of rural and IP lands. In the case of rural lands the guidelines should provide for some of the methods used in mass titling projects in other countries in the region, such as the use of photomaps, GPS or survey taping. In the case of IP lands, where much land has already been surveyed by GPS to mapping standards, those methods should be given recognition. 1.2.5

The provisions for administrative confirmation of incomplete or imperfect title should be extended to apply to residential lands.

In 1982 Batas Pambansa Blg. 223 introduced provisions extending Free Patents to residential lands of the public domain, although it was expressly provided that the provisions did not apply to residential lands located in cities, in capitals of provinces, in first class, second class, third class and fourth class municipalities, and in townsite reservations. It was also provided that all applications for free patent should be filed on or before December 31, 1987. This deadline has never been extended. There is a need to extend these provisions to apply to all residential land. 1.2.6

Permanent long term settlers on unclassified (forest) lands that have been used for settled agricultural and residential purposes should be given recognition of tenure in the form of a Certificate of Land Use Rights that formalizes their right to use the land but does not convey ownership of the fee simple in the land.

In light of the issues with land classification that are yet to be resolved, there is a need for an instrument that will give settlers on unclassified (forest) lands security of tenure and a registrable, tradable right that is less than full ownership but greater than a standard lease. There should be a simple administrative process to determine beneficiaries and the boundaries of the parcel. The land use right would then be registered and the Certificate of Land Use Right would issue to the holder of that right.

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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. The leases would be registered with the land registration agency and the right would be transferable within the period of the lease. A formal lease would also 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 their titles and their full ownership. This is the issue at the heart of landowners’ concerns about prescription. Since it is also understood that what urban squatters desire most is security of tenure in whatever form, then a suggested “win-win” situation would be for landowners to 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. A leasehold agreement would have the added advantage for the landowner of holding any period of prescription in abatement. The informal settlers would have the advantage of becoming 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 with each new tenant and thus the lease for an entire area would be due for renewal at the same time. 1.2.8

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

Certificates of title are required to contain a technical description of the land in the title that is complicated, tedious and costly to produce, prone to error and not readily understood by the public. The practice is more in keeping with an outdated deeds registration system than a modern title registration, where the emphasis should be on simplicity and efficiency. 1.2.9

The practice of issuing a new transfer certificate of title on registration of every transfer of the land should be dispensed with in favour of entry of a memorial of transfer on the existing certificate of title.

PD 1529 currently requires a transfer certificate of title to be issued whenever a transfer of the land is registered. This is a departure from the original Torrens Title practice of registering a transfer by recording a memorial on the existing certificate of title. The practice of issuing a transfer certificate of title requires much greater time and effort, is more expensive and is more prone to error in carrying information forward on to a new certificate of title. It also increases the volume of records necessary to be maintained. In a manual paper based titles system it is more expedient to endorse memorials of transfer on the existing certificate rather than issue a new certificate. However, it is acknowledged that the system is being redeveloped to computerise the records. In this situation it may be necessary or preferable to issue a new certificate of title each time a transaction takes place with the land. 1.2.10 The identification number allocated to a certificate of title on original registration should be a permanent certificate of title number for that parcel of land. Currently, every time a new certificate of title issues for a given parcel of land the subject of an existing certificate of title it is allocated a new certificate of title number. This practice makes records management, indexing and searching of records more difficult. A stable, unchanging title reference number is a better approach. If a new certificate of title has to issue for a parcel of land the subject of an existing certificate of title, it should be identified as a subsequent edition of the existing title number. In some jurisdictions the system is simplified even further by using the parcel number as the identifying number for the certificate of title.

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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 highly centralised 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 alternative approach would be for the delegation of authority for the ROD to enter a facsimile of the Administrator’s signature on the title. The Administrator, as chief executive officer of the agency, should not be wasting his valuable time with mundane tasks like personally signing titles and plans. 1.2.12 The provisions of Sec.70 of PD 1529 relating to adverse claims should be strengthened 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 difficult for the registered owner to have the claim removed. Because of this the claims are often frivolous and vexatious and used as a form of harassment. A greater onus should be placed on the claimant to support the claim by: a) requiring the claim to be supported by an affidavit stating that the claimant has a proprietary 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 the ROD on application of the registered owner, unless the claimant has obtained a Court order sustaining the claim. 1.2.13 There should be a single agency responsible for the preparation and maintenance of cadastral index maps and that agency should have specific statutory responsibility for the maintenance of such maps. Currently both LRA and DENR keep cadastral index maps although neither agency has a complete and up to date record. The recommendation in 1.1.7 that there be a single agency with responsibility for cadastral functions should be supported by a statutory responsibility for the keeping and maintaining of up to date cadastral maps by that agency.

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2 2.1

INTRODUCTION

Background

The LAM Program is a long term commitment by the government of the Philippines. The overall goal of the program is to alleviate poverty and enhance economic growth by improving the security of land tenure and fostering efficient land markets in rural and urban areas, 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 is supported 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 eligible landholders and facilitate the recording of these rights in a strengthened land administration system;

•

An efficient land administration system operating throughout the Philippines in accordance with Government policy, and responsive to the needs of the people, supported by a sustainable financing mechanism;

•

An effective and transparent land valuation system, in line with internationally accepted standards, that serves the needs of all levels of Government and the private sector; and

•

A well functioning land market operating in both urban and rural areas.

The LAMP is the first step towards the implementation of the long term land administration and management program. The development objectives of the project are to assess the viability of the program through the testing of two prototypes and to formalize the legal and institutional arrangements needed to support the further development of the program. In particular, the Land Laws and Regulations Study is intended to review the legal framework for land administration and develop proposals for changes in the law in preparation for the next phase of the program. 2.2

Terms of Reference

The full terms of reference for the study are set out in Annexure 1. The following is a summary of the task for this phase of the study. 1. The overall task is to work with the main implementing agencies and stakeholders to analyse the land laws situation in the land administration sector to propose changes to the basic tenets of the laws that will realize the government’s goal of an efficient and effective land market that will provide improved services to business and the community as well as government, and raise the confidence in the land administration system and its records, and provide a sound foundation for the design and possible implementation of an accelerated program of issuance of registered land titles and streamlined land registration system.

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2. In this first period new laws or regulations are not to be prepared as the recommendations 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 interest groups.

•

Use workshops to engage a core group of interested parties.

•

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

•

Propose changes and obtain ideas and opinions from many sources.

•

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

4. The main output in this assignment is to prepare a preliminary report containing recommendations for improvement in the legal framework as a basis for a future system of land administration that is more efficient and delivers services to government, business and 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 into the legal framework community-acknowledged processes for recognizing possession in support 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 objectives of the Project. In this regard, the stated purpose of PA LAMP is to assist the GOP to establish structures and operating procedures which will improve the effectiveness, transparency and efficiency of land administration, while the overall objective of the LAM Program is the development of an efficient system of land titling and administration which is based on clear, coherent and consistent policies and laws. Consequently, the ambit of the laws and regulations study was regarded as relating to a study of those laws and regulations which directly relate to land titling and land administration and those laws and regulations which indirectly impact on land titling and land administration. The laws which directly relate to land titling and administration are those governing public land disposition, principally the Public Land Act and related Acts, those governing title registration, principally the Title Registration Act, Property Registration Decree and related Acts and those relating to agrarian reform, principally the Agricultural Land Reform Code and the Comprehensive Agrarian Reform Law. Laws which indirectly impact on land titling and administration would include laws such as the Constitution, Civil Code, Fisheries Code, the Forestry Reform Code and the Water Code. However, the study would not encompass the broader issues relating to land management. In addition, the study was not be confined to overcoming the recognised problems of fragmentation, overlaps and inconsistencies but, in accordance with Project objectives, sought to identify other areas where changes in the substance of the laws could be made to improve effectiveness, transparency and efficiency. The review of the law was basically focussed on the broader principles, rather than minor detail which could be picked up during the course of the Project. However, where secondary matters came to attention they were noted along with recommendations for improvement.

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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 subsequently widened to include a study of the “informal laws” whereby communities recognize rights in land. Each of the PA LAMP policy studies was due for completion by 30 June 2002. In the following six weeks their individual findings and recommendations are to be integrated in order to produce a coordinated and consolidated set of recommendations to the Government by mid-August. Some of these studies (and two related studies to be funded by the World Bank) have implications for future legal infrastructure. While every effort was made to liaise closely with counterpart advisers during the conduct of the studies, the initial Laws and Regulations policy study could not realistically be expected to fully anticipate, analyse and incorporate in its own recommendations the final findings and recommendations of the other 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 their effectiveness based on: Position papers on key aspects prepared by local legal experts. Discussions with individual public sector agencies, private sector stakeholders and community groups. Workshops held with the public sector agencies, private sector stakeholders, community groups and experts in the field of land administration. Workshops and discussions with the prototype implementation teams. 4. Identification of the issues and preparation of a record of deficiencies in the existing legal infrastructure. 5. Review of international models and establishment of criteria for an ideal model for the Philippines. 6. Preparation of a discussion paper containing options for improvement. 7. A broad cross-sectoral workshop to consider the discussion paper. 8. Preparation of key principles for incorporation in the future legal infrastructure.

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3 3.1

CURRENT LEGAL INFRASTRUCTURE

Legal Infrastructure

3.1.1

Generally

An inventory of the laws relevant to public land disposition and land registration has been undertaken and is contained in Volume 2 of this report, with a summary of the inventory attached as Annexure 4 in Volume 1. This inventory identifies more than 60 laws and regulations 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 without specifically repealing previous laws. Instead, a general statement has been included in the new law that “ all laws, decrees, orders, rules and regulations, or parts thereof, in conflict or inconsistent with any of the provisions of this Act are hereby repealed or modified accordingly”. Thus it becomes a matter of interpretation as to whether a provision in an earlier law has been repealed or modified. In addition, to the extent that the provisions of an 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 of which was to codify the laws relating to land registration, did not repeal or replace many of the provisions of Act 496, Act 2259 or RA 26 even though it dealt with the same subject matter. Similarly in relation to CARP, the latest law RA 6657 did not replace previous laws such as RA 3844, PD 27 and PD 2766 and these laws continue to exist and have “suppletory effect”. In so far as the CA 141 the Public Lands Act is concerned, there are subsequent acts dealing with the same subject matter e.g. RA 730, which did not amend the provisions of CA 141 but nevertheless established exceptions to these provisions. Not only has this aspect of the legal infrastructure been the subject of comment by the judiciary1but, in discussions with staff of the Senate Committee on Natural Resources responsible for scrutinizing new land legislation, it was disclosed that the Committee has difficulty in determining the current laws under consideration. Given the difficulties faced by persons trained in understanding the law it is understandable that there is confusion and lack of understanding on the part of the general public. One further aspect of the laws which not only affects their clarity but inhibits their implementation is the fact that the laws are very detailed and prescriptive. The laws are very specific, very inflexible and so limit operations and the adoption of new and more efficient procedures. They also include subsidiary matters such as scales of fees and the design and content of forms, which means that these matters cannot be readily changed. In this regard the Philippines suffers by comparison with many other countries which embody the major land-related laws in a single code, generally confined to basic principles, with the subsidiary laws contained in more easily amended regulations. A comparison of the legal infrastructure of countries in the region is as follows: COUNTRY Thailand Malaysia Indonesia Cambodia Laos Philippines 1

LEGAL FRAMEWORK Land Code Land Code Land Code Land Code Land Code Numerous overlapping and inconsistent Acts and Decrees

Judge Edilberto Noblejas, Problems in Land Registration, JUDGE’S JOURNAL (Vol. 4&5 1989-1990)

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3.1.2 Public Land Classification Various laws govern public land classification and disposition in the Philippines. Foremost of these is the Constitution of 1987, which enunciates the principles, policies and tenets of these functions. Article XII, Section 3 of the 1987 Constitution of the Philippines provides that lands of the public domain are to be classified into agricultural, forest or timber, mineral lands, and national 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 the uses which they may be devoted. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor. Public land classification is relevant to the land administration system because section 8 of CA 141 (the Public Lands Bill) provides that land is alienable and disposable from the public realm for acquisition by private hands provided it is classified as such and provided it 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 or concession, but only those lands shall be declared open to disposition or concession which (Section 8, C.A. No. 141): • Have been officially delimited and classified • Have been surveyed • Have not been reserved for public or quasi-public uses • Have not been appropriated by the government • Have not in any manner become private property • Have not been the subject of a private right authorized and recognized by this Act or any other valid law Sec 8 of CA 141 also states that the President may, for reasons of public interest, declare lands of the public domain open to disposition before the same have had their boundaries established or been surveyed, or may, for the same reason, suspend their concession or disposition until they are again declared open to concession or disposition by proclamation duly published or by Act of the National Assembly. Alienable and disposable public lands shall be further classified according to the use or purposes to which they are destined as follows (Section 9, CA No. 141): • Agricultural • Residential, commercial, industrial or for similar productive purposes, and • Educational, charitable or other similar purposes; and • Reservations for townsite and for public or quasi-public purposes. The President, upon recommendation by the Secretary of DENR, shall from time to time make the classifications provided in this section (Sec. 9) and may act at anytime and in a similar manner, transfer lands from one class to another. Thought should given to the definition of forest lands. Forest lands are defined primarily by the 18% slope rule. Presidential Decree No. 705, as amended, prohibits the classification of lands of the public domain eighteen percent (18%) in slope or over as alienable and disposable. Yet there have already been instances when there have been exceptions declared and it is likely that there are more such areas. For example, Presidential Decree

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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 of the following criteria: • developed area planted to agricultural crops using effective erosion control practices or measures like terracing; and/or • established and developed townsite within barangays or communities where basic structures, e.g., roads, schools, church are already existing. Also Presidential Letter of Instruction of 1982 No. 1262 provided that there should be a Sub-Classification of Forest Land Committee tasked to establish a set of criteria for the selection 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 the Public Land Act, to clarify the instances when land has clearly become private land and is therefore beyond the necessity for classification. The need to review the method of classification of forest lands is a serious issue as a large number of people are living within what is regarded as forest in areas which have for many years been established agricultural and residential areas. These people cannot currently obtain a secure title. The issue will be further considered in the forthcoming study on forest boundaries. 3.1.3

Public Land Disposition

There are a number of ways by which public land may be converted to privately owned land. A graphical illustration of the various processes is shown in Figure 1. The principal methods are those provided by CA 141, the Public Lands Act, but another means is provided in the CARP law, RA 6657 where, in addition to private lands, certain public land may be transferred to farmer beneficiaries. Other laws related to land disposition are Act 496, the Land Registration Act, Act 2259, the Cadastral Act and PD1529, the Property Registration Decree which provide for the registration of lands claimed as private property and which are dealt with under the heading “Confirmation of Imperfect Title”. CA 141 C.A. No. 141, as amended, was enacted by Congress in 1936, on the basis of the 1935 Constitution. Its provisions are basically the same as the first Public Land Act of 1903 (Act 926) and the second Public Land Act of 1919 (Act No. 2874). It could be said that the provisions of C.A. No. 141 are almost a century old. Two constitutions have already been promulgated since 1935, but Congress has yet to pass a Public Land Act based on the 1987 Constitution. There have been various attempts to introduce a new Act but all have failed to achieve the passage through Congress. There is currently a Bill before Congress but this Bill does not introduce any major changes and only contains incremental amendments. By virtue of s.11 of CA 141 public lands can be disposed of only as follows: • For homestead settlement; • By sale; • By lease; and • By confirmation of imperfect or incomplete titles: (a) By judicial legalisation (b) By administrative legalisation (free patent).

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Figure 1

ORIGINAL LAND TITLING SYSTEM

Applications for grant for land settlement

Alienation of Lands of Public Domain to Private Ownership (Administrative) DENR CA 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) DAR RA6657

Certification of Indigenous People’s Rights (Administrative) NCIP RA8371

Processed through DENR

Processed thru SC & LRA

Processed through DAR

Processed through NCIP

Disposition of A&D lands of the Public Domain

Rights to those who claim to have established ownership of land

Distribution of Ownership to landless farmers and Settlement

Rights to Indigenous Communities/People who claim to have established ownership of land

Applications for purchase

Applications for title by possession in composition with the State

Voluntary

Compulsory

Application to SC by claimant

Application to SC by DENR

Applications to DENR by landless farmers

Survey by private practice

Survey by DENR (private practice)

Survey by DAR (private practice)

Survey verification and records by LRA/DENR

Survey verification and records by DENR

Survey verification and records by DENR

Survey by DENR (private practice)

Petition by ICC/IP to NCIP for Delineation of Ancestral Domain or Delineation by NCIP with consent of ICC/IP

Application for Identification and Delineation of Ancestral Land

Survey by NCIP (DENR)

Survey by NCIP (DENR)

Survey verification and records by DENR

Administrative adjudication. Grant to applicant subject to conditions

Administrative adjudication following auction. Subject to conditions

Administrative adjudication to ownership claimants by possession

Judicial adjudication by RTC/MTC

Judicial adjudication by RTC/MTC

Administrative adjudicationDAR

Administrative adjudication - NCIP

Administrative adjudication - NCIP

Homestead Patent

Sales Patent

Free Patent

Decree

Decree

Certificate of Land Ownership Award

Certificate of Ancestral Domain Title

Certificate of Ancestral Land Title

Records kept by LRA and ROD

CT prepared by ROD

Land is private land within the Title Registration System

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The Homestead Patent is a form of holding that was introduced in the first Public Lands Act and has now become largely obsolete and inappropriate. The process for disposition is tedious and the conditions attaching to the holding are overly restrictive2. 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; and c) 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 CA 141 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 partake of the nature of statutory grant of public lands. This form of acquisition of title grant is not found 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 with under the following heading “Confirmation of Imperfect Title”. RA 6657 Subject to certain exemptions, the Comprehensive Agrarian Reform Law covers in its operation all lands suitable for agriculture, both private and public. Suitable lands of the public domain may be acquired and distributed under the program. A more detailed review of the CARP program is contained under the heading “Other Tenures”. 3.1.4

Confirmation of Incomplete or Imperfect Title

Most of the existing and potential A&D land is already occupied on the basis of long uncontested possession. For many of these occupiers their rights are not recognized by formal registration of title. In Leyte, for example, it has been observed that 80% of taxpaying landholders are not recorded in the title registration system. Despite the fact that these people have been paying taxes based on their landholding, the official attitude of the DENR and the Solicitor General is that the land is still public land. This attitude is held despite both jurisprudence and statute law to the contrary and the stark reality of the situation on the ground. Section 8 of the Public Lands Act CA141 recognises that land which has not been classified A&D may be the subject of private rights, while section 48 recognises that persons in long term possession of agricultural land of the public domain “ shall be conclusively presumed to have performed all the conditions essential to a government grant and shall be entitled to a certificate of title”. In terms of jurisprudence, there are a number of cases establishing the principle that the occupants have acquired real rights, though imperfect, to their lands. In several celebrated cases the Supreme Court has ruled that, after open, continuous, exclusive and notorious possession under a bona fide claim of acquisition of ownership for the period specified in the Public Lands Act, the land, ipso jure, ceases to be part of the public domain and thus becomes private land. The Courts have further held that the application for confirmation is a mere formality, the lack of which does not affect the legal sufficiency of title3. Given these rulings it would have been expected that confirmation of title would have been a simple process and most landholders would have obtained a certificate of title, but this is not the case. 2

See papers, A Revisitation of the Public Land Disposition in the Philippines, Hector Fabros and The Public Land Laws of the Philippines, Ramon N. Casanova, Vol. 2 of this Report. See e.g. Herico v. Dar, G.R. No. L-23265, 28 January 1980, 95 SCRA 437, at 443-4.

3

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One of the major reasons that there has not been a completion of the formalization of title to many of these landholdings is the problems involved in formalization processes. There are three processes by which a formal title may be obtained – voluntary judicial proceedings, 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 have been in open, continuous, exclusive and notorious possession and occupation of agricultural land of the public domain under a bona fide claim of acquisition of ownership since June 12, 1945. The process involves obtaining a decree from the Court for confirmation of the claim to title and issuance of a certificate of title. However, the time and cost of this process is a deterrent to many claims. A claimant must engage an attorney to represent him in the Court proceedings which are extremely time-consuming, not only because of the number of steps involved but also because of the delays due to an overloaded Court system and the inability of the Courts to allocate sufficient time to land titling matters. There are also further delays and duplication of activities involved in the investigation carried out by LRA into the matter before issue of the decree. THE JUDICIAL TITLING PROCESS CA 141, Act 496, PD 1529 Fig. 2

The cost stated in the above example is very conservative. Discussions with attorneys have revealed the following as typical charges:

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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 if commercial or industrial land or high-value agricultural) Retainer fee includes filing of the application (P10,000); completion of presentation of evidence (P10,000-20,000); appearance for every trial or conference attended the 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 the newspaper 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 be proved. The original provisions on judicial confirmation required possession for a period of 10 years. This was later extended to a period of 30 years and finally to a period commencing June 12, 1945. Thus with every passing year it becomes more difficult for an applicant 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 Solicitor General, regularly opposes the granting of the decrees by the Court. One attorney with whom this issue was discussed had also experienced the frustration of getting to the completion of Court proceedings only to find that the applicants, despite having occupied the land for the statutory period, could not count all that period as some of it was prior to the land being classified. Voluntary Administrative Proceedings (ss. 44-46 CA 141, BP 223) In addition to the provisions enabling judicial confirmation of title based on possession, the successive Public Land Acts have provided for the issue of a patent, known as a Free Patent, to persons who have continuously occupied and cultivated agricultural public lands subject to disposition, who shall have paid the real estate tax thereon, while the same has not been occupied by any other person. In this case also, the required period of possession has gradually increased to the current point where possession commencing 30 years prior to 28 March, 1990 must be established. What particularly distinguishes a Free Patent from a title obtained through judicial confirmation is the conditions attaching to a Free Patent. There is a limitation on the area that can be obtained. The Public Lands Act specifies 12 ha., but in practice, having regard to CARP provisions, a maximum of 5 ha. is allowed. Moreover, a Free Patent cannot be sold or mortgaged for a period of 5 years after issue and a right of repurchase within 5 years of a sale applies, inappropriate conditions given the period of time that the landholder has already possessed the land and not conducive to a freely operating land market. In 1982 Batas Pambansa Blg. 223 introduced provisions extending Free Patents to residential lands of the public domain, although it was expressly provided that the provisions did not apply to residential lands located in cities, in capitals of provinces, in first class, second class, third class and fourth class municipalities, and in townsite reservations. It was also provided that all applications for free patent should be filed on or before December 31, 1987. This deadline has never been extended. As can be seen, the voluntary judicial proceedings and the voluntary administrative proceedings can operate in parallel. A claimant may, in some circumstances have the choice of which form of process to proceed by. The problem arising from this that each process involves different agencies and the coordination between the agencies in relation

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to these matters has been found to be lacking so that two competing claims can be running 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 has its 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 went to the then District Land Office and submitted an application along with her tax declarations. When she submitted her application she received a list of requirements 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 CENRO to the PIO1-LAMP team, she was not listed. 5. Emerenciana is now part of the PIO1-Lamp judicial titling pilot at Dagami. Compulsory Judicial Proceedings (Act 2259, ss. 35-38 PD 1529) For lack of initiative and enthusiasm on the part of landowners, registration of land titles under Act No. 496 has moved at a very slow pace. For this reason an innovation was conceived to hasten and accelerate registration of lands. Thus, Act No. 2259, otherwise known as the Cadastral Act, was enacted on February 11, 1913 for the purpose of expediting the settlement and adjudication of titles to properties. Following the mandate in the Act that title to lands be settled and adjudicated, the then Director of Lands was required to conduct surveys of municipalities and cities identifying each lot or parcel therein and marking the boundaries thereof by monuments. When the lands have been surveyed and maps and plans prepared, a petition is filed in court against the claimants, praying that title to such lands be settled and adjudicated. The court sets the date of initial hearing of the petition and any person claiming interest in the land must file their answer within the time fixed in the notice. In the trial of the case, all conflicting interests must be adjudicated by the court and decrees awarded in favor of persons entitled to the lands. Such decrees are be the basis for original certificate of title which have the same effect as those issued under Act No. 496. The Land Registration Act (496) and the Cadastral Act (2259) both fall under the Torrens System of land registration, the latter law being merely an innovation designed to hasten the process of bringing lands within the System. While the proceedings in both Acts are judicial in character and the certificates of title issued thereunder are similarly indefeasible, yet there are points of differences between the two laws. Under Act No. 496 the survey of the land is conducted at the instance and expense of the landowner and confined to the area claimed by him, while under Act No. 2259 the survey is undertaken by the

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Government which advances the expenses and covers an entire municipality. Ordinary land registration proceedings under Act No. 496 are voluntary in nature as the filing of the application depends upon the initiative of the landowner, while cadastral proceedings are compulsory in the sense that the landowner is compelled to file his answer to the petition filed by the Government, otherwise he loses his rights over the land. In proceedings under Act No. 496, if the applicant’s evidence is not sufficient to prove ownership, the application is simply dismissed and the applicant may still have another chance to put up a successful claim. On the other hand, in cadastral proceedings if the claimant fails, the property is declared public land. PD 1529 now supersedes part of the Cadastral Act. While the concept of systematic adjudication of title was good its implementation has left something to be desired. The surveys have never been completed, some of them have been lost and much of the work of judicial inquiry and decree has not been carried out due to lack of funds. Although the cost to the landowner is less than with the voluntary judicial proceedings, the process still suffers from the delays and complications inherent in Court processes. As part of this study, a questionnaire was prepared (see Annexure 6) and submitted to the Supreme Court for circulation in mid-May 2002. It was agreed that the questionnaire would be completed within 3 weeks by the Supreme Court itself as well as the courts in Quezon City, 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 been returned. There was also a brief study by the UP Law Centre on the types of land registration cases decided by the Supreme Court for the period 2000-2002 (refer Volume 2). 3.1.5

Other Tenures

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

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Figure 2

22

Certificate of Land Ownership - Agrarian Reform (RA 6657) The position papers “Land Tenure Rights in the Philippines: Terrain and Trajectory”4 and “Land Use5” outline the history of agrarian reform laws in the Philippines. The latest agrarian reform law is the Comprehensive Agrarian Reform Law (CARL) of 1988 (RA 6657) that facilitated distribution of all agricultural lands regardless of tenure and crop and also included provision of support services for farmer-beneficiaries. The CARL goes further than PD27, which only covered rice and corn lands and resulted in the issuance of Emancipation Patents. Under the CARL, farmer-beneficiaries receive titles to the redistributed lands and these titles 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 except through hereditary succession, or to the government or to the LBP or other qualified beneficiaries (Section 27, CARL). The Department of Agrarian Reform is charged with implementation of the CARL and thus DAR 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 by Congress; • 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 agricultural products 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 of acquisition of private lands, the following procedures shall be followed: a) After having identified the land, the landowners and the beneficiaries, the DAR shall send its notice to acquire the land to the owners thereof, by personal delivery or registered mail, and post the same in a conspicuous place in the municipal building and barangay hall of the place where the property is located. Said notice shall contain the offer of the DAR to pay a corresponding value in accordance with the valuation set forth in Sections 17, 18, and other pertinent provisions hereof. b) Within thirty (30) days from the date of receipt of written notice by personal delivery or registered mail, the landowner, his administrator or representative shall inform the DAR of his acceptance or rejection of the offer. c) If the landowner accepts the offer of the DAR, the Land Bank of the Philippines (LBP) shall pay the landowner the purchase price of the land within thirty (30) days after he executes and delivers a deed of transfer in favor of the government and surrenders the Certificate of Title and other muniments of title. d) In case of rejection or failure to reply, the DAR shall conduct summary administrative proceedings to determine the compensation for the land requiring the landowner, the LBP and other interested parties to submit evidence as to the just compensation for the land, within fifteen (15) days from the receipt of the notice. After the expiration of the above period, the matter is deemed submitted for decision. The DAR shall decide the case within thirty (30) days after it is submitted for decision. e) Upon receipt by the landowner of the corresponding payment or, in case of rejection or no response from the landowner, upon the deposit with an accessible bank designated by the DAR of the compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take immediate possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. The DAR shall thereafter proceed with the redistribution of the land to the qualified beneficiaries. 4 5

Land Tenure Rights in the Philippines: Terrain and Trajectory, Dante Gatmaytan, Vol. 2 of this report. Land Use, Myrna Feliciano, Vol. 2 of this report.

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f)

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

PROCEDURE FOR ACQUISITION OF PRIVATE LANDS BY DAR Section 16, RA 6657

VOLUNTARY LAND TRANSFERS UNDER THE CARP Sections 20 & 21, RA 6657

Private land identified by DAR Private lands identified by DAR

DAR Notice of Offer to Owners Notice of Voluntary Transfer made by Owner to DAR within 1 year

Owner Rejects Offer

Owner Accepts Offer Direct negotiations between Owner and Beneficiaries

DAR Summary Administrative Proceedings to determine just compensation for land.

Deed of Transfer by Owner to DAR and surrender of Certificate of Title etc Agree on purchase price within 1 year of negotiations starting

DAR Decision within 30 days

Option to appeal to Court

Voluntary Agreement for Direct Transfer between Owner and Beneficiaries “shall not be less favorable to the transferee than those of the government's standing offer to purchase from the landowner and to resell to the beneficiaries”

Transfer of land from Owner to the RP

Payment to Owner by LBP

LBP pays Owner the purchase price for the land in cash or LBP Bonds.

DAR - immediate possession of land

No agreement on purchase price within 1 year of negotiations starting

Agreement checked by DAR within 30 days (deemed acceptable if no response)

Payment direct to Owner by Beneficiaries

DAR distributes to beneficiaries Payment to Owner by LBP

DAR Issues CLOA with CLOA number DAR Issues CLOA with CLOA number

Registration of CLOA at ROD ROD assigns TCT number

Registration of CLOA at ROD ROD assigns TCT number

Figure 4

Figure 5

Section 20, RA 6657: Voluntary Land Transfer. — Landowners of agricultural lands subject to acquisition under this Act may enter into a voluntary arrangement for direct transfer of their lands to qualified beneficiaries subject to the following guidelines: (a) All notices for voluntary land transfer must be submitted to the DAR within the first year of the implementation of the CARP. Negotiations between the landowners and qualified beneficiaries covering any voluntary land transfer which remain unresolved after one (1) year shall not be recognized and such land shall instead be acquired by the government and transferred pursuant to this Act. (b) The terms and conditions of such transfer shall not be less favorable to the transferee than those of the government's standing offer to purchase from the landowner and to resell to the beneficiaries, if such offers have been made and are fully known to both parties. (c) The voluntary agreement shall include sanctions for non-compliance by either party and shall be duly recorded and its implementation monitored by the DAR. Section 21, RA 6657: Payment of Compensation by Beneficiaries Under Voluntary Land Transfer. — Direct payments in cash or in kind may be by the farmer-beneficiary to the landowner under terms to be mutually agreed upon by both parties, which shall be binding upon them, upon registration with the approval by the DAR. Said approval shall be considered given, unless notice of disapproval is received by the farmer-beneficiary within thirty (30) days from the date of registration. In the event they cannot agree on the price of land, the procedure for compulsory acquisition as provided in Section 16 shall apply. The LBP shall extend financing to the beneficiaries for purposes of acquiring the land. Section 14, EO 229 of 1987: Collective or Individual Ownership. — For lands with multiple beneficiaries, ownership of whole parcels or estates may be transferred to the farmerbeneficiaries collective or individually, at the option of the beneficiaries, provided, that in collective ownership, each beneficiary shall have an undivided share of the land held in

24

common equivalent to not more than the applicable retention limit. The beneficiaries may collectively decide on the continued operation of the parcel/estate as a whole or to subdivide the same into individual lots and determine the manner in which such subdivision is to be implemented. Land awarded pursuant to the CARL are to be paid for by the beneficiaries to the LBP in thirty 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 judicial titles, patents and CLOAs are accorded differential treatment even when the prescribed periods for restrictions have run their course. The judicial titles are usually accorded the maximum 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 could recall there had not been a loan to a CLOA title holder even after the ten-year prescription period had passed. Refer reports in Volume 2 by Attorney Berlin Berba. Parliamentary bills in 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 a Certificate of Land Ownership Award (CLOA) granted under the Agrarian Reform Program and utilizing its use as collateral for purposes of securing agricultural loans and similar other financial, amending the pertinent provisions of Republic Act 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 Comprehensive Agrarian Reform Law, amending for the purpose Section 27 of Republic Act 6657 and for other purposes”; • House of Representatives Bill entitled “An Act providing measures to enhance the acceptability of agricultural lands as security for loans obtained from banks and other financial institutions thereby promoting access to rural credit and providing mechanisms therefore and for other purposes”. Joint Memorandum Circular No 14 of 1997 sought to clarify the jurisdiction of DAR and DENR in the disposition of untitled privately claimed agricultural lands. There is still an issue of interpretation of what is to be done in the event that land is subject to a Free Patent application or Judicial Confirmation of Title as well as DAR coverage. There are also jurisdictional issues as to which agency should carry out the surveys.6 For procedures on disposition of public lands for CARP, refer Diagram Figure 1 on “Original Titling”. Some of the issues in the Comprehensive Agrarian Reform program that are relevant to land administration are that: • Some landowners persist in filing cases for cancellation of their titles; • After farmer-beneficiaries have received their CLOA titles, some landowners employ extra-legal methods to block access to the land; • Some landowners seek to avoid program coverage by applying for conversion of their lands from agricultural uses. This matter of reclassification by local government units and conversion by some DAR officials is further discussed in the section on ‘Land Transactions’; • There have been accounts of Registries of Deed losing their copy of the landowner’s Certificate of Title and the landowners refusing to apply to the courts for reconstitution of title. The effect being that the program cannot proceed. • In spite of section 24 of the CARL stating that a CLOA is a title, the Supreme Court has not held CLOA titles in the same regard as other titles (refer position paper “Land and Tenure Rights in the Philippines: Terrain and Trajectory”). 6

“Breaking the Barriers: Distributing Untitled Privately-Claimed Agricultural Lands: A National Forum”, UNAC, AR-Now and SALIGAN, 28 June 2002, ISO Conference Room, Ateneo de Manila University, Loyola Heights, Quezon City. 25

• •

Valuations of land by the Land Bank of the Philippines have often been the subject of appeals to the courts by the landowners. CLOA holders have limited options to obtain credit. This is apparently related to the restriction on disposition as well as the various restrictions as set out in RA 3844 as amended by RA 6389, PD 27 as amended by EO 228 and 229 and as subsumed in RA 6657.

Indigenous People’s Tenures RA 8371 (IPRA) IPRA provides for the recognition of indigenous people’s rights through the issue of titles known as Certificates of Ancestral Domain Title (CADT) and Certificates of Ancestral Lands Title (CALT). The IP titles would provide priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains (Section 57 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 rights within their ancestral domains in accordance with customary laws. For the purpose of title issue IPRA requires the Ancestral Domains Office to undertake surveys to delineate the perimeters of ancestral domain lands and those parcels of ancestral lands which are not within ancestral domains. At this stage the only guidelines for 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 guidelines would make the time and cost of carrying out such surveys unrealistic. The main requirement should be that the plans of the land surveyed should be capable of being integrated into the national mapping system and copies of the plans should go to the agencies such as DENR and LRA. According to PAFID, which is a non-government organisation for indigenous peoples, they have surveyed about 1 million hectares of indigenous people’s (IP) lands in the last 8-9 years. They surveyed these for the purposes of the CALC’s and CADC’s and at the time it was sufficient to use GPS surveying methods. But now with the matter of issuing CADT’s and CALT’s, there is the problem that the Survey Manual and guidelines administered by the Land Management Bureau do not have the flexibility to accept these surveys that were done with mapping-grade GPS. The considerable cost of re-surveying these 1 million hectares (and other unsurveyed IP lands) by conventional surveying methods raises the issue of whether the Survey Manual and guidelines need to be reviewed to address the need to efficiently and effectively survey rural and IP lands that tend to be of lower value than urban centres. The Act also requires that the resulting CADT and CALT be registered with the Register of Deeds. This is a necessary and appropriate step for the purposes of creating a single record of all interests in land. However, it has been suggested that CADT and CALT should be recorded in a separate register from the normal Torrens Title register. This would be an unnecessary step and against the principle of having a single and comprehensive register. In addition to the CADT and CALT, RA 8371 gives to individual members of cultural communities the option of securing title to their ancestral lands under CA 141 or Act 496. For that purpose, the individually owned ancestral lands which are agricultural in character and actually used for agricultural, residential, pasture and tree farming purposes, including those with a slope of 18% or more, are classified as alienable and disposable agricultural lands. This is an extension of the rights previously granted under CA 141. Fisheries Tenures (PD 704) If the Secretary of DENR decides that certain land is not suitable for forestry or agriculture then it can be released for other uses such as fisheries. Land deemed suitable for fisheries

26

is placed in the jurisdiction of the Fisheries Bureau. If it originated from forest or public land then 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 for further 25 years. There were instances prior to 1972 when fisheries tenants could apply for a free patent. PD 43 and PD 704 prohibit disposition of public lands through sale of fish farms i.e. only leases. A representative of the Fisheries Bureau explained that some fisheries lessees have been able to obtain free patents by connivance at CENRO and PENRO levels. Pursuant to the Local Government Act, jurisdiction over shores and shorelines devolved away 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 for preservation of forests and lands up to 20m from the shore but some tenants only leave a 1m 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 in turn has to be approved by DENR. There is also a requirement for Environment Compliance Certificate from CENROs (these unofficially charge up to P20,000 or even P50,000). Now, instead of ECC an exemption may be issued if there is an existing fish farm 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 are owned by the State and the exploration, development, utilization, and processing thereof shall be under its full control and supervision. Section 4 also provides that the State shall recognize and protect the rights of the indigenous cultural communities to their ancestral lands as provided for by the Constitution. Section 5 of RA 7942 states that when the national interest so requires, such as when there is a need to preserve strategic raw materials for industries critical to national development, or certain minerals for scientific, cultural or ecological value, the President may establish mineral reservations upon the recommendation of the Director of the Mines and Geosciences Bureau through the Secretary of DENR. Mining operations in existing mineral reservations and such other reservations as may thereafter be established, shall be undertaken by the DENR or through a contractor. Section 26 of RA 7942 provides for various modes of mining agreement. A mineral agreement grants to the contractor the exclusive right to conduct mining operations and to extract all mineral resources found in the contract area. In addition, the contractor may be allowed to convert his agreement into any of the modes of mineral agreements or financial or technical assistance agreement covering the remaining period of the original agreement subject to the approval of the Secretary. Mining leases previously created under EO 279 may be converted into mining agreements. RA 7942 also provides for various forms of permit, which are of lesser duration. Forestry Tenures There are numerous tenures created under the Forestry Code and subsequent Administrative Orders. These are: a) Plantation Integrated Management Agreement – given to plantation owners for a small administrative cost. E.g. a lease for 25 years and extendable based on performance.

27

b) Timber Licence Agreement – natural forest, now in second cycle of cutting and some have plantations within the TLA parameters. Most of the TLA’s can apply for an IFMA subject to regulations, for 25 + 25 years. c) Forest Land Grazing Lease Agreements – for grazing. Also 25 + 25 years or sometimes less – d) Community Based Forest Management Agreement (CBFMA), which is “a production sharing agreement designed to ensure that participating communities enjoy the benefits of sustainable utilization, management and conservation of forestlands and natural resources therein; e) Certificate of Stewardship Contract (CSC), which are contracts awarded to individuals or 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 ancestral domains/land claims who wish to participate in the program. The history of the various social forestry programs is set out in the position paper “Land Tenure 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 the Urban Land Rules to convey public and private lands to the urban poor that are alternatives 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 and development unrestricted by individual property boundaries. b) Land Banking which refers to the acquisition of land in advance of actual need for the purpose of acquiring lands at existing use value and disposing them in a manner which would influence land price formation and promote planned development. The Ministry may acquire land through land purchase, land exchange or expropriation. c) Land Exchange which refers to the process of bartering land for another piece of land and/or shares of stock of equal value in government or quasi-government corporation. Upon initiative of either the private party or the Ministry, it may be effected subject to the availability of government land for the purpose. d) Joint Venture which refers to the commitment, for more than a limited duration, of funds, land resources, facilities, and services by two or more legally separate interests, to an enterprise for their mutual benefit. The arrangements may provide for a sharing of management responsibilities according to equity contribution through the creation of subsidiary development or management corporation. e) Land consolidation or readjustment which refers to the pooling of individual lots for the purpose of development and replotting, unrestricted by individual property boundaries, and according to an approved development plan. The Ministry may undertake land consolidation or readjustment for portions of an urban zone upon petition of at least 50 percent of the landowners holding an interest on the land area. It may, likewise, encourage and assist private landowners in undertaking land consolidation or readjustment on their own and to organize themselves for this purpose. “Land Use” elaborates that there are other innovative land disposition techniques such as neighborhood-ownership, residential freeholds, reservation of development rights, and tenure in improvements. In case of disposition through the neighborhood ownership technique, new or existing neighborhood associations may be organized for the purpose of assuming collective responsibility for the management and administration of neighborhood units and for the collection and amortization of land payments. Residential freehold is a 7

Land Use; Myrna Feliciano, Vol. 2 of this report.

28

grant of residential land within an urban zone made by the State upon compliance with development use and related conditions. Tenure in improvements is a system whereby the Ministry retains title to certain parcels of land while enabling occupants to own occupantintroduced improvements on such as dwelling units. Expropriation by the government is done by filing a petition before the Regional Trial Court and deposit of the amount equivalent to ten percent of the declared assessment value of the land in 1975 with the Philippine National Bank. PD 1517 (Section 18) and the Urban Land Rules (Rule XII, Section 42) seek to ensure and encourage private participation in land development and management activities, the Government, with appropriate public and private agencies shall develop program which will mobilize land development funds from private individual groups, government financial institutions, joint public-private ventures, and private financial institutions. The Urban Land Reform Law depends on the President to issue proclamations designating specific parcels or urban and urbanizable lands for urban land reform. Within these zones, right of first refusal is given to legitimate tenants who have resided there for ten years or more. Certificates of Title to the Poor PD 757 (National Housing Authority) and RA 7279 (Socialized Housing) provide for the issuance 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 National Housing Authority and others by the Housing and Urban Development and Coordinating Council (HUDCC). The diagram sets out the steps in the processes. In the socialized housing program, housing is purpose-built for the urban poor and funds are provided on loan for the purchase of these units. To qualify for socialized housing, the applicant (Section 16, RA 7279): (a) Must be a Filipino citizen; (b) Must be an underprivileged and homeless citizen, as defined in Section 3 of this Act; (c) Must not own any real property whether in the urban or rural areas; and (d) Must not be a professional squatter or a member of squatting syndicates. The Community Mortgage Program is a means for informal communities to establish registered associations and apply for mortgage funds by which to purchase public or private lands for the said association. Repayment may take place over 25 years. Titles to individual parcels are transferred to the individual owners as and when they have paid up their agreed mortgage repayment. The proposed reforms to the land administration system could assist the urban poor and landowners in so far as: • Reviewing the classification system to enable the location of more A&D lands. • Streamlining of the land registration system into an efficient and low-cost administrative process. • Encouraging landowners to enter into lease agreements with the informal settlers rather than have the time for prescription begin to run against them. • Raising the sensitivity of the system to the reality on the ground and therefore building the integrity of the register.

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Figure 5 3.1.6

Land Registration

There are at present two basic systems of land registration prevailing in the Philippines — the Torrens system and the system of registration for unregistered lands. The registration system under the Spanish Mortgage Law was discontinued with the issuance of Presidential Decree No. 892 in 1976 and all lands recorded under this system which were not yet covered by Torrens titles were considered as unregistered lands. Less than half of the available A&D lands are formally titled and recorded in the Torrens System. Of these lands it is known that some subsequent transactions are not recorded in the ROD’s. Similarly, many transactions with unregistered land are not formally recorded. In addition to the individual voluntary applications for registration of land parcels, in many countries the land registry has been proactive in trying to bring all land into the title registration system. This has been due to the recognition of the public benefit in a secure title and the Government benefit in having a complete record of all land holdings. An example of this has been the practice, whenever a transaction with unregistered lands is presented for recording, of using this opportunity to convert the land to the title registration system. In the Philippines, possibly because of the difficulties imposed by the judicial processes, the Land Registration Authority has not engaged in titling activities other than to register whatever is lodged with it for that purpose. The only proactive titling activities are those which can be undertaken under the Cadastral Act No. 2259, which are initiated by the DENR through the Director of Lands. However, although many Municipalities have been surveyed, little action has been undertaken to issue titles.

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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 adopted in Massachusets. The American version of the legislation was similar in many respects to the version that was developed in Australia and adopted in many other countries, but with one major difference. The American version required the intervention of the Courts in the title registration process, whereas the system adopted in other countries did not. This requirement for time-consuming and expensive processes has ultimately led to the demise of the Torrens system in most of America and has contributed to the informality and lack of coverage of the system in the Philippines. The cost of these proceedings places registration 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 includes matters 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 the Philippines made a major departure from the original aim of the Torrens System, which was to provide a simple, inexpensive administrative process. A comparison of systems in countries in the region shows the following: COUNTRY

REGISTRATION PROCESS Administrative Administrative Administrative Administrative Administrative Judicial and Administrative

Thailand Malaysia Indonesia Cambodia Laos Philippines

The situation in relation to the reconstitution of titles is compounded by the fact that the Supreme Court has ruled that the register of deeds is not the proper party to file a petition for reconstitution because under R.A. 26, petitions for reconstitution may be filed only by the registered owner, his assigns, or any person having an interest in the property8. As a result of this ruling, landowners whose titles were lost or destroyed in the office of the registers of deeds are forced to file the petition for reconstitution. Since the loss or destruction of the certificates of title occurred in the office of the register of deed without the fault of the titleholder it does not seem reasonable that reconstitution proceedings must be initiated by the owner. A key feature of the Torrens System is the insurance principle, whereby any person who suffers a loss through the operation of the system can be compensated out of a fund established under the system and known as the Assurance Fund. In many Torrens Title jurisdictions, the law has been changed to provide more flexible arrangements and allow the Fund to operate more freely on an insurance basis, thereby increasing public acceptance and confidence in the system. However, in the Philippines the Assurance Fund is clearly not working and there are moves afoot to try and introduce private title insurance. This is a very costly alternative to an Assurance Fund and should not be necessary in a properly functioning Torrens System. The problems with the existing fund essentially relate to: (i) The outdated and unrealistic cap on the amount to be retained in the Fund (P 500,000) and the fact that any amount beyond this must be paid out of funds available in the Treasury and not otherwise appropriated, which would require Congressional approval; (ii) The limitations on the liability of the Fund under PD 1529, compared with that obtaining previously under Act 496;

8

Register of Deeds of Malabon vs. Regional Trial Court of Malabon (181 SCRA 788)

31

(iii) (iii)

The limitations on the amount and source of funds to maintain the Assurance Fund; and 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 from Torrens Title systems elswhere, particularly modern Torrens systems, is the inclusion of a technical description (otherwise known as a metes and bounds description) in the certificate of title. Under the Torrens system the land in a certificate of title is normally defined by a plan on public record and no technical description is necessary as the land is described by reference to the plan and the title may sometimes show a diagram based on the plan. Experience has shown that technical descriptions are not readily understood by lay people and that they are tedious to produce and prone to error. The Land Registration Authority is currently undertaking a Land Titling Computerisation Project to automate its title registration and records management systems. In order to facilitate and support the new systems the LRA is currently considering various changes to the 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 or prescription. Other countries with title registration e.g. England have always permitted prescription. However, many of the countries that originally prohibited prescription have since 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 of Torrens Title land have fallen into the ownership of persons who acquired the land, either by taking possession of abandoned land or by informal transfer. In either case the ownership could not be recorded in the Registry records and the land would remain outside the official system unless a change was made in the law. Given the public benefit in bringing this land back into the system, changes were made in the law to accommodate this. It seems clear that in this country registered land is changing hands by informal transactions, largely due to the disincentives to registration such as fees and taxes. If the Torrens Title register in the Philippines is to accord with the reality of actual landholdings on the ground, such a change will be necessary. It is recognised that while many countries allow prescription over land as a means of stabilising property rights and quieting titles and there is a need in the Philippines to bring the Register into line with reality, there is also a need to avoid the encouragement of squatting. Accordingly it is suggested that prescription should only apply in cases where possession has already commenced and that there should be a period of grace before the law takes effect in order to enable registered owners of land under adverse possession to recover the land if they so .

Leases and Prescription The common concern about the concept of prescription expressed in consultations has been that this may encourage squatters and challenge private titleholders. The arguments about the merits of choosing reality and the importance of prescription for maintaining the integrity of the register have been set out in the section on “The Torrens System and Prescription” above. According to Urban Poor Associates, urban informal settlers desire access to security of tenure for shelter and that this need not translate only into full ownership and title. UPA related instances when informal settlers on public lands were able to come to agreement with the government for long-term (15 year) leases. It is of course understandable that private landowners would be reluctant to give up their

32

titles and their full ownership. This is the issue at the heart of landowners’ concerns about prescription. Since it is also understood that what urban squatters desire most is security of tenure in whatever form, then a suggested “win-win” situation would be for landowners to enter into long-term leaseholds agreements with the informal settlers on their land. This would overcome concerns about transfer of ownership due to prescription because the landowner can rest secure that the period for prescription would not run for the duration of the leasehold agreement, whilst the informal settlers would become legitimate tenants with the 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 many countries in the region (Malaysia, Singapore, Laos, Australia) as a means of quickly bringing 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 be dealt with and be the subject of transactions that can be recorded in the register. It simply does not carry with it the same degree of indefeasibility as a normal registered title, a fact which is made clear on the title. However, such a title can be capable of maturing into an ordinary registered title. If the qualifications relate to title, such as incomplete or unclear title, the title can become clear through lapse of time and the application of the laws on possession and prescription under the Civil Code. If the qualification relates to imprecise definition of boundaries, the title can be cleared by the lodgment of a plan of survey defining the boundaries. In the meantime, the title carries a clear warning about its nature so that persons wanting to deal with that land by way of purchase, mortgage etc. have to make additional searches and inquiries and cannot rely on the face of the register. There are a number of possible situations in which the concept could be used in the Philippines to bring land into the registration system. One example would be where transactions with unregistered land are lodged for registration. The opportunity could be taken at that time to create a qualified title for that land under what would be a virtual compulsory registration process. Thus unregistered parcels would progressively be brought within the registration system. The System for Recording of Transactions with Unregistered Land Transactions involving lands originally registered under the Torrens system may be registered only under that system while transactions affecting lands originally registered under the Spanish Mortgage Law at the time it was still in operation could only be recorded under that law. Under this situation, no provision was made with respect to transactions involving lands which had neither been registered under the Torrens system nor the Spanish Mortgage Law. To fill this gap in the law, a system of registration for unregistered lands was provided. This system applies to land, the ownership of which is not yet settled in a judicial or administrative proceeding. Holders of such lands base their claims on tax declarations or deeds of conveyance from individuals who themselves did not have title thereto from the government. Hence, what may be registered are the instruments affecting unregistered lands. The provision on the system of registration for unregistered lands was originally found in Section 216 of the first Administrative Code and later carried over as Section 194 of the Revised Administrative Code of 1917. Subsequently, amendments were introduced by Act Nos. 2837 and 3344. At present, the law on the matter is found in Section 113 of P.D. 1529.

33

As originally conceived only instruments or deeds establishing, transmitting, acknowledging, modifying or extinguishing rights with respect to unregistered lands wherein 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 exclusively to voluntary instruments resulting from the agreement of the parties. The law found no application to involuntary transactions. Thus, it was held that a sheriff’s deed conveying unregistered land that had been sold under execution was not registerable under this system9. 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 in the nature of involuntary dealings with respect to unregistered lands, if made in the form sufficient in law, shall likewise be admissible to record under this section.” As the law now stands, both voluntary and involuntary instruments involving unregistered lands may be recorded under this system of registration. Registration is designed to bind third parties through constructive notice. However, the law itself declares that “any recording made under this section shall be without prejudice to a third party with a better right.” Under this situation an earlier unregistered instrument prevails over a later instrument notwithstanding registration of the latter. The rule of preference to the one of two deeds which is first recorded, contained in Article 1544 of the Civil Code, does not apply to unregistered land.10 The 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 the experiences of six randomly selected people who had followed through the steps in the legal procedures in the transfer of title. Refer report “Transfer of Titles: Realities on the Ground”11 Vol.2 of this report. All six experienced the necessity to pay facilitation fees for different steps in the procedure, which spans the Assessor’s Office (LGU), the Treasurer’s Office (LGU), the Bureau of Internal Revenue and the Registry of Deeds. Of this sample, one received the transfer in two weeks while another interviewee took two years (after refusing to pay a facilitation fee) and finally succeeded only because of a letter of plea to the President’s Office. All experienced the need to do “follow-up” and all in the sample experienced the need to pay facilitation fees at some stage of the process. The report concludes: “While none of the four principal offices is free of corruption, respondents cite the Registry of Deeds as meriting special attention in terms of the facilitation fee system”.

3.1.7.

Land Transactions

Reclassification and Conversion Land transactions are affected by the land classifications that have been applied to different areas. At this point it is useful to point out that there is a distinction between reclassification and conversion. Dante Gatmaytan explores these in more detail in his position paper Land and Tenure Rights in the Philippines: Terrain and Trajectory, Vol. 2 of this report.

9

Williams vs. Suñer, 49 Phil. 534 Cruz, et al. V. Espino, 56 O.G. 47, Nov. 21, 1960, CA. 11 Isles, Carlos “Transfer of Titles: Realities on the Ground”, Report for PA-LAMP, June 2002 10

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According to AO20 of 1992, all irrigated lands for rice and other crop production or within areas 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 Myrna Feliciano14, 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 Local Governments, which the Constitution authorizes through the Local Government Code to have local autonomy and mandates Congress to enact a local government code, the task of the Department of Environment and Natural Resources (DENR) to delineate forest boundaries 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 to reclassify agricultural lands to non-agricultural uses where 1) the land has ceased to be economically feasible and sound for agricultural purposes as determined by the department of agriculture or 2) the land shall have substantially greater economic value for residential, commercial or industrial purposes as determined by the Sanggunian concerned, provided that such reclassification shall be limited to the following percentage of 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 cities and first to third class municipalities, ten percent (10%); and for fourth to six class municipalities, five percent (5%). R.A. 7160, also provides that the local government units (LGUs) shall, in conformity with existing laws, continue to prepare their respective comprehensive land use plans (CLUPs) enacted thru zoning ordinances which shall be the primary and dominant bases for future use of land resources. Although there are maximum percentages in the Local Government Code, there is ambiguity as to how often these reclassifications may take place. As Gatmaytan highlighted, there have been instances when local government officials and DAR officials have benefited from their power to authorize reclassifications and conversions respectively. Executive Order No. 648, Series of 1981, as amended by Executive Order No. 90, series of 1986, empowered the Housing and Land Use Regulatory Board (HLURB) to review, evaluate and approve or disapprove land use plans of cities and municipalities. They also authorize HLURB to prescribe the standards and guidelines governing the preparation of land use plans, to monitor the implementation of such plans and to adjudicate and settle the dispute among local government units, over their land use plans and zoning ordinances, as well as over subdivisions, condominiums and other estate development projects. R.A. 7279, the Urban Development and Housing Act, reaffirms the above powers and functions of the HLURB. As pointed out by Ernesto Mendiola and Myrna Feliciano’s papers, there is a range of agencies engaged in land use planning activities. For instance, DENR on forest and alienable lands of the public domain, the DAR on all public and private agricultural lands, the LGUs in all kinds of lands within their territorial boundaries, and the HLURB. A resulting problem is lack of coordination of the data created by the various government agencies and therefore a lack of accurate base maps to inform decision-making by these and other agencies that affect tenures and the contents of land ownership rights. 3.2

Informal or Extra-legal Infrastructure

A preliminary study was made of: 1. The way in which informal settlement communities were established and the way they recorded occupation; and 2. Possible alternative methods to identify these possessors.

12 13 14

Land Use Regulation and Control Land Tenure and Rights in the Philippines: Terrain and Trajectory Land Use

35

The overall aim of this preliminary study was to determine whether there are sources of data about occupation (apart from traditional sources such as tax declarations) that are available 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 view to 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 million squatters (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 is the Barangay Holy Spirit and the other the Barangay Payatas. Meetings were conducted with local leaders in urban and rural barangays to explore the history of their informal settlement and the existence of records (if any) of the possessors and subsequent possessors in their settlement. The following are accounts of the history of these settlements as related by the local leaders and senior residents who attended the consultation meetings. Barangay Holy Spirit The area now known as Barangay Holy Spirit was previously Friar Lands and known as Lot 805. The community first moved to the area in 1977/1978. These were mostly veterans who had been granted these plots of land to plant crops and to build a house pursuant to a residential use permit, so these were not titles as such. This was part of the Green Revolution proclaimed by Imelda Marcos through the Bureau of Forest Land of that time. Although this area was meant to be exclusively for veterans and came to be called Veterans Village. There was an organisation called the Veteran’s Association (hereinafter the ‘VA’). Commander Bunggay was the leader of the VA and had the discretion to apportion the lands in the area. He had a map of the area and a register of members of the VA. Some veterans sold their rights to use the land to non-veterans. They sold their land with an instrument known as a Deed of Rights. Only the buyer and the seller would have a copy of the Deed of Rights. Villa Mololes is one area in the Veteran’s Village where there is a developer who claims to have titled the area for subdivision and some residents of the area have photocopies of a title on the subdivision but there is no technical description. There are records of the mother-title at LRA and BIR but none at DENR and DENR would have had to release the land from the forestlands classification in order for it to be titled in private hands. Babes Aquino had a case in court for 6 years to argue for the cancellation of the title but the Regional Trial Court ruled against her. Barangay Payatas The first settlers to this area arrived from an informal settlement in Fort Bonifacio that they had to vacate. The first settler was Mr Bardoguillo who found this site and encouraged his neighbours in Fort Bonifacio to join him in the move. At the time it was classified forest land and the government had intended to use it to construct government buildings. In fact there was already a House of Representatives on site and very few other settlers. The Payatas Estate was only a part of the Commonwealth Barangay that was to form the National Government Capital Region (NGCR). The NGCR area covers parts of four barangays: Commonwelath, Payatas, Batasan Hills and Holy Spirit. The settlers decided where to settle by pointing out plots. There was no map at the time. In order to work towards some security of tenure, Mr Bardoguillo organized the new settlers into a cooperative called the Commonwealth Credit Cooperative as a step towards

36

formalizing their petition to claim the land. Eventually they were successful in being informally declared a Barangay and appointed a Barangay committee. From that point they were 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 to hold the first Barangay election in 1982. In 1983 a group of people from the Bureau of Lands under Director Argalos approached the Barangay and stated that it is still forest land and encouraged the settlers to apply for residential use permits. At the same time government was concerned because the area was designated for the NGCR. Also around that time there were claimants who were not known to the current settlers, surfaced with titles issued by the Registry of Deeds that had been obtained based on tax declarations. Through a census process carried out under President Aquino’s administration 18,000 families were identified on site and mediumdensity housing was prepared for them at a different site but they were not prepared to move there. Under President Estrada’s administration the east side of the NGCR was declared 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 through the National Government Centre Housing Project. Under that scheme, Certificates of Lot Assignments were to be issued by HUDCC as long as they had been surveyed and the community had developed its mapping and development plan. (b) Rural Areas The rural barangays included in this study were Barangay Cabariwan, Barangay Kagawad and Barangay Hinulogan, Dagami, Leyte. The elders interviewed could not recall the early history of their settlements except that these settlements had existed for as long as they could remember. Reality The reality is that in urban and rural areas there are methods of recognizing possession that are community-based rather than government-based although the Barangay records can become a bridge between the two. The rural studies indicated less of a tendency to have written records and maps than the community groups in the urban areas. The rural and urban studies also indicated that it is common for transfers of land to take place in the absence of titles by informal methods or by legal methods that are not followed through with registration. Instruments to Assist in Proving Possession and Period of Possession Preliminary assessment is that there are alternative sources of information from within and outside the community about possession that could be considered: (a) In urban areas: • National Census – conducted every 4-5 years • Barangay Census – conducted annually • Barangay membership card – details such as name and nature of possession are often required upon application for a Barangay membership card, which is required in order to access facilities such as schools, • Homeowners Association – list of members and their address. HA policy that all residents of the neighbourhood becomes members and agree to inform the HA in the event of a sale. There is a membership fee and monthly dues. • Purok leaders are part of the Barangay structure. They are the liaison person for up to several hundred people in their area. They would have a list of names and sketch map of where these people live. These records are provided to the Barangay committees. • Utilities: About 3 – 4 years ago due to opening up of competition in utilities, members all got access to utilities and are billed directly.

37

• • •

Deed of Sale – some buyers and sellers use a Deed of Sale but some may instead use an Affidavit of Quick Claim. Affidavit of Quick Claim – used to describe rights over properties that are not clearly established. It means relinquishing whatever right or claim the seller might have. Community Mortgage Program – this is a method by which members of a community who are able to organise themselves into a registered association may enter into negotiations with government or a private owner to purchase a property through a mortgage program. The property is then held in the name of the registered association and transferred to the names of the individual owners as and when they pay up their share of the mortgage. There are different requirements depending on whether they are an on-site community or not (see Attachments). These requirements are sufficiently exacting to be a fairly reliable source of proof of possession qualifications to apply for ownership.

(b) In rural areas: • Barangay census • Barangay leaders • Deed of Sale • Community identification – the established nature of these rural settlements and the relatively smaller populations means that residents in the area are usually able to identify one another and have some knowledge of one another’s settlement history.

38

4. 4.1

VIEWS ON CURRENT LEGAL INFRASTRUCTURE

Experience From PA-LAMP Prototypes

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

• • • • •

•

• • • •

4.2.

The Homestead Patent has been found to have many limitations and disadvantages as a means of systematic registration of title under LAMP. The Free Patent is more appropriate than the Homestead Patent but it still has restrictions, maximum area limitations and is not applicable to most residential land. In any event, the provisions for Free Patents have expired and cannot be used until such time 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 be judicial titling, which is now to be trialed, but it is still a tedious process and one which is 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 with the Constitution) and the rights of natural born v naturalised citizens. There is a need to be able to implement new surveying procedures for adjudication and subdivision. The Cadastral Act No. 2259, DENR AO 98/12 and the Manual and Guidelines require full surveys to a high order of accuracy, which is both time consuming and expensive. There should be scope for lower order surveys in rural areas. The ROD and BIR require all documents supporting an application for a judicial decree to be registered prior to the issue of the decree. This can be an onerous requirement in so far as payment of taxes is concerned. It could be overcome by placing a note on the title requiring payment prior to transfer of the land. The Property Registration Decree 1529 requires certificates to contain technical descriptions, which makes title preparation tedious and prone to error. This requirement should be withdrawn. The laws are too specific, too inflexible and limit operations. They include matters such as scales of fees and the design and content of forms, which means that these matters cannot be readily changed. The law does not currently provide a quick and inexpensive means of mass titling. There should be provision for administrative confirmation of title. The current laws should be replaced by a Land Code. This should simple easy to read statements of basic principles, with the detail contained in extensive Administrative Guidelines. Findings of Previous Studies

There have been a number of previous studies into the problems relating to land administration. The major study bearing on the issues was the Natural Resources Management and Development Project, which reported in 1991. Another study which considered the issues was the study associated with the LAMP Project Preparation Report (PPR) in 2000. Full summaries of the findings of these studies are set out in Annex. 3, however a brief synthesis of the key findings is as follows: NRMDP was concerned that judicial registration proceedings were overly cumbersome, time consuming and expensive and should not be used for judicial confirmation of title. Rather, it should be carried out by DENR. Other judicial proceedings such as amendment of errors on title, reconstitution of lost titles etc. should also be carried out administratively. In addition it was considered that prescription should apply to registered land and that the

39

land laws should be brought together in a code. NRMDP also made many recommendations for improvements to the land registration system. The LAMP PPR also recommended that consideration be given to the adoption of an administrative process for the systematic adjudication and registration process and also for minor corrections on certificates of title and the issuance of replacement duplicate certificates of title. This study was concerned that the state guarantee was not working properly in the title registration system and recommended that the Assurance Fund be strengthened. This study also made many recommendations for improvements to the land registration system. 4.3.

Stakeholder Views

This study is significant for the wide consultation that has taken place involving many sectors of society - civil society, public sector, private sector, academia and land administration experts. All these groups have been involved in both individual discussions and workshops and seminars. The proposals contained in this report are largely based on this interaction. Details of the persons and groups with whom individual discussions were held are contained in Annex.2. In addition, workshops were held with: • public sector representatives; • private sector representatives; • civil society representatives (NGO’s); • 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 various problems 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 jurisdictional conflicts as there are many agencies involved in the issuance of a title. Moreover, the discussants point out the irony that while titles serve as instruments of land ownership, there is a problem on the reliability and security of titles. It has been noted that there has been a proliferation of fake and double titles and that CLOAs and patents have been unilaterally cancelled. This latest problem more likely emanated from another identified problem of no reliable and complete source of information.

40

5. 5.1

CHANGE CONSIDERATIONS

Legislative and Congressional Factors

In discussions with persons experienced in land administration and law reform a number of people have cautioned against attempting to implement major law reform in a single initiative. It was suggested that a piecemeal approach would have a better chance of implementation because of the reluctance of politicians to consider and pass major legislative items such as a new code. Certainly the history of reform of land laws does not engender 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 of attempts to introduce new legislation. Attempts to update the Act started in the 1970’s and continued into the 80’s and 90’s. The farthest that the revised Act reached in congress was the third reading in the Lower House. During that session of Congress (10th) the proposed bill was not even touched by the Senate. A similar bill has currently been in Congress for some time without any prospect of an early finalization. Similarly, a proposed new National Land Use Act has been before Congress for some time. Given that the present study leads to the conclusion that greater reforms of public lands legislation are needed than those proposed 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 on a 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, no change has been able to be achieved despite various attempts. Apart from the attempts to reform the law referred to above, there was an attempt in 1991 to merge the functions of the land administration agencies, the LRA and the LMB into one agency known as the “Land Authority”, an attempt which failed It is clear that changes, particularly those involving institutional change, require a champion i.e. someone who can drive the proposed change forward to fruition. This is particularly so when the change involves the integration of several agencies and it is difficult to get joint concurrence on the way forward. Fortunately there is now an agent of change in the Presidential Task Force established by EO 82 of 2002 and this offers the best opportunity yet to achieve reform in this area of land administration. This Task Force should be able to initiate the change process, although other arrangements may need to be made to manage the ongoing change process.

41

Annex 1 TERMS OF REFERENCE Fragmented Laws and Regulations Study There is a proliferation of land laws and regulations administered by different agencies in the Philippines that govern the administration of land. Their introduction and subsequent amendment has occurred over a significant period of time without consideration of the resultant impacts on existing legislation. Many of these laws and regulations are in conflict and it has been difficult to operate an efficient and equitable land administration system under this framework. This has led to long delays in the land registration process, jurisdictional overlap, a duplication of functions, a lack of transparency, and confusion in the community concerning legal interpretations of the law, agency responsibilities and mandates. The problem has a long history and the fragmented nature of the laws and 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 the agencies 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 and appropriateness and to identify areas and options for improvements;

2.

work with the senior executives of the stakeholder agencies to build consensus to a series of recommendations 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 the changes 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 of improvements and change. The simple preparation of another report identifying recommendations will not achieve this objective. It has been agreed by all agencies that the lead agency for this study will be the DOJ. The results of this study will be reported to and examined by the IACC. The Law Centre of the University of the Philippines has a mandate concerning changes in the law and this organisation should be consulted. This study will review and build upon the previous work undertaken on land laws and regulations, examine and update the relevance of this work, identify options for change, determine the implications for implementation, and specify what actions are required to ensure that the supporting policy and legal regime meets the generally accepted criteria of good governance, equity, clarity, and purpose. Legal and regulatory aspects which could be considered include: the broad policy framework; land tenure instruments; mechanisms for granting, recording, trading and transferring the rights and interests in land; avenues for speedy dispute resolution and appeals, potential areas of legal and regulatory overlap with other land-related sectors and the principles of good governance, equity, access, protection of the right of minority groups, and indigenous peoples. The needs of the various stakeholder groups identified in Section 2.1.4 also need to be considered, as do the views of de Soto (see Section 2.1.5) concerning the ‘extra-legals’ in the Philippines. The following also need to be taken into account:

•

how well does the legal and regulatory regime assist or impede the social and economic flow of benefits resulting from land titling and land administration to the various target groups; and

•

the feasibility and cost of complying with and administering the regulatory regime.

The experience from Components 2 and 3 should provide useful input. A possible approach to the study would be to identify and propose recommendations for change at the broad macro-level in the first instance followed by an examination of the implications at the micro-level. The proposals should ensure that the most critical aspects requiring legislative change are addressed, clarity and simplicity of language is achieved, and the recommendations are supportive of non-discriminatory policies in the land sector and structured in a flexible way so that change is permissible at different levels. An action plan would be developed which outlines the mechanisms, responsibilities, timeframes and performance benchmarks for the implementation of the proposed changes in order to assess the commitment and will of the GOP to legal and regulatory reform.

42

Annex 1 Throughout this study, wide consultation and involvement of the stakeholder agencies and other stakeholders such as the legal profession and the surveying profession will be necessary. It is vital that 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.

43

Annex 2

SCHEDULE OF ORGANISATIONS CONTACTED Organisation Interviewee/s 1

Date Registry of Deeds, Leyte Name Position Emeterio Villanosa Deputy Register of Deeds

16 April 2002 Contact details

Organisation Interviewee/s 1

23 April 2002 Contact details 926 8963

2

Date Department of Agrarian Reform Name Position Gloria Fabia Director, Bureau of Land Acquisition Narciso Villapando Consultant

Organisation Interviewee/s 1

Date Land Management Bureau Name Position Alberto Ricaldi Deputy Director, Legal Division

Organisation Interviewee/s 1

Cuervo Appraisers Name Federico Cuervo

Organisation Interviewee/s 1

Date National Housing Authority (NHA) Name Position Josephine Angsico Director, Corporate Planning Office

Organisation

Housing Land and Urban Redevelopment Bureau (HLURB) Name Position Donna Ladao Legal Services Group Gracia Ang Rules and Standards Development Group

Interviewee/s 1 2

Date Position Chief Information Officer

Date

371 8872 24 April 2002 Contact details 26 April 2002 Contact details 631 1645 29 April 2002 Contact details 9284961/9263523 29 April 2002 Contact details 9243367/70 9272724

Organisation Interviewee/s 1

Land Registration Authority Name Position Edilberto Feliciano Deputy Administrator

Organisation Interviewee/s 1

Date Department of Fisheries Name Position Alfonso Alfonso Attorney, Legal Section

Organisation Interviewee/s 1

National Commission for Indigenous People Name Position Evelyn Dunuan Chairwoman

Organisation Interviewee/s 1

Development Bank of the Philippines Name Position Orlando Pineda Vice President Retail

Date

7 May 2002 Contact details 818 9511- 3215

Organisation Interviewee/s 1

Forestry Management Bureau Name Position Neria Andin Assistant Director

Date

8 May 2002 Contact details

Organisation Interviewee/s 1

LARES Name Ernesto Camarillo

Date

9 May 2002 Contact details 0919 209 6636

Position Business Development Manager

44

Date

Date

29 April 2002 Contact details 2 May 2002 Contact details 372 5053 6 May 2002 Contact details 0919 697 496

Annex 2

2 3 4 5 6

Nick Gibe Conradio Legsapi Butch Bernabe Jess Espina Lyraliza Malern

7 8 9 10 11

Karlo Marbella Kathy Laynoen Sarah Espinosa Katherine Santiago Rico Ersando

Organisation

Taskforce Mapalad 18C Manurong Street, Barangay Central, Q.C. Name Position Mabel Arias Legal Counsel Rori Fajardo Media Relations

Interviewee/s 1 2 Organisation

Business Process Manager Project Director Data Conversion Data Conversion Data Conversion-LARES (Mapping) Technical Team Systems Rollout Business Process Business Process Business Process Date

Date

Date

Interviewee/s 1

Kaisahan 3 Mahabagin Street, Teachers Village, Quezon City Name Position Magistrado Mendoza Executive Director

2 3

Lourdes Pacuribot Vincent Dancel

Attorney Attorney

Organisation Interviewee/s 1

Green Circle Properties Name Daniel Tenefrancia

Position Secretary

Organisation Interviewee/s 1

HUDCC; School of Urban Planning, UP Name Position Prof Asteya Santiago

Organisation Interviewee/s 1

Date Land Use Planning Consultant Name Position Ernesto Mendiola Land use planning consultant

Organisation Interviewee/s 1

LAMP TA Name Jan Van Der Kevie

Position Surveying TA

Organisation Interviewee/s 1 2 3

LARES Name Prudeno Natividad Nicanor Gibe Alexander Calderon

Position Project Manager Manager Technology Manager

Organisation Interviewee/s

Supreme Court Name

Position

Organisation

45

9 May 2002 Contact details 09193645246

Legal Rights and Natural Resources Centre 7, Marunong St, Central East Village, Quezon City Name Position Japs Hatta Para-legal

Interviewee/s 1

0918 921 9949

14 May 2002 Contact details 436 1101; 9281372 14 May 2002 Contact details 433 0760; Fx: 926 6042; 0917 502 9803 0919 533 4869 0917 810 6430

Date

15 May 2002 Contact details 0917 838 3134

Date

16 May 2002 Contact details 9206853/4; Fx: 929 1637 16 May 2002 Contact details 0917 434 9842

Date

17 May 2002 Contact details 638 8208

Date

20 May 2002 Contact details

Date

20 & 21 May 2002 Contact details

Annex 2

1 2

Thelma Bahia Justice Presbitero Velasco

Organisation Interviewee/s 1

Habitat Name Jose Mendosa

Organisation Interviewee/s 1

Date Land Registration Authority Name Position Alexander Acosta Reconstitution of Titles Section

Organisation Interviewee/s 1 2

Green Circle Properties Name Daniel Tenefrancia Romeo Roxas

Organisation Interviewee/s 1

Register of Deeds, Paranacque Name Position Ramon Ramos Deputy Register

Organisation Interviewee/s 1

Meeting of Experts (Sulo Hotel) Date Name Position Prof Ramon Casanova UP Law Centre Professor; former Director, Bureau of Lands Narciso Villapanda Consultant to DAR; formerly Bureau of Land Development; Bureau of Land Acquisition and Disposition (DAR); Former Assistant Director, Bureau of Lands Felino Cortez Consultant to LAMP: Land Titles Adviser; previously Director of Registration, LRA Ernesto Mendiola Former Commissioner and Chief Executive Officer of Housing and Land Use Regulatory Board.; UP Law Centre member, Professor of Philippine Land Laws Ricardo Arandilla Former Deputy Administrator, LRA Evangeline C Cruzado Deputy-Administrator, Coast and Geodetic Surveys Department, NAMRIA

25 May 2002 Contact details 921 5807

Organisation Interviewee/s 1

Date Office of Senator Jaworski Name Position Chief, Legislative & Technical Atty Aurelio Angeles Grp (Joey)

31 May 2002 Contact details 552 6771; Fx: 552 6776 0917 830 2287

Organisation Interviewee/s 1

Date Registry of Deeds, Leyte Name Position Deputy-Register of Deeds Emeferio D Villanoza

3 June 2002 Contact details

2

3 4

5 6

Court Administrator Court Administrator

523 6479, 525 7196 525 1238; Fx 523 7385 Date

Position Managing Director

Date Position Secretary Executive Director

46

Date

20 May 2002 Contact details 638 8010 21 May 2002 Contact details 9211174; 0917 536 8007 21 May 2002 Contact details 0917 838 3134 886 0226/9 Fx: 886 0229 23 May 2002 Contact details 820 2587

Annex 2

2

Edward Pedrero

Organisation Interviewee/s 1

CENRO, DENR, Palo, Leyte Name Position LMO-III Gilbert L Mabansag

Organisation Interviewee/s 1

Date Interviews with ordinary people Name Position Anacorita Onglico Land claimant in Narangay Himulogan and Bayabas, Dagami, Leyte Teresa Ong Barangay Cabariwan, Dagami,, Leyte Emerenciana Cortez Barangay Cabariwan, Dagami,, Leyte

2 3

Records Officer

Date

Date

3 June 2002 Contact details 323-3837; 323 8602 3 June 2002 Contact details Barangay Libas, Burawen, Leyte Poblacion, Town proper of Dagami Barangay Cabariwan, Dagami,, Leyte

Organisation Interviewee/s 1

DAR Name Engineer Villas

Organisation Interviewee/s 1

Tacloban City Hall, Leyte Name Position Chief Assessor Ralph Iriarte

Date

4 June 2002 Contact details (053) 325 7078 Fx: 321 2036

Organisation Interviewee/s 1

Date Land Bank of the Philippines, Leyte Name Position Acting Division Chief/Claims Norberta Paloma

4 June 2002 Contact details

2

Fiel M Pedrosa

Organisation Interviewee/s 1

Palo Municipal Trial Court, Leyte Name Position Clerk of Court Edgar Tutaan

Date

4 June 2002 Contact details

Organisation Interviewee/s 1

PIO1 – PA-LAMP, Leyte Name Pedro Mendiola

Date

4 June 2002 Contact details

Organisation Interviewee/s 1

Municipal Trial Court of Santa Fe Name Position Judge Cristiana Hunamayor

Date

5 June 2002 Contact details 321 2938 (home)

Organisation

Date

10 June 2002

Interviewee/s 1

SALIGAN Grd floor, Hoffner Building, Social Development Complex, Ateneo de Manila University, Loyola Heights, QC Name Position Attorney Rudy Gabasan

Organisation Interviewee/s 1 2 3 4

Date Community leaders, Barangay Holy Spirit Name Position Field Enurmerator Babes Aquino President, Home Owners Asscn Engineer Lyn Encolas President, Home Owners Asscn Frank Romero Secretary, Manapavet Leisa Manangan

Position Assistant Regional Director

3 June 2002 Contact details (053) 325 5139

Processing and Payment Division Acting Division Chief/ Field Investigation Division

Position TA counterpart to PA-LAMP on Surveys and Mapping

47

Contact details 15 June 2002 Contact details

Annex 2

5

Arturo Murielo

Organisation Interviewee/s 1 2

Date Community leaders, Barangay Payatas Name Position President, Sama-Sama Montano Florida President, Roseville Home Nemita Castillo-Digura

3

Lolita C Perez

Organisation

HUDCC 6th floor, HUDCC, Makati Avenue, Makati Name Position Alvin Navarro

Interviewee/s 1 Organisation Interviewee/s 1 Organisation

(Treasurer/Spokesman, Manapavet-6)

Owners Association and Secretary, Payatas Community Based Association-PACOMBA Purok Leader

Date

Date PAFID 71 Malakas Street, Quezon City Name Position Mapping Section Coordinator Bruce Young Date

Interviewee/s 1 2 Organisation Interviewee/s 1

Foundation for Development Alternatives Name Position Gil Giolagon

Date

Organisation

Date PAKISAMA 59C Salvador Street, Loyola Heights, QC Name Position Yvette Lopez Legal and Advocacy Program Officer Ananias Loza National President

2 Organisation Interviewee/s 1 Organisation Interviewee/s 1 Organisation Interviewee/s 1

18 June 2002 Contact details 9274580; 9286267 0918 521 9466 18 June 2002

Contact details 4266134-37 0916 462 1586

Urban Poor Associates 28 B.Matino Street (cnr Malumaray) Bngy Pinyahan, Diliman, QC Name Position Denis Murphy Director

Date

Bank of Philippine Islands BPI Family Bank, Makati Name Position Ramon Felipe Lawyer

Date

18 June 2002 Contact details 931 4335 25 June 2002 Contact details

25 June 2002 Contact details 922 0988

Date United Coconut Planters Bank UCPB Building, Makati Avenue Name Position Oscar Gumabay Assistant Vice-President Credit Appraisal &

48

18 June 2002 Contact details 811 4117

Institute on Church and Social Issues 2nd floor, ISO Bldg, Social Development Complex, Ateneo de Manila University, Loyola Heights, QC Name Position Jing Karaos Ana Marie O. Dizon

Interviewee/s 1

15 June 2002 Contact details

25 June 2002 Contact details 845 6925; Fx:845 6896 27 June 2002 Contact details 400 0044 & 46 Fx: 400 0047

Annex 2

Investigation Dept, Loans Support and Services Division Organisation Interviewee/s 1

Organisation Interviewee/s 1 Organisation Interviewee/s 1 Organisation Interviewee/s 1

Land Management Bureau Plaza Cervantes, Binondo, Manila Name Position Engineer Concordio Director Zuniga

Date

Mangyan Mission Bishop Finnemann Center, Calero, Calapan City 5200 Oriental Mindoro Name Position John Ong Mapping Unit

Date

Equitable PCI Bank 12th floor, Tower 1, H P de la Costa Street, Makati Name Position Attorney Apilado Legal Section

Date

28 June 2002 Contact details Telfx: 242 9577 242 0579; 243 6651 28 June 2002 Contact details (043) 288 3048; 0917 839 3558

Date Land Registration Authority LRA Bldg, East Avenue (cnr NIA Road), Diliman, QC Name Position Edilberto Feliciano Deputy-Administrator

49

0917 811 9346

28 June 2002 Contact details 1 July 2002 Contact details 921 2320

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 the Philippines (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 and Conceptual Design. TSARRD Project FAO, UN 21.8.1992

3.

Guidelines for Land Allocation and Conversion – AIDAB Program of Technical Assistance to Physical Planning in NEDA, January 1993.

4.

Land Resource Planning Master Plan, April 1995

5.

Agrarian Reform Communities Project

6.

Land Officials Study Tour to Thailand

7.

LAMP Project Preparation Report – Laws and Regulations Study, Land Registration Study, 1999 SUMMARY OF RELEVANT FINDINGS FROM PREVIOUS STUDIES

1.

NRMDP

2. General •

Land registration statutes have not been effectively codified. The process of law making exhibits a strong tendency to solve problems piece meal. Often laws are passed without referring to previous legislation on related subjects. All land registration statutes should be put together in a code. Thereafter that code should be the only law on land registration

•

Judicial registration proceedings, if at the instance of the land owner, are overly cumbersome, time consuming and expensive. Voluntary judicial registration proceedings, if resorted to, should be confined to lands that are strictly under claim of private ownership acquitted through any of the following modes:

50

Annex 3

(a) Adverse possession or acquisitive prescription, including those held under Spanish 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 public domain by virtue of the Regalian Doctrine. If these lands have been in open continuous, exclusive and notorious possession for 30 years under a bona fide claim of acquisition of ownership, the legalisation and confirmation of imperfect title to such lands should be removed from the Courts and transferred to the DENR which shall exercise 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 the Land 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 to lands and over all petitions filed after original registration, did not clarify that such exclusive jurisdiction is conferred on the RTC is not in its capacity as Regional Trial Court but as a Land Registration Court. Unless this matter is clarified, there will always be confusion on jurisdiction especially over actions and petitions subsequent to original registration.

•

Being an added burden to the Regional Trial Courts, land registration cases occupy low priority in the Court’s calendar. The hearing of many cases has been delegated to the Municipal Courts but problems of low priority still occur.

•

The regulations prescribing standards of accuracy for surveys of land prescribe the same standard of accuracy for agricultural lands as they do for urban lands rendering such surveys unnecessarily expensive and time consuming.

•

PD 892 abolished the system of registration under the Spanish Mortgage law and gave holders of Spanish titles 6 months within which to file judicial petitions for the registration of such lands under the Torrens system after which the decree prohibited the use of Spanish titles as proof of ownership of land in land registration proceedings. However, Section 3, Chapter 1 of PD 1529 which reproduced PD 892 is silent about the prohibition on use of Spanish land titles in land registration proceedings, giving rise to the interpretation that the prohibition has been repealed. There does not seem to be any good reason why Spanish titles should not be used as proof of ownership in land registration proceedings.

•

The provisions of Section 23 of PD 1529 regarding notice of hearing is overly circuitous. It requires publication of the notice in a newspaper of general circulation, only to subsequently provide that this is unnecessary for jurisdictional purposes. Also, actual service or service by registered mail is required to so many government officials who do not even bother to answer or appear at the hearing.

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The preparation and dissemination of the notice of hearing could be done by the local clerk of court instead of the LRA which could be very far away from the scene of the action. The publication of the notice of initial hearing in the Official Gazette which does not serve any useful purpose should be discarded and for jurisdictional purposes once in a newspaper of general circulation should be enough. More emphasis should be placed on service by actual delivery by registered mail to persons whose interests are most likely to be affected by the petition, such as the actual possessors or occupants in whatever capacity, the adjoining owners and other persons claiming ownership or other real rights over the land applied for. Notice to certain government officials could stand reduction. •

The requirement of Section 30 of PD 1529 regarding the issuance of a final decree of registration by the LRA aggravates the delay in the registration process, being highly centralised in that office. The issuance of the final decree of registration, if it could not be eliminated, should be transferred from the LRA to the ROD and the latter should issue it immediately after the decision becomes final and executory.

•

There is a general lack of understanding, even among some courts as to what constitutes a registrable interest in land, or what constitutes a title that it is fit for registration. This is reportedly now being overcome by Continuing Legal Education for judges.

•

In cadastral registration proceedings under Act No. 2259, when no person files a cadastral answer claiming any particular lot, the courts tend to simply enter an order of default without immediately declaring the land as public land – thus delaying the determination of the case. Often the courts forget to subsequently declare the land as public lands. The new procedures for judicial titling being tested in Prototype 1 will overcome this problem.

•

The description of the land on the decree and in the original certificate of title is in terms of numerical values of the bearings and distances of each corner, which is not only unnecessary but also cumbersome to the clerical staff. Besides, land owners and persons who deal with the land are mostly laymen who do not understand such numeric values. The description of the land in the certificate of title should be abbreviated by doing away with the numerical technical description. A reference to the lot number, block number and the CAD, PLS, PSC, ASS, PSU, PSD, CSD, CCN, etc. and the boundings should be enough, provided there is adequate survey data support from the DENR or LRA.

•

Conveyances submitted to the ROD for registration come in various forms, style and length – part of freedom of contract. But such a system can be very costly in terms of time and facility of examination.

•

The law requiring judicial proceedings for the amendment or alteration of even minor clerical errors, the issuance of a replacement owner’s copy or a lost or stolen certificate of title and the reconstitution of lost originals of certificates of title is overly cumbersome and expensive to the owner of the land. The power to issue a replacement of a lost owner’s duplicate copy of the certificate of title under Section 109, PD1529, to amend, alter or correct the certificate of title under Section 108, PD 1529, where there is unanimity of interested parties and where no

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Annex 3

substantive controversy is involved, and to reconstitute the original certificate of title under RA 26, should be removed from the overburdened judiciary and transferred to an administrative or quasi-judicial body. •

The ROD, who is the legal custodian of all certificates of title is not given the power to file petitions for the reconstitution of lost or destroyed originals of certificates of title. Worse, this burden is left to the owner of the land or other person who claims an interest therein. Reconstitution of the lost or destroyed originals of certificates of title should be considered as a primary responsibility of the ROD who is the legal custodian. The law should therefore be amended by expressly making it his duty and conferring on him the authority to institute reconstitution proceedings and the registered land owners should be relieved of this burden.

•

The control of swamp lands and lands inundated by water has been separated from the bulk of A&D lands and placed under the jurisdiction of the Bureau of Fisheries and Aquatic Resources, resulting in dispersal of land tenure administration and conflict of rights. PD 704, otherwise known as the Fisheries Code, should be amended by removing from the Bureau of Fisheries and Aquatic Resources, Department of Agriculture the jurisdiction and authority to administer and grant tenure on swamp lands and other lands under water and returning the same to the DENR which has the necessary organisation, experience, competence and expertise in land tenure administration.

•

The legislation affecting agricultural land reform overlap in their objectives and thus create confusion and duplication in the disposal of lands for this purpose. RA 3844, PD 27 and RA 6657, and all other agricultural land reform laws must be overhauled, and thereafter codified to remedy their weaknesses.

•

Legislation covering land tenures in the Forest Zone are multifarious, do not recognise the practical realities of settlement patterns resulting from increasing population pressures and do not encourage responsible development. PD 705 otherwise known as the Forestry Reform Code, along with other statutes and administrative issuances bearing on forest lands should be put together in one law, after the same shall have been completely overhauled by doing away with provisions seeking to achieve which though ideal, are non realisable. Tenure on forest lands, now granted through Forestry Administrative Orders, are not stable enough and should be authorised through legislative fiat to provide greater security of tenure and motivation on the part of the grantee to invest more of his time, money and effort to develop the land.

2. •

LAMP Project Preparation Report The land registration legislation indicates that the State will guarantee the interests stated on the new certificate of title and will compensate from an assurance fund any person deprived of an interest in land under the system specified by the Property Registration Decree. Whilst the Title may be considered indefeasible, absolute, imprescriptible and irrevertible; and therefore subject to the Government Guarantee when evidenced by Registration, it is subject to correction or repeal by Judicial Intervention which places some uncertainty over the security of the title. A patent that is prepared to allocate public land via an administrative process and is then registered in the ROD can subsequently be overturned by the courts. It appears that in the Philippines a title issued as a result of the judicial process has a stronger claim than a title issued as a result of an administrative process. There have also been no successful claims for compensation made against the assurance fund and therefore

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one of the basic principles of the Torrens system, the insurance principle, appears to lacking in the physical implementation of the system. These factors significantly affect the overall credibility of the system. Consideration should be given to the provision of a more appropriate guarantee. •

The issuance of judicial decrees by the courts may create new certificates of titles, without the courts having all of the necessarily evidence presented or not considering the evidence to be of sufficient weight to influence their decision.

•

Production of owner’s duplicate certificate of title under CARP process of DAR is not compulsory, thus creating a situation where two duplicates certificates of title cover the same area.

•

Every time a property transfers to a new owner, a Transfer Certificate of Title (TCT) is created thus increasing the chances of error, particularly as the technical description must be retyped each time. Consideration should be given to endorsing change of ownership on the same certificate of title, thus eliminating the need for producing a Transfer Certificate of Title.

•

The use of a technical description on the titles introduces a significant opportunity for error, especially as the long technical description must be retyped onto a new certificate of title. An error in any of the bearings or distances completely alters the extent of land covered by the certificate of title and is considered to be a significant issue for the overall system. Consideration should be given to replacing the technical description with a dimensioned survey plan or graphic on the title.

•

When a certificate of title is reconstituted after being lost or destroyed, the reconstituted C/T may not prevail if the previous title is found. As the same title number is used rather than cancelling and issuing a new number, it is also possible for duplicate titles to be created in this way. Section 18 of RA 26 should be amended to read “on reconstitution the lost or destroyed certificate of title is cancelled and if the said certificate of title is found at a later time the reconstituted certificate of title prevails”.

•

A major area of any inaccuracy in the registration system of the Philippines can be attributed to the ability of both DENR and LRA to approve subdivisional or consolidation surveys and that the results of the surveys are not charted on both agencies projection map series. It is therefore possible that DENR can issue a patent over already titled land and visa versa and this can ultimately lead to duplicated titles. The survey approval process should be rationalised.

•

The ROD currently requires evidence of payment of a wide variety of taxes before registration will be undertaken. These include the BIR capital gains tax, documentary stamp duty, a donor’s tax and an estate tax on transfer. When these costs are coupled with the registration fee, which is a progressive scale based upon value, it would appear that the community does not consider the costs of registration to be reasonable value for money, particularly when their confidence in the system is declining. This is one of the factors influencing the high level of informal transactions occurring in the Philippines. When a person is involved in land speculation they are likely to simply enter into a contract of sale with the current land owner, obtain the duplicate certificate of title and then forward this duplicate to the new purchaser once they have sold the property. Vary rarely will these transactions be recorded in the ROD as they are required to pay up to 11% of the market value to transfer the property.

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Annex 3

•

The registration system is based upon judicial process that means that any action on a title involves the engagement of legal assistance and the involvement of the courts. This judicial approach inevitably leads to lengthy delays in the system, sometimes up to 12 to 18 months. This process introduces greater costs and complexity into the system for the common man, requiring even a small correction to an already registered title to be decreed by the Courts. The onus is also placed on the owner and not on the ROD if any action is required on the certificate of title. For instance, if an original certificate of title is lost or destroyed and the owner wishes to have the title reconstituted then the costs for the reconstitution of the original C/T must be borne by the owner and not the ROD. Given that the ROD has the responsibility of maintenance and storage of the original C/T, the current approach of requiring the owner to pay for reconstitution is worthy of review as it is considered a negative influence on the overall registration system. Consideration should be given to the adoption of an administrative process for the systematic adjudication and registration process and also for minor corrections on certificates of title and the issuance of replacement duplicate certificates of title.

•

The RODs currently accept documents relating to unregistered land in the system. This continues to perpetuate the existing system where there is a high percentage of land that is untitled. Consideration should be given to the adoption of a system where the RODs would not accept transactions on unregistered land unless the owner agreed to register the land first. As it may take time for the land to be surveyed and eventually titled, the possibility of issuing a “qualified” title with the transaction recorded would also need to be considered.

•

The registration system of the Philippines only includes A & D land that has already been allocated to a person or corporation. The residual land, comprising Forests, National Parks, Mineral Lands and unallocated Public land, is not currently included in the system. This allows people to occupy this land and to then claim ownership of the land through the existing processes. The absence of a complete inventory of all land also makes the overall management and administration of the land resource much more difficult. Consideration should be given to the introduction of a single registration system for the Philippines where a “State Title” will be prepared for all public domain land that has not been alienated – not just the Patrimonial and Friar lands that are currently registered by DENR in the RODs. The “State Title” will always be in the name of the “Republic of the Philippines”, however management bodies will be able to lease the land and obtain a mortgage over their interest, which will be endorsed on the title.

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Annex 4

SUMMARY OF LAWS AFFECTING LAND ADMINISTRATION LAW

DESCRIPTION

Laws Directly Related to Public Land Disposition 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

The Public Land Act CA 141 (1936) CA 691(1945) RA 274 (1948) RA 293 RA 730 RA 782 (1952) RA 2348 (1959) PD 239 (1973) EO 407 (1973) EO 420 (1973) EO 430 (1974) PD 619 (1974) PD 861 BP 223 (1982) DENR AO 66-90 (1990) DENR AO 58-91 (1991)

Public land classification, disposition Distribution of Agricultural Land State land in military reservations Grant of Free Patents Disposition of National Govt. lands Revoke LRA approval of certain surveys Delegating authority to sign patents Delegating Authority to sign patents Delegating authority to sign patents Development of grazing reserves Free patent for certain residential land Guidelines on inventory of A&D lands Guidelines on DENR-CARP activities

Laws Related to Forest Lands Revised Forestry Code PD 705 (1975) DENR AO 38-89 (1989) DENR AO 54-90 (1990) DENR AO 3-91 DENR AO 4-91 (1991) DENR MC 23-93 (1993) EO 263 (1995) DENR AO 15-95 (1995) DENR AO 24-96 (1996) DENR AO 29-96 (1996) DENR AO 30-96 (1996) DENR AO 45-98 (1998) DENR AO 36-99 (1999)

Rights in Forest Land Development of ISF projects Guidelines on ISF model sites Mangrove Stewardship Agreements Regulations re Land Stewardship Procedures on Stewardship CBFMS strategy Guidelines on sub-classification Regulation of SIFMP Regulation of CBFMS Integration of projects and programs Certificates of Stewardship Regulation of FLGMA

Laws Related to Friar Lands 1. 2.

The Friar Lands Act No. 1120 (1904) CA No. 32 (1936)

Regulating Friar Lands Sale of Friar Lands

Laws Related to Ancestral Lands 1. 2. 3. 4. 5. 6.

DENR AO 61-91 (1991) DENR AO 08-92 (1992) NIPAS RA 7586 (1992) DENR AO 25-92 (1992) RA 8371 (1997) NCIP AO 01-98 (1998)

Rules on IP claims in Palawan Rules on IP claims in Bukidnon Rights over ancestral lands Implementation of NIPAS Indigenous Peoples Rights Implementation of RA 8371

Laws Related to Mineral Lands 1. 2.

Mineral Resources Decree PD 463 (1974) PD 512

56

Admin. & Dispos. Of Mineral Lands Acquisition & use of surface rights

Annex 4

3. 4.

Philippine Mining Act RA 7942 (1995) DENR AO 40-96 (1996)

New system for mineral resources Implementation of RA 7942

Laws Related to Agrarian Reform 1. 2.

6. 7. 8. 9.

Ag. Land Reform Code RA 3844 (1963) Tenants Emancipation Decree PD 27 (1972) EO 228 EO 229 (1987) Comp. Agrarian Reform Law RA 6657 (1988) DENR AO 98-88 (1988) RA 7905 DENR AO 12-93 (1993) DAR AO 06-98 (1998)

10. 11.

DAR AO 05-00 (2000) DAR AO 06-00 (2000)

3. 4. 5.

Original AR law Implementation of PD 27 Implementation of AR program Guidelines on AR in public lands Strengthen AR program Guidelines on DENR- CARP activities Guidelines on deferred commercial farms Rules governing retention rights Adjudication of cases on AR

G. Laws Related to Reclaimed Lands 1. H.

RA 1899 (1957)

Basic law on reclamation

Laws Directly Related to Land Registration

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. . J.

Land Registration Act No. 496 (1902) The Cadastral Act No. 2259 (1913) Revised Administrative Code Act No. 2711 RA 26 (1946) RA 113 (1947) RA 456 (1950) PD 266 (1973) PD 239 (1973) Property Registration Decree PD 1529 (1978) PD 892 (1976) RA 6732 (1989)

1. 2. 3. 4. 5.

Civil Code (1949) RA 4726 (1966) PD 1067 Water Code (1976) PD 957 Judiciary Reorganisation Act BP 129 (1981) The Philippine Constitution (1987) EO 292 Administrative Code (1987) RA 7610 Local Government Code (1991) Ag. and Fisheries Modernisation Act RA 8435 (1997)

6. 7. 8. 9.

Original Title Registration Act Mass confirmation of title Recording of unregistered land Reconstitution of titles lost or destroyed Register of Deeds may use seal of Office Prohibiting registration unless tax paid Registration of title under PD 27 Withdrawal of authority to approve surveys Updated title registration law Discontinue Spanish Mortgage System Permitting administrative reconstitution

Laws Indirectly Related to Land Disposition and Land Administration Regulates ownership, contracts etc. Condominium Act Prescribes setbacks from riverbanks Regulation of subdivisions Jurisdiction in land matters Framework for land tenure Powers of eminent domain, escheat etc.

Bills Related to Land Administration Senate Bills 1. SB 167 Amending RA 6657 2. SB 168 Amending RA 6657 3. SB 169 Amending RA 6657 4. SB 549

CARP land may be sold, mortgaged etc. Exemption from retention limits Facilitates voluntary transfers ROD may initiate reconstitution of titles

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5. 6. 7. 8. 9. 10. 11. 12.

SB 715 Amending RA 6657 SB 920 SB 1568 SB 1597 Amending RA 6657 SB 1657 SB1691 Public Lands Act National Land Use Planning Act SB 1695 Extension of Free Patents

13. 14.

SB 1785 SB 1931 Amending RA 6657

Coconut farms last priority for acquisition ROD may institute reconstitution of titles To create land title insurance Use of CLOA as collateral To create land title insurance Replacing CA 141 Extends period for admin. and judicial confirmation of title ROD may institute reconstitution of titles Broadens definition of agricultural land

House Bills 1. HB 190 National Land Use Code 2. HB 341 3. HB 400 4. HB 652 5. HB 1110 6. HB 1367 7. HB 1779 8. HB 1921 9. HB 2138 10. HB 2653 11. HB 2786 12. HB 3256 13. HB 3373 14. HB 3946 15. HB 4035 16. HB 4628

CARP land may be mortgaged ROD may institute reconstitution of titles Fees for exclusion of lands from CARP National Land Use Act Prohibitions on reclassification of ag.land National Land Use Policy Act Exemption of certain lands from CARP Use of idle lands for social housing CARP land may be mortgaged Owner not liable for reconstitution expenses National Land Use Act Declare certain occupied forest land as A&D CARP land may be mortgaged Revised Public Land Act Extends period for admin. and judicial confirmation of title

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Annex 5 3.1.1

PHILIPPINES-AUSTRALIA LAND ADMINISTRATION AND MANAGEMENT PROJECT (LAMP) 3.1.2 Workshop Notes

Preliminaries: The Discussants Lamp Workshop 1 (May 17) The first LAMP workshop on the fragmentation of laws study dealt with the private sector as represented by banks, practicing lawyers, and real estate developers, among others. The workshop drew participants from the Allied Bank — foreclosing department; SM Holdings; Chamber of Real Estates and Brokers Association (CREBA); a realtor; the president of the NGOs For Protected Reservations; a law firm; and some government agencies including the Pag-ibig Fund, PAREB, the DBM, and a professor from the School of Urban and Regional Planning (SURP-UP Diliman). Lamp Workshop 2 (May 22) The second LAMP workshop also targeted participants from the private sector but this time addressed the issues and concerns from the Non-Governmental Organizations (NGOs). NGOs represented include those of Tanggol Kalikasan; Upland NGO Assistance Committee; Institute on Church and Social Issues; Saligan; Institute of Governance – De La Salle University; Center for Agrarian Reform; Pakisama; Sama-sama Organization Maralita – Kapasan; Freedom to Build; and Partnership for Agrarian Reform and Rural Reform Services. An Ateneo De Manila University research associate also participated in the workshop. Lamp Workshop 3 (May 24) The third LAMP workshop was for the government sector. The Department of Agrarian Reform, the Lands Management Bureau – its Director and an Asst. Chief of a Division, Land Registration Authority, Bureau of Soils and Management, Housing and Urban Housing Coordinating Council – its Officer from the National Government Center and the Planning Officer, the League of Cities, the National Housing Authority – from its National Planning Office and a Legal Officer, Technical Working Group from the Office of Sen. Robert Jaworski, Forest Management Bureau – Executive Liaison Officer, Bureau of Mines, National Mapping and Resource Center, NAMRIA, the National Commission for Indigenous Peoples, Department of Environment and Natural Resources, the Bureau of Internal Revenue – Tax Division, and Housing and Land Use Regulatory Board – its Commissioner for Legal Affairs. Realizing the Problem Easily discernible from the workshops is the discussants’ awareness that various problems currently confront our system of land administration and management. Commonly identified as problems are that there are so many antiquated laws, procedures for getting a title being long, cumbersome, and expensive, that there are jurisdictional conflicts as there are many agencies involved in the issuance of a title. Moreover, the discussants point out the irony that while titles serve as instruments of land ownership, there is a problem on the reliability and security of titles. It has been noted that there has been a proliferation of fake and double titles and the CLOAs have been unilaterally cancelled. This latest problem more likely emanated from the other problem of no reliable and complete source of information. While land classification is entrusted to Congress and reclassification is delegated to Local Government Units (LGUs) following the mandate of a provision in the Local

Annex 5 Government Code, land conversion on the other hand is a power reposed in the administrative agencies, i.e., DAR. This classification and conversion entanglement is another source of confusion. Then there is a question as to the relevance of homesteading and free patenting. Finally, it has been pointed out that there has been arbitrariness in land valuation. Institutional problems Interestingly, most of the discussants have taken strong positions that the current problems on land administration are rooted in institutional, rather than legal causes. By this is meant that the laws, while old and fragmented, are hardly to blame for the current mess when compared to the people running the system. Graft and corruption/ bureucratic red tape is the most cited root of all evil in Philippine society (including land administration). The Government’s prioritization and policies have also been questioned, aside from the proliferation of land titling syndicates. As to problems relating to jurisdiction of various agencies involved in land classification and registration, turf wars among the agencies concerned is also cited as a reason why it would be so hard to harmonize and delineate functions.

Legal Problems Of course, citing the institutional problems does not rid of the fact that legal problems contributed to the cause the problems in land administration. After all, there are so many laws, rules and regulations complicating the matter of land registration. Not to mention the fact that the laws also created the jurisdictions of the various agencies involved in land registration. Specifically, it was mentioned that as to the problems in land classification, it is the Constitution which provides that Congress may subclassify agricultural lands and defined national parks too technically. Then, the Local Government Code provided the LGUs with the power to reclassify the alienable and disposable lands. Yet, EO 72 collides with the Code as to vertical integration. Moreover, the current classification failed to address overlaps of land where an agricultural land may sit on mineral land and forest lands cut across mineral, ancestral and protected areas. Free patenting and homesteading as provided in the old Public Land Act (this Act was enacted during the Commonwealth years) have to be reexamined as recent developments, i.e., no more frontiers, challenge their need. Then, there is the conflict of allowing the NCIP to issue titles (CALTs and CADT) and make their own surveys following the enactment of the Indigenous Peoples Rights Act. This poses a challenge to the policy where only A & D lands could be disposed of, yet inalienable lands could be titled under IPRA as ancestral lands cover both alienable and inalienable lands. The criteria for land classification have to be examined. The law providing the 18% slope – forest land rule is challenged as failing to account cultural factors specially those concerning ancestral lands.

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SUMMARY OF WORKSHOP ISSUES AND OUTCOMES LAMP Workshop 1 Public Sector (May 17) integration notes (N.B.: items on the same row do not necessarily correspond) PROBLEMS/ DEFICIENCIES 1. too many agencies to consult resulting in conflict among government agencies on jurisdiction 2. reliability and security of titles 3. reliable and complete sources of information 4. problematic access to the assurance fund 5. processes are too long, expensive and slow; “either-or” agencies breed forum shopping 6. unilateral cancellation of land titles (applicable in CARP cases) 7. proliferation of fake/ spurious titles 8. difficulty in getting certified true copies/ records not accessible 9. too many forms of titles 10. too many laws that confuse the system

11. lack of forms/ titles 12. implementing laws merely repeat the main law or even exceed the law itself 13. lack of proper preparation of agency people who will implement the law

REASONS 1. overlapping of jurisdictions

RECOMMENDATIONS 1. simplify and streamline process

2. people don’t trust the Torrens system 3. lack of basic information and maps (each agency has its own databank) 4. too many requirements to access the assurance fund 5. improper implementation of the laws

2. remove the courts in the Torrens system 3. different studies for urban and rural areas

6. control problem/ graft and corruption 7. no efficient, systematic database 8. each administrative agency issues its own title 9. Congress legislates without reference to old laws/ even if some laws have repealing clauses, it is only a general clause and no specific laws is identified to be repealed 10. American influence 11. laws are too descriptive

administrative

4. equity of access to system (subsidies/ taxes/ fees) 5. there should only be one agency to issue titles 6. data banking 7. computerize/ modernize information systems 8. ensure proper implementation; due process; just compensation should be observed 9. adopt effective control 10. review and consolidate existing land laws by: codifying – include public land disposition and land registration; combining identical laws to reduce number of existing laws; and using a framework law, i.e., the Urban Land Use Act 11. one-title system 12. make the LRA a public corporation

Annex 5

LAMP Workshop 2 Private Sector (May 22) integration notes (N.B.: items on the same row do not necessarily correspond) PROBLEMS/ DEFICIENCIES 1. Old, outdated public land laws not reflective of need (too many laws) and lack coherence

VISIONS 1. fewer, simpler, and effective laws via a Consolidated Land Administration Law – includes Titles and Land Management

2. disposition is not discussed apart from use

2. equitable access to all resources, e.g. agrarian and indigenous peoples based on primary objective 3. integrated agency policies

3. too many maps (overlapping territorial boundaries) NMRIA, DENR and IPRA have separate maps 4. concentration of land – communal; historical influence; and economic system imposed

4. common concept of title

5. existing land tenure instruments – too many wrong ones 6. agencies have not integrated IPRA 7. delineation of areas for titling – several agencies authorize surveyors (IPRA – 1:5,000 & 1:10,000; DENR – 1:50,000) 8. Government macro policies (trade, industry, privatization) 9. land conversion from agricultural to

6. choice of tenure and harmonize beyond the Constitution 7. autonomy of Indigenous Peoples (IPs)

5. general law recognizing all existing tenures

8. community choice on survey methodology within standards 9. use deed of partition, not deed of sale for

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STRATEGIES 1. update, codify and consolidate all laws pertaining to land classification and registration – separate, e.g., forest lands and AR lands; settle debate between public and private lands; consider areas of multiple use as public lands – regulated disposition 2. adjudication – specialized, quasi-judicial – arbitration 3. up-to-date Geodetic Code – one coherent map showing land use and ownership 4. intensive information dissemination – about titling and content of titles 5. Major codification to address land classification, land use management, and tenure 6. delete 18% slope rule

Annex 5

residential lots – time-consuming, expensive 10. lack of financing for reblocking of regularized communities 11. no time standard in the processing of titles 12. quieting of title cases clog the courts 13. overlapping of titles 14. land titling syndicates

group acquisition of land 10. remove discretion from bureaucrats – land use code; mapping of land uses 11. issuance of use rights certificates 12. one-stop shop 13. establish new and permanent points for reference by surveyors 14. inter-agency to address city/ town land use classification 15. simplify process/ cut down requirements/ red tape/ reduce fees 16. funds to help poor families in reblocking to hasten land titling

15. lack of comprehensive National Land and Water Use Policy Framework 16. inconsistency of Local Government Code and EO 72 – unclear vertical integration 17. unclear land classification system 18. reclassification (LGUs) vs. conversion (DAR) 19. free patents and judicial confirmation as modes for securing/ acquiring ownership is not stated in the Constitution 20. proliferation of fake and illegally issued titles/missing titles 21. unclear delineation between DENR and DAR authority over the disposition of untitled privately-claimed agricultural lands. 22. insecurity of titles – cancellation of Emancipation Patents and CLOAs

7. passage of NLWUA (Rosales/ Acosta version) 8. repeal EO 72 and implement Sec. 20 10. repeal DOJ Opinion 44 – S 1990 11. constitutional changes to ensure recognition and strengthen claim of IPs to Ancestral Domain 12. expedite computerization of titles 17. Security of titles and tenure for all marginalized sectors 18. Clear, rational, comprehensive land use policies 19. Consistent and better-crafted land laws and rules 20. Long-range policies on land classification management and disposition

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13. Abolition of deadlines for filing of application for judicial and administrative confirmation of titles 14. DENR Sec to repeal AO 99-22 of Sec. Cerilles 15. Reiterate indefeasibility of titles issued under AR laws 16. SC to issue guidelines on land valuation

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Arbitrary land valuation

21. Government with political will to implement reform

24. Reconstitution laws requirement too landowner oriented – poses problem for CARP implementation; DAR has AO to initiate reconstitution

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17. Impose and implement higher penalties for higher penalties for offenses committed by RODS and private persons 18. Recognition of equal rights of women and men to own land – laws must be genderresponsive.

Annex 5

LAMP Workshop 3 Civil Society (May 24) integration notes (N.B.: items on the same row do not necessarily correspond) PROBLEMS/ DEFICIENCIES 1. Multiplicity of agencies that verify and approve surveys and issue titles resulting in overlapping and duplication of functions and claims – different agencies implement various laws and there is an overlap between the LRA and LGUs in the approval of the subdivision of titled lands 2. Problems arising from passage of IPRA allowing the NCIP to issue titles (CALT’s and CADT’s) and verify and approve surveys

VISIONS 1. Have one (1) Omnibus Land Code

STRATEGIES 1. Concentrate authority to verify and approve surveys in only one agency; review and simplification of procedures

2. Computerization/ modernization of records/ database that can be shared by various government agencies and extending this to other processes, i.e., publication, notices, etc.

2. Titles then may be issued by the various agencies with the option to have one agency authorized to administratively issue titles (N.B.: A strong objection was raised by the NCIP as this is a special case recognized by law)

3. Definition of terms or usage thereof – confusing 4. Problems in the issuance of TCTs

3. Use only one standardized definition in Philippines 4. Efficient recording of land transactions in one title

5. Problems in conversion and classification of lands 6. No unified land valuation system – valuation conducted by various agencies 7. Need/ relevance of issuing free patents

5. Have unified valuation system 6. Adopt ideals of Torrens system

Cumbersome and costly proof of

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3. Simplify and minimize clerical work by having one title and merely annotating and annexing documents for subsequent transactions 4. have one national agency to undertake valuation 5. Review of appropriateness of issuing free patents - if appropriate, then extend free patents 6. Simple administrative processes –

Annex 5

ownership requirements

decentralize/community based resolution, i.e., Bangkok 7. Harmonize Laws – New Code

9. Passage of new lands without regard to other existing laws 10. Limited coverage of the assurance fund

style

of

8. Strengthen assurance fund in its: coverage, mechanism and funding 9. More political will and funding land classification activities 10. Integrate and synchronize administrative and management programs with the comprehensive government plans at the LGU, regional and national levels.

11. Lack of up-to-date land classification 12. Lack of master plan for land classification and disposition 13. Land classification in Constitution – subclassification of agricultural lands and national parks defined too technically 14. Overlaps of lands -- agricultural land sitting on mining land and forest lands cut across mineral, ancestral and protected areas (title to cover surface excludes mineral resource) 15. Relevance of Homesteading when there are no more frontiers 16. Free patent recognition of land occupancy/ cultivation by settlers 17. Costly, long, and cumbersome judicial system of titling

11. eliminate homestead mode 12. Constitutionalize free patent and reduce occupancy requirements to 10 years 13. Eliminate judicial system and strengthen administrative system by decentralization with safeguards

18. Ancestral land covers alienable and inalienable lands where inalienable lands could be titled and there are no metes and bounds (self-delineation) 19. Mineral Lands -- temporary nature of classification

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Annex 5

PHILIPPINES-AUSTRALIA LAND ADMINISTRATION AND MANAGEMENT PROJECT (LAMP) Workshop Notes Leyte Cross-sectoral Workshop

Preliminaries: The Discussants The PA-LAMP Leyte Cross-Sectoral Workshop on Land Laws for Land Administration drew participants from the government sector, represented by: the Department of Agrarian Reform (DAR) with its Asst. Director from Palo, Leyte, the Department of Environment and Natural Resources (DENR) – from CENRO and GEP, the Bureau of Internal Revenue (BIR) with the Regional Director and the Chief Assessor, the Local Government Units with the Provincial Assessor and the Municipal Assessor of Alang-alang, the Department of Budget and Management (DBM), the Department of Justice (DOJ), the Land Registration Authority (LRA), the UP Law Center, Landbank, TDIP, LAMP PIO 1, and the private sector, coming from: CREBA, and NGOs – Runggiyan and Visayas Cooperative Development Center. Problems Identified To elaborate on the problems identified as listed in the Appendix, the CLOAs are not dependable because they are easily cancelled and are awarded to unqualified beneficiaries. For instance, confusion was created when there was a cancellation of 4 CLOAs covering 3,000 hectares in 4 municipality. Moreover, the procedure for the issuance of a title is so long and cumbersome, evident of red tape. As explained, there should initially be surveying done, then this has to be approved by the DENR, then approval in the Local Government Unit (LGU). In a city, the City Planning Office, the City Engineer, and the City Assessor all have to approve the survey. After the LGU, it has to go through the Housing and land Use Regulatory Board (HLURB), then finally to the Register of Deeds. Thus, when asked for the average time spent for the processing of a title, the discussants from Group 2 said that a whole lifetime is not infrequent. This long process breeds unnecessary expenditure (a surveyor usually charges P10,000.00 per lot; a lawyer asks for P20,000.00 as case acceptance fee; then charges P2,000.00 as appearance fee), and may result in the issuance instead of an Untitled Tax Declaration only in lieu of the land title. Further, a long process is susceptible to applicants want to go through a shortcut, breeding corruption. A woman who went to the LAMP PIO 1 office narrated that she already spent P80,000.00 but still has no title in her name. Then there is the problem of a diffused information system and too many agencies tasked in land registration. The NAMRIA, PCGS, Bureau of Mines, Department of Agriculture, and the NCIP all do surveying and mapping resulting in no technology application and overlapping boundaries. Records management is not given importance as seen in the national budget. No centralized information can be gathered in one agency only as information on taxes would have to be asked from the assessors while surveys would have to be looked for in the DENR/ DAR/ Bureau of Mines/ Bureau of Fisheries/ Department of Agriculture making decision-making slow and not rational. To highlight the importance of an integrated records management, an actual experience was shared. During the time of the Aquino administration, a group of foreign investors were looking for 10,000 ha of land for palm oil production. Fortunately for them, the Office of the President referred the matter to the Bureau of Lands. After preliminary studies, it was found that the suitable location was either in Bukidnon or Agusan. But because there was no easy access to information, there had to be a team of 20 people sent to Bukidnon and Agusan to conduct further studies. Nevertheless, the team had to spend 4 months for the studies. (Now imagine if an investor would only have to go to one agency and using a computer,

Annex 5 would be able to access any information, i.e., soil condition, rainfall, classification, about a parcel of land anywhere in the Philippines) Plenary Discussions The plenary discussions centered on five major issues: the authority in the classification of public lands, the various classifications of land, the need for titling, the current state of land laws, and the debate between judicial or administrative process in land registration. Authority in land classification While it is recognized that there is a need to classify all lands in the Philippines, the question is whether it would be more effective to leave the classification to Congress. Under the 1987 Constitution, it is Congress that is empowered to classify lands. Yet the discussants believe that land classification should be through the executive branch. To achieve this requires Constitutional amendment and then amending specific statute, e.g. Public Land Act – granting land classification power to Congress. Furthermore, aside from placing land classification under the executive, the power should also be localized. Localized in the sense of the regional offices of the executive branch because some Local Government Units may not be ready as the people hardly elects the politicians based on capability. The various classifications of land The Constitution provides that the lands of the public domain are classified as agricultural, forest, mineral, and national parks. But the Local Government Code (RA 7610) made further classifications of residential, industrial, commercial, special, etc. How do we harmonize these sets of classifications? The Constitution has also provided that Congress can further classify disposable lands according to use. The classifications in RA 7610 are based on actual use. Only those classified as alienable and disposable lands can be sub-classified by RA 7610. (PEENRA is also classifying lands from the environmental perspective). Moreover, the classification as “agricultural” in the Constitution should have been alienable and disposable, thus RA 7610. But Section 217 of RA 7610 providing for “actual use” is applied for taxation purposes only. Thus should this “actual use” also apply to classification? There have been misclassifications in the past. To address this, a multidisciplinary approach was suggested. Then there is also a need for an effective program to delineate forest lands away from the A & D lands. But the criteria for the classifying public lands as forest lands should be examined. Using the current criteria, much of the Province of Leyte would be forest lands. The Need for Titling Do people really need titling? As pointed out, a title is just evidence of ownership. It is the instrument by which formal and legally enforceable rights in land are recognized. Before titling, there was no issue about land ownership, it was only when the titling system began that landgrabbers became a problem. Further, what do we do with the title after we receive it? For instance, CLOA’s cannot be disposed of in 10 years and the beneficiary can only borrow from the Land Bank of Philippines. On the other hand, free patents cannot be disposed of in 5 years. So some people ignore the restrictions and transfer the lands anyway. This led to a suggestion that perhaps should minimize the restrictions attached to the different kinds of titles. An actual experience was related wherein sometime 1983, people living in the Rimas colon area (Behind DYVL) were relocated at the Northern Brgy. under the BLISS program. In just about 5 years, the relocated residents sold their lots and went back to squatting.

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Annex 5 Notwithstanding the above-mentioned problems in titling, the discussants agreed that titling is still relevant. Titling is for security and progress. A land title gives a sense of security to its holder. Thus, the generation of land titles which is believable and gives security of tenure is relevant for capital generation. It is up to each community to determine what security and development means and what the content of their titles should be and should mean. But the issue of what people can do with their titles is another matter. Land reform programs are broader than just titling. There are other related infrastructures such as financing and human resource development. For example, in launching the agrarian reform program, the Government simply wanted to impress on aid organizations (e.g. World Bank) that something was being done for the people. Thus, the Government went to give out lands without providing for the necessary support services in turn making the results of the Philippine agrarian reform program unclear even after 15 years. Agrarian reform should not be a permanent fiction/fixture. If there is sincerity in terms of the implementation of the program, the “clean hands and hearts doctrine” should be applied. After giving out land, the government should provide the necessary support services and have regulatory mechanisms for the purpose to be achieved. The Current State of Land Laws The discussants pointed out the perennially identified problem of the complicated manner of titling only lawyers can understand. The saving grace was that at least the PENRO in Leyte has processed patents within 30 days. But the patentees still need to be advised that their patents are already available at the ROD. So, while the processing may be fast, the patents issued are still held up at the ROD due to requirements for back-taxes to be paid. The Bureau of Internal Revenue (BIR) usually determines the tax based on Tax Code. If there is an increase in the amount of tax to be paid, it is usually due to late filing and late payment resulting in interest levied on the principal amount assessed. Under Tax Code there is abatement of penalties and compromise settlement of amount owing. If the amount payable is more than P500,000.00, the matter goes to national level. Since it would not be helpful that the patents are held up just for failure to pay taxes, there was a suggestion that a lien be annotated on the back of the title, the amount payable on further transactions on the title. As to the state of land laws, the discussants preferred to have laws that reflect reality rather than reality forced to fit into the law. Administrative or Judicial Process of land Registration The most contentious issue that left the discussants with no clear consensus was on the debate between having administrative or judicial or both administrative and judicial process of titling. It has been explained that development situation requires speedy and reliable titling. Most countries in the region have already adopted an administrative system only. The Philippines acquired the Torrens system from Massachusetts that laid heavy emphasis on judicial titling. Yet this system has already largely failed in the US due to expense and delay of judicial system and “patched-up” with private titling insurance. Moreover, if the Philippines stick to just one process, e.g., judicial, the process is slow and expensive. Despite this explanation for the position advocating an administrative system of land registration, the other discussants felt uneasy doing away with the judicial process and posited instead that other people may want to access the old system. Thus, if an effective administrative system is placed, just let it be the method by which the judicial method be eased out. In other words, the position calling for both administrative and judicial methods is to let the method compete amongst them and let the fittest (translating to efficient and inexpensive) survive.

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Annex 5 Strategy There was also a suggestion as to directions in coming up with a legal framework for the changes to be made in the current state of land laws. The direction calls for (1) looking into the whole cadastral package – studying what methods and requirements are available for land registration, and (2) looking into institutional agencies – analyzing where the various agencies involved in land titling have developed overlapping functions and studying the allocated budget in the General Appropriations Act to see how prioritized the area of land registration is by the government.

70

Annex 5

LAMP Workshop 4 – Leyte (June 5) integration notes (N.B.: items on the same row do not necessarily correspond) PROBLEMS/ DEFICIENCIES IN LAND ADMIN LAWS 1. proliferation of fake/ double titles; CLOAs undependable 2. Bureaucratic Red Tape: Surveying – DENR – LGU – HLURB – ROD

VISION FOR THE FUTURE LAND ADMINISTRATION SYSTEM 1. only one office in titling with an efficient and effective system free of graft and corruption/ political influence and true to the ideals of a great society 2. rational management of land answering the needs of the average Filipino (economic, social and environmental) and sustaining the development process in the country

3. Antiquated system not in consonance with world standards 4. Political influence/ graft and corruption tarnish sustainability as people have lost confidence and trust in government 5. People are ignorant/ uninformed of the system 6. expensive system – P10,000.00/lot for surveyors; P20,000.00/case acceptance fee for lawyers

3. Should minimize/ decrease costs

7. absence of an integrated land related records administration

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RECOMMENDATIONS AND STRATEGIES 1. amend PD 1529 (Property Registration Decree) and CA 141 (Public Land Act) 2. cadastral surveying in all areas

3. there should only be one kind of title (no more patents, no more CLOAs) coming from one office only 4. lessen steps in land registration to only 2 – surveying, then to the RD for the issuance of titles 5. Creation of an inter-agency information committee at the local government level 6. Subsidize cost, annotation of encumbrances or condonation of some fees and taxes affecting the land 7. stop the politicians from meddling 8. implement a good community relations service and transparency 9. on an integrated land records administration: 9 Develop a single land identifier system 9 Go into land data-banking using a unified

Annex 5

National Land Data Base Provide an inter-agency systems and procedure for capturing new information and transactions on land matters with different agencies 9 Establish mini-systems of records mng’t from national to provincial and municipal levels 10. on an integrated land survey authority Develop a single land surveys and mapping authority Provide the legal authority framework for developing technical, administrative and policy reforms on surveys 11. on an integrated authority mechanism on land administration Develop a unified land mng’t system charged with functions on surveys, mapping, disposition, titling and registration Formulate an authority framework to regulate land transactions for both private and public lands 12. integrate land related taxes and fees 13. Extend free patenting until all disposable lands are certified by the concerned agency 14. There should be a general updating of land classification 15. Codify all existing laws relating to land titling and registration 16. Legislation of laws pertaining to the integration of all offices (DENR, HLURB, LGUs, ROD) to create one agency to cater survey, processing, issuance and registration of title 9

8. diffused administration and authority in land surveys and mapping, resulting in overlapping boundaries

9. diffused authority mechanism on land administration

10. irrational land revenue collection 11. expiration of Free Patent Law resulting in deprivation of administrative titling 12. Classification of Lands – inconsistency of actual use with the present classification 13. Conflicting/ overlapping laws pertaining to land titling 14. Many agencies are involved in land titling

3. Synchronized or harmonized provision of existing laws and regulations on land titling 4. Only one agency will cater to the survey, processing, registration and issuance of title

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Annex 5

15. Several documentary requirements in each agency

5. Simplified documentary requirements in each agency

16. Defective land surveys

6. Centralized record keeping by one agency of all survey records 7. Visible land marks or monuments on the ground

17. No proper delineation of boundaries between alienable and disposable land and timber land 18. The tedious system of registration of inherited properties involving several successors-in-interest 19. Strategic location of different agencies involved in land titling and registration 20. Issuance by some assessors on land classified as timber land 21. Negative or passive attitude of land claimants relative to registration and titling of lands 22. Classification of Lands as provided in the Constitution belongs to Congress and the classification involves political issues

8. Heirs are motivated or encouraged to register their inherited properties and subsequent transfer thereof 9. One stop shop

23. Non-appreciation of the value of Torrens system 24. Procedures too long and tedious

13. Owners appreciate/ enjoy value of the Torrens system 14. Provide uniform and simple procedures throughout the country

10. No issued tax declaration within lands classified as timber lands 11. Positive attitude of land claimants relative to land registration and titling 12. Classification should be with the Executive and be localized

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17. Policy formulation on the existing procedures on documentary requirements pertaining to land titling 18. Only one agency should keep records of surveys 19. Actual survey of land specifying boundaries between alienable and disposable land and timber land on the ground by putting land marks or visible monuments 20. Proper information campaign to the heirs on the advantages and benefits derived in having lands titled 21. All different agencies involved in land titling should be strategically located 22. There must be a law regulating issuance of tax declaration 23. Proper information campaign to land claimants 24. Enact law where land classification goes through the Executive only and localize to LGUs and amend Constitution considering the Regalian doctrine 25. Massive information drive and land mapping 26. Creation of One-Stop Shop type of rendering service

Annex 5 Minutes of the Consultative Mini Workshop With NGO’s Date : June 6, 2002 Time : 11:15 A.M. Venue : Conference Room, OSS Building Candahug, Palo, Leyte Presiding Officer : Lisa Ting, International Consultant Present : Florentino G. Saludo - COS – Rural Development Institute (RDI), Leyte Godofredo B. Maray - Project Director – Leyte Rural Assistance Program (LRAP) Clarita P. Napoles - Regional Executive Director – VICTO Andresito A. Deligero - President – CREBA Jocelyn Y. Dorado - Administrative Officer – RUNGGIYAN Antonio C. Gobenciong - President and Executive Consultant – Training & Dev’t. Institute, Phils Angeles R. Borja - Planning Office, LAMP-PIO 1, Leyte Agenda : Policy Study on Fragmented Land Laws and Regulations of Properties affecting Land Administration. Major Issues Raised: 1. Different land titling processes its advantages and disadvantages. Titling (now)

Advantages

Time

Disadvantages

4

Restriction

A.

Judicial

- strong legal basis & evidence of ownership

B.

Homestead

- minimal cost

25 years

- unfairness(gender) - prone to abuse - even tenants/ anyone can apply

- minimal cost

5 years

- 30 yrs. possession too long

0 years

- buy from the gov’t. - costly - can not determine the valuation - its up to the gov’t.

C. Free Patent (Agricultural lands)

D. Misc. Sales - sell right away 1. Residential - faster than judicial 2. Foreshore titling

- costly & time consuming - long process - it took years

E. Revocable F. CLOA/EP

1 year - free, but cost of the land is being amortized

10 years

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- can be unilaterally cancelled by DAR

Annex 5

G. Presidential - squatters, schools Proclamation on public lands H. Special Free Patent (Residential lands) I. IP (NCIP)

- Time of occupation 5 years

- For Indigenous Peoples only

2. Titling processes under DAR, DENR & LRA. In the present practice in land titling process, several agencies are involved. Since these agencies are governed by their own policies, the duplication in the issuance of titles is inevitable. Some of these policies are in conflict with that of the other agencies. 3. Overlapping of functions of the different agencies involved in the titling process. Jurisdiction of certain key land areas specifically on agricultural land must be clarified. An efficient system would be established if all the agencies involved in the land titling process would be integrated under one (1) department to avoid overlapping of functions. 4.

Conflicting land laws in the land titling process of the different agencies. Certain laws govern every agency; some of these are in conflict with the policies of the different agencies. To avoid conflict of laws, amendments of certain laws are essential and must be consistent. e.g. R.A. 6657, the Agrarian Reform Law wherein it covers all public as well as private agricultural lands, regardless of tenurial arrangements and kind of commodity produced, its retention limit is only 5 hectares. But under the Homestead Patent Law the area limit is 24 hectares then it was reduced to only 12 hectares. The law is still certain that the area limit is 12 hectares, which is consistent with the provision in the Constitution. But during the deliberation of the proposed extension of Free Patent Law in the lower house and the Senate, it reduces the area limit to 5 hectares to conform with the provision under the CARP Law.

Suggestions/Recommendations: 1. Simplify or streamline the land titling process and amend some laws in order not to create conflicts between agencies involved. 2. Formulation of policies framework by which we can shift direction in the analysis of existing legal framework operating in the country at present. 3. Come up with certain reforms in the administrative system, it should be guided by set of fundamental principles by which later on we will be able to come up with the right proposal on how to go about it. 4. Come up with unified policies in order to arrive at the right direction in the implementation of land titling activities. Prepared by: ANGELES R. BORJA Planning Officer

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QUESTIONNAIRE TO COURTS: LAND REGISTRATION CASES

Annex 6

Level of Court Location of Court Total # of cases 1998-2001 Total # of land registration cases 1998-2001 4.1 Please note that the date a case entered the court system means the date that a case was first filed in any court. 1) Cases that first entered the court system less than 2 years ago 5

Type of Case

No. of cases

Type of Case

Judicial confirmation of imperfect or incomplete titles

Reconstitution of lost or destroyed original Torrens titles

Replacement of lost duplicate certificate

Adverse claims

Conflicting claims for the same type of tenure

Amendment of certificate of title: substantive and minor alterations

Petition for surrender of duplicate certificate

Conversion of land use

Others – please describe:

Others – please describe:

No. of cases

2) Cases that first entered the court system 3 - 5 years ago 6

Type of Case

No. of cases

Type of Case

Judicial confirmation of imperfect or incomplete titles

Reconstitution of lost or destroyed original Torrens titles

Replacement of lost duplicate certificate

Adverse claims

Conflicting claims for the same type of tenure

Amendment of certificate of title: substantive and minor alterations

Petition for surrender of duplicate certificate

Conversion of land use

Others – please describe:

Others – please describe:

No. of cases

3) Cases that first entered the court system 6 - 9 years ago 7

Type of Case

No. of cases

Type of Case

Judicial confirmation of imperfect or incomplete titles

Reconstitution of lost or destroyed original Torrens titles

Replacement of lost duplicate certificate

Adverse claims

Conflicting claims for the same type of tenure

Amendment of certificate of title: substantive and minor alterations

Petition for surrender of duplicate certificate

Conversion of land use

Others – please describe:

Others – please describe:

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No. of cases

QUESTIONNAIRE TO COURTS: LAND REGISTRATION CASES

Annex 6

4) Cases that first entered the court system 10 or more years ago 8

Type of Case

No. of cases

Type of Case

Judicial confirmation of imperfect or incomplete titles

Reconstitution of lost or destroyed original Torrens titles

Replacement of lost duplicate certificate

Adverse claims

Conflicting claims for the same type of tenure

Amendment of certificate of title: substantive and minor alterations

Petition for surrender of duplicate certificate

Conversion of land use

Others – please describe:

Others – please describe:

Types of Cases

Common reasons for delays

Judicial confirmation of imperfect or incomplete titles Reconstitution of lost or destroyed original Torrens titles Replacement of lost duplicate certificate Adverse claims Conflicting claims for the same type of tenure Amendment of certificate of title: substantive and minor alterations Petition for surrender of duplicate certificate Conversion of land use Others

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No. of cases