land titles and deeds reviewer

DIWATA NOTES (LAND, TITLES, AND DEEDS, 2014-‐2015) Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, kindly exercise caution when using this material.

1

1

LAND TITLES AND DEEDS MIDTERM 2014 – 2015 I. NATURE OF REGISTRATION PROCEEDINGS AND JURISDICTION OF COURTS 1. REGALIAN DOCTRINE

• The Regalian Doctrine or jura regalia embody the concept that all lands of the public domain are owned by the State.

• The State is the source of any asserted right to ownership and charged with the conservation of such patrimony.

• All lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State.

• Basis: The theory of feudal system was that the title to the all lands was originally held by the King, and while the use of lands was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained the title.

• It was adopted and enshrined in the 1935, 1973, and 1987 Constitution.

• Article XII, Section 2, 1987 Constitution: “Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-‐production, joint venture, or production-‐sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-‐five years, renewable for not more than twenty-‐five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of waterpower, beneficial use may be the measure and limit of the grant.

• CASE: Cruz vs. Sec. of Environment and Natural Resources The petitioners, Isagani Cruz and Cesar Europa, challenged the constitutionality of RA No. 8371 or the IPRA of 1997, on the ground that it amounts to an unlawful deprivation of the State’s ownership over lands of the public domain and all other natural resources therein, by recognizing the right of ownership of ICC/IPs to their ancestral domains and lands on the basis of native title. The Supreme Court, in a vote of 7-‐7, upheld the constitutionality of the IPRA. Justice Kapunan stated that the Regalian Doctrine does not negate native title to lands held in private ownership since time immemorial because those lands are presumed to never have been a public land. Moreover, it doesn’t violate the Regalian Doctrine because there is no provision in the IPRA that grants ownership over natural resources within the ICC/IPs ancestral domain.

• CASE: Secretary of DENR vs. Yap

This is a consolidated petition of two groups of private claimants contending that prior to Proclamation No. 1064 issued by PGMA in 2006, Boracay Island was unclassified land of public domain, over which they have not acquired vested rights of ownership. The group of Sumndad insist that Boracay Island is susceptible of private ownership by acquisitive prescription under applicable laws classifying it as agricultural land and as a tourism zone under Proclamation No. 1801 and related issuances. For their part, private claimants Mayor Jose S. Yap, Dr. Orlando Sacay, and Wilfredo Gelito assert that they are entitled to judicial confirmation of imperfect title under Proclamation No. 1064. The Supreme Court DENIED the motions and ruled the following:

1. Proclamation No. 1801 or PTA Circular No. 3-‐82 did not convert the whole of Boracay into an agricultural land. There is nothing in the law or the Circular, which made Boracay Island an agricultural land. Simply put, the proclamation is aimed at administering the islands for tourism and ecological purposes. It does not address the areas' alienability

2. On the constitutionality of Proclamation No. 1064, the Court cannot entertain private claimants' belated argument that President Arroyo arrogated unto herself the Congressional power to classify forest lands. This is raised for the first time and it is a collateral attack on the validity of Sections 6 and 7 of the Public Land Act, the basis of President Arroyo's action. For reasons of public policy, the constitutionality of a law cannot be attacked collaterally.

2. TORRENS SYSTEM OF REGISTRATION

NATURE OF TORRENS SYSTEM • It is a system of registration of transactions with interest in land

whose declared object is, under governmental authority, to establish and certify to the ownership of an absolute and indefeasible title to realty, and to simplify its transfer.

• It is the most effective measure to guarantee the integrity of land titles and to protect their indefeasibility once the claim of ownership is established and recognized.

PURPOSE OF TORRENS SYSTEM • To avoid possible conflicts of title in and to real property • Facilitate transactions by giving the public the right to rely upon

the face of the Torrens Certificate of Title and; • To dispense with the need of inquiring further, except when the

party concerned has actual knowledge of facts and circumstances that should impel a reasonable cautious man to make such further inquiry.

ADVANTAGES OF TORRENS SYSTEM • To quiet the land • To accumulate in one document a precise and correct statement

of the exact status of the fee held by its owner • To decree land title that shall be final, irrevocable, and

sustainable • To decree land title which cannot be altered, modified, enlarged,

or diminished except in some direct, and not collateral proceeding

• To relieve the land of the burden of known and unknown claims • To put a stop forever to any question as to the legality of the

title • To simplify ordinary dealings over registered land • To afford protection against fraudulent transactions • To restore the just value of land • To minimize conflicting claims and stabilize land ownership

3. A VIEW OF PAST AND PRESENT LEGISLATION ON LAND

REGISTRATION

THE PUBLIC LAND ACT, CA 141

• Governed the disposition of lands of the public domain • Prescribed rules and regulations for the homesteading, selling,

and leasing of portions of the public domain of the Philippine Islands

• Prescribed the terms and conditions to enable persons to perfect their titles to public lands in the Islands

• Provided for the issuance of patents to certain native settlers upon public lands for the establishment of town sites and sale of lots therein, for the completion of imperfect titles, and for the Islands

• In short, this Act worked on the assumption that title to public lands in the Philippines remained in the government and that the government’s title to public land sprung from the Treaty of Paris and other subsequent treaties between Spain and the US PUBLIC LAND

• Referred to all land of the public domain whose title still remained in the government and are thrown open to private appropriation and settlement, and excluded the patrimonial property of the government and the friar lands

APPLICATION OF CA 141

• Applies to all lands of public domain which have been declared open to disposition or concession and officially delimited and classified

• Provisions on the different modes of government grant—homesteads, patents, sales, and reservations for public and semipublic purpose

• Has a chapter on judicial confirmation of imperfect or incomplete titles based on acquisitive prescription

THE LAND REGISTRATION ACT, ACT NO. 946

• Established the Torrens system of registration in the country • Court of Land Registration—exclusive jurisdiction over all

applications for registration, with power to hear and determine all questions arising upon such applications

• To bring land titles in the Philippines under one comprehensive and harmonious system, the cardinal features of which are indefeasibility of title and the intervention of the State as a prerequisite to the creation and transfer of titles and interests, with the resultant increase in the use of land as a business asset by reason of the greater certainty and security of title

• It doesn’t create a title nor vest one


2

2

• It simply confirms a title already created and already vested, rendering it forever indefeasible.

• Judicial proceedings were in rem and based on generally accepted principles underlying the Torrens system

• Before the creation of the Court of Land Registration, the jurisdiction to determine the nature, quality, and extent of land titles, the rival claims of contending parties, and the legality and effect thereof was vested in the Courts of First Instance WITH THE PASSAGE OF THE ABOVEMENTIONED ACT, TWO THINGS OCCURRED WORTHY OF NOTE:

• A court of limited jurisdiction, with special subject matter, and with only one purpose was created

• By reason thereof, courts theretofore of general, original, exclusive jurisdiction, were shun of some of their attributes—in other words, powers were restricted THE CADASTRAL ACT, ACT NO. 2259

• When, in the option of the President, the public interest requires that title to any lands be settled and adjudicated, he shall order the Director of Lands to make a survey thereof, with notice to all persons claiming interest therein

• Thereafter, the Director of Lands, represented by the Solicitor General, shall institute registration proceedings by filing a petition in the proper court against the holders, claimants, possessors, or occupants of such lands, stating that the public interest requires that the titles to such lands be settled and adjudicated

• Notice of the filing of the petition is published twice in successive issues of the Official Gazette

• Decree shall be the basis for the issuance of the certificate of title which shall have the same effect as a certificate of title granted under the Property Registration Decree

• A cadastral proceeding is in rem, hence, binding generally upon the whole world THE PROPERTY REGISTRATION DECREE, PD 1529

• In order to update the Land Registration Act • To codify the various laws relative to the registration of property and • To facilitate effective implementation of said laws • Supercedes all laws relative to the registration of property • RTC: jurisdiction over applications for registration and all

subsequent proceedings relative thereto, subject to judicial review

• Substantially incorporated the substantive and procedural requirements of its precursor, the Land Registration Act of 1902

• It has expanded the coverage to include judicial combination of imperfect and incomplete titles in its Section 14 (1), cadastral registration proceedings in Section 35 to 38, voluntary proceedings in Sections 51 to 68, involuntary proceedings in Sections 69 to 77, certificates of land transfer and emancipation patents issued pursuant to PD No. 27 in Sections 104 to 106, and reconstruction of lost or destroyed original Torrens titles in Section 110.

• Judicial proceedings are in rem and are based on general principles underlying the Torrens system REGISTRATION UNDER THE TORRENS SYSTEM IS A PROCEEDING IN REM

• Main principle of registration: to make registered titles indefeasible • All occupants, adjoining owners, adverse claimants, and other

interested persons are notified of the proceedings, and have a right to appear in opposition in such application

• Proceeding against the whole world • Proceedings shall be in rem and based on generally accepted

principles under the Torrens system 4. REGIONAL TRIAL COURTS HAVE EXCLUSIVE JURISDICTION

OVER LAND REGISTRATION CASES

• PD No. 1529 was enacted on June 11, 1978. • Section 2 of PD No. 1529 provides that:

“The Regional Trial Court shall have exclusive jurisdiction over all applications for

1. ORIGINAL REGISTRATION of title to lands, including improvements and interests therein, and;

2. Over all petitions filed AFTER ORIGINAL REGISTRATION OF TITLE, with power to hear and determine all questions arising upon such applications or petitions.

• BEFORE THE ENACTMENT OF PD NO. 1529, the following rules

shall apply: 1. IF THERE IS NO ADVERSE CLAIM OR SERIOUS

OBJECTION ON THE PART OF ANY PARTY IN TEREST, summary reliefs, such as an action to compel the surrender of owner’s duplicate certificate of title to the Register of Deeds, could only be filed with the

Regional Trial Court, sitting as a land registration court

2. IF THERE IS CONTROVERSY AND/OR CONTENTIONS, it shall be an ordinary action or in the case where the incident property belonged.

• Section 34 of BP No. 129, known as the Judiciary

Reorganization Act of 1980, as amended by RA No. 7691, approved March 25, 1994, grants to first level courts – MTC, MeTC, MCTC -‐ delegated jurisdiction to hear and determine cadastral or land registration cases in the following instances.

1. Where there is NO CONTROVERSY OR OPPOSITION, or 2. Contested lots the where the value of which does NOT

EXCEED ONE HUNDRED THOUSAND PESOS (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts.

• Section 33 of BP No. 129 provides that the MTC, MeTC, MCTC

shall exercise: 1. Exclusive original jurisdiction over cases of forcible

entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession.

2. Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That value of such property shall be determined by the assessed value of the adjacent lots

DISTINCTION BETWEEN COURT’S GENERAL AND LIMITED JURISDICTION

• The Court is no longer fettered by its former limited jurisdiction. It is now authorized to hear and decide not only non-‐controversial cases but also even the contentious and substantial issues, which before were beyond its competence.

• The jurisdiction of the RTC in Section 2 of the Property Registration Decree is no longer circumscribed as it was under Act No. 496, the former land registration law.

• The Decree has eliminated the distinction between the general jurisdiction vested in the RTC and the limited jurisdiction conferred upon it by the former law when acting merely as cadastral court. (Arceo vs. Court of Appeals)

• CASE: Junio vs. Delos Santos Petitioner Junio is the registered owner of a parcel of land in Pangasinan. Respondent, Delos Santos, alleged that Junio, sold to him 1/3 of petitioners property. Junio denies having sold the portion of his property and filed an action to cancel the adverse claim of Delos Santos. The Court, in this case, failed to conduct a speedy hearing due to the presence of a controversy. The Supreme Court ruled that the lower court, instead of confining itself to the propriety of the registration of the adverse claim should already have decided the controversy between the parties on the merits thereof. Doctrinal jurisprudence holds that the CFI/RTC, as a land registration court, can entertain and dispose of the validity or invalidity of respondent’s adverse claim; whether petitioner is entitled or not to a declaratory relief. SC remanded the case to the RTC to pass controversy on merits.

-‐-‐-‐ END OF PART I -‐-‐-‐


3

3

II. THE LAND REGISTRATION COMMISSION AND REGISTRIES OF DEEDS 1. THE LAND REGISTRATION AUTHORITY

• The Land Registration Authority was created by virtue of PD No. 1529. It is

the agency of the government charged with the efficient execution of the laws relative to the registration of lands, and is under the Executive supervision of the Department of Justice

• The LRA is headed by the Administrator and two (2) Deputy Administrators; who are all appointed by the President of the Philippines upon recommendation of the DOJ Secretary

FUNCTIONS OF THE AUTHORITY 1. Extend speedy and effective assistance to the Department of Agrarian

Reform, the Land Bank, and other agencies in the implementation of the land reform program of the government;

2. Extend assistance to courts in ordinary and cadastral land registration proceedings;

3. Be the CENTRAL REPOSITORY OF RECORDS relative to original registration of lands titled under the Torrens system, including subdivision and consolidation plans of titled lands.

FUNCTIONS OF LRA ADMINISTRATOR 1. Issue decrees of registration pursuant to final judgments of the

courts in land registration proceedings and cause the issuance by the Registers of Deeds of the corresponding certificates of title;

2. Exercise supervision and control over all Registers of Deeds and other personnel of the Commission;

3. Resolve cases elevated en consulta by, or on appeal from decision of, Registers of Deeds;

4. Exercise executive supervision over all clerks of court and personnel of the Courts of First Instance throughout the Philippines with respect to the discharge of their duties and functions in relation to the registration of lands;

5. Implement all orders, decisions, and decrees promulgated relative to the registration of lands and issue, subject to the approval of the Secretary of Justice, all needful rules and regulations therefor;(f) Verify and approve subdivision, consolidation, and consolidation-‐subdivision survey plans of properties titled under Act No. 496 except those covered by P.D. No. 957.

• The duty of the LRA’s Administrator is purely ministerial in a sense that they act under the orders of the court and the decree must be in conformity with the decision of the Court.

• However, if they are in doubt upon any point in relation to the preparation and issuance of the decree, it is their duty to refer the matter to the Court. They act, in this respect, as officials of the Court since they are specially called upon to extend assistance to courts in ordinary and cadastral land registration proceedings.

2. OFFICE OF THE REGISTER OF DEEDS

• The Office of the Register of Deeds constitutes a PUBLIC REPOSITORY OF

RECORDS of instruments affecting registered or unregistered land and chattel mortgages in the province of city wherein such office is situated.

• There shall be at least one Register of Deeds for each province and one for each city.

• The Secretary of Justice shall define the official station and territorial jurisdiction of each Registry upon the recommendation of the Administrator.

FUNCTIONS AND DUTIES OF RD 1. It shall be the duty of the Register of Deeds to immediately register

an instrument presented for registration dealing with real or personal property, which complies with all the requisites for registration.

2. He shall see to it that said instrument bears the proper documentary and science stamps and that the same are properly canceled.

3. If the instrument is not registerable, he shall forthwith deny registration thereof and inform the presentor of such denial in writing, stating the ground or reason therefor, and advising him of his right to appeal by consulta in accordance with Section 117 of this Decree

4. Prepare and keep index system, which contains the names of all registered owners alphabetically arranged and all the lands respectively registered in their names

DUTY OF THE REGISTER OF DEEDS TO REGISTER, MINISTERIAL

• He may not validly refuse to register a deed of sale presented to him for registration.

• Whether a document is valid or not is not for the Register of Deeds to determine; this function belongs properly to a court of competent jurisdiction. (Almirol vs. RD of Agusan)

• Hence, registration must first be allowed, and the validity or effect thereof litigated afterwards.

THE REGISTY OF PROPERTY

• REGISTRATION means the entry of instruments or deeds in a book or public registry. It is the entry made in the registry which records solemnly and permanently the right of ownership and other real rights.

• The registration of instruments affecting registered land must be done in the proper registry, in order to affect and bind the land and, thus, operate as constructive notice to the world.

• Thus, if the sales is not registered, it is binding only between parties but it does not affect innocent third persons

1. The original copy of the original certificate of title shall be filed

in the Registry of Deeds. The same shall be bound in consecutive order together with similar certificates of title and shall constitute the registration book for titled properties.

2. Each Register of Deeds shall keep a primary entry book where all instruments including copies of writs and processes relating to registered land shall be entered in order of their filing.

3. They shall be regarded as registered from the time so noted. EFFECT OF REGISTRATION

• Registration in the public registry is NOTICE TO THE WHOLE WORLD.

• The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned, and in all cases under PD No. 1529, the registration shall be made in the office of the Register of Deeds in the city or province where the land lies. INSTANCES WHERE THE REGISTER OF DEEDS MAY DENY REGISTRATION

1. When there are several copies of the title but only one is presented with the instrument to be registered.

2. When the property is presumed to be conjugal but the instrument of conveyance bears the signature of only one purpose

3. When there is a pending case in court where the character of the land and validity of the conveyance are in issue

4. When the instrument is not notarized 5. When required certificates of documents are not submitted

• CASE: Baranda vs. Gustilo

This is originally a petition for reconstitution of Title filed with CFI of Iloilo involving a parcel of land known as lot no. 4517 covered by OCT No. 6406 in the name of Romana Hitalia. The said OCT no. 6406 was cancelled and transferred to TCT no. 106098 in the names of Alfonso Hitalia and Eduardo Baranda. SC: Respondent Judge Tito Gustilo abused his discretion in sustaining the respondent Acting Register of Deeds' stand that, the notice of lis pendens in the certificates of titles of the petitioners over Lot No. 4571, Barbara Cadastre cannot be cancelled on the ground of pendency of Civil Case No. 15871 with the Court of Appeals. The function of the RD with reference to the registration of deeds, encumbrances, instruments and the like is ministerial in nature. The acting RD did not have any legal standing to file a motion for reconsideration of the respondent’s order directing him to cancel the notice of lis pendens annotated.

• CASE: Almirol vs. Register of Deeds of Agusan

Teodoro Almirol purchased a parcel of land in Agusan from Arcenio Abalo. The land was originally registered to “Arcenio Abalo, married to Nicolasa Abalo.” Almirol went to the RD to secure his name in the TCT, however the RD refused to register the land because:

1. The OCT was registered under Arcenio and Nicolasa Abalo;

2. That in a sale of conjugal property, acquired after the effectivity of the NCC, both spouses should sign the document;

3. Since the wife has already died, the surviving husband cannot dispose of the property without violating the existing law

Because of the refusal of RD, Almirol filed a petition for mandamus to compel the RD to register the Deed of Sale and issue to him the corresponding TCT. SC: When the RD is in doubt as to any instrument presented to him for registration, all that is supposed to do is to submit and certify the question to the Administrator of LRA, who shall, after notice and hearing, enter an order prescribing the steps to be taken on the doubtful question.

-‐-‐-‐ END OF PART II -‐-‐-‐


4

4

III. MODES OF REGISTERING LAND TITLES 1. CITIZENSHIP REQUIREMENT

• CASE: Krivenko vs. Register of Deeds This is a landmark case decided by the Philippine Supreme Court, which further solidified the PROHIBITION OF THE PHILIPPINE CONSTITUTION THAT ALIENS MAY NOT ACQUIRE PRIVATE OR PUBLIC AGRICULTURAL LANDS, INCLUDING RESIDENTIAL LANDS. This was the outcome of the petition by Alexander Krivenko, an alien, who bought a residential land in Manila, Philippines on December 1941. However, he failed to register the same due to Japan’s declaration of war. Later on in May 1945, he again sought the registration of the same land but the herein respondent, Register of Deeds, denied the application because as an alien, Krivenko was disqualified to own land pursuant to the laws of the Philippine jurisdiction. Krivenko brought the case to the Court of First Instance of Manila which sustained the refusal of the Register of Deeds of Manila. He then appealed to the Supreme Court. During the pendency of the appeal, a new circular by the Department of Justice was released, instructing all registers of deeds to accept for registration all transfers of residential lots to aliens. With the effect of the circular swaying in his favor, Krivenko thereafter filed a motion to withdraw his appeal. However, the Supreme Court deemed it best to exercise its discretionary powers and denied Krivenko’s appeal, in order to tackle the more pressing constitutional issue; and in the process, established itself as a landmark case with regard to foreign ownership of lands in the Philippines The 1935 COMMONWEALTH CONSTITUTION served as the main point of reference in this case; the following facts however, should be noted:

1. The 1943 Constitution was already in place at the time this case was penned in 1947

2. Krivenko bought the property in December 1941 3. The dispute about the registration and the denial of such

by the register of deeds occurred in May 1945. 4. Section 1, Article XIII of the 1935 Constitution was

reproduced verbatim in Section 1, Article VIII of the 1943 Constitution

1935 Constitution: Article XIII, Section 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines. 1935 Constitution: Article XIII, Section 1. It should be clear that lands of the public domain are by the State first and foremost, but its utilization is limited to Filipino citizens only, or to corporations whose 60% capital stock are owned by Filipinos. It is clear from these phrases that the bent towards excluding foreigners is already evident.

“…Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-‐five years, renewable for another twenty-‐five years…

When Sections 1 and 5 are read together, it is therefore clear that aliens are prohibited from acquiring lands in the Philippines, subject to exceptions provided by law.

The penned decision referred to the Constitutional Convention, specifically the report of the Committee on Nationalization and Preservation of Lands and other Natural Resources, for the purpose behind the principle:

"that lands, minerals, forests, and other natural resources constitute the exclusive heritage of the Filipino nation. They should, therefore, be preserved for those under the sovereign authority of that nation and for their posterity."

The CA 141, which blocked out the right of aliens from acquiring property by reciprocity; previously granted them by the Public Land Act No. 2874 sections 120 and 121 further supports this. The Supreme Court affirmed the act of the Register of Deeds in denying the registration of Krivenko’s land, and established itself as a landmark case when addressing the issue of foreign ownership of lands within the jurisdiction of the Philippines.

• CASE: Halili vs Court of Appeals Simeon de Guzman, American citizen, died intestate and the ownership of his land went to Helen, his wife. Helen then executed a deed of quitclaim and assignment of rights and titles over six (6) parcels of land in favor of David Rey, her son. David Rey then sold the lands to Emiliano Cataniag. Petitioners, adjoining lot owners, questioned the validity and constitutionality of the conveyances.

SC: In fine, non-‐Filipinos cannot acquire or hold title to private lands or to lands of the public domain, except only by way of legal succession. But what is the effect of a subsequent sale by the disqualified alien vendee to a qualified Filipino citizen? This is not a novel question. Jurisprudence is consistent that “if land is invalidly transferred to an alien who subsequently becomes a citizen or transfers it to a citizen, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid.”

ACQUISITION OF AGRICULTURAL LANDS OF THE PUBLIC DOMAIN ARE LIMITED TO FILIPINO CITIZENS WHO MAY ACQUIRE PRIVATE LANDS Ø Filipino citizens; Ø Filipino corporations and associations as defined in

Section 2, Article XII of the Constitution; and, by exception; Ø Aliens, but only by hereditary succession Ø A natural-‐born citizen of the Philippines who has lost his

citizenship under the terms of Section 8

o Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

o Section 8. Notwithstanding the provisions of Section 7 of this Article, a natural-‐born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

o “Subject to limitations provided by law” § Maximum area of 5000 Sq/m. in

urban land; § 3 hectares in case of rural land § In case of married couples, one of

them may avail of the privilege granted.

§ But if both shall avail the same, the total area acquired shall not exceed the maximum fixed.

o The area limitation does not apply to natural-‐born citizen who has lost his citizenship but who has “re-‐acquired” the same under the Citizenship and Re-‐acquisition Act of 2003 because the said law grants him the right to “enjoy full civil and political rights” upon the re-‐acquisition of his Filipino citizenship.

• Filipino citizens can both “acquire” or otherwise “hold”

lands of public domain. • Filipino corporations cannot acquire lands of the public

domain, BUT THEY CAN HOLD SUCH LANDS BY MODES OTHER THAN ACQUISITION SUCH AS LEASE

ALIENS MAY LEASE PRIVATE LAND Ø While aliens are disqualified from acquiring lands of the

public domain, they may however lease private lands. A lease to an alien for a reasonable period is valid.

Ø An alien may buy a real property in the Philippines, on condition that he is granted Philippine citizenship.

• CASE: Llantino vs. Co Liong Chong

A Chinese National, Co Liong Chong, entered into a contract with Filipino spouses Gregorio and Belinda Llantino, for a lease of a land in the Philippines for 60 years. Co Liong Chong built a commercial establishment in the leased lot. During the term of the lease contract, Co Liong Chong eventually acquired Filipino citizenship, and went by the name Juan Molina. The defendant was placed in possession of the property but knowing that the period of the least would end with the year 1967, petitioners requested private respondent for a conference but the latter did not honor the request and instead he informed the petitioners that he had already constructed a commercial building on the land worth P50,000.00; that the lease contract was for a period of sixty (60) years, counted from 1954; and that he is already a Filipino citizen. The claim of Chong came as a surprise to the Llantinos because they did not remember having agreed to a sixty-‐year lease agreement as that would virtually make Chong the owner of the realty which, as a Chinese national, he had no right to own and neither could he have acquired such ownership after naturalization subsequent to 1954.


5

5

SC: Under the circumstances, a lease to an alien for a reasonable period is valid. So is an option giving an alien the right to buy real property on condition that he is granted Philippine citizenship. Aliens are not completely excluded by the Constitution from use of lands for residential purposes. Since their residence in the Philippines is temporary, they may be granted temporary rights such as a lease contract, which is not forbidden by the Constitution. Should they desire to remain here forever and share our fortune and misfortune, Filipino citizenship is not impossible to acquire. In the case at bar, even assuming, arguendo, that the subject contract is prohibited, the same can no longer be questioned presently upon the acquisition by the private respondent of Filipino citizenship. It was held that sale of a residential land to an alien which is now in the hands of a naturalized Filipino citizen is valid. CORPORATION SOLE MAY ACQUIRE AND REGISTER PRIVATE AGRICULTURAL LAND

• Corporation Sole -‐ For the purpose of administering and managing, as trustee, the affairs, property and temporalities of any religious denomination, sect or church, a corporation sole may be formed by the chief archbishop, bishop, priest, minister, rabbi or other presiding elder of such religious denomination, sect or church.

• CASE: Roman Catholic Apostolic Administrator of Davao Inc. vs LRC

Mateo L. Rodis, a Filipino citizen and resident of the City of Davao, executed a deed of sale of a parcel of land in favor of the Roman Catholic Apostolic Administrator of Davao Inc.(Roman), a corporation sole organized and existing in accordance with Philippine Laws, with Msgr. Clovis Thibault, a Canadian citizen, as actual incumbent. The Register of Deeds of Davao for registration, having in mind a previous resolution of the CFI in Carmelite Nuns of Davao were made to prepare an affidavit to the effect that 60% of the members of their corp. were Filipino citizens when they sought to register in favor of their congregation of deed of donation of a parcel of land, required it to submit a similar affidavit declaring the same. June 28, 1954: Roman in the letter expressed willingness to submit an affidavit but not in the same tenor as the Carmelite Nuns because it had five incorporators while as a corporation sole it has only one and it was ownership through donation and this was purchased. SC: A corporation sole, which consists of one person only, is vested with the right to purchase and hold real estate and to register the same in trust for the faithful or members of the religious society or church for which the corporation was organized. A corporation sole is not the owner of the properties that he may acquire but merely the administrator thereof. The properties pass, upon the death, not to his personal heirs but to his successors in office. In this sense, the king is a sole corporation; so is a bishop, or dens, distinct from their several chapters CORPORATION SOLE

• Composed of only one persons, usually the head or bishop of the diocese, a unit which is not subject to expansion for the purpose of determining any percentage whatsoever

• Only the administrator and not the owner of the temporalities located in the territory comprised by said corporation sole and such temporalities are administered for and on behalf of the faithful residing in the diocese or territory of the corporation sole

• Has no nationality and the citizenship of the incumbent and ordinary has nothing to do with the operation, management or administration of the corporation sole, nor effects the citizenship of the faithful connected with their respective dioceses or corporation sole.

Constitution demands that in the absence of capital stock, the controlling membership should be composed of Filipino citizens. There is undeniable proof that the members of the Roman Catholic Apostolic faith within the territory of Davao are predominantly Filipino citizens. DONATION IN FAVOR OF A RELIGIOUS CORPORATION CONTROLLED BY NON-‐FILIPINOS NON REGISTRABLE

• CASE: Register of Deeds of Rizal vs. Ung Sui Temple

A Filipino citizen executed a deed of donation in favor of the Ung Siu Si Temple, an unregistered religious organization that operated through three trustees all of Chinese nationality. The Register of Deeds refused to record the deed of donation executed in due form arguing that the Constitution provides that acquisition of land is limited to Filipino citizens, or to corporations or associations at least 60% of which is owned by such citizens.

SC: Sec. 5, Art. 13 of the Constitution provides that save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to hold lands of the public domain in the Philippines. The Constitution does not make any exception in favor of religious associations. The fact that appellant has no capital stock does not exempt it from the Constitutional inhibition, since its member are of foreign nationality. The purpose of the 60% requirement is to ensure that Filipinos shall control corporations or associations allowed to acquire agricultural lands or to exploit natural resources; and the spirit of the Constitution demands that in the absence of capital stock, controlling membership should be composed of Filipino citizens. LAND SOLD TO AN ALIEN WHICH IS NOW IN THE HANDS OF A FILIPINO MAY NO LONGER BE ANNULLED

• CASE: De Castro vs. Tan Doctrine: The sale of a residential land to an alien but now already in the hand of a naturalized Filipino citizen is valid. In 1938, petitioner Filomena de Castro sold a residential lot to a Chinese, Tan Tai. Tan Tai died leaving behind respondents, his widow, and children. Before his death, one of his sons, Joaquin, became a naturalized Filipino. Six years after Tan Tai’s death, his heirs executed an extra judicial settlement of estate with sale, whereby the disputed land was allotted to Joaquin. The petitioner commenced suit against the heirs of Tan Tai for annulment of sale and alleged violation of the 1935 Constitution for selling land to aliens. The respondents moved to dismiss the case because of lack of action and due to the fact that Joaquin is already a Filipino citizen. SC: Independently of the doctrine of pari delicto, the petitioner cannot have the sale annulled and recover the lot she herself has sold. While the vendee was an alien at the time of the sale, the land has since become the property, of respondent Joaquin Teng, a naturalized Philippine citizen, who is constitutionally qualified to own land.

“The litigated property is now in the hands of a naturalized Filipino. A disqualified vendee no longer owns it. Respondent, as a naturalized citizen, was constitutionally qualified to own the subject property. There would be no more public policy to be served in allowing petitioner to recover the land as it is already in the hands of a qualified person.”

• CASE: Republic vs. IAC Doctrine: A conveyance of a residential lot to an alien prior to his acquisition of Filipino citizenship is valid. Chua Kim (aka Uy Teng Be) was the adopted son of Gregorio Reyes Uy Un. Lot 1 and 2 were sold to Gregorio by the Manosca spouses, and Lot 549 by Marquez spouses. When Gregorio died, Uy Teng Be took possession of the property. The 3 subject lands later became subject of a compromise agreement in litigation in Quezon City, and the court finds that Chua Kim has established his registrable title over the property. The Solicitor General challenged the correctness of the order. The CA affirmed the CFI’s decision, hence this appeal. The Republic's theory is that the conveyances to Chua Kim were made while he was still an alien, i.e., prior to his taking oath as a naturalized Philippine citizen on January 7, 1977, at a time when he was disqualified to acquire ownership of land in the Philippines hence, his asserted titles are null and void. SC: The conveyances were made before the 1935 Constitution went into effect: at a time when there was no prohibition against acquisition of private agricultural lands by aliens. Gregorio Reyes Uy Un therefore acquired good title to the lands thus purchased by him, and his ownership was not at all affected either:

i. By the principle subsequently enunciated in the 1935 Constitution that aliens were incapacitated to acquire lands in the country, since that constitutional principle has no retrospective application, or

ii. By his and his successor's omission to procure the registration of the property prior to the coming into effect of the Constitution.

The litigated property is now in the hands of a naturalized Filipino. A disqualified vendee no longer owns it. Respondent, as a naturalized citizen, was constitutionally qualified to own the subject property.


6

6

RECOVERY OF LAND SOLD TO AN ALIEN

• CASE: Rellosa vs. Gaw Chee Hun On 1944, Dionisio Rellosa, a Filipino, sold to Gaw Chee Hun, a Chinese, a parcel of land with a house erected on it, located in Manila. Both parties entered into a lease contract, whereby Rellosa, the vendor, occupied the land under the condition that Gaw Chee obtains the approval of the sale by the Japanese Administration. Gaw Chee did not obtain such approval. Rellosa now seeks to annul the sale and thelease. Gaw Chee, meanwhile, contends that such sale was absolute and conditional, the same not being contrary to law, morals and public order. He further states that Rellosa is estopped from asserting his ownership over the land, after having leased the same from Gaw Chee, and thus, recognizing Gaw Chee’s title over the property. SC: A party to an illegal contract cannot come into court to have his illegal objects carried out. This is the doctrine of In Pari Delicto. Rellosa’s sale of the land to Gaw Chee, an alien is against the Constitution and is thus illegal. The Commonwealth Act provided that such sale is not only unlawful but also null and void ab initio, that such will effect the annulling and cancelling of the title originally issued, and reverting the property and its improvements to the State.

• CASE: Philippine Banking Corporation vs. Lui She Justiniana, represented by PBC, and Wong Heng, represented by Lui She, entered into a contract of lease for 50 years with an option to buy, and eventually extended it to 99 years upon failure of Wong Heng to secure Philippine nationality. SC: Invalidity of lease; if an alien is given not only a lease, but an option to buy a piece of land, by virtue of which the Filipino owner cannot sell or otherwise of his property, this to last 50 years, then it becomes clear that the arrangement is a virtual transfer of ownership 2. CLASSIFICATION OF PUBLIC LAND

• The classification of public lands is an EXCLUSIVE PREROGATIVE OF THE

EXECUTIVE DEPARTMENT of the government and not of the courts. • In the absence of such classification, the land REMAINS AS

UNCLASSIFIED LAND until it is released therefrom and rendered open to disposition.

• CA No. 141 has, since its enactment on NOVEMBER 7, 1936, governed the classification and disposition of lands of the public domain.

• The President is authorized, from time to time, to classify the lands of public domain into alienable and disposable, timber, or mineral lands. Under Section 6 of the Public Land Act, the President, through a Presidential Proclamation or an Executive Order, can classify or reclassify land to be included or excluded from the public domain.

• The DENR Secretary is the ONLY OTHER PUBLIC OFFICIAL empowered by law to approve a land classification and declare such land as alienable and disposable. ONLY ALIENABLE LAND OF THE PUBLIC DOMAIN MAY BE THE SUBJECT OF DISPOSITION

Ø SECTION 2, PUBLIC LAND ACT: “The provisions of this Act shall apply to the lands of the public domain; but timber and mineral lands shall be governed by special laws and nothing in this Act provided shall be understood or construed to change or modify the administration and disposition of the lands commonly called "friar lands" and those which, being privately owned, have reverted to or become the property of the Republic of the Philippines, which administration and disposition shall be governed by the laws at present in force or which may hereafter be enacted.

Ø SECTION 6, PUBLIC LAND ACT: “The President, upon the recommendation of the Secretary of Agriculture and Natural Resources, shall from time to time classify the lands of the public domain into: o Alienable or disposable; o Timber, and o Mineral lands, and may at any time and in a like manner transfer such lands from one class to another, for the purposes of their administration and disposition.”

Ø SECTION 9, PUBLIC LAND ACT: For the purpose of their administration and disposition, the lands of the public domain alienable or open to disposition shall be classified, according to the use or purposes to which such lands are destined, as follows: o Agricultural; o Residential, commercial, industrial, or for similar productive

purposes; o Educational, charitable, or other similar purposes; and o Reservations for town sites and for public and quasi-‐public uses. The President, upon recommendation by the Secretary of Agriculture and Natural Resources, shall from time to time make the classifications provided for in this section, and may, at any time and in a similar manner, transfer lands from one class to another.

Ø SECTION 10, PUBLIC LAND ACT: “The words "alienation," "disposition," or "concession," as used in this Act, shall mean any of the methods authorized by this Act for the acquisition, lease, use or benefit of the lands of the public domain other than timber or mineral lands.”

• BEFORE THE GOVERNMENT COULD ALIENATE OR DISPOSE OF LANDS OF THE PUBLIC DOMAIN, THE PRESIDENT MUST FIRST OFFICIALLY CLASSIFY THESE LANDS AS ALIENABLE OR DISPOSABLE, AND THEN DECLARE THEM OPEN TO DISPOSITION OR CONCESSION.

• CASE: Chavez vs Public Estates Authority The Public Estates Authority is the central implementing agency tasked to undertake reclamation projects nationwide. It took over the leasing and selling functions of the DENR insofar as reclaimed or about to be reclaimed foreshore lands are concerned. PEA sought the transfer to AMARI, a private corporation, of the ownership of 77.34 hectares of the Freedom Islands. PEA also sought to have 290.156 hectares of submerged areas of Manila Bay to AMARI. SC: The transfer is NOT VALID. TO ALLOW VAST AREAS OF RECLAIMED LANDS OF THE PUBLIC DOMAIN TO BE TRANSFERRED TO PEA AS PRIVATE LANDS WILL SANCTION A GROSS VIOLATION OF THE CONSTITUTIONAL BAN ON PRIVATE CORPORATIONS FROM ACQUIRING ANY KIND OF ALIENABLE LAND OF THE PUBLIC DOMAIN. The Supreme Court affirmed that the 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are alienable lands of the public domain. The 592.15 hectares of submerged areas of Manila Bay remain INALIENABLE NATURAL RESOURCES OF THE PUBLIC DOMAIN. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34 hectares of the Freedom Islands, such transfer is void for being contrary to Section 3, Article XII of the 1987 Constitution, which prohibits private corporations from acquiring any kind of alienable land of the public domain. Furthermore, since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares of still submerged areas of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural resources other than agricultural lands of the public domain. Foreshore and submerged areas shall not be alienated unless they are classified as agricultural lands of the public domain. The mere reclamation of these areas by the PEA doesn’t convert these alienable natural resources of the State to alienable or disposable lands of public domain. There must be a law or presidential proclamation officially classifying reclaimed lands as alienable or disposable and open to disposition or concession. UNTIL RECLAIMED BY THE SEA, THESE SUBMERGED AREAS ARE UNDER THE CONSTTUTION, “WATERS OWNED BY THE STATE” FORMING PART OF THE PUBLIC DOMAIN AND CONSEQUENTLY INALIENABLE. ONLY PHILIPPINE CITIZENS ARE QUALIFIED TO BID FOR PEA’S RECLAIMED FORESHORE AND SUBMERGED ALIENABLE LANDS OF PUBLIC DOMAIN. Private corporations are barred from bidding at the auction sale of any kind of alienable land of the public domain.

• CASE: Bureau of Forestry vs. CA and Gallo Mercedes Diago applied for registration four parcels of land with an area of 30.5 hectares situated in Iloilo. Diago alleged that she herself occupied said parcels of land having bought them from Jose Maria Nava. The Director of Lands opposed said application on the ground that neither the applicant nor her predecessors-‐in-‐interest have sufficient title over the lands applied for, which could be registered under the Torrens system and that they have never been in OCEN possession of the said lands for at least 30 years prior to filing of the application. The Director of Forestry also opposed on the ground that certain portions of the land are mangrove swamps and are within the timberland block “B”. Gallo bought the land from Diago, and took the latter’s position in the case by virtue of substitution. SC: Admittedly the controversial area is within a timberland block as classification of the municipality and certified to by the Director of Forestry on February 18,


7

7

1956 as lands needed for forest purposes and hence they are portions of the public domain, which cannot be the subject of registration proceedings. Clearly therefore the land is public land and there is no need for the Director of Forestry to submit to the court convincing proofs that the land in dispute is not more valuable for agriculture than for forest purposes, as there was no question of whether the land is forest land or not. Be it remembered that said forest land had been declared and certified as such by the Director of the Bureau of Forestry on February 18, 1956, several years before the original applicant of the lands for registration Mercedes Diago, filed it on July 11, 1961. 11.1863 hectares are coconut lands and admittedly within the disposable portion of the public domain.

• CASE: Director of Lands vs. CA and Bisnar

In 1976, Ibarra and Bisnar filed their joint application for the registration of two parcels of land claiming that they inherited the same and that they had OCEN possession and occupation of the land for 80 years. The Director of Lands and the Director of Forestry opposed the application on the ground that the subject lands are part of the timberland, hence a land of public domain. SC: Possession of forestlands, however long, cannot ripen into private ownership. It emphasized that a positive act of the government, particularly the Executive Department, is needed to declassify land which is classified as forest; and to CONVERT IT INTO ALIENABLE OR DISPOSABLE LAND FOR AGRICULTURAL OR OTHER PURPOSES before registration of which may proceed. Unless and until the land classified as forest is released in an official proclamation to that effect so that it may form part of the disposable agricultural lands of the public domain, the rules on confirmation of imperfect title do not apply. PUBLIC LANDS AND GOVERNMENT LAND, DISTINGUISHED

• Government Land – includes public land and other lands of the government already reserved or devoted for public use or subject to private right

• Public Land – used to describe so much of the national domain as have not been subjected to private right or devoted to public use.

• CASE: Montano vs. Insular Government

Isabelo Montano presented a petition to the Court of Land Registration for the inscription of a piece of land in the barrio of Libis, municipality of Caloocan, used as a fishery having a superficial area of 10,805 square meters, and bounded as set out in the petition; its value according to the last assessment being $505.05, United States currency. This petition was opposed by the Solicitor-‐General in behalf of the Director of Lands, and by the entity known asObras Pias de la Sagrada Mitra, the former on the ground that the land in question belonged to the Government of the United States, and the latter, that it was the absolute owner of all the dry land along the eastern boundary of the said fishery. SC: Accordingly, "GOVERNMENT LAND" AND "PUBLIC DOMAIN" ARE NOT SYNONYMOUS ITEMS. The first includes not only the second, but also other lands of the Government already reserved or devoted to public use or subject to private right. In other words, the Government owns real estate which is part of the "public lands" and other real estate which is not part thereof. It is settled that the general legislation of Congress in respect to public lands does not extend to tide lands. It provided that the scrip might be located on the unoccupied and unappropriated public lands. A marshland which is inundated by the rise of tides belong to the State and is not susceptible to appropriation by occupation, has no application in the present case inasmuch as in said case the land subject matter of the litigation was not yet titled. CADASTRAL SURVEY OF MUNICIPALITY DOES NOT AUTOMATICALLY CLASSIFY LANDS WITHIN THE CADASTRE AS A&D LANDS

• While a municipality has been cadastrally surveyed, it does not follow that all lands comprised therein are automatically released as alienable and disposable land.

• A survey made in a cadastral proceeding MERELY IDENTIFIES EACH LOT PREPARATORY TO A JUDICIAL PROCEEDING for adjudication of title to any of the lands upon claim of interested parties.

• Where the subject property is still unclassified, whatever possession applicants may have had, and, however long, cannot ripen into private ownership.

• Indeed, until timber or forestland are released as disposable and alienable, the government, through the appropriate agencies, has no authority to lease, grant, sell, or otherwise dispose of these lands for utilization.

3. NON-‐REGISTRABLE PROPERTIES PROPERTY OF PUBLIC DOMAIN ART. 420. THE FOLLOWING THINGS ARE PROPERTY OF PUBLIC DOMINION: (1) THOSE INTENDED FOR PUBLIC USE, SUCH AS ROADS, CANALS, RIVERS, TORRENTS, PORTS AND BRIDGES CONSTRUCTED BY THE STATE, BANKS, SHORES, ROADSTEADS, AND OTHERS OF SIMILAR CHARACTER; (2) THOSE, WHICH BELONG TO THE STATE, WITHOUT BEING FOR PUBLIC USE, AND ARE INTENDED FOR SOME PUBLIC SERVICE OR FOR THE DEVELOPMENT OF THE NATIONAL WEALTH.

• The mentioned properties in Article 420 are parts of the public domain and are intended for public use or public service. These are outside the commerce of men and cannot be an subject of appropriation.

• Property of public dominion, when no longer needed for public use or public service, shall form part of PATRIMONIAL PROPERTY. ART. 421. ALL OTHER PROPERTY OF THE STATE, WHICH IS NOT OF THE CHARACTER STATED IN THE PRECEDING ARTICLE, IS PATRIMONIAL PROPERTY. ART. 422. PROPERTY OF PUBLIC DOMINION, WHEN NO LONGER INTENDED FOR PUBLIC USE OR FOR PUBLIC SERVICE, SHALL FORM PART OF THE PATRIMONIAL PROPERTY OF THE STATE.

• Property of public dominion, when no longer needed for public use or public service, shall form part of the patrimonial property of the State.

• Public lands become patrimonial property not only with a declaration that these are alienable or disposable. THERE MUST ALSO BE AN EXPRESS GOVERNMENT MANIFESTATION THAT THE PROPERTY IS ALREADT PATRIMONIAL OR NO LONGER RETAINED FOR PUBLIC SERVICE OR THE DEVELOPMENT OF NATIONAL WEALTH.

• Patrimonial properties may be bought or sold or in any manner utilized with the same effect as properties owned by private persons.

• Private persons, through prescription, may acquire patrimonial properties of the State.

ART. 423. THE PROPERTY OF PROVINCES, CITIES, AND MUNICIPALITIES IS DIVIDED INTO PROPERTY FOR PUBLIC USE AND PATRIMONIAL PROPERTY. ART. 424. PROPERTY FOR PUBLIC USE, IN THE PROVINCES, CITIES, AND MUNICIPALITIES, CONSIST OF THE PROVINCIAL ROADS, CITY STREETS, MUNICIPAL STREETS, THE SQUARES, FOUNTAINS, PUBLIC WATERS, PROMENADES, AND PUBLIC WORKS FOR PUBLIC SERVICE PAID FOR BY SAID PROVINCES, CITIES, OR MUNICIPALITIES. ALL OTHER PROPERTY POSSESSED BY ANY OF THEM IS PATRIMONIAL AND SHALL BE GOVERNED BY THIS CODE, WITHOUT PREJUDICE TO THE PROVISIONS OF SPECIAL LAWS. ART. 425. PROPERTY OF PRIVATE OWNERSHIP, BESIDES THE PATRIMONIAL PROPERTY OF THE STATE, PROVINCES, CITIES, AND MUNICIPALITIES, CONSISTS OF ALL PROPERTY BELONGING TO PRIVATE PERSONS, EITHER INDIVIDUALLY OR COLLECTIVELY.

• CASE: Laurel vs. Garcia (Important Case)

These are two petitions for prohibition seeking to enjoin respondents, their representatives and agents from proceeding with the bidding for the sale of the 3,179 square meters of land at 306 Ropponggi, 5-‐Chome Minato-‐ku, Tokyo, Japan scheduled on February 21, 1990. The subject property in this case is one of the four (4) properties in Japan acquired by the Philippine government under the Reparations Agreement entered into with Japan on May 9, 1956, and is part of the indemnification to the Filipino people for their losses in life and property and their suffering during World War II. As intended, the subject property became the site of the Philippine Embassy until the latter was transferred to Nampeidai on July 22, 1976. Due to the failure of our government to provide necessary funds, the Roppongi property has remained undeveloped since that time.


8

8

A proposal was presented to President Corazon C. Aquino by former Philippine Ambassador to Japan, Carlos J. Valdez, to make the property the subject of a lease agreement with a Japanese firm where, at the end of the lease period, all the three leased buildings shall be occupied and used by the Philippine government. On August 11, 1986, President Aquino created a committee to study the disposition/utilization of Philippine government properties in Tokyo and Kobe. On July 25, 1987, the President issued Executive Order No. 296 entitling non-‐Filipino citizens or entities to avail of reparations’ capital goods and services in the event of sale, lease or disposition. The four properties in Japan including the Roppongi were specifically mentioned in the first “Whereas” clause. Amidst opposition by various sectors, the Executive branch of the government has been pushing, with great vigor, its decision to sell the reparations properties starting with the Roppongi lot. The property has twice been set for bidding at a minimum floor price at $225 million. SC: As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be alienated. Its ownership is a special collective ownership for general use and enjoyment, an application to the satisfaction of collective needs, and resides in the social group. The purpose is not to serve the State as a juridical person, but the citizens; it is intended for the common and public welfare and cannot be the object of appropriation. The Roppongi property is correctly classified under paragraph 2 of Article 420 of the Civil Code as property belonging to the State and intended for some public service. THE FACT THAT THE ROPPONGI SITE HAS NOT BEEN USED FOR A LONG TIME FOR ACTUAL EMBASSY SERVICE DOES NOT AUTOMATICALLY CONVERT IT TO PATRIMONIAL PROPERTY. Any such conversion happens only if the property is withdrawn from public use. A property continues to be part of the public domain, not available for private appropriation or ownership “until there is a formal declaration on the part of the government to withdraw it from being such. A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment of the Roppongi property’s original purpose. EXECUTIVE ORDER NO. 296, THOUGH ITS TITLE DECLARES AN “AUTHORITY TO SELL”, DOES NOT HAVE A PROVISION IN THIS TEXT EXPRESSLY AUTHORIZING THE SALE OF THE FOUR PROPERTIES PROCURED FROM JAPAN FOR THE GOVERNMENT SECTOR. It merely intends to make the properties available to foreigners and not to Filipinos alone in case of a sale, lease or other disposition.

ALIENABLE AND DISPOSABLE LANDS HELD BY GOVERNMENT ENTITIES UNDER SECTION 60, CA NO. 141 CANNOT BE ALIENATED WITHOUT APPROVAL OF CONGRESS

• The registration of lands of the public domain under the Torrens system, by itself, cannot convert public lands into private lands.

• Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the alienable land of the public domain automatically becomes private land CANNOT APPLY TO GOVERNMENT UNITS AND ENTITIES.

• The grant of legislative authority to sell public lands in accordance with Sec 60 of CA No, 141 does not automatically convert alienable lands of the public domain into private or patrimonial lands.

• The alienable lands must be transferred to qualified private parties, or to government entities not tasked to dispose public lands, before these lands can become private or patrimonial lands.

• Private lands taken by the government for public use under its own power of eminent domain become unquestionably part of the public domain.

• Nevertheless, Section 85 of PD No. 1529 authorizes the Register of Deeds to issue IN THE NAME OF THE NATIONAL GOVERNMENT new certificates of title covering such expropriated lands.

FOREST LANDS

• Large track of land covered with a natural growth of trees and underbrush; a large wood.

• Private persons cannot own forestlands. Such lands are not registrable and possession thereof, no matter how long, cannot convert the same into private property, UNLESS such lands are reclassified and considered disposable and alienable.

• “It is important to preserve the forests for they constitute a vital segment of any country’s natural resources. Without trees, watersheds will dry up; rivers and lakes, which they supply, are emptied of their contents. The fish disappear…” (Director of Forestry vs. Munoz)

• Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. THESE LICENSES ARE MERELY PRIVILEGE GRANTED BY THE STATE TO QUALIFIED ENTITIES AND DO NOT VEST IN THEM A PERMANENT OR IRREVOCABLE RIGHT TO THE PARTICULAR CONCESSION AREA AND THE FOREST PRODUCTS THEREIN.

• The classification of land is descriptive of its legal nature, not what it actually looks like. A forested area classified as forestland of the public domain does not lose such classification simply because loggers or settlers may have stripped it of its forest covers.

• In order to be forestry or mineral land, the proof must show that it is more valuable for the forestry or the mineral, which it contains than it, is for agricultural purposes.

• CASE: Republic vs. CA and Lastimado If the allegation of petitioner that the land in question was inside the military reservation at the time it was claimed is true, then, it cannot be the object of any cadastral nor can it be the object of reopening under Republic Act No. 931. Similarly, if the land in question indeed forms part of the public forest, then, possession thereof, however long, cannot convert it into private property as it is within the exclusive jurisdiction of the Bureau of Forestry and beyond the power and jurisdiction of the Cadastral Court to register under the Torrens System. Even assuming that the government agencies can be faulted for inaction and neglect (although the Solicitor General claims that it received no notice), yet, the same cannot operate to bar action by the State as it cannot be estopped by the mistake or error of its officials or agents. Further, we cannot lose sight of the cardinal consideration that "the State as persona in law is the juridical entity, which is the source of any asserted right to ownership in land" under basic Constitutional Precepts, and that it is moreover charged with the conservation of such patrimony. WATERSHEDS

• Watershed is a land area drained by a stream or fixed body of water and its tributaries having a common outline for surface runoff.

• Watershed Reservation is a forestland reservation established to protect or improved the conditions of the water yield thereof or reduce sedimentation.

• As a matter of general policy, the Constitution expressly mandates that conservation and proper utilization of natural resources, which includes the country’s watershed, be not subject to registration.

• CASE: Tan vs. Director of Forestry Doctrine: A timber license is not a contract, within the purview of the due process clause; it is only a license of privilege, which can be validly withdrawn whenever dictated by public interest or public welfare. MANGROVE SWAMPS

• Mangrove is a term applied to the type of forest occurring on tidal flat along the seacoast, extending along streams where the water is brackish.

• Mangrove swamps are mud flats, alternately washed and exposed by the tide, in which grows various kindred plants which will not live except when watered by the sea, extending their roots deep into the mud and casting their seeds, which also germinates there.

• Mangrove swamps are FORESTAL and NOT ALIENABLE AGRICULTURAL LAND.

• CASE: Director of Forestry vs. Villareal The private respondent invokes the survey plan of the mangrove swamps approved by the Director of Lands, 16 to prove that the land is registerable. It should be plain, however, that the mere existence of such a plan would not have the effect of converting the mangrove swamps, as forest land, into agricultural land. Such approval is ineffectual because it is clearly in officious. The Director of Lands was not authorized to act in the premises. Under the aforecited law, it is the Director of Forestry who has the authority to determine whether forest land is more valuable for agricultural rather than forestry uses, as a basis for its declaration as agricultural land and release for private ownership. It is elementary in the law governing natural resources that forest land cannot be owned by private persons. It is not registerable. The adverse possession, which can be the basis of a


9

9

grant of title in confirmation of imperfect title cases, cannot commence until after the forestland has been declared alienable and disposable. Possession of forestland, no matter bow long cannot convert it into private property.

MINERAL LANDS

• Mineral land means any area where mineral resources are found. Mineral resources, on the other hand, mean any concentration of minerals or rocks with potential economic value.

• Philippine Mining Act of 1995, Sec. 4 Ownership of Mineral Resources “Mineral resources are owned by the State and the exploration, development, utilization, and processing thereof shall be under its full control and supervision. The State may directly undertake such activities or it may enter into mineral agreements with contractors. The State shall recognize and protect the rights of the indigenous cultural communities to their ancestral lands as provided for by the Constitution.”

• Possession of mineral land, no matter how long, does not confer possessory rights. THUS, A CERTIFICATE OF TITLE IS VOID WHEN IT COVERS PROPERTY OF PUBLIC DOMAIN CLASSIFIED AS MINERAL LANDS. Any title issued over non-‐disposable lots, even in the hands of alleged innocent purchaser for value, shall be cancelled.

• The right to possess or own the surface ground is separate and distinct from the mineral rights over the same land. Thus, if a person is the owner of an agricultural land in which minerals are discovered, his ownership of such land does not give him the right to extract or utilize the said minerals without the permission of the State to which such minerals belong.

• The land must be either completely mineral or completely agricultural.

• CASE: Atok-‐Big Wedge Mining Co. vs. Court of Appeals The perfection of a mining claim BEFORE THE 1935 CONSTITUTION had the effect of removing the land from public domain. The perfection of a mining claim CONVERTED THE PROPERTY TO A MINERAL LAND and under the laws then in force REMOVED IT FROM THE PUBLIC DOMAIN. By such act, the locators acquired exclusive rights over the land, against even the government, without need of any further act as the purchase of the land or the obtention of a patent over it. As the land had become the private property of the locators, they had the right to transfer the same. NATIONAL PARKS

• National parks are inalienable because it belongs to the four categories of lands of the public domain.

• Land reserved for national park CANNOT BE REGISTERED. • Accordingly, it has been held that where a certificate of title covers a

portion of land within the area reserved for park purposes, the titles should be annulled with respect to said portion. MILITARY AND NAVAL RESERVATION

• Land inside a military or naval reservation cannot be the object of registration.

• To segregate portions of the public domain as a military reservation, all that is needed is a Presidential Proclamation to that effect. A court judgment is not necessary to make the proclamation effective or valid. FORESHORE LANDS AND RECLAIMED LANDS

• Foreshore land is that strip of land that lies between the high and low water marks and that it alternately wet and dry according to the flow of the tide.

• Foreshore areas are that COVERED AND UNCOVERED by the ebb and flow of the tide.

• Submerged areas are that PERMANENTLY UNDER WATER regardless of the ebb and flow of the tide.

• Foreshore lands are lands of public dominion intended for public use. DEVELOPMENT OF LAW GOVERNING FORESHORE/ RECLAIMED LANDS

• Spanish Law of Waters Ø 1866 Ø Shores, bays, coves, inlets, and all waters within the maritime

zone of the Spanish territory belonged to the public domain for public use

Ø Allows reclamation; to be owned by the party who constructed such works provided it is done with government permission

• Act No. 1654

Ø May 8, 1907 Ø Provided for the LEASE, BUT NOT SALE, of reclaimed lands of

the government to corporation or private individuals Ø Private parties can lease reclaimed lands only if those lands

were no longer needed for public purpose Ø This act MANDATED PUBLIC BIDDING in the lease of

reclaimed lands Ø Did not repeal Section 5 of Spanish Law of Waters

• Public Land Act (Act. No. 2874) Ø November 29, 1919 Ø Section 6 authorized the GOVERNOR GENERAL to

CLASSIFY LANDS OF PUBLIC DOMAIN to alienable and disposable lands

Ø Section 7 is to DECLARE if such lands are OPEN TO DISPOSITION

Ø Section 8 LIMITED alienable and disposable lands only to those lands which have been “officially delimited or classified”

Ø Empowered the Governor General to CLASSIFY FURTHER such disposable lands to:

o Government reclaimed o Foreshore or marshy lands o Non-‐agricultural lands

Ø The Governor General, before allowing the lease of lands to private parties MUST FORMALLY DECLARE THAT THE LANDS WERE NOT NECESSARY FOR PUBLIC SERVICE

• Public Land Act (CA No. 141)

Ø November 7, 1936 Ø Before the government could alienate or dispose

lands of public domain, the following must be done by the president: o Empowers the PRESIDENT to classify lands of

public domain into ALIENABLE and DISPOSABLE lands

o Authorizes the President to DECLARE what lands are open to disposition or concession

Ø The government could sell to PRIVATE PARTIES only those lands for non-‐agricultural purposes not classified as government reclaimed, foreshore, and marshy, disposable lands of public domain.

Ø QUALIFIED INDIVIDUALS UNDER THE 1935 CONSTITUTION MAY LEASE FORESHORE LANDS.

Ø Section 60 of CA 141 expressly requires Congressional Authority before lads under Section 59 could be sold to private parties.

Ø Reclamation can only be done by the National Government.

LAKES, NAVIGABLE RIVERS, CREEKS,

• Lakes, navigable rivers, and creeks cannot be appropriated and registered under the Torrens system. All of the abovementioned form part of the public domain.

RESERVATIONS FOR PUBLIC AND SEMI-‐PUBLIC PURPOSES

• CA No. 141, Sec. 83. “Upon the recommendation of the Secretary of Agriculture and Natural Resources, the President may designate by proclamation any tract or tracts of land of the public domain as reservations for the use of the Republic of the Philippines or of any of its branches, or of the inhabitants thereof, in accordance with relations described for this purpose, or for quasi-‐public uses or purposes when the public interest requires it, including reservations for highways, rights of way for railroads, hydraulic power sites, irrigation systems, communal pastures or leguas communales, public parks, public quarries, public fishponds, workingmen's village and other improvements for the public benefit.”

• The President may release the land from the reservation at any time, and hence, may be considered as alienable and disposable land of public domain.

-‐-‐-‐ END OF PART III -‐-‐-‐


10

10

IV. JUDICIAL CONFIRMATION OF IMPERFECT TITLE APPLICABLE PROVISIONS AND AMENDMENTS

• Section 47 and 48 of the Public Land Act

Ø November 7, 1936 Ø Section 48. The following-‐described citizens of the Philippines,

occupying lands of the public domain or claiming to own any such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the Court of First Instance of the province where the land is located for confirmation of their claims and the issuance of a certificate of title therefor, under the Land Registration Act , to wit:

o (b) Those who by themselves or through their

predecessors in interest have been in open, continuous, exclusive, and notorious possession and occupation of AGRICULTURAL LANDS OF THE PUBLIC DOMAIN, under a bona fide claim of acquisition or ownership, EXCEPT AS AGAINST THE GOVERNMENT, SINCE JULY 26TH, 1894, except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this chapter.

• Republic Act No. 1942

Ø June 22, 1957 Ø Sec 48 (b): Those who by themselves or through their

predecessors in interest have been in open, continuous, exclusive, and notorious possession and occupation of AGRICULTURAL LANDS OF THE PUBLIC DOMAIN, under a bona fide claim of acquisition or ownership, FOR AT LEAST 30 YEARS IMMEDIATELY PRECEDING THE FILING OF THE APPLICATION FOR THE CONFIRMATION OF TITLE, except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this chapter.


Ø June 18, 1964 Ø Members of the national cultural minorities who by themselves

through their predecessors-‐in-‐interest have been in open, continuous, exclusive and notorious possession and occupation of lands of the public domain suitable to agriculture, whether disposable or not, under a bona fide claim of ownership FOR AT LEAST 30 YEARS, shall be entitled to the rights granted in subsection (b) hereof.

• Presidential Decree No. 1073

Ø January 25, 1977 Ø (b) Those who by themselves or through their predecessors-‐in-‐

interest have been in open, continuous, exclusive, and notorious possession and, occupation of ALIENABLE AND DISPOSABLE LANDS of the public domain, under a bona fide claim of acquisition or ownership, SINCE JUNE 12, 1945, IMMEDIATELY PRECEDING THE FILING OF THE APPLICATION FOR CONFIRMATION OF TITLE, except when prevented by war or force majeure. Those shall be conclusively presumed to have performed all the conditions essential to a government grant and shall be entitled to a certificate of title under the provisions of this chapter.

Ø (c) Members of the national cultural minorities who by themselves or through their predecessors-‐in-‐interest have been in open, continuous, exclusive and notorious possession and occupation of lands of the public domain suitable to agriculture, whether disposable or not, UNDER A BONA FIDE CLAIM OF OWNERSHIP SINCE JUNE 12, 1945, shall be entitled to the rights granted in subsection (b) hereof.


Ø November 13, 1922 Ø Amended Section 45 of the CA No. 141

The time to be fixed in the entire Archipelago for the

filing of applications under this Chapter shall not extend beyond 31 December 2020: Provided, that the period shall apply only when the area applied for does not exceed twelve (12) hectares.

Ø Before, the area that can be subject of judicial confirmation of

title is 144 hectares

REQUISITES FOR AVAILMENT OF JUDICIAL CONFIRMATION OF IMPERFECT OR INCOMPLETE TITLES • That the applicant is a Filipino citizen • He must have by himself, or through his predecessors in

interest, possessed and occupied an alienable and disposable agricultural portion of the public domain

• Such possession and occupation must have been open, continuous, exclusive, and notorious, and in the concept of an owner, since June 12, 1945

• The application must be filed with the proper court. COMPLIANCE WITH ALL THE REQUIREMENTS OF SEC 48B OF CA 141 • The possessor is deemed to have acquired, by operation of

law, a right to a grant, without the necessity of a certificate of title being issued.

• The land, therefore, ceases to be of the public domain, and beyond the authority of the Director to dispose of.

• The application for confirmation is mere formality, the lack of which does not affect the legal sufficiency of the title as would be evidenced by the patent and the Torrens title to be issued upon the strength of said patent.

• CASE: Oh Cho vs. Director of Lands

Oh Cho is appealing from the rejection of his application based on disqualification as alien (Chinese) from acquiring lands of the public domain. He had open, continuous, exclusive and notorious possession of the lot from 1880 to filing of the application for registration on January 17, 1940

This is an exception to the rule that all lands that were not acquired from the government, either by purchase or grant, belong to the public domain. That exception would be “any land that should have been in the possession of an occupant and of his predecessors-‐in-‐interest SINCE TIME IMMEMORIAL, for such possession would justify the presumption that the land had never been part of the public domain or that it had been a private property even before the Spanish Conquest. However, his immediate possessor failed to comply with the condition precedent to apply for the registration of the land of which they had been in possession at least since July 26, 1894 so what was transferred to Oh Cho is merely possessory right which cannot ripen to ownership by prescription (aliens disqualified to own by prescription).

LAND ACQUISITION BY PRIVATE COMPANIES • Article XII, Section 3, 1987 Constitution

“Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. PRIVATE CORPORATIONS OR ASSOCIATIONS MAY NOT HOLD SUCH ALIENABLE LANDS OF THE PUBLIC DOMAIN EXCEPT BY LEASE, FOR A PERIOD NOT EXCEEDING TWENTY-‐FIVE YEARS, RENEWABLE FOR NOT MORE THAN TWENTY-‐FIVE YEARS, AND NOT TO EXCEED ONE THOUSAND HECTARES IN AREA. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant. 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.”

• CASE: Director of Lands vs. IAC and Acme Plywood SC: Acme, though a private corporation, was qualified to apply for the judicial confirmation of its title under Section 48(b) of the Public Land Act since the property at the time it was purchased by it from the Infiels on October 29, 1962 was already a PRIVATE LAND to which they had a legally sufficient and transferrable title.


11

11

V. REGISTRATION UNDER THE PROPERTY REGISTRATION DECREE WHO MAY APPLY Section 14, PD No. 1529: The following persons may file in the proper Court of First Instance an application for registration of title to land, whether personally or through their duly authorized representatives: (1) Those who by themselves or through their predecessors-‐in-‐interest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier. (2) Those who have acquired ownership of private lands by prescription under the provision of existing laws. (3) Those who have acquired ownership of private lands or abandoned river beds by right of accession or accretion under the existing laws. (4) Those who have acquired ownership of land in any other manner provided for by law. Where the land is owned in common, all the co-‐owners shall file the application jointly. Where the land has been sold under pacto de retro, the vendor a retro may file an application for the original registration of the land, provided, however, that should the period for redemption expire during the pendency of the registration proceedings and ownership to the property consolidated in the vendee a retro, the latter shall be substituted for the applicant and may continue the proceedings. A trustee on behalf of his principal may apply for original registration of any land held in trust by him, unless prohibited by the instrument creating the trust. REQUISITES FOR REGISTRATION UNDER 14(1)

• That the land applied for is an agricultural public land classified as ALIENABLE AND DISPOSABLE LAND AT THAT TIME

• The application for registration is filed with the PROPER COURT • That the applicant, by himself or through his predecessors-‐in-‐interest, has

been in OCEN possession and occupation thereof, under a bonafide claim of ownership

• That such possession and occupation has been EFFECTED SINCE JUNE 12, 1945 OR EARLIER

v NOTE: THE LAW DOES NOT REQUIRE THAT THE LAND SUBJECT

OF REGISTRATION SHOULD HAVE BEEN ALIENABLE AND DISPOSABLE DURING THE ENTIRE PERIOD OF POSSESSION, OR SINCE JUNE 12, 1945. IT IS SUFFICIENT THAT THE LAND IS ALREADY DECLARED AS ALIENABLE AND DISPOSABLE LAND AT THE TIME OF APPLICATION FOR REGISTRATION IS FILED SO AS TO ENTITLE THE POSSESSOR TO REGISTRATION.

SECTION 14(2) AUTHORIZES ACQUISITION OF OWNERSHIP BY PRESCRIPTION

• Section 14(2) allows qualified individuals to apply for the registration of property, ownership of which he has acquired by prescription under existing laws.

• On the other hand, among the public domain lands that are not susceptible to acquisitive prescription are TIMBER AND MINERAL LANDS.

• The Constitution itself proscribes private ownership of timber and mineral lands.

• The prescriptive period for acquisition of property applies to patrimonial properties of the State, or those which have been declared as no longer intended for public use or public service TWO KINDS OF PRESCRIPTION BY WHICH A PATRIMONIAL PROPERTY MAY BE ACQUIRED 1. ORDINARY ACQUISITIVE PRESCRIPTION – a person acquires

ownership of a patrimonial property through possession for at least 10 years, in good faith, and with just title

2. EXTRAORDINARY ACQUISITIVE PRESCRIPTION – a person’s UNINTERRUPTED possession of patrimonial property for at least 30 years, regardless of good faith or just title, ripens into private ownership.

v BY PRESCRIPTION, ONE ACQUIRES OWNERSHIP AND OTHER REAL RIGHTS THROUGH THE LAPSE OF TIME IN THE MANNER AND UNDER THE ACTION LAID DOWN BY LAW.

v TO CONSOLIDATE PRESCRIPTION, THE POSSESSION MUST THAT OF OWNER, AND IT MUST BE PUBLIC, PEACEFUL AND

UNINTERRUPTED. ACTS OF A POSSESSORY CHARACTER DONE BY VIRTUE OF A LICENSE OR MERE TOLERANCE ON THE PART OF THE REAL OWNER ARE NOT SUFFICIENT.

v ACCRETION AND ACCESSION

• The requirement that the deposit should be due to the effects of the current of the river is INDISPENSABLE.

• Alluvion must be the EXCLUSIVE WORK OF NATURE. There must be evidence to prove that the addition to the property was made gradually through the effects of the current of the river.

• A riparian owner then does not acquire the additions to his land cause by special works expressly intended or designed to bring about accretion.

• Private persons cannot, by themselves, reclaim land from water bodies belonging to the State without proper permission from government authorities.

v ACCRETION DOES NOT AUTOMATICALLY BECOME REGISTERED LAND. THIS IS AKIN TO THE PRINCIPLE THAT AN UNREGISTERED LAND PURCHASED BY THE REGISTERED OWNER OF THE ADJOINING LAND DOES NOT, BY EXTENSION, BECOME IPSO FACTO REGISTERED LAND.

v WHERE ALLUVIAL INCREMENT IS NOT REGISTERED, IT MAY BE ACQUIRED BY THIRD PERSONS THROUGH PRESCRIPTION.

v IF ALLUVIAL PROPERTY IS NOT REGISTERED, THE INCREMENT NEVER BECAME REGISTERED PROPERTY, HENCE, NOT SUBJECT TO THE PROTECTION OF IMPRESCRIPTIBILITY OF REGISTERED PROPERTY UNDER THE TORRENS SYSTEM.

ACQUISITION OF OWNERSHIP IN ANY MANNER PROVIDED BY LAW

• This is done through grants of the State by virtue of a

Presidential Proclamation, Congressional grant, or any manner provided by law.

• CASE: International Hardwood and Veneer Co. vs. UP

-‐-‐-‐ END OF PART V -‐-‐-‐


12

12

VI. REGISTRATION UNDER THE INDIGENOUS PEOPLES RIGHTS ACT

v RA No. 8371 v Indigenous Peoples Right Act of 1997 v October 29, 1997 v The law allows indigenous peoples to obtain recognition of

their right of ownership over ancestral lands and ancestral domains by virtue of NATIVE TITLE.

CONSTITUTIONAL PROVISIONS Section 5, Article XII, 1987 Constitution

The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-‐being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

IPRA DOES NOT VIOLATE THE REGALIAN DOCTRINE • Case: Cruz vs. Secretary of Environment and Natural Resources • Under the IPRA, ancestral lands and ancestral domains are not

deemed part of the lands of the public domain BUT ARE PRIVATE LANDS BELONGING TO ICCs/IPs who have actually OCCUPIED, POSSESSED, and UTILIZED THEIR TERRITORIES UNDER A CLAIM OF OWNERSHIP, SINCE TIME IMMEMORIAL.

• The Court thus laid down the principle of a certain title held: o As far back as testimony or memory went o Under a claim of private ownership as presumed to never

have been public land

ANCESTRAL DOMAINS

• Refer to all areas generally belonging to [Indigenous Cultural Communities] ICCs/IPs COMPRISING LANDS, INLAND WATERS, COASTAL AREAS, AND NATURAL RESOURCES THEREIN, HELD UNDER A CLAIM OF OWNERSHIP, OCCUPIED OR POSSESSED BY ICCS/IPS, BY THEMSELVES OR THROUGH THEIR ANCESTORS, COMMUNALLY OR INDIVIDUALLY SINCE TIME IMMEMORIAL, CONTINUOUSLY TO THE PRESENT except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare.

• It shall include ancestral lands, forests, pasture, residential, agricultural and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.”1

• The law’s concept of ancestral domains, therefore, transcends physical and residential territories to include areas of spiritual, cultural and traditional practices.

ANCESTRAL LANDS

• Ancestral lands, which are part of ancestral domains, are defined in the same Act as lands “OCCUPIED, POSSESSED AND UTILIZED BY INDIVIDUALS, FAMILIES AND CLANS WHO ARE MEMBERS OF THE ICCS/IPS SINCE TIME IMMEMORIAL, by themselves or through their predecessors-‐in-‐interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.

ICCs/ IPs

• It refers to that group of peoples or homogenous societies who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed, and utilized such territories, sharing common bonds of language, customs, traditions, and other distinctive cultural traits, or who have, through resistance to political, social, and cultural inroads of colonization, non-‐

indigenous religions and culture, became historically different from the majority of Filipinos.

NATIVE TITLE

• It refers to pre-‐conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish conquest.

ANCESTRAL DOMAINS AND LANDS ARE NOT PART OF PUBLIC DOMAIN

• Under the IPRA, ancestral domains and land are not deemed part of the lands of the public domain but are PRIVATE LANDS belonging to ICCs/IPs who have actually occupied, possessed, and utilized their territories under a claim of ownership since time immemorial.

ICCs/IPs’s RIGHTS OVER ANCESTRAL DOMAINS ARE RECOGNIZED THOUGH CADTs

• The Certificate of Ancestral Domain Title is evidence of private ownership of land by native title.

• The IPRA categorically declares ancestral lands and domains held by native title as NEVER TO HAVE BEEN PUBLIC LAND.

• Domains and lands held under native title are, therefore, indisputably presumed to have never been public land and are private.

• CADT is merely a formal recognition of the rights of ICCs/IPs’ rights of possession and ownership over their ancestral domain identified and delineated in accordance with the IPRA.

RIGHTS OF ICCs/IPs WITH RESPECT TO NATURAL RESOURCES

• The ICCs/IPs have priority rights in the harvesting, extraction, development, or exploitation of any natural resources within the ancestral domains.

• A non-‐member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of NOT EXCEEDING 25 YEARS, RENEWABLE for not more than 25 years

HOW ARE ANCESTRAL LANDS CLASSIFIED UNDER IPRA?

• For purposes of registration, the individually-‐owned ancestral lands are classified as alienable and disposable land of the public domain, provided, they are agricultural in character and are actually used for agricultural, residential, pasture, and tree farming purposes.

• These lands shall be classified as public and agricultural lands regardless of whether they have a slope of 18% or more.

RIGHTS TO ANCESTRAL LANDS SEC. 8. Rights to Ancestral Lands. The right of ownership and possession of the ICCs /IPs to their ancestral lands shall be recognized and protected. a) Right to transfer land/property. Such right shall include the right to transfer land or property rights TO/AMONG MEMBERS OF THE SAME ICCS/IPS, subject to customary laws and traditions of the community concerned. b) Right to Redemption. In cases where it is shown that the transfer of land/property rights by virtue of any agreement or devise, to a nonmember of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15) years from the date of transfer.

v National Commission on Indigenous Peoples (NCIP) -‐ refers to the office created under his Act, which shall be under the Office of the President, and which shall be the primary government agency responsible for the formulation and implementation of policies, plans and programs to recognize, protect and promote the rights of ICCs/IP

v Ancestral Domains Office (ADO) -‐ The Ancestral Domain Office shall be responsible for the identification, delineation and recognition of ancestral lands/domains. It shall also be responsible for the management of ancestral lands/domains in accordance with a master plan as well as the implementation of the ancestral domain rights of the ICCs/IPs as provided in Chapter III of this Act. It shall also issue, upon the free and prior informed consent of the ICCs/IPs concerned, certification prior to the grant of any license, lease or


13

13

permit for the exploitation of natural resources affecting the interests of ICCs/IPs or their ancestral domains and to assist the ICCs/IPs in protecting the territorial integrity of all ancestral domains. It shall likewise perform such other functions as the Commission may deem appropriate and necessary.

DELINEATION PROCESS SEC. 52. Delineation Process. The identification and delineation of ancestral domains shall be done in accordance with the following procedures: a) Ancestral Domains Delineated Prior to this Act. The provisions hereunder shall not apply to ancestral domains/lands already delineated according to DENR Administrative Order No. 2, series of 1993, nor to ancestral lands and domains delineated under any other community/ ancestral domain program prior to the enactment of this law. ICCs/IPs whose ancestral lands/domains were officially delineated prior to the enactment of this law shall have the right to apply for the issuance of a Certificate of Ancestral Domain Title (CADT) over the area without going through the process outlined hereunder; b) Petition for Delineation. The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs; c) Delineation Proper. The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned; d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one ( I ) of the following authentic documents: 1) Written accounts of the ICCs/IPs customs and traditions; 2) Written accounts of the ICCs/IPs political structure and institution; 3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/lPs; 5) Survey plans and sketch maps; 6) Anthropological data; 7) Genealogical surveys; 8) Pictures and descriptive histories of traditional communal forests and hunting grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10) Writeups of names and places derived from the native dialect of the community. e) Preparation of Maps. On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein; f) Report of Investigation and Other Documents. A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP; g) Notice and Publication. A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen ( 15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available;

h)Endorsement to NCIP. Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims

among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below.

i) Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies. The Chairperson of the NCIP shall certify Blat the area covered is an ancestral domain. The secretaries of the Department of Agrarian Reform, Department of Environment and Natural Resources, Department of the Interior and Local Government, and Department of Justice, the Commissioner of the National Development Corporation, and any other government agency claiming jurisdiction over the area shall be notified Thereof. Such notification shall terminate any legal basis for the jurisdiction previously claimed;

j) Issuance of CADT. ICCs/IPs whose ancestral domains have been officially delineated and determined by the NCIP shall be issued a CADT in the name of the community concerned, containing a list of all dose identified in the census; and

k) Registration of CADTs. The NCIP shall register issued certificates of ancestral domain titles and certificates of ancestral lands tides before She Register of Deeds in the place where the property is situated.


14

14

LAND TITLES AND DEEDS FINALS 2014 – 2015 I. PROPERTY REGISTRATION DECREE (PD 1529)

1. FORMS AND CONTENT (Section 15)

• The application for land registration shall be IN WRITING, • SIGNED by the applicant or the person duly authorized in his

behalf • and SWORN TO BEFORE ANY OFFICER AUTHORIZED TO

ADMINISTER OATHS for the province or city where the application was actually signed.

• If there is MORE THAN ONE APPLICANT, the application shall be signed and sworn to by and in behalf of each.

• The application shall CONTAIN A DESCRIPTION OF THE LAND and

• shall state the CITIZENSHIP and CIVIL STATUS OF THE APPLICANT, whether single or married, and,

• if married, THE NAME OF THE WIFE OR HUSBAND, and, • if the marriage has been legally dissolved, WHEN AND HOW

THE MARRIAGE RELATION TERMINATED. • It shall also state the FULL NAMES AND ADDRESSES OF ALL

OCCUPANTS OF THE LAND AND THOSE OF THE ADJOINING OWNERS, if known, and,

• if not known, it shall state the EXTENT OF THE SEARCH MADE to find them.

REQUISITES IN ORDINARY LAND PROCEEDINGS (13 STEPS)

(SFS – TPS – FH – PIES – T)

1. Survey of the land by the Bureau of Lands of a duly licensed private surveyor

2. Filing of application for registration by the applicant 3. Setting of date for the INITIAL HEARING of the application

by the Court 4. Transmittal of the application and the date of initial hearing

together with all the documents and other evidences attached thereto by the Clerk of Court to the Land Registration Authority

5. Publication of the notice of the filing of the application and date and place of the hearing in the Official Gazette and in a newspaper of general circulation

6. Service by MAILING OF NOTICE upon contiguous owners, occupants, and those known to have interest in the property AND POSTING by the sheriff of the notice in a conspicuous place on the land and in the bulletin board of the municipal building where the land is situated

7. Filing of answer to the application by any person whether named in the notice or not

8. Hearing of the case by the Court 9. Promulgation of judgment by the Court 10. Issuance of an ORDER FOR THE ISSUANCE of a decree

declaring the decision final and instructing the LRA to issue the decree of confirmation and registration

11. Entry of the decree of registration in the LRA 12. Sending of copy of the decree of registration to the

corresponding Register of Deeds 13. Transcription of the decree of registration in the

registration book and the issuance of the owner’s duplicate original certificate of title to the applicant by the RD, upon payment of prescribed fees

THE APPLICATION SHALL BE ACCOMPANIED BY THE FOLLOWING DOCUMENTS

1. Original plan in TRACING CLOTH or DIAZO POLYESTER

FILM, duly approved by the Regional Technical Director, Land Management Service of the DENR, a CERTIFIED COPY OF THE SAME SHALL BE ATTACHED TO THE DUPLICATE RECORDS AND FORWARDED TO THE LRA

2. WHITE OR BLUE PRINT copies of the plan 3. The original and two copies of the TECHNICAL

DESCRIPTIONS CERTIFIED by the Regional Technical Director or the official so authorized and NOT MERELY SIGNED by the Geodetic Engineer who prepared the plan

4. A CERTIFICATE IN TRIPLICATE of the Provincial, City, or Municipal assessor of the assessed value of the land

5. All ORIGINAL MUNIMENTS OF TITLE OF THE APPLICANT which prove his ownership of the land * Under LRA Circular 05-‐2000, the original tracing cloth plan is no longer forwarded to the LRA; only a certified copy thereof need be forwarded

2. NON-‐RESIDENT APPLICANT (Section 16) • If the applicant is not a resident of the Philippines, he shall file with his application AN INSTRUMENT IN DUE FORM

• APPOINTING AN AGENT OR REPRESENTATIVE RESIDING IN THE PHILIPPINES, • giving his FULL NAME AND POSTAL ADDRESS, and • shall therein agree that the service of any legal process in the proceedings under or growing out of the application made upon his agent or representative shall be of the same legal effect as if made upon the applicant within the Philippines. • If the agent or representative dies, or leaves the Philippines, the applicant shall forthwith make another appointment for the substitute, and, if he fails to do so the court may dismiss the application.

3. WHAT AND WHERE TO FILE (Section 17) • The application for land registration SHALL BE FILED

WITH THE COURT OF FIRST INSTANCE OF THE PROVINCE OR CITY WHERE THE LAND IS SITUATED.

• The applicant shall file together with the application all original muniments of titles or copies thereof and a survey plan of the land approved by the Bureau of Lands.

• The clerk of court SHALL NOT ACCEPT any application unless it is shown that the applicant has furnished the Director of Lands with a copy of the application and all annexes.

Ø The RTC shall have exclusive original jurisdiction over

all applications for ORIGINAL REGISTRATION OF TITLE TO LANDS, including improvements and interests therein, and over all petitions filed after original registration of title, WITH POWER TO HEAR AND DETERMINE ALL QUESTIONS ARISING UPON SUCH APPLICATIONS OR PETITIONS

Ø As per BP Blg. 129, MTC has jurisdiction over: o Where the lot is not subject of any

controversy or opposition o Where the lot is contested but the

value thereof does not exceed P100,000

4. APPLICATION COVERING TWO PARCELS OF

LAND (Section 18)

• An application may include two or more parcels of land belonging to the applicant/s provided they are situated within the same province or city. The court may at any time order an application to be amended by striking out one or more of the parcels or by a severance of the application.

5. AMENDMENTS (Section 19) • The court MAY ALLOW amendments to the application

including joinder, substitution, or discontinuance as to parties at any stage of the proceedings upon just and reasonable terms.

• Amendments, which shall consist in a substantial change in the boundaries or an increase in area of the land, applied for or which involve the inclusion of an additional land shall be subject to the same requirements of publication and notice as in an original application.

Ø It shall not be permissible to make amendments or

alterations in the description of the land after its publication in the newspapers and after the registration of the property has been decreed, without the publication of new notification and advertisements making known to everyone the said alterations and amendments

Ø If new survey plans do not conform to the plans earlier presented and affect the rights of third persons, notice shall be given them and an opportunity to present whatever opposition they may have

6. WHEN LAND APPLIED FOR BORDERS THE ROAD

(Section 20)

• If the application describes the land as bounded by a public or private way or road, it shall state whether or not the applicant claims any and what portion of the land within the limits of the way or road, and whether the applicant desires to have the line of the way or road determined.

7. REQUIREMENT OF ADDITIONAL FACTS (Sec 21) • The court may require facts to be stated in the

application in addition to those prescribed by this


15

15

Decree not inconsistent therewith and may require the filing of any additional paper. It may also conduct an ocular inspection, if necessary.

8. DEALINGS WITH LAND PENDING ORIGINAL REGISTRATION

(Section 22) • After the filing of the application and before the issuance of

the decree of registration, the land therein described may still be the subject of dealings in whole or in part, in which case the interested party shall present to the court the pertinent instruments together with a subdivision plan approved by the Director of Lands in case of transfer of portions thereof and the court, after notice to the parties, shall order such land registered subject to the conveyance or encumbrance created by said instruments, or order that the decree of registration be issued in the name of the person to whom the property has been conveyed by said instruments.

Ø Section 22 allows the land subject of registration to be sold or otherwise encumbered, but whatever may be the nature of the transaction, the interested party should submit to the Court the pertinent instruments evidencing the transaction to be considered in the final adjudication of the case.

II. PUBLICATION, OPPOSITION, DEFAULT

1. NOTICE OF INITIAL HEARING, PUBLICATION, ETC. The court shall, within five days from filing of the application, ISSUE AN ORDER SETTING THE DATE AND HOUR OF THE INITIAL HEARING, which SHALL NOT BE EARLIER THAN FORTY-‐FIVE DAYS NOR LATER THAN NINETY DAYS FROM THE DATE OF THE ORDER. The public shall be given notice of the initial hearing of the application for land registration by means of (1) publication; (2) mailing; and (3) posting. 1. By publication. Upon receipt of the order of the court setting the time for initial hearing, the Commissioner of Land Registration shall cause notice of initial hearing to be published once in the Official Gazette and once in a newspaper of general circulation in the Philippines: Provided, however, that the publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court. Said notice shall be addressed to all persons appearing to have an interest in the land involved including the adjoining owners so far as known, and "to all whom it may concern". Said notice shall also require all persons concerned to appear in court at a certain date and time to show cause why the prayer of said application shall not be granted.

v TWO-‐FOLD PURPOSES OF PUBLICATION o To confer jurisdiction upon the court over the

res o To apprise the whole world of the pending

registration case so that they may assert their rights or interests in the land, if any, and oppose the application, if so minded.

v A party seeking registration of realty must prove by satisfactory and conclusive evidence not only his ownership thereof but the identity of the same.

v Publication in a newspaper is necessary to accord with due process requirement.

v For non-‐compliance with the requirement of publication, the application may be dismissed, without prejudice to reapplication in the future, after all the legal requisites are complied with.

v Publication in the Official Gazette does not dispense with the requirement of notice by mailing and posting

v Personal notice is not necessary unless required by the Court v The purpose of the law in requiring the giving of notice by all

three modes is to strengthen the Torrens system through safeguards to prevent anomalous titling of real property.

v New publication is need in case the property sought to be registered includes additional area

v Where there is no publication of the notice of initial hearing, the decision of the land registration court is void.

2. By mailing. (a) Mailing of notice to persons named in the application. The Commissioner of Land Registration shall also, WITHIN SEVEN DAYS AFTER PUBLICATION OF SAID NOTICE IN THE OFFICIAL GAZETTE, as hereinbefore provided, cause a copy of the notice of initial hearing to be mailed to every person named in the notice whose address is known.

(b) Mailing of notice to the Secretary of Public Highways, the Provincial Governor and the Mayor. If the applicant requests to have the line of a public way or road determined, the Commissioner of Land Registration shall cause a copy of said

notice of initial hearing to be mailed to the Secretary of Public Highways, to the Provincial Governor, and to the Mayor of the municipality or city, as the case may be, in which the land lies.

(c) Mailing of notice to the Secretary of Agrarian Reform, the Solicitor General, the Director of Lands, the Director of Public Works, the Director of Forest Development, the Director of Mines and the Director of Fisheries and Aquatic Resources. If the land borders on a river, navigable stream or shore, or on an arm of the sea where a river or harbor line has been established, or on a lake, or if it otherwise appears from the application or the proceedings that a tenant-‐farmer or the national government may have a claim adverse to that of the applicant, notice of the initial hearing shall be given in the same manner to the Secretary of Agrarian Reform, the Solicitor General, the Director of Lands, the Director of Mines and/or the Director of Fisheries and Aquatic Resources, as may be appropriate.

v In practice, the Solicitor General is invariably furnished with a copy of the notice of initial hearing. The reason for this is that he is bound to represent the government in all land registration and related proceedings.

v The OSG shall represent the Government of the Philippines, its agencies, and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer.

v The Solicitor General shall institute actions for the reversion to the Government of lands of the public domain and improvements thereon as well as lands held in violation of the Constitution.

3. By posting.

The Commissioner of Land Registration shall also cause a duly attested copy of the notice of initial hearing to be posted by the sheriff of the province or city, as the case may be, or by his deputy, in a conspicuous place on each parcel of land included in the application and also in a conspicuous place on the bulletin board of the municipal building of the municipality or city in which the land or portion thereof is situated, FOURTEEN DAYS AT LEAST BEFORE THE DATE OF INITIAL HEARING.

The court may also cause notice to be served to such other persons and in such manner, as it may deem proper. v The Courts would simply rely on the report of the sheriff

largely because of the presumption of regularity in the performance of official duty.

Ø The requirement of giving notice by all three modes is

mandatory Ø The notice of initial hearing shall be signed by the judge and

a copy if the notice is mailed to the clerk of court to the LRA Ø The procedure prescribed by PD No. 1529 in land registration

is IN REM, or one against all persons who may allege any right to the land sought to be registered, and the decree of the Court granting registration is valid and effective against all who may have interest in the land

2. PROOF OF PUBLICATION AND NOTICE (Section 24) The certification of the Commissioner of Land Registration and of the sheriff concerned to the effect that the notice of initial hearing, as required by law, has been complied with shall be filed in the case before the date of initial hearing, and shall be conclusive proof of such fact.

3. OPPOSITION TO APPLICATION IN ORDINARY

PROCEEDING (Section 25)

Any person claiming an interest, whether named in the notice or not, may appear and file an opposition on or before the date of initial hearing, or within such further time as may be allowed by the court. THE OPPOSITION SHALL STATE ALL THE OBJECTIONS TO THE APPLICATION AND SHALL SET FORTH THE INTEREST CLAIMED BY THE PARTY FILING THE SAME AND APPLY FOR THE REMEDY DESIRED, and shall be signed and sworn to by him or by some other duly authorized person.

If the opposition or the adverse claim of any person covers only a portion of the lot and said portion is not properly delimited on the plan attached to the application, or in case of undivided co-‐ownership, conflicting claims of ownership or possession, or overlapping of boundaries, the court may require the parties to submit a subdivision plan duly approved by the Director of Lands.


16

16

4. ORDER OF DEFAULT, EFFECT (Section 26)

If no person appears and answers within the time allowed, the court shall, upon motion of the applicant, no reason to the contrary appearing, order a default to be recorded and require the applicant to present evidence. By the description in the notice "To all Whom It May Concern", all the world are made parties defendant and shall be concluded by the default order. Where an appearance has been entered and an answer filed, a default order shall be entered against persons who did not appear and answer. v REQUISITES FOR OPPOSING APPLICATION

§ The oppositor must have an interest in the land applied

for § He should state the grounds for his objection as well as

the nature of his claimed interest § He should indicate the desired relief § The opposition should be signed and sworn to by him or

by his duly authorized representative

v The written appearance with opposition presented by petitioner in a case was considered valid and sufficient to give him legal standing in court and entitle him to notice, as a matter of right.

v Opposition to an application for registration of the title must be based on the right of dominion or some other real right opposed to the adjudication or recognition of the ownership of the applicant, whether it be limited or absolute.

v All claims of third persons to the property must be asserted in the registration proceedings.

v A “claim” merely noted on the survey plan cannot prevail over the actual decree of registration as reproduced in the certificate. The rule also is that the owner of buildings and improvements should claim them during the proceedings for registration and the fact of ownership, if upheld by the Court, must be noted on the face of the certificate.

v FAILURE TO FILE OPPOSITION – a claimant having failed to present his answer or objection to the registration of a parcel of land under the Torrens system or to question the validity of such registration within a period of one year after the certificate of title had been issued, is deemed to have forever lost his right in said land even granting that he had any right therein.

v PERSONS WITH LEGAL STANDING TO FILE OPPOSITION

§ A HOMESTEADER who has not yet been issued his title but has fulfilled all the conditions required by law for the issuance of the patent

§ A PURCHASER OF FRIAR LAND who is deemed to have an equitable title to the land even before the issuance of the patent

§ An AWARDEE IN A SALES APPLICATION who, by virtue of the award, is authorized to take possession of the land to enable him to comply with the requirements for the issuance of patent

§ A person CLAIMING TO BE IN POSSESSION OF THE LAND and has applied with the Lands Management Bureau for its purchase

v Private persons may not file opposition for the government on the ground that the land belongs to the government.

v Pursuant to the Regalian Doctrine, all land of the public domain and all other natural resources are owned by the State, hence, it is the burden of the applicant or private oppositor to overthrow the presumption that the land is public land by “well-‐nigh incontrovertible proof” and he is entitled to registration under the law.

v If the Solicitor General did not initiate the opposition by the Government, it will be summarily dismissed.

v Notwithstanding the absence of opposition by the government, the applicant in land registration cases is not relieved of the burden of proving the imperfect right or title sought to be confirmed. He must show, even though there is no opposition, to the satisfaction of the court, that he is the absolute owner, in fee simple.

v The Court may, even in the absence of any opposition, deny the registration of the land under the Torrens system, upon the ground that the facts presented did not show that the petitioner is the owner, in fee simple, of the land, which he is attempting to have registered.

v Hearing is necessary in order to determine the validity of ownership claim. The court may refer the case or any part thereof to a REFEREE who shall hear the parties and their evidence, and the referee shall submit his report thereon to the court within 15 days after the termination of such hearing. The court may render judgment according to the report though the facts has been found by the judge himself, or order the case recommitted for reception of additional evidence.

v Failure of the Director of Lands to oppose the application for registration will not justify the court in adjudicating the land applied for as private property.

v III. HEARING, JUDGMENT, AND DECREE OF REGISTRATION

Section 27. SPEEDY HEARING; REFERENCE TO A REFEREE. The trial court shall see to it that all registration-‐proceedings are disposed or within ninety days from the date the case is submitted for decision, The Court, if it deems necessary, may refer the case or any part thereof to a referee who shall hear the parties and their evidence, and the referee shall submit his report thereon to the Court within fifteen days after the termination of such hearing. Hearing before a referee may be held at any convenient place within the province or city as may be fixed by him and after reasonable notice thereof shall have been served the parties concerned. The court may render judgment in accordance with the report as though the facts have been found by the judge himself: Provided, however, that the court may in its discretion accept the report, or set it aside in whole or in part, or order the case to be recommitted for further proceedings: v HEARING

§ Applications for registration shall be heard in the RTC or in first level courts

§ Section 27 aims to dispose of registration cases as expeditiously as possible and hence the court is required to decide the case within 90 days from the time it is submitted for decision.

§ The proof is on the applicant to prove his positive averments and not for the government or the private oppositors to establish a negative proposition. He must submit a convincing proof of his and his predecessor-‐in-‐interest’s actual, peaceful, and adverse possession in the concept of owner of the lots during the period required by law.

§ No public land can be acquired by private persons without any grant, express or implied, from the government. The term “public land” is uniformly used to describe so much of the national domain under the legislative power of the Congress as has not been subjected to private right or devoted to public use.

IV. SPECIFIC EVIDENCE OF OWNERSHIP

1. PROOF OF OWNERSHIP All applicants in land registration proceedings have the burden of overcoming the presumption that the land thus sought to be registered forms part of the public domain. Unless the applicant succeeds in showing by clear and convincing evidence that he or his ancestors acquired the property involved by any means for the proper acquisition of public lands, the property must be held to be part of public domain. THE BASIC PRESUMPTION IS THAT LANDS OF WHATEVER CLASSIFICATION BELONG TO THE STATE AND EVIDENCE OF A LAND GRANT MUST BE “WELL-‐NIGH INCONTROVERTIBLE”. The applicant must present competent and persuasive proof to substantiate his claim; he my not rely on general statements, or mere conclusions of law other than factual evidence of possession and title. The mere initiation of an application for registration of land under the Torrens system is not proof that the land is of private ownership, and not pertaining to public domain. It is precisely the character of the land as private which the applicant has the obligation of establishing. Ø LANDS MUST BE ALIENABLE AND DISPOSABLE

Alienable and disposable lands, or those open for alienation or disposition, are part of the patrimonial property of the State. Before any land may be declassified from the forest group and converted into alienable or disposable land for agricultural or other purposes, there must be a positive act from the government. In the absence of classification, the land remains as unclassified land until it is released therefrom and rendered open for disposition. THE CLASSIFICATION OF PUBLIC LANDS IS AN EXCLUSIVE PREROGATIVE OF THE EXECUTIVE DEPARTMENT AND NOT OF THE COURTS.


17

17

Ø SECTION 48B OF CA NO. 141 IS PREMISED ON PRIOR CLASSIFICATION OF LAND AS ALIENABLE AND DISPOSABLE.

Open, exclusive, and undisputed possession of alienable public land for the period prescribed by CA No. 141 ipso jure converts such land into private land. Judicial confirmation in such cases is only a formality that merely confirms that earlier conversion of the land into a private land, the conversion having occurred in law from the moment the required period of possession became complete. It is only necessary that the land be already classified as alienable and disposable land AT THE TIME OF FILING OF THE APPLICATION for registration.

Ø CLASSIFICATION OF AGRICULTURAL PUBLIC LAND AS A & D RECKONED AT THE TIME OF FILING OF APPLICATION FOR REGISTRATION

It requires the property sought to be registered as already alienable and disposable at the time the application for registration of title is filed. If the State, at the time the application is made, has not yet deemed it proper to release the property for alienation or disposition, the presumption is that the government is still reserving the right to utilize the property; hence, the need to preserve its ownership in the State irrespective of the length of adverse possession even if in good faith.

Ø PROOF OF CLASSIFICATION OF LAND AS A & D (C-‐LEL-‐RCC)

• Certification of the Bureau of Forest Development that the land has been released as alienable and disposable land

• Land Classification Map showing that the land lies within the alienable and disposable portion of the public domain

• Executive proclamation withdrawing from a reservation of a specific area and declaring the same open for entry, sale or other mode of disposition

• Legislative act or executive proclamation reserving a portion of the public domain for public or quasi-‐public use, which amounts to a transfer of ownership to the grantee (Case: International Hardwood and Veneer Co. vs UP)

• Report of a land inspector of the Bureau of Lands that the subject land was found inside an agricultural zone and is suitable for rice cultivation. The classification is descriptive of its LEGAL NATURE or status and does not have to be descriptive of what the land really looks like.

• Certification from the CENRO of the DENR stating that the land subject of an application is found to be within the alienable and disposable site per a land classification project map

• Certification by DENR Regional Technical Director that a lot constitutes substantial compliance with the legal requirement

Ø CLASSIFICATION MUST BE APPROVED BY DENR SECRETARY

The applicant for land registration must prove that the DENR Secretary had approved the land classification and released the land of the public domain as alienable and disposable, and that the land subject of the application for registration falls within the approved area per verification through survey by the PENRO or CENRO.

2. SURVEY PLAN

A survey plan serves to establish the true identity of the land to ensure that it does not overlap a parcel of land or a portion thereof already covered by a previous land registration, and to forestall the possibility that it will be overlapped by a subsequent registration of any adjoining land. A survey plan, standing alone, is not evidence of title. Section 17 of PD 1529 requires that the application for registration be accompanied with a survey plan duly approved by the Director of Land (Regional Technical Director of the Lands Management Bureau), together with the applicant’s muniments of title. Only the Lands Management Bureau may verify and approve survey plans for original registration purposes pursuant to PD No. 239, dated July 9, 1973. The Land Registration Authority HAS NO AUTHORITY TO APPROVE ORIGINAL SURVEY PLANS NOR TO CHECK THE CORRECTNESS THEREOF. The surveyors is duty-‐bound to find out themselves who are the occupants and boundary owners of any land surveyed by them for purposes of registration.

The Supreme Court declared that the submission of the tracing cloth plan is a statutory requirement of MANDATORY CHARACTER. However, by virtue of LRA Circular No. 05-‐2000, dated March 8, 2000, what is needed to be forwarded to the LRA is only a certified copy of the tracing cloth or Diazo polyester film as approved by the Regional Technical Director. The original of the said plan, which is to accompany the application for original registration, shall be filed and retained by the Court. A certified blue print or white print copy of the plan suffices for registration purposes. The survey plan of the land and the technical description thereof, based on an old cadastral survey, satisfy the technical requirement of the tracing cloth plan, which is to identify with certainty the land applied for. What defines a piece of titled property is not the numerical data indicated as the area of the land, calculated with more or less certainty mentioned in the technical description, BUT THE BOUNDARIES or “METES AND BOUNDS” OF THE PROPERTY AS ENCLOSING IT AND SHOWING ITS LIMITS. In order that natural boundaries of land may be accepted for the purpose of varying the extent of the land, the evidence as to such natural boundaries must be clear and convincing.

3. POSSESSION AND OCCUPATION The law requires both “possession and occupation” of the land applied for which the applicant must show by “well-‐nigh incontrovertible”. The Civil Code states that possession is the holding of a thing or the enjoyment of a right. Possession always includes the idea of occupation. It is not necessary that the person in possession should himself be the occupant. The occupancy can by held by another in his name. Without occupancy, there is no possession. Possession, to constitute the foundation of a prescriptive right, must be a possession UNDER A CLAIM OF TITLE OR OWNERSHIP or IT MUST BE ADVERSE. An applicant for confirmation of imperfect or incomplete title must show OCEN possession and occupation of the property in question, under a bona fide claim of acquisition or ownership, since June 12, 1945. Acts of possessory character performed by one who holds the property by mere tolerance of the owner are clearly not in the concept of the owner, and such possessory acts, no matter how long continued, do not start the period of prescription running. Actual possession of land consists in the manifestation of acts of dominion over it of such a nature, as a party would naturally exercise over his own property. Mere casual cultivation of portions of the land by the claimant does not constitute possession under claim of ownership. On the other hand, where there is sufficient proof that the applicant and his predecessors-‐in-‐interest have been in possession of the land without interruption, cultivating certain parts thereof and using others for the pasture of animals, keeping them fenced in for the purpose of preserving the trees, shrubs, and bamboo growing thereon, the registration of the land is warranted

Ø TWO THINGS PARAMOUNT IN POSSESSION § There must be occupancy, apprehension or taking § There must be intent to possess

Ø RULE OF PREFERENCE IN CASE OF CONFLICT OF

POSSESSION § The present possessor shall be preferred § If there are two possessors, the one longer in

possession § If the dates of the possession are the same, the

one who presents a title § If both possessors have title, the court shall

determine the rightful possessor and owner of the land

Ø EVIDENCE OF OVERT ACTS OF POSSESSION

§ Introducing valuable improvements on the property § Fruit-‐bearing trees § Fencing the area § Constructing a residential house § Declaring the house for taxation purpose


18

18

4. TAX DECLARATIONS AND TAX RECEIPTS

They are not conclusive proof of ownership, but have a strong probative value when accompanied by proof of actual possession, or supported by other effective proof.

The voluntary declaration of a piece of property for taxation purposes manifests not only one’s sincere and honest desire to obtain title to the property and announces his adverse claim against the State and all other interested parties, but also the intention to contribute needed revenues to the government.

Tax declarations and receipts when coupled with actual possession constitute evidence of great weight and can be the basis of claim of ownership through prescription. Mere failure of the owner to pay his taxes does not warrant a conclusion that there was an abandonment of a right to the property. The payment of taxes on property does not alone constitute sufficient evidence of title.

5. PARTIAL JUDGMENT (SECTION 28, PD 1529)

In a case where ONLY A PORTION OF THE LAND SUBJECT OF REGISTRATION IS CONTESTED, the court may render partial judgment provided that a subdivision plan showing the contested and uncontested portions approved by the Director of Lands is previously submitted to said court.

6. JUDGMENT CONFIRMING TITLE (SECTION 29, PD 1529)

All conflicting claims of ownership and interest in the land subject of the application shall be determined by the court. If the court, after considering the evidence and the reports of the Commissioner of Land Registration and the Director of Lands, finds that the applicant or the oppositor has sufficient title proper for registration, judgment shall be rendered confirming the title of the applicant, or the oppositor, to the land or portions thereof.

Section 29 MANDATES the LRA Administrator and the Director of Lands to submit to the court all necessary and relevant evidence as well as reports to aid the court in the determination of the case.

Ø THE REPORT MAY INCLUDE:

§ Information about the status of the land applied for § Its present classification § Whether or not the same had been previously decreed as

private property or patented under the Public Land Act

The court may also directly require the DENR and the LRA to submit a report on whether the subject property has already been registered and covered by certificates of title. Only judgments and processes received by the Solicitor General bind the government. The Notice of Appearance shall be addressed to the OSG. Such notice makes it clear that “only notices of orders, resolutions, and decisions served on the SG will bind the party (government/ agency) concerned.

Ø PRINCIPLE OF RES JUDICATA APPLICABLE TO REGISTRATION PROCEEDINGS RES JUDICATA – Where a judgment on the merits rendered in a former case is final and executory, and was rendered by a court of competent jurisdiction, and that case and the present case involves the same parties, the same parcels of land and a similarity of causes of action, present action is barred by a prior action. The fact that the grounds on which the two cases are predicated are technically at variance is IMMATERIAL if in substance they aim the same objective: the recovery of the title and possession of the same properties.

Ø REQUISITES OF RES JUDICATA

§ The former judgment must be FINAL § It must have been rendered by a COURT HAVING

JURISDICTION of the subject matter and the parties § It must be a JUDGMENT OF THE MERITS § The must be, between the first and second action:

o Identity of parties o Identity of subject matter o Identity of cause of action

A final judgment in an ordinary civil case determining the ownership of a piece of land is res judicata in a registration proceeding where the parties and the property are the same as in the former case.

A judgment dismissing an application for registration of land does not constitute res judicata, and the unsuccessful applicant, or any person deriving title from him, may file another proceeding for the registration of the same land. 7. WHEN JUDGMENT BECOMES FINAL (SECTION 30, PD1529) The judgment rendered in a land registration proceeding becomes FINAL UPON THE EXPIRATION OF FIFTEEN DAYS to be counted from the data of receipt of notice of the judgment. An APPEAL may be taken from the judgment of the court as in ordinary civil cases. After judgment has become final and executory, it shall devolve upon the court to forthwith issue an order in accordance with Section 39 of this Decree to the Commissioner for the ISSUANCE OF THE DECREE OF REGISTRATION AND THE CORRESPONDING CERTIFICATE OF TITLE in favor of the person adjudged entitled to registration. Ø SEPARATE PROCEEDING TO ENFORCE JUDGMENT NOT

NECESSARY IN LAND REGISTRATION

§ Appeal must be made within 15 days counted from the date of receipt of the notice of final order.

§ After the ownership has been proved and confirmed by judicial declaration, NO FURTHER PROCEEDING TO ENFORCE THE JUDGMENT IS NECESSARY, except when the adverse or losing party had been in possession of the land and the winning party desires to oust him therefrom.

Ø COURT’S JURISDICTION

While the judgment of the court becomes final 15 days from the receipt of notice of the judgment, the court nevertheless retains jurisdiction over the case until after the expiration of 1 year from the issuance of the final decree of registration by the LRA. IT IS ONLY AFTER THE DECREE OF REGISTRATION, WHICH IS THE COPY OF THE ORIGINAL CERTIFICATE OF TITLE TO BE ISSUED BY THE REGISTER OF DEEDS, IS ISSUED BY THE LRA THAT THE DECISION OF THE COURT IS DEEMED “FINAL”.

After the land has been registered, the registration court ceases to have jurisdiction over it for any purpose and it returns to the jurisdiction of the ordinary courts of law for all subsequent purposes.

Ø WRIT OF POSSESSION A writ of possession is EMPLOYED TO ENFORCE A JUDGMENT TO RECOVER THE POSSESSION OF LAND. It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment.

Ø WHEN CAN A WRIT OF POSSESSION BE ISSUED § In a land proceeding, in rem § Extrajudicial foreclosure of realty mortgage § Judicial foreclosure proceeding, quasi in rem,

provided that the mortgagor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit

§ Execution sales After the registration of a land is decreed in favor of the applicant, the latter, as well as any subsequent purchaser of the property has the right to the title and possession thereof, and to that end he may ask the proper court for the issuance of a writ of possession, provided the same has not been issued before. A writ of possession may be issued not only against the defeated party in registration, but also against anyone adversely occupying the land or any portion thereof. A person who took possession of the land after final adjudication of the same in registration proceedings cannot be summarily ousted through a writ of possession secured by a mere motion and that regardless of any title or lack of title of persons to hold possession of the land in question, they cannot be ousted without giving them their day in court. The remedy is to resort to the courts and institute a separate action for UNLAWFUL ENTRY OR DETAINER or for REIVINDICATORY ACTION, as the case may be.

If one refused to vacate, the RTC may hold them in contempt.


19

19

8. DECREE OF REGISTRATION (SECTION 31, PD 1529) Every decree of registration issued by the Commissioner SHALL BEAR THE DATE, HOUR AND MINUTE OF ITS ENTRY, and shall be signed by him. It shall state whether the owner is married or unmarried, and if married, the name of the husband or wife: Provided, however, that if the land adjudicated by the court is conjugal property, the decree shall be issued in the name of both spouses. If the owner is under disability, it shall state the nature of disability, and if a minor, his age. It shall contain a description of the land as finally determined by the court, and shall set forth the estate of the owner, and also, in such manner as to show their relative priorities, all particular estates, mortgages, easements, liens, attachments, and other encumbrances, including rights of tenant-‐farmers, if any, to which the land or owner's estate is subject, as well as any other matters properly to be determined in pursuance of this Decree. The decree of registration shall bind the land and quiet title thereto, subject only to such exceptions or liens as may be provided by law. It shall be conclusive upon and against all persons, including the National Government and all branches thereof, whether mentioned by name in the application or notice, the same being included in the general description "To all whom it may concern".

Ø A DECREE OF REGISTRATION is an order issued under the signature of the Administrator, LRA, in the name of the court, stating that the land described therein is registered in the name of the applicant or oppositor or claimant as the case may be.

Ø STEPS OF DECREE OF REGISTRATION § Issuance of decree of registration § Administrator sends copy thereof, under seal of office,

to the Register of Deeds of the province where the land lies

§ Register of Deeds transcribes the decree in the “Registration Book” in consecutive order

The entry made by the Register of Deeds in said book constitutes the original certificate of title and is signed by him and sealed with the seal of his office. Entry in the proper registry and the issuance of the corresponding certificate of title presupposes that the applicant is the owner and proprietor of the realty he seeks to register. THE DUTY OF THE LRA ADMINISTRATOR IS MINISTERIAL AND HE IS ACTING UNDER THE ORDERS OF THE COURT. The decree must be in conformity with the decision of the court and with the data found in record, and the Administrator has no discretion on the matter. If the Administrator is in doubt upon any point in relation to the preparation and issuance of the decree, it is his duty to refer the matter to the court. He acts as an official of the court and not as an administrative official, and his act is that act of the court. THE LAND BECOMES A REGISTERED LAND ONLY UPON TRANSCRIPTION OF THE DECREE IN THE ORIGINAL REGISTRATION BOOK BY THE REGISTER OF DEEDS, AND NOT ON THE DATE OF ISSUANCE OF THE DECREE.

A land registration court has NO JURISDICTION to order the registration of land already decreed in the name of another in an earlier land registration case. A second decree for the same land would be null and void, since the principle behind original registration is to register the parcel of land only once. An application for registration of an already titled land constitutes a collateral attack on the existing title, which is not allowed by law. Cadastral courts have limited jurisdiction to correct technical errors or determine which of several conflicting titles should prevail. A decree of registration cannot be issued until after judgment becomes final. Execution pending appeal is, therefore, not applicable in land registration proceedings. Under the Torrens System of registration, the Torrens title becomes indefeasible and incontrovertible ONE YEAR FROM ITS FINAL DECREE.

V. REMEDIES Ø Section 32. Review of Decree of Registration, Innocent

Purchaser for value The decree of registration shall not be reopened or revised by reason of absence, minority, or other disability of any person adversely affected thereby, nor by any proceeding in any court for reversing judgments, subject, however, to the right of any person, including the government and the branches thereof, deprived of land or of any estate or interest therein by such adjudication or confirmation of title obtained by actual fraud, TO FILE IN THE PROPER COURT OF FIRST INSTANCE A PETITION FOR REOPENING AND REVIEW OF THE DECREE OF REGISTRATION NOT LATER THAN ONE YEAR FROM AND AFTER THE DATE OF THE ENTRY OF SUCH DECREE OF REGISTRATION, but in no case shall such petition be entertained by the court where an innocent purchaser for value has acquired the land or an interest therein, whose rights may be prejudiced. Whenever the phrase "innocent purchaser for value" or an equivalent phrase occurs in this Decree, it shall be deemed to include an innocent lessee, mortgagee, or other encumbrancer for value. Upon the expiration of said period of one year, the decree of registration and the certificate of title issued shall become incontrovertible. Any person aggrieved by such decree of registration in any case may pursue his remedy by action for damages against the applicant or any other persons responsible for the fraud. 1. NEW TRIAL OR RECONSIDERATION Within the period of taking an appeal (15 days), the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the causes materially affecting the substantial rights of said party. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order. GROUNDS FOR NEW TRIAL OR RECONSIDERATION § Fraud, accident, mistake or excusable negligence,

which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights

§ Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result

CONTENTS OF A MOTION FOR NEW TRIAL § Must be in writing § Shall state the ground/s therefor § A written notice must be served to the adverse party § Shall be supported by affidavits of merits § Shall be supported by affidavits of witnesses or duly

authenticated documents, which are proposed to be introduced in evidence

AFFIDAVIT OF MERITS IN MOTION FOR NEW TRIAL GROUNDED ON FRAUD, ETC.

§ Affidavit 1: setting forth the facts and circumstances alleged to constitute such fraud, accident, mistake, or excusable negligence

o REASON: to enable the court to determine if the movant’s claim of fraud is not mere conclusion but is indeed borne out by the relevant facts

§ Affidavit 2: setting forth the particular facts

claimed to constitute the movant’s meritorious cause of action or defense.

o REASON: it would be useless, a waste of time, to set aside the judgment and reopen the case to allow the movant to adduce evidence when he has no valid cause of action or meritorious defense

Affidavits of merit are not necessary if the granting of the motion for new trial is not discretionary with the court BUT IS DEMANDABLE AS OF RIGHT

o Where the movant has been deprived of his day in court through no fault or negligence on his part because no notice of hearing was furnished him in advance so as to enable him to prepare for trial


20

20

v FRAUD – is a ground for review or reopening decree of registration

§ EXTRINSIC FRAUD – refers to any fraudulent act of the successful party in litigation which is committed outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case

§ INTRINSIC FRAUD – refers to acts of a party in a

litigation during the trial, such as forged instruments or perjured testimony, which did not affect the presentation of the case, but DID PREVENT A FAIR AND JUST DETERMINATION OF THE CASE

§ PRESCRIPTION = 4 years

v ACCIDENT – it must appear that there was accident or surprise which ordinary prudence could not have guarded against, and by reason of which the party applying has probably been impaired in his rights

v MISTAKE – some unintentional act, omission, or error arising

from ignorance, surprise, imposition or misplaced confidence.

v EXCUSABLE NEGLECT – failure to take the proper steps at the proper time, not in consequence of the party’s own carelessness, inattention, or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident, or reliance on the care and vigilance of his counsel or on promises made by the adverse party. MOTION FOR RECONSIDERATION

§ It shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

2. RELIEF FROM JUDGMENT; RELIEF FROM DENIAL When an judgment or final order is entered, and is made through fraud, mistake, etc, HE MAY FILE A PETITION IN SUCH COURT and in the same case praying that the JUDGMENT BE SET ASIDE A petition for relief of judgment or from denial of appeal must be verified and filed WITHIN 60 DAYS AFTER THE PETITIONER LEARNS OF THE JUDGMENT, AND NOT MORE THAN 6 MONTHS Petition for relief and motion for new trial or consideration are exclusive of each other. A party who has filed a timely motion for new trial cannot file a petition for relief after his motion has been denied. He should appeal from the judgment and question such denial.

3. APPEALS

May be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the Rules of Court to be appealable. NO APPEAL MAY BE TAKEN FROM:

§ Order denying a motion for new trial/ reconsideration § An order denying a petition for relief or any similar

motion seeking relief from judgment § An interlocutory order § An order disallowing or dismissing an appeal § An order denying a motion to set aside a judgment by

consent, confession or compromise on ground of fraud, mistake, or duress

§ An order of execution § A judgment or final order for or against one or more of

several parties or in separate claims, counterclaims, cross-‐claims and third-‐party complaints, while the main case is pending, unless the court allows an appeal therefrom

§ An order dismissing an action without prejudice

MODE OF APPEAL

§ ORDINARY APPEAL – the appeal to the Court of Appeals in cases decided by the RTC in the exercise of its original jurisdiction

o Shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy upon the adverse party

o File first a notice of appeal (shall indicate the parties to the appeal, specify the judgment or final order or part thereof appealed from, specify the court to which the appeal is being taken, and state the material dates showing the timeliness of the appeal.)

o The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order.

o A timely motion for new trial or reconsideration shall interrupt the period of appeal.

o No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

§ PETITION FOR REVIEW – the appeal to the Court of Appeals in cases decided by the RTC in the exercise of its appellate jurisdiction (Rule 42, Rules of Court)

o Filing a verified petition for review with the Court of Appeals

o Petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner's motion for new trial or reconsideration filed in due time after judgment

o Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review.

o No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

§ APPEAL BY CERTIORARI -‐ In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with the Rule 45

o A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

o The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment.

o On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition.

o A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons thereof.

PERFECTION OF APPEAL (Section 9, Rule 41, ROC) A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the appeal of the other parties.


21

21

In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the appeal.

4. REVIEW OF DECREE OF REGISTRATION

REQUISITES

§ The petitioner must have an estate or interest in the land

§ He must show actual fraud in the procurement of the decree of registration

§ The petition must be filed within one year from the issuance of the decree by the LRA

§ The property has not yet passed to an innocent purchaser for value

A mere claim of ownership is not sufficient to avoid a certificate of title obtained under the Torrens system. The proceedings whereby such a title is obtained are directed against all persons, known or unknown, whether actually served or not, and includes all who have an interest in the land. If they do not appear and oppose the registration, such judgment is conclusive. Must be filed at any time after the rendition of the court’s decision and before the expiration of one year from the entry of the final decree of registration.

THE GROUND FOR REVIEW IS ACTUAL OR EXTRINSIC REVIEW

§ Deliberate misrepresentation that the lots are not contested when in fact they are;

§ Applying for and obtaining adjudication and registration in the name of a co-‐owner of land which he knows had not been allotted to him in the partition;

§ Intentionally concealing facts, and conniving with the land inspector to include in the survey plan the bed of navigable stream;

§ Willfully misrepresenting that there are no other claims; § Deliberately failing to notify the party entitled to notice; § Inducing a claimant not to oppose the application for

registration; § Misrepresentation by the applicant about the identity of

the lot to the true owner causing the latter to withdraw his opposition;

§ Failure of the applicant to disclose her application for registration the vital facts that her husband’s previous application for a revocable permit and to purchase the lands in question from the Bureau of Lands had been rejected, because the lands were already reserved as a site for school purposes;

§ Deliberate falsehood that the land were allegedly inherited by the applicant from her parents, which misled the Bureau of Lands into not filling the opposition and thus effectively depriving the Republic of tis day in court.

RELIEF ON THE GROUND OF FRAUD WILL NOT BE GRANTED

§ Where the alleged fraud goes into the merits of the case,

is intrinsic and not collateral, and has been controverted and decided

§ Where it appears that the fraud consisted in the presentation at the trial of a supposed forged document, or a false and perjured testimony

A purchaser who has knowledge of defect of his vendor’s title cannot claim good faith. A purchaser cannot close his eyes to facts, which should put a reasonable man upon his guard, and then claim that he acted in good faith under the belief that there was no defect in the title of the vendor.

5. RECONVEYANCE Legal and equitable remedy granted to the rightful owner of land, which has been wrongfully or erroneously registered in the name of another for the purpose of compelling the latter to transfer or reconvey the land to him. AN ACTION FOR RECONVEYANCE IS ONE THAT SEEKS TO TRANSFER PROPERTY, WRONGFULLY REGISTERED BY ANOTHER, TO ITS RIGHTFUL AND LEGAL OWNER. After one year from the date of the decree, the sole remedy of the landowner whose property has been wrongfully or erroneously registered in another’s name is not to set aside the decree, but respecting the decree as incontrovertible and no longer open to review to bring an ordinary action in court for reconveyance.

REQUISITES FOR ACTION OF RECONVEYANCE

§ An action must be brought in the name of a person claiming ownership or dominical right over the land registered in the name of the defendant

§ The registration of the land in he name of the defendant was procured through fraud or other illegal names

§ The property has not yet passed to an innocent purchaser for value

§ The action is filed after the certificate of title had already become final and incontrovertible but within four years from the discovery of the fraud, or not later than 10 years, in case of implied trust

RELEVANT ALLEGATIONS

§ That the plaintiff was the owner of the land § That the defendant had illegally dispossessed him of the

same

The remedy of reconveyance is available before the issuance of the decree. An action for reconveyance is an action in personam available to a person whose property has been wrongfully registered under the Torrens system in another’s name. The rule is that the RTC have exclusive original jurisdiction in all civil actions which involve the title to or any interest in property where the assessed value thereof exceeds P20,000 or in Metropolitan Manila, where such value exceeds P50,000. Indispensable parties must be impleaded in an action for reconveyance. Quantum of Proof – the established legal principle in actions for annulment or reconveyance of title is that a party seeking it should establish not merely by preponderance of evidence but by clear and convincing evidence that the land sought to be conveyed is his. Mere allegation of fraud is not enough. An action for reconveyance may be barred by prescription. PRESCRIPTION

§ Based on FRAUD – 4 years from discovery of fraud § Based on IMPLIED TRUST – 10 years § Based on VOID CONTRACT – Imprescriptible § Action TO QUIET TITLE where plaintiff is in possession

– Imprescriptible § Reconveyance of land acquired through public land

patents – State is not bound by prescription Laches may bar recovery. The principle of laches which, in effect, is one of estoppel because it prevents people who have slept on their rights from prejudicing the rights of third parties who have placed reliance on the inaction of the original patentee and his successors in interest. ELEMENTS OF LACHES

§ Conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of;

§ Delay in asserting complainant's right after he had knowledge of the defendant's conduct and after he has an opportunity to sue;

§ Lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and

§ Injury or prejudice to the defendant in the event relief is accorded to the complainant.

6. ACTION FOR DAMAGES

An action for reconveyance is not feasible where the property has already passed into the hands of an innocent purchaser for value. But the interested party is not without a remedy – he can file an action for damages against the persons responsible for depriving him of his right or interest in the property. An action for damages should be brought within 10 YEARS from the date of the issuance of the questioned certificate of title. 7. ACTION FOR REVERSION It seeks to restore public land fraudulently awarded and disposed of to private individuals or corporations to the mass of public domain. Only the SOLICITOR GENERAL may institute an action for reversion.

OBJECTIVE – cancellation of the certificate of title and the resulting reversion of the land covered by the title to the State


22

22

The Director of Lands has continuing authority to conduct investigation, from time to time; to determine whether or not public land has been fraudulently awarded or titled to the end that the corresponding certificate of title be cancelled and the land reverted to the public domain.

8. CANCELLATION OF TITLE

An action for cancellation is initiated by a private property usually in a case where there are two titles issued to two different persons for the same lot. When one of the two titles held to be superior over the other, one should be declared null and void and ordered cancelled.

9. RECOVERY FROM THE ASSURANCE FUND

Section 95 provides a remedy where a person who sustains loss or damage or is deprived of any estate or interest in land in consequence of the operations of the Torrens system of registration, without negligence on his part, may bring an action for the recovery of damages to be paid out of the Assurance fund Public policy demands that those unjustly deprived of their rights over real property by reason of the operation of our registration laws be afforded remedies According to the principles of the Torrens system, it is a condition sine que non that the person who brings an action for damages against the Assurance fund be the registered owner, and as to holders of transfer certificates of title that they be innocent purchasers in good faith and for value There must also be a showing of loss or damage or deprivation of any land or interest thereon by the operation of PD1529 Where plaintiff is solely responsible for the plight in which it finds itself, the Director of Lands and the National Treasurer are exempt from any liability REQUISITES FOR RECOVERY FROM THE ASSURANCE FUND

§ That a person sustains loss or damage, or is deprived of any estate or interest in land

§ On account of bringing of land under the operations of the Torrens system arising after the original registration

§ Through fraud, error, omission, mistake, or misdescription in a certificate of title or entry or memorandum in the registration

§ Without negligence on his part § And is barred or precluded from bringing an action for

the recovery of such land or estate or interest therein

10. ANNULMENT OF JUDGMENT

A petition for annulment by the Court of Appeals of judgments or final orders of Regional Trial Court for which the ordinary remedies of new trial, appeal, etc. are no longer available must be based on (a) extrinsic fraud, (b) lack of jurisdiction and (c) lack of due process.

A petition for annulment of judgment based on extrinsic fraud must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel.

VI. CADASTRAL REGISTRATION PROCEEDINGS A proceeding in rem, initiated by the filing of a petition for

registration by the government, not by the persons claiming ownership of the land subject thereof, and the latter are, on the pain of losing their claim thereto, in effect compelled to go to court to make known their claim or interest therein, and to substantiate such claim or interest.

The objective of the proceeding is the adjudication of title to the

lands or lots involved in said proceeding. PROCEDURE (NN-‐CPP-‐AHDI)

§ Notice of cadastral survey published once in the Official Gazette and posted in a conspicuous place; and copy furnished the mayor and barangay captain

§ Notice of date of survey of the Land Management Bureau and posting in bulletin board of the municipal building of the municipality or barrio, and shall mark the boundaries of the lands by monuments set up in proper places

§ Cadastral Survey o In the opinion of President pursuant to

requirement of public interest, title of land

within a specified area needs to be settled and adjudicated

o Order Director of Lands to make survey and plan

o Director gives notice to persons claiming interest in lands and to general public of day of survey published in the Official Gazette and posted in conspicuous place on lands to be surveyed

o Geodetic engineers commences survey o During survey, boundaries are marked by

monuments

§ Filing of petition o After survey and plot been made, Director

represented by Sol Gen institutes cadastral proceeding by filing petition in court against holders, claimants, possessors, occupants

o Parcel of lots given their cadastral numbers

§ Publication, mailing, and posting o Court to order date of hearing o LRA to notify public by publishing notice

once in the Official Gazette and once in a newspaper of general circulation & copy mailed to person whose address is known & other copies posted in conspicuous place designated by law

§ Filing of answer

o Any person claiming interest in any part of lands subject to petition is required to file answer

o Answer must give the following: § Age of claimant § Cadastral number of lot claimed § Name of barrio or municipality

where lot is located § Name of owners of adjoining lots § If in possession & without grant § Number of years in possession § If not in possession § State interest claimed § If assessed of taxation § Assessed value § Any encumbrances affecting said

lots

§ Hearing of the case o In any convenient place where land lies o Like an ordinary RTC trial o Conflicting claims are determined o Lots claimed are awarded to persons entitles,

if they could prove title o If none could prove title, land is declared

public domain

§ Decision o Claimants are notified of decision o In the absence of successful claimants, the

property shall be declared as public land.

§ Issuance of decree and certificate of title o Upon order of court, LRA to enter decree of

registration o Decree made basis for issuance of OCT o Decree is now being directly prepared and

issued on regulation forms of such certificate PETITION; LOT NUMBERS SECTION 36. PETITION FOR REGISTRATION. When the lands have been surveyed or plotted, the Director of Lands, represented by the Solicitor General, shall institute original registration proceedings by filing the necessary petition in the Court of First Instance of the place where the land is situated against the holders, claimants, possessors, or occupants of such lands or any part thereof, stating in substance that public interest requires that the title to such lands be settled and adjudicated and praying that such titles be so settled and adjudicated: The petition SHALL CONTAIN a description of the lands and shall be accompanied by a plan thereof, and may contain such other data as may serve to furnish full notice to the occupants of the lands and to all persons who may claim any right or interest therein. Where the land consists of two or more parcels held or occupied by different persons, the plan shall indicate the boundaries or limits of the various parcels as accurately as possible. THE PARCELS SHALL BE KNOWN AS "LOTS" AND SHALL ON THE PLAN FILED IN THE CASE BE GIVEN SEPARATE NUMBERS BY THE DIRECTOR OF LANDS, WHICH NUMBERS SHALL BE KNOWN AS


23

23

"CADASTRAL LOT NUMBERS". The lots situated within each municipality shall, as far as practicable, be numbered consecutively beginning with number "one", and only one series of numbers shall be used for that purpose in each municipality. However in cities or townsites, a designation of the landholdings by blocks and lot numbers may be employed instead of the designation by cadastral lot numbers. The cadastral number of a lot SHALL NOT BE CHANGED AFTER FINAL DECISION HAS BEEN ENTERED decreasing the registration thereof, except by order of court. Future subdivisions of any lot shall be designated by a letter or letters of the alphabet added to the cadastral number of the lot to which the respective subdivisions pertain. The letter with which a subdivision is designated shall be known as its "cadastral letter": Provided, however, that the subdivisions of cities or townsites may be designated by blocks and lot numbers.

ACTIONS TAKEN IN CADASTRAL PROCEEDING

• Adjudicates ownership in favor of one of the claimants • Declaration by the court that the decree is final and its

order for the issuance of the certificates of title by the Administrator of the LRA

• Devolves upon the LRA; to issue decrees of registration pursuant to final judgments of the courts in land registration proceedings

Land already titled cannot be the subject of a cadastral proceeding. A registration court has no jurisdiction to decree again a registration of land already decreed in an earlier land registration case and a second decree for the same land is null and void. The court has no power in a subsequent proceeding to adjudicate the same title in favor of another person. Furthermore, the registration book is a standing notice to the world that said property is already registered. Jurisdiction of the cadastral court over previously titled lands is limited to the correction of technical errors in the description of the land. The judgment in a cadastral proceeding, including the rendition of the decree, is a judicial act. The judicial decree when final is the basis of the certificate of title. THE ISSUANCE OF THE DECREE BY THE LRA IS A MINISTERIAL ACT. As a general rule, registration of title under the cadastral system is final, conclusive and indisputable, after the lapse of the period allowed for an appeal. The mere fact that there has been delay in the issuance of the corresponding certificate of title pursuant to a decree of registration in a cadastral case will not render inefficacious the decision rendered by the court on account of prescription or laches.

VII. CERTIFICATE OF TITLE A certificate of title serves as evidence of an indefeasible and

incontrovertible title to the property in favor of the person whose name appears therein. After lapse of one year, title to such property can no longer be contested.

REGISTRATION DOES NOT VEST TITLE: IT IS NOT A MODE OF

ACQUIRING OWNERSHIP. IT DOES NOT GIVE ANY PERSON ANY BETTER TITLE THAN WHAT HE LAWFULLY HAS.201 REGISTRATION IS MERELY A SYSTEM OF REGISTRATION OF TITLES TO LANDS.

A person dealing with registered land may safely rely upon the correctness of the certificate of title issued therefor and the law will in no way oblige him to go behind the certificate of title. The validity and correctness of the title is presumed. The rule on the incontrovertibility of a certificate of title upon the expiration of one year, after the entry of the decree, DOES NOT APPLY where an action for the cancellation of a patent and a certificate of title issued pursuant thereto is instituted on the ground that they are null and void because the Director of Lands had no jurisdiction to issue them at all.

Ø PREPARATION OF DECREE AND CERTIFICATE OF TITLE

§ After the judgment directing the registration of title to land has become final, the court shall, within fifteen days from entry of judgment, issue an order directing the Commissioner to issue the corresponding decree of registration and certificate of title.

§ The clerk of court shall send, within fifteen days from entry of judgment, CERTIFIED COPIES OF THE JUDGMENT and of the order of the court directing the Commissioner to issue the corresponding decree of registration and CERTIFICATE OF TITLE, and a certificate stating that the decision has not been amended, reconsidered, nor appealed, and has become final.

§ Thereupon, the Commissioner shall cause to be prepared the decree of registration as well as the original and duplicate of the corresponding original certificate of title. The original certificate of title shall be a true copy of the decree of registration. The decree of registration shall be signed by the Commissioner, entered and filed in the Land Registration Commission.

§ The original of the original certificate of title shall also be signed by the Commissioner and shall be sent, together with the owner's duplicate certificate, to the Register of Deeds of the city or province where the property is situated for entry in his registration book.

The decree of registration shall bear the date, hour, and minute of its entry and shall be signed by the LRA Administrator. (See Sec31) As soon as the decree of title has been registered in the office of the Register of Deeds, the property included in said decree shall become registered land, and the certificate shall take effect upon the date of the transcription of the decree. Memoranda of encumbrances not admissible as proof of the contents of the registered documents. The said notations or memoranda are, at most, proof of the existence of the transaction and judicial orders noted therein, and a notice to the whole world of such facts. Where two certificates of title are issued to different persons covering the same land in whole or in part, the earlier in date must prevail as between the original parties. And in case of successive registration, the person holding under prior certificate is entitled to the land as against the person who relies on the second certificate. RULE IN DOUBLE SALE OF IMMOVABLE PROPERTY -‐ Between two buyers of the same immovable property registered under the Torrens system, the law gives ownership priority to:

§ The first registrant in good faith; § Then, the first possessor in good faith; and § Finally, the buyer who in good faith presents the oldest

title. This provision, however, does not apply if the property is not registered under the Torrens system.

Tax declarations cannot defeat the conclusiveness of a certificate of title. Mere issuance of a certificate of title does not foreclose and action to test its validity. If a person obtains a title, which includes mistake or oversight, lands, which cannot be registered under the Torrens system, he does not, by virtue of said certificate alone, become the owner of the land illegally included.

Ø ENTRY OF ORIGINAL CERTIFICATE OF TITLE Section 40. Upon receipt by the Register of Deeds of the original and duplicate copies of the original certificate of title the same shall be entered in his record book and shall be numbered, dated, signed and sealed by the Register of Deeds with the seal of his office. Said certificate of title shall take effect upon the date of entry thereof. The Register of Deeds shall forthwith send notice by mail to the registered owner that his owner's duplicate is ready for delivery to him upon payment of legal fees. The certificate of title after initial registration proceeding is known as the “Original Certificate of Title”. Any subsequent title is a “Transfer Certificate of Title”. By TITLE, the law refers to ownership, which is represented by the original certificate of title or transfer certificate of title. It refers to that upon which ownership is based. A CERTIFICATE OF TITLE is a mere evidence of ownership; it is not the title to the land. Ø OWNER’S DUPLICATE CERTIFICATE OF TITLE Section 41. The owner's duplicate certificate of title shall be delivered to the registered owner or to his duly authorized representative. If TWO OR MORE PERSONS ARE REGISTERED OWNERS, one owner's duplicate certificate may be issued for the whole land, or if the co-‐owners so desire, a separate duplicate may be issued to each of them in like form, but all outstanding certificates of title so issued shall be surrendered whenever


24

24

the Register of Deeds shall register any subsequent voluntary transaction affecting the whole land or part thereof or any interest therein. The Register of Deeds shall note on each certificate of title a statement as to whom a copy thereof was issued.

Ø REGISTRATION BOOKS

The original copy of the original certificate of title shall be filed in the Registry of Deeds. The same shall be bound in consecutive order together with similar certificates of title and shall constitute the registration book for titled properties

Ø TRANSFER CERTIFICATE OF TITLE

The subsequent certificate of title that may be issued by the Register of Deeds pursuant to any voluntary or involuntary instrument relating to the same land shall be in like form, entitled "Transfer Certificate of Title", and likewise issued in duplicate. The certificate shall show the number of the next previous certificate covering the same land and also the fact that it was originally registered, giving the record number, the number of the original certificate of title, and the volume and page of the registration book in which the latter is found.

Ø STATUTORY LIENS AFFECTING TITLE A certificate of title is free from liens except the following:

§ Liens, claims, or rights existing or arising under the laws or the constitution, which aren’t by law, required

o A lien is a charge on property usually for the

payment of some debt or obligation. o An encumbrance is a burden upon the land,

depreciative of its value, such as lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee.

§ Unpaid real estate taxes levied or assessed within 2 years immediately preceding the acquisition of any right over the land -‐ Superior lien in favor of the government

§ Any public highway or private way established or recognized by the law, or any government irrigation canal or lateral thereof

§ Any disposition of the property or limitation to the use thereof by virtue of PD 27 or any other law or regulation or agrarian reform— Tenancy Emancipation Decree and Comprehensive Agrarian Reform Law)

o Tenant farmer — if not registered, 5

hectares and if irrigated, 3 hectares o Landowner may retain an area of not more

than 7 hectares if such landowner is cultivating such area or will not cultivate it

§ Rights incident to the relation of husband and wife and

landlord and tenant § Liability to attachment and execution § Liability to any lien of any description established by

law and the buildings thereon or an interest of the owner of such lands or buildings

§ Rights incident to the laws of descent or partition between co-‐owners

§ Taking of the property through eminent domain § Right to relieve the land from liability to be recovered

by an assignee in insolvency or trustee in bankruptcy under the laws relative to preferences

§ Rights or liabilities created by law and applicable to unregistered land

COMPREHENSIVE AGRARIAN REFORM LAW

§ Landowner may not retain more than 5 hectares § Three hectares may be allowed to each child of the

landowner— provided that he is at least 15 years old and that he is actually tilling the land or directly managing the farm

PUBLIC PATENT § Land not subject to any encumbrance or alienation from

the date of approval and for the term of 5 years from and after the date of issuance of the patent or grant

OTHER STATUTORY LIENS

§ Alienable lands of the public domain granted or donated or transferred to a province, municipality, or branch of the government shall not be alienated or encumbered or otherwise disposed of in a manner affecting its title except when authorized by Congress

Ø STATEMENT OF PERSONAL CIRCUMSTANCES IN THE COT § Full names of the persons whose interest make up the

ownership of the land § Civil status § Names of their respective spouses, if married § Citizenship § Residence § Postal address § If property is conjugal, it shall be issued to both spouses

CONTENTS OF A TRANSFER CERTIFICATE OF TITLE

§ Shall show the number of the next previous certificate covering the same land

§ The fact that it was originally registered, giving the record number of the original certificate of title, and the volume and page of the registration book in which it is found

Ø GENERAL INCIDENTS OF REGISTERED LAND

Section 46. Registered land shall be subject to such burdens and incidents as may arise by operation of law. Nothing contained in this decree shall in any way be construed to relieve registered land or the owners thereof from any rights incident to the relation of husband and wife, landlord and tenant, or from liability to attachment or levy on execution, or from liability to any lien of any description established by law on the land and the buildings thereon, or on the interest of the owner in such land or buildings, or to change the laws of descent, or the rights of partition between co-‐owners, or the right to take the same by eminent domain, or to relieve such land from liability to be recovered by an assignee in insolvency or trustee in bankruptcy under the laws relative to preferences, or to change or affect in any way other rights or liabilities created by law and applicable to unregistered land, except as otherwise provided in this Decree.

Ø REGISTERED LAND NOT SUBJECT TO PRESCRIPTION Section 47. No title to registered land in derogation of the title of the registered owner shall be acquired by prescription or adverse possession. Ø CERTIFICATE NOT SUBJECT TO COLLATERAL ATTACK Section 48. A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or canceled except in a direct proceeding in accordance with law. An action is deemed an attack on a title when the object of the action or proceeding is to nullify the title, and thus challenge the judgment pursuant to which the title was decreed. The attack is DIRECT when the object of the action is to annul or set aside such judgment, or enjoin its enforcement. On the other hand, the attack is INDIRECT OR COLLATERAL when, in an action to obtain a different relief, an attack on the judgment is nevertheless made as an incident thereof. Ø SPLITTING OR CONSOLIDATION OF TITLES A registered owner of several distinct parcels of land embraced in and covered by a certificate of title desiring in lieu thereof separate certificates, each containing one or more parcels, may file a written request for that purpose with the Register of Deeds concerned, and the latter, upon the surrender of the owner's duplicate, shall cancel it together with its original and issue in lieu thereof separate certificates as desired. A registered owner of several distinct parcels of land covered by separate certificates of title desiring to have in lieu thereof a single certificate for the whole land, or several certificates for the different parcels thereof, may also file a written request with the Register of Deeds concerned, and the latter, upon the surrender of the owner's duplicates, shall cancel them together with their originals, and issue in lieu thereof one or separate certificates as desired.

Ø SUBDIVISION AND CONSOLIDATION PLANS Any owner subdividing a tract of registered land into lots which do not constitute a subdivision project has defined and provided for under P.D. No. 957, shall file with the Commissioner of Land Registration or with the Bureau of Lands a subdivision plan of such land on which all boundaries, streets, passageways and waterways, if any, shall be distinctly and accurately delineated. If a subdivision plan, be it simple or complex, duly approved by the Commissioner of Land Registration or the Bureau of Lands together with the approved technical descriptions and the corresponding owner's duplicate certificate of title is presented for registration, the Register of Deeds shall, without requiring further court approval of said plan, register the same in accordance with the provisions of the Land Registration Act, as amended: Provided, however, that the Register of Deeds shall


25

25

annotate on the new certificate of title covering the street, passageway or open space, a memorandum to the effect that except by way of donation in favor of the national government, province, city or municipality, no portion of any street, passageway, waterway or open space so delineated on the plan shall be closed or otherwise disposed of by the registered owner without the approval of the Court of First Instance of the province or city in which the land is situated. A registered owner desiring to consolidate several lots into one or more, requiring new technical descriptions, shall file with the Land Registration Commission, a consolidation plan on which shall be shown the lots to be affected, as they were before, and as they will appear after the consolidation. Upon the surrender of the owner's duplicate certificates and the receipt of consolidation plan duty approved by the Commission, the Register of Deeds concerned shall cancel the corresponding certificates of title and issue a new one for the consolidated lots. The Commission may not order or cause any change, modification, or amendment in the contents of any certificate of title, or of any decree or plan, including the technical description therein, covering any real property registered under the Torrens system, nor order the cancellation of the said certificate of title and the issuance of a new one which would result in the enlargement of the area covered by the certificate of title.

VIII. VOLUNTARY DEALINGS WITH REGISTERED LANDS

Ø CONVEYANCE AND OTHER DEALINGS BY REGISTERED OWNER Section 51. — An owner of registered land MAY CONVEY, MORTGAGE, LEASE, CHARGE OR OTHERWISE DEAL WITH THE SAME IN ACCORDANCE WITH EXISTING LAWS. He may use such forms of deeds, mortgages, leases or other voluntary instruments as are sufficient in law. But no deed, mortgage, lease, or other voluntary instrument, except a will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned, and in all cases under this Decree, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies. No voluntary instrument shall be registered by the Register of Deeds, unless the owner's duplicate certificate is presented with such instrument, except in cases expressly provided for in the law (PD 1529) or upon order of the court, for cause shown. From the standpoint of third parties, a property registered under the Torrens system remains, for all legal purposes, the property of the person in whose name it is registered, notwithstanding the execution of any deed of conveyance, unless the corresponding deed is registered. Simply put, if a sale is not registered, it is binding only between the seller and the buyer, but it does not affect innocent third persons.

Ø FORM IS IMPORTANT FOR VALIDITY, CONVENIENCE, AND ENFORCEABILITY

§ General rule: form is not important for the validity of a contract provided there is consent, subject matter and cause. This applies only to consensual contracts.

§ The sale of real estate, whether made as a result of private transaction or foreclosure of execution sale, becomes legally effective against third parties only from the date of registration.

Ø DELIVERY AS A MODE OF TRANSMISSION, REAL OR

CONSTRUCTIVE ACTUAL NOTICE EQUIVALENT OF REGISTRATION

§ As between the parties to a contract of sale, registration is not necessary to make it valid and effective, for actual notice is equivalent to registration.

§ Even without the act of registration, a deed purporting to convey or affect registered land shall operate as a contract between the parties

§ The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned

§ It is the act of registration which creates a constructive notice to the whole world and binds third persons

§ Absent such registration, a conveyance doesn’t affect or bind the land

§ Under the rule on notice, there is a conclusive presumption that the purchaser has examined every instrument of record affecting the title

§ He is charged with notice of every fact shown by the record and is presumed to know every fact shown by

the record and is presumed to know every fact which an examination of the record would have disclosed

§ Since it is the act of registration which transfers ownership of the land sold, it has been held that a subsequent claimant cannot claim a better right over the land which had been previously registered in the name of another.

§ A notice of lis pendens serves as a warning to a prospective purchaser or encumbrancer that the particular property is in litigation and that he should keep his hands off the same, unless he intends to gamble on the results of the litigation

ACT OF REGISTRATION IS THE OPERATIVE ACT TO CONVEY OR AFFECT REGISTERED LAND

§ It is the registration of contracts dealing with registered property in the corresponding Register of Deeds that binds or affects third persons

§ Non-‐compliance with the formal requirements doesn’t adversely affect the validity of contract nor the contractual rights and obligations of parties

§ Registration is a mere ministerial act by which a deed, contract or instrument is inscribed in the office of the Register of Deeds and annotated at the back of the certificate of the title covering the land subject of the deed, contract or instrument

§ PD1529 only protects the holder in good faith, and cannot be used as a shield against frauds

IMPORTANCE OF REGISTRATION

§ For a transaction as important as the sale of registered property of land, it may be necessary to keep a record thereof

REGISTRATION OF DOCUMENT MINISTERIAL ON THE PART OF THE REGISTER OF DEEDS

§ The purpose of registering an instrument is to give notice thereof to all persons

§ It is not intended by the proceedings for registration to seek to destroy or otherwise affect already registered rights over the land, subsisting or existing at the time of the registration

§ The law on registration doesn’t require that only valid instruments shall be registered

§ If the purpose of registration is merely to give notice, then questions regarding the effect or invalidity of the instruments are expected to be decided after registration

§ An instrument which seeks the reformation of an extrajudicial settlement of an estate consisting of registered lands is a voluntary one, and since the duty of the RD to enter such instrument in his book is purely ministerial, his refusal to do so is tantamount to an unlawful neglect in the performance of a duty resulting from an office, trust or station, and is a proper instance where mandamus will lie

Ø PRESENTATION OF OWNER'S DUPLICATE UPON ENTRY OF

NEW CERTIFICATE No voluntary instrument shall be registered by the Register of Deeds, unless the owner's duplicate certificate is presented with such instrument, except in cases expressly provided for in this Decree or upon order of the court, for cause shown. The production of the owner's duplicate certificate, whenever any voluntary instrument is presented for registration, shall be conclusive authority from the registered owner to the Register of Deeds to enter a new certificate or to make a memorandum of registration in accordance with such instrument, and the new certificate or memorandum shall be binding upon the registered owner and upon all persons claiming under him, in favor of every purchaser for value and in good faith. In all cases of registration procured by fraud, the owner may pursue all his legal and equitable remedies against the parties to such fraud without prejudice, however, to the rights of any innocent holder for value of a certificate of title. After the entry of the decree of registration on the original petition or application, any subsequent registration procured by the presentation of a forged duplicate certificate of title, or a forged deed or other instrument, shall be null and void.

Ø DEALINGS LESS THAN OWNERSHIP, HOW REGISTERED. No new certificate shall be entered or issued pursuant to any instrument which does not divest the ownership or title from the owner or from the transferee of the registered owners. All interests in registered land less than ownership shall be registered by filing with the Register of Deeds the instrument which creates or transfers or claims such interests and by a


26

26

brief memorandum thereof made by the Register of Deeds upon the certificate of title, and signed by him. A similar memorandum shall also be made on the owner's duplicate. The cancellation or extinguishment of such interests shall be registered in the same manner.

Ø GRANTEE'S NAME, NATIONALITY, ETC., TO BE STATED

Every deed or other voluntary instrument presented for registration shall contain or have endorsed upon it the full name, nationality, residence and postal address of the grantee or other person acquiring or claiming an interest under such instrument, and every deed shall also state whether the grantee is married or unmarried, and if married, the name in full of the husband or wife. If the grantee is a corporation or association, the instrument must contain a recital to show that such corporation or association is legally qualified to acquire private lands. Any change in the residence or postal address of such person shall be endorsed by the Register of Deeds on the original copy of the corresponding certificate of title, upon receiving a sworn statement of such change. All names and addresses shall also be entered on all certificates. Notices and processed issued in relation to registered land in pursuance of this Decree may be served upon any person in interest by mailing the same to the addresses given, and shall be binding, whether such person resides within or without the Philippines, but the court may, in its discretion, require further or other notice to be given in any case, if in its opinion the interest of justice so requires.

Ø PRIMARY ENTRY BOOK; FEES; CERTIFIED COPIES. Each Register of Deeds shall keep a primary entry book in which, upon payment of the entry fee, he shall enter, in the order of their reception, all instruments including copies of writs and processes filed with him relating to registered land. He shall, as a preliminary process in registration, note in such book the date, hour and minute of reception of all instruments, in the order in which they were received. They shall be regarded as registered from the time so noted, and the memorandum of each instrument, when made on the certificate of title to which it refers, shall bear the same date: Provided, that the national government as well as the provincial and city governments shall be exempt from the payment of such fees in advance in order to be entitled to entry and registration. Every deed or other instrument, whether voluntary or involuntary, so filed with the Register of Deeds shall be numbered and indexed and endorsed with a reference to the proper certificate of title. All records and papers relative to registered land in the office of the Register of Deeds shall be open to the public in the same manner as court records, subject to such reasonable regulations as the Register of Deeds, under the direction of the Commissioner of Land Registration, may prescribe. All deeds and voluntary instruments shall be presented with their respective copies and shall be attested and sealed by the Register of Deeds, endorsed with the file number, and copies may be delivered to the person presenting them. Certified copies of all instruments filed and registered may also be obtained from the Register of Deeds upon payment of the prescribed fees.

§ The primary entry book or day book is a record of all instruments, including copies of writs and processes, affecting registered lands, which are entered by the RD in the order of their filing, upon payment of the proper fees

§ The recording is a preliminary process in registration and shall note the date, hour, and minute of receipt of said instruments

§ An instrument shall be regarded as registered only from the time it is noted

§ Every deed of instrument shall be numbered and endorsed by the RD with proper reference to the certificate of title

§ All records and papers relative to registered land shall be open for examination by the public, subject to such reasonable regulations as the RD may prescribe

§ All deeds and voluntary instruments and copies thereof shall be attested and sealed with the RD and copies with the corresponding file number shall be delivered to the person presenting them

DISTINCTION BETWEEN VOLUNTARY AND INVOLUNTARY REGISTRATION

INVOLUNTARY REGISTRATION VOLUNTARY REGISTRATION

An entry thereof—attachment, levy, notice of lis pendens, etc — in the day book is sufficient notice to all persons even if the owner’s duplicate certificate of title isn’t presented to the RD

An innocent purchaser for value of registered land becomes the registered owner and in contemplation of law the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the owner’s duplicate certificate of title covering the land sold and pays the registration fees, because what needs to be done lies not within his power to perform

In voluntary registration, such as a sale, mortgage, lease and the like, if the owner's duplicate certificate be not surrendered and presented or if no payment of registration fees be made within fifteen (15) days, entry in the day book of the deed of sale does not operate to convey and affect the land sold. In involuntary registration, such as an attachment, levy upon execution, lis pendens and the like, entry thereof in the daybook is a sufficient notice to all persons of such adverse claim.

Ø CONVEYANCE AND TRANSFERS

PROCEDURE IN REGISTRATION OF CONVEYANCES § An owner who desires to convey the land covered by his

title to another shall execute the proper deed of conveyance, in proper form, and present the same, together with the owner’s duplicate certificate to the RD from entry and registration

§ The RD shall enter in the registration book the fact of conveyance and prepare a new certificate of title in the name of the grantee, the owner’s duplicate of which shall be delivered to him

§ The RD shall note the date of conveyance, volume and page of the registration book in which the certificate is registered, and a reference by number to the last preceding certificates

PROCEDURE WHERE ONLY PORTIONS OF LAND ARE CONVEYED § The RD shall not issue any Transfer Certificate of Title

to the grantee until a plan of such land showing the portion or portions into which it has been subdivided and the corresponding technical descriptions shall have been verified and approved

§ The deed of conveyance may in the meanwhile be annotated by way of memorandum on the grantor’s certificate of title, which shall serve as notice to third persons on the fact of conveyance— to show and recognize the grantee’s title to the portion thus conveyed pending actual issuance to him of the corresponding transfer certificate of title

§ Upon approval of the plan and technical descriptions of the specific portions into which the land has been subdivided, the same shall be filed with the office of the RD for annotation on the corresponding certificate of title

§ The RD shall issue a new Transfer Certificate of Title to the grantee for the portion conveyed to him upon cancellation of the grantor’s certificate as to said portion

§ But if the grantor so desires, his certificate of title may be totally cancelled and a new one issued to him for the remaining portion of the land

§ Pending approval of the plan, no further registration or any annotation of any deed or voluntary instrument affecting the unsegregated portion shall be made by the RD except where such portion was purchased from the government or any of its instrumentalities

CARRYING OVER OF ENCUMBRANCES IN NEW CERTIFICATE § Whenever registered land is conveyed, all subsisting

encumbrances or annotations appearing in the registration book and noted on the certificate of title shall be carried over and noted on the new certificate of title except where said encumbrances or annotations are simultaneously released or discharged


27

27

Ø MORTGAGES AND LEASES Section 60. Mortgage or lease of registered land. Mortgage and leases shall be registered in the manner provided in Section 54 of this Decree. The owner of registered land may mortgage or lease it by executing the deed in a form sufficient in law. Such deed of mortgage or lease and all instruments which assign, extend, discharge or otherwise deal with the mortgage or lease shall be registered, and shall take effect upon the title only from time of registration. No mortgagee's or lessee's duplicate certificate of title shall hereafter be issued by the Registers of Deeds, and those issued prior to the effectivity of this Decree are hereby deemed canceled and the holders thereof shall immediately surrender the same to the Register of Deeds concerned. ESSENCE OF MORTGAGE Section 61. Registration. Upon presentation for registration of the deed of mortgage or lease together with the owner's duplicate, the Register of Deeds shall enter upon the original of the certificate of title and also upon the owner's duplicate certificate a memorandum thereof, the date and time of filing and the file number assigned to the deed, and shall sign the said memorandum. He shall also note on the deed the date and time of filing and a reference to the volume and page of the registration book in which it is registered.

§ A property has been identified or set apart from the mass of property of the debtor-‐mortgagor as security for the payment of money or the fulfillment of obligation to answer the amount of indebtedness, in case of default of payment

RECORDED MORTGAGE IS A RIGHT IN REM

§ Recording puts the whole world on constructive notice of its existence and warns everyone who deals thereafter with the property on which it was constituted that he would have reckon with that encumbrance

§ A mortgage is a secondary contract EFFECT OF LIS PENDENS

§ A notice of lis pendens is an announcement to the whole world that a particular real property is in litigation and serves as a warning that one who acquires an interest over said property does so at his own risk, so that he gambles on the results of the litigation over said property

§ It has been held that any subsequent lien or annotation at the back of the certificate of title cannot in any way prejudice the mortgage previously registered, and the lots subject thereto pass to the purchaser at a public auction sale free from any lien or encumbrance

UNRECORDED SALE OF A PRIOR DATE VS. RECORDED MORTGAGE ON A LATER DATE

§ The unrecorded sale of prior date is preferred § If the original owner had parted with his ownership of

the thing sold then he no longer had the ownership and free disposal of that thing so as to be able to mortgage it again

RIGHTS OF SECOND MORTGAGE

§ Right to repurchase the subject property § Apply to the payment of its credit the excess of the

proceeds of the sale after the payment of the credit of the first mortgagee

EFFECT OF MORTGAGE IF TORRENS TITLE IS NULLIFIED

§ That the certificate of title issued is a nullity is not in question but whether the mortgagee is entitled to the protection accorded to an innocent purchaser for value, which includes one who is an innocent mortgagee for value

§ If there was no fraud, negligence, or whatnot on the part of the mortgagee regarding the certificate which was later on nullified, then he would be deemed to be an innocent mortgagee for value, with the corresponding rights relating to him

SECTION 62. DISCHARGE OR CANCELLATION A mortgage or lease on registered land may be discharge or canceled by means of an instrument executed by the mortgage or lessee in a form sufficient in law, which shall be filed with the Register of Deeds who shall make the appropriate memorandum upon the certificate of title.

WHAT IS FORECLOSURE? Process by which a mortgagee acquires an absolute title to the property of which he had previously been the conditional owner, or upon which he had previously a mere lien or encumbrance SECTION 63. FORECLOSURE OF MORTGAGE. If the mortgage was foreclosed judicially, a certified copy of the final order of the court confirming the sale shall be registered with the Register of Deeds. If no right of redemption exists, the certificate of title of the mortgagor shall be canceled, and a new certificate issued in the name of the purchaser. Where the right of redemption exists, the certificate of title of the mortgagor shall not be canceled, but the certificate of sale and the order confirming the sale shall be registered by a brief memorandum thereof made by the Register of Deeds upon the certificate of title. In the event the property is redeemed, the certificate or deed of redemption shall be filed with the Register of Deeds, and a brief memorandum thereof shall be made by the Register of Deeds on the certificate of title of the mortgagor. If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at a foreclosure sale shall be registered with the Register of Deeds; whereupon the title of the mortgagor shall be canceled, and a new certificate issued in the name of the purchaser. (b) If the mortgage was foreclosed extrajudicially, a certificate of sale executed by the officer who conducted the sale shall be filed with the Register of Deeds who shall make a brief memorandum thereof on the certificate of title. In the event of redemption by the mortgagor, the same rule provided for in the second paragraph of this section shall apply. In case of non-‐redemption, the purchaser at foreclosure sale shall file with the Register of Deeds, either a final deed of sale executed by the person authorized by virtue of the power of attorney embodied in the deed of mortgage, or his sworn statement attesting to the fact of non-‐redemption; whereupon, the Register of Deeds shall issue a new certificate in favor of the purchaser after the owner's duplicate of the certificate has been previously delivered and canceled. Ø POWER OF ATTORNEY; TRUST A special power of attorney refers to the clear mandate specifically authorizing the performance of an act, and must therefore be distinguished from an agency couched in general terms When a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing, otherwise the sale shall be void A special power to sell excludes the power to mortgage, and a special power to mortgage doesn’t include the power to sell TRUST, DEFINED A trust is a fiduciary relationship with respect to property, which involves the existence of equitable duties imposed upon the holder of the title to the property to deal with it for the benefit of another A person who establishes a trust is called the trustor while the one whose confidence is reposed is the trustee, and the person for whose benefits the trust has been created is referred to as the beneficiary It is the right to the beneficial enjoyment of property, the legal title to which is vested in another

NO TRUST CAN RESULT IN FAVOR OF A PARTY WHO IS GUILTY OF FRAUD OR VIOLATES PUBLIC POLICY There can be no implied trust where the purchase is made in violation of an existing statute and in evasion of its express provision, since no trust can result in favor of the party who is guilty of the fraud NO PARTICULAR FORM REQUIRED BY LAW WITH REGARD TRUSTS PRESCRIPTIVE PERIOD

§ Ten years from the repudiation of the trust § It is ten years because just as a resulting trust is an

offspring of the law, so is the corresponding obligation to convey the property and title thereto to the true owner.

§ Reckoning point of repudiation is from the moment his possession thereof becomes adverse


28

28

TRUSTS, HOW EXPRESSED AND REGISTERED If a deed or other instrument is filed in order to transfer registered land in trust, or upon any equitable condition or limitation expressed therein, or to create or declare a trust or other equitable interests in such land without transfer, the particulars of the trust, condition, limitation or other equitable interest shall not be entered on the certificate but only a memorandum thereof shall be entered by the words “in trust”, or “upon condition”, or other apt words, and by a reference by number to the instrument authorizing or creating the same A similar instrument shall be made upon the original instrument creating or declaring the trust or other equitable interest with a reference by number to the certificate of title to which it relates and to the volume and page in the registration book in which it is registered No instrument which transfers, mortgages, or in any way deals with registered land in trust shall be registered, unless the enabling power thereto is expressly conferred in the trust instrument or unless a final judgment or order of court of competent jurisdiction has construed the instrument in favor of the power, in which case a certified copy of such judgment or order may be registered IF A NEW TRUSTEE OF REGISTERED LAND IS APPOINTED BY THE COURT, A NEW CERTIFICATE MAY BE ISSUED TO HIM UPON PRESENTATION TO THE RD OF A CERTIFIED COPY OF THE ORDER OR JUDICIAL AGREEMENT AND THE SURRENDER FOR CANCELLATION OF THE DUPLICATE CERTIFICATE REGISTRATION OF CLAIM BASED ON IMPLIED TRUST For the protection of persons claiming an interest in registered land by reason of an implied trust, he should file with the RD a sworn statement

§ Containing the description of the land § The name of the registered owner § A reference to the number of the certificate of title

NOTES ON VOLUNTARY DEALINGS IN LAND TITLES AND DEEDS 1. Sale, mortgage, lease, special power of attorney and trusts

are examples of voluntary dealings. They are entered voluntarily by the parties. Unlike an involuntary dealings, the owner doesn’t want the transaction to be registered. The owner wouldn’t want his property be subject of an attachment, adverse claim or notice of lis pendens.

2. Registration is the necessary act for the transaction to bind third parties.

3. Actual knowledge is equivalent to registration. Registration is to give notice. If the person knows about the transaction, it is deemed that the transaction has been registered.

4. Registration should be done in the correct registry. If it is a titled property, there is a separate book for titled property. If it is a dealing with unregistered property, there is a different book for unregistered land. If you register in a different book, there is no registration that is valid as against third persons.

5. The constructive notice mentioned in PD1959 is conclusive. 6. There is a distinction with regard voluntary and involuntary

dealings with the effectivity of registration. With involuntary dealings, once there is entry in the day book and paid the needed fees and taxes, the RD issues the new title and cancels the old one. Once there is compliance, the transaction is considered registered. With voluntary dealings, entry in the daybook is insufficient.

7. Mere entry in the day book/primary book is sufficient. It is often times that owners don’t want to surrender their owner’s duplicate.

8. Carry-‐over of encumbrances. Suppose that you purchase property and there was prior mortgages and notice of lis pendens. These encumbrances will be carried over to the new certificate issued to the buyer.

9. Can you sell only a portion of your property? You can have it annotated. But if the buyer would like a separate title, then he should submit a subdivision plan, there should be a technical description. The old title would be cancelled and a new title issued covering the portion sold.

10. Basically the procedure of registration for voluntary dealings can be categorized into two—if it is an absolute sale or mortgage. If it is a sale, the deed of sale and title should be submitted. There should also be proof of payment of real estate taxes as well as registration fees and documentary stamp taxes. With that, the Registry of Deeds shall make the corresponding entry that will cancel the old certificate of title and issue a new one in favor of the buyer. If it is merely an encumbrance however, the document shall only be presented to the RD, payment of the corresponding amount and the corresponding annotation done by the RD is notice to third persons.

11. If it is judicial foreclosure, you register the order of the court confirming the sale. If it is extrajudicial foreclosure, you register the order of the sheriff.

12. For implied trusts, read the case of Aznar Brothers. It has two kinds—resulting trust and constructive trust. If it is an implied resulting trust, prescriptive period is 10 years from time of repudiation.

13. It is dependent on the facts and circumstances of the case on whether who would have a better right, the owner or the mortgagee. But generally, when it is through a forged deed, then the owner would have a better right over the property. The forged deed is a nullity. On the other hand, when there is chain of title, the innocent purchaser in value would have a better right.

14. Doctrine of mortgagee in good faith. If the property is mortgaged to an innocent mortgagee, it is possible that he would have a better right over the property than the real owner.

15. Even if the title is null and void, there is still validity of the mortgage. The mortgagee has a right to rely on the title, provided there is nothing that would arise suspicion on the part of the mortgagee.

IX. INVOLUNTARY DEALINGS

SECTION 69. ATTACHMENTS. An attachment, or a copy of any writ, order or process issued by a court of record, intended to create or preserve any lien, status, right, or attachment upon registered land, shall be filed and registered in the Registry of Deeds for the province or city in which the land lies, and, in addition to the particulars required in such papers for registration, shall contain a reference to the number of the certificate of title to be affected and the registered owner or owners thereof, and also if the attachment, order, process or lien is not claimed on all the land in any certificate of title a description sufficiently accurate for identification of the land or interest intended to be affected. A restraining order, injunction or mandamus issued by the court shall be entered and registered on the certificate of title affected, free of charge. NATURE OF ATTACHMENT

§ Legal process of seizing another’s property in accordance with a writ or judicial order for the purpose of securing satisfaction of a judgment yet to be rendered

§ Writ of attachment is used primarily to seize the debtor’s property to seize the debtor’s property in order to secure the debt or claim of the creditor in the event that a judgment is rendered

§ Jurisprudence: a party who delivers a notice of attachment to the RD and pays the corresponding fees has a right to presume that the official would perform his duty properly

§ In involuntary registration, entry thereof in the daybook is sufficient notice to all persons of such adverse claim. The notice of course has to be annotated at the back of the corresponding original certificate of title, but this is an official duty of the RD, which may be presumed to have been regularly performed

§ DBP v. Acting Registry of Deeds: current doctrine thus seems to be that entry alone produces the effect of registration, whether the transaction entered is a voluntary or involuntary one, so long as the registrant has complied with all that is required of him for purposes of entry and annotation, and nothing more remains to be done but a duty incumbent solely on the Registry of Deeds

§ Section 69 states that an attachment or any writ, order or process intended to create or preserve any lien upon registered land shall be filed and registered in the RD and shall contain a reference to the number of the certificate of title to be affected, the registered owner thereof and a description of the land or interest therein GROUNDS UPON WHICH ATTACHMENT MAY ISSUE (Section 1, Rule 57 of the Rules of Court) At the commencement of the action or at any time before entry of judgment, a plaintiff or proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in, among others, the following cases:

§ In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property or any part thereof, has been concealed, removed or disposed of, to prevent its being found or taken by the applicant or an authorized person

§ In an action against a party who has been guilty of fraud in contracting the debt or incurring an obligation upon which the action is brought, or in the performance thereof

§ In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his


29

29

creditors A PRELIMINARY ATTACHMENT may be validly applied for and granted ex parte before a defendant is summoned since the phrase “at the commencement of action” refers to the date of the filing of the complaint and before the summons is served on the defendant.

REGISTRATION OF ATTACHMENT, WRITS, AND RELATED PROCESSES

§ An attachment, or copy of writ, order or process issued by the court intended to create or preserve any lien, status, right or attachment upon registered land shall be filed and registered in the RD for the province or city where the land lies, and in addition to the particulars required in such papers for registration, shall contain a reference to the number of the certificate of title affected and the registered owner or owners thereof, and also, if the attachment, order, process or lien is not claimed on all the land in any certificate of title, a description sufficiently accurate for identification of the land or interest intended to be affected

§ A restraining order, injunction, or mandamus issued by the court shall be entered or registered on the certificate of title affected, free of charge KNOWLEDGE OF A PRIOR UNREGISTERED INTEREST IS EQUIVALENT TO REGISTRATION

§ In case of conflict between a vendee and an attaching creditor, an attaching creditor who registers the order of attachment and the sale of property to him as the highest bidder acquires a valid title to the property, as against a vendee who had previously bought the same property from the registered owner but who failed to register his deed of sale

§ Registration is the operative act that binds or affects the land insofar as third persons are concerned—notice to the whole world

§ But where a party has knowledge of a prior existing interest, which is unregistered at the time he acquired a right to the same land, his knowledge of that prior unregistered interest has the effect of registration as to him. Knowledge of an unregistered sale is equivalent to registration DISCHARGE OF ATTACHMENT

§ An attachment may be discharged upon giving a counterclaim or on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient

§ By the dissolution of an attachment levied on the defendant’s property, through the filing of the bond, the released property becomes free and no longer liable to the results of the proceeding in which it was attached. Consequently, the act of the defendant, whose property has been attached, in mortgaging the released property to a third person, is not a conveyance in fraud of creditors, since the transaction is legal and valid, and since the presumption of fraud doesn’t arise when there is security in favor of the creditor

Ø ADVERSE CLAIM

§ Purpose of annotating the adverse claim on the title of the disputed land is to apprise third persons that there is a controversy over the ownership of the land and to preserve and protect the right of the adverse claimant during the pendency of the controversy

§ Notice to third persons that any transaction regarding the disputed land is subject to the outcome of the dispute

§ Such is registered by filing a sworn statement with the RD of the province where the property is located, setting forth the basis of the claimed right together with other data pertinent thereto. The registration of an adverse claim is expressly recognized under

Ø Section 70. Where the notice of adverse claim is sufficient in law and drawn up in accordance with existing requirements, it becomes the ministerial duty of the RD to register the instrument without unnecessary delay

§ While the act of registration is the operative act which conveys or affects the land insofar as third persons are concerned, the subsequent sale of property covered by a certificate of title CANNOT PREVAIL OVER AN ADVERSE CLAIM, duly sworn to and annotated on the certificate of title previous the sale

§ Section 70 is divided into two parts—first refers to the petition of the party who claims any part or interest in the registered land, arising subsequent to the date of the original registration, for the registration of his adverse claim, which is a ministerial function of the Register of Deeds absent any defect on the face of the instrument. The second refers to the petition filed in court by a party in interest for the cancellation of the adverse claim upon showing the same isinvalid. REGISTRATION OF ADVERSE CLAIM

§ A lease over a parcel of land for a 10-‐year period, which could

not be registered because the owner’s duplicate of title wasn’t

surrendered, could be registered as an adverse claim and the owner couldn’t be compelled to surrender the owner’s duplicate of the title to that adverse claim could be annotated thereon

§ If the adverse claim turns out to be invalid, the owner could ask for its cancellation and, if found to be frivolous or vexatious, then costs may be adjudged against the adverse claimant.

§ The claim of a person that she has hereditary rights in the land fraudulently registered in his sister’s name, because the land belonged to their mother whose estate is pending settlement in a special proceeding, is registrable as an adverse claim

§ Where a guardianship proceeding is pending in court, it is proper to annotate on the title of the land in question the pendency of such a proceeding by means of a notice of lis pendens for the purpose of alerting anyone who might wish to buy the land that his purchase may be questioned later on. Since an adverse claim and a notice of lis pendens have the same purpose, there would be no need of maintaining the adverse claim. But a notice of levy cannot prevail over an existing adverse claim inscribed in the certificate of title

§ The annotation of an adverse claim is a measure designed to protect the interest of a person over a piece of real property where the registration of such interest or right isn’t otherwise provided for by PD1529, and serves as a notice and warning to third persons dealing with said property that someone is claiming an interest on the same or a better right than the registered owner thereof

§ FOR THE SPECIAL REMEDY OF ADVERSE CLAIM TO BE AVAILED OF, IT MUST BE SHOWN THAT THERE IS NO OTHER PROVISION IN THE LAW FOR REGISTRATION OF THE CLAIMANT’S ALLEGED RIGHT IN THE PROPERTY.

§ An adverse claim of ownership over a parcel of land registered under the Torrens system based on prescription and adverse possession cannot be registered as an adverse claim—no title to registered land in derogation of the title of the registered owner shall be acquired by prescription or adverse possession. Hence, the registration of such adverse claim will serve no useful purpose and cannot validly and legally affect the parcel of land in question.

REQUISITES OF AN ADVERSE CLAIM § The adverse claimant must state the following in writing

o His alleged right or interest o How and under whom such alleged right or

interest is acquired o The description of the land in which the right

or interest is claimed o The number of the certificate of title

§ The statement must be signed and sworn to before a notary public or other officer authorized to administer oath

§ The claimant should state his residence or the place to which all notices may be served upon him

FORECLOSURE SALE RETROACTS TO REGISTRATION OF MORTGAGE § The settled doctrine is that the effects of a foreclosure sale

retroact to the date of registration of the mortgage. § Hence, if the adverse claim is registered only after the

annotation of the mortgage at the back of the certificate of title, the adverse claim could not effect the rights of the mortgagee; and the fact that the foreclosure of the mortgage and the consequent public auction sale have been effected long after the annotation of the adverse claim is of no moment, because the foreclosure sale retroacts to the date of registration of the mortgage.

Ø SURRENDER OF CERTIFICATE IN INVOLUNTARY

DEALINGS Section 71. Surrender of certificate in involuntary dealings. If an attachment or other lien in the nature of involuntary dealing in registered land is registered, and the duplicate certificate is not presented at the time of registration, the Register of Deeds shall, within thirty-‐six hours thereafter, send notice by mail to the registered owner, stating that such paper has been registered, and requesting him to send or produce his duplicate certificate so that a memorandum of the attachment or other lien may be made thereon. If the owner neglects or refuses to comply within a reasonable time, the Register of Deeds shall report the matter to the court, and it shall, after notice, enter an order to the owner, to produce his certificate at a time and place named therein, and may enforce the order by suitable process. COURT MAY COMPEL SURRENDER OF CERTIFICATE OF TITLE AS AN INCIDENT IN THE MAIN CASE

§ RD is authorized to require the registered owner to produce the owner’s duplicate certificate in order that an attachment or other lien in the nature of involuntary dealing, may be annotated thereon


30

30

§ If the owner refuses or neglects to comply within reasonable time, he shall report such fact to the proper RTC which shall, after notice, direct the owner to produce his certificate at a time and place specified in its order

MORTGAGE LIEN FOLLOWS MORTGAGED PROPERTY

§ Any lien annotated on the previous certificates of title, which

subsists should be incorporated in or carried over to the new transfer certificate of title. This is true even in the case of a real estate mortgage because pursuant to Article 2126 of the Civil Code, the mortgage directly and immediately subjects the property whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted

§ It is inseparable from the property mortgaged as it is a right in rem—a lien on the property whoever its owner may be.

Ø DISSOLUTION OF ATTACHMENT

§ Where an attachment or lien is maintained, or discharged or dissolved by any method provided by law, the certificate or instrument for the purpose shall be registered to give effect thereof

§ If the attachment or lien is maintained, discharged or dissolved by the order of the court, a certificate of the Clerk of Court as to the entry of such order shall also be registered PURPOSE OF REGISTRATION

§ Purpose is to notify third persons who may be affected in their dealings with respect to such property

§ The RD may properly deny the inscription of an order of attachment or levy of execution where the title to the property is not in the name of the judgment debtor but of another person, and no evidence has been submitted that he has any interest in the property

Ø REGISTRATION OF ORDERS OF COURT

If an attachment is continued, reduced, dissolved, or otherwise affected by an order, decision or judgment of the court where the action or proceedings in which said attachment was made is pending or by an order of a court having jurisdiction thereof, a certificate of the entry of such order, decision or judgment from the clerk of court or the judge by which such decision, order or judgment has been rendered and under the seal of the court, shall be entitled to be registered upon presentation to the Register of Deeds.

Ø ENFORCEMENT OF LIENS ON REGISTERED LAND

Whenever registered land is solved on execution, or taken or sold for taxes or for any assessment or to enforce a lien of any character, or for any costs and charges incident to such liens, any execution or copy of execution, any officer's return, or any deed, demand, certificate, or affidavit, or other instrument made in the course of the proceedings to enforce such liens and required by law to be recorded, shall be filed with the Register of Deeds of the province or city where the land lies and registered in the registration book, and a memorandum made upon the proper certificate of title in each case as lien or encumbrance.

Ø APPLICATION FOR NEW CERTIFICATE UPON EXPIRATION OF

REDEMPTION PERIOD Upon the expiration of the time, if any, allowed by law for redemption after registered land has been sold on execution taken or sold for the enforcement of a lien of any description, except a mortgage lien, the purchaser at such sale or anyone claiming under him may petition the court for the entry of a new certificate of title to him. Before the entry of a new certificate of title, the registered owner may pursue all legal and equitable remedies to impeach or annul such proceedings.

Ø NOTICE OF LIS PENDENS No action to recover possession of real estate, or to quiet title thereto, or to remove clouds upon the title thereof, or for partition, or other proceedings of any kind in court directly affecting the title to land or the use or occupation thereof or the buildings thereon, and no judgment, and no proceeding to vacate or reverse any judgment, shall have any effect upon registered land as against persons other than the parties thereto, unless a memorandum or notice stating the institution of such action or proceeding and the court wherein the same is pending, as well as the date of the institution thereof, together with a reference to the number of the certificate of title, and an adequate description of the land affected and the registered owner thereof, shall have been filed and registered.

NATURE OF LIS PENDENS § Lis pendens literally means a pending suit § Doctrine that refers to the jurisdiction, power or control

which a court acquires over a property involved in a suit, pending the continuance of the action, until final judgment

PURPOSE OF LIS PENDENS

§ To protect the rights of the party causing the registration of the lis pendens

§ To advise third persons who purchase or contract on the subject property that they do so at their peril and subject to the result of the pending litigation

ü May involve actions that deal not only with title or possession of a property but also with the use and occupation of a property

ü The litigation must directly involve a specific property which is necessarily affected by the judgment

ü The notice of lis pendens is a notice to the whole world that a particular real property is in litigation. The inscription serves as a warning that one who acquires interest over litigated property does so at his own risk, or that he gambles on the result of the litigation over the property

ü A purchaser who buys registered land with full notice of the fact that it is in litigation between the vendor and third party stands in the shoes of his vendor and his title is subject to the incidents and results of the pending litigation

THE FILING OF LIS PENDENS IN EFFECT § Keeps the subject matter of litigation within the power

of the court until entry of final judgment so as to prevent the defeat of the latter by successive alienations

§ Binds the purchaser of the land subject of the litigation to the judgment or decree that will be promulgated thereon whether such purchaser is a bona fide purchaser or not

§ Doesn’t create a non-‐existent right or lien § Purpose of this rule is founded on public policy and

necessity

EFFECT OF SUCH NOTICE § It keeps the subject matter of the litigation within the

power of the court until the entry of final judgment so as to prevent the defeat of the latter by successive alienations

§ It binds the purchaser of the land subject of the litigation to the judgment or decree that will be promulgated thereon whether such purchaser is a bona fide purchaser or not

It is not correct to speak of it as part of the doctrine of notice, the purchaser pendent elite is affected not by notice but because the law doesn’t allow litigating parties to give to others, pending the litigation, rights to the property in dispute so as to prejudice the other party NOTICE IS ONLY AN INCIDENT IN THE MAIN CASE; MERITS THEREOF UNAFFECTED

§ A notice of lis pendens is ordinarily recorded without the intervention of the court where the action is pending

§ It is but an incident in an action, an extrajudicial one. It doesn’t affect the merits thereof.

NOTICE NEED NOT BE ANNOTATED ON THE OWNER’S COPY § Annotation at the back of the original copy of the

certificate of title on file with the RD is sufficient to constitute constructive notice to purchasers or other persons subsequently dealing with the same property

§ One who deals with property subject of a notice of lis pendens cannot invoke the right of a purchaser in good faith—neither can he acquire the rights better than those of his predecessor-‐in-‐interest

NOTICE OF LIS PENDENS—WHEN APPROPRIATE § Action to recover possession of real property § Action to quiet title thereto § Action to remove cloud thereon § Action for partition § Any other proceedings of any kind in court directly

affecting the title to the land or the use or occupation thereof or the buildings thereon

NOTICE NOT PROPER IN THE FOLLOWING § Preliminary attachments § Proceedings for the probates of wills § Levies on execution § Proceedings for the administration of estate of deceased

persons § Proceedings in which the only subject is the recovery of

a money judgment


31

31

CONTENTS OF NOTICE OF LIS PENDENS § A statement of the institution of an action or

proceedings § The court where the same is pending § The date of its institution § A reference to the number of certificate of title of the

land § An adequate description of the land affected and its

registered owner PRINCIPLE OF PRIMUS TEMPORE, POTIOR JURE; EFFECT OF LIS PENDENS

§ The principle of primus tempore, potior jure gains greater significance in the law on double sale of immovable property

§ Reliance on the principle of constructive notice operates only such upon the registration of the notice of lis pendens

§ More fundamentally, a notice of lis pendens is only a warning to the prospective purchaser or encumbrancer that the particular property is in litigation and that he should keep his hands off the same, unless he intends to gamble on the results of the litigation

CARRY OVER OF NOTICE ON SUBSEQUENT TITLES

§ In case of subsequent transfers or sales, the RD is duty bound to carry over the notice of lis pendens on all titles to be issued

§ Act of RD in erasing notice of lis pendens is in plain violation of his duty, constitutes misfeasance in the performance of his duties for which he may be held civilly and even criminally liable for any prejudice caused to innocent third persons and cannot affect those who are protected by the notice inscribed in the original title

Ø CANCELLATION OF LIS PENDENS

§ Ordinarily a notice which has been filed in a proper case cannot be cancelled while the action is pending and undetermined, except in cases expressly provided for by statute

§ It may be cancelled upon order by the court or upon action by the Register of Deeds at the instance of the party who caused the registration of the notice

§ While the trial court has inherent power to cancel a notice of lis pendens, such power is exercised under express provisions of law:

o If the annotation was for the purpose of molesting the title of the adverse party

o When the annotation isn’t necessary to protect the title of the party who caused it to be recorded

X. PETITIONS AND ACTIONS AFTER ORIGINAL REGISTRATION Ø REMEDY WHERE DUPLICATE CERTIFICATE IS WITHHELD § In case the person in possession of the owner’s duplicate

certificate refuses or fails to surrender the same to the RD so that any involuntary or voluntary instrument may be registered and a certificate issued, the party in interest may file a petition in court to compel the surrender of the same to the RD

§ The court after hearing may order the registered owner or any person withholding the duplicate certificate and direct the entry of a new certificate or memorandum upon such surrender

§ If the person withholding the certificate is not amenable to the process of the court, or if for any reason the certificate cannot be delivered, the court may order the annulment of said certificate and the issuance of a new certificate of title in lieu thereof

§ Such new certificate and all duplicates thereof shall contain a memorandum of the annulment of the outstanding duplicate

Ø AUTHORITY OF COURT TO ORDER THE SURRENDER OF

OWNER’S DUPLICATE CERTIFICATE

§ In order that the court may order the registered owner to surrender his owner’s duplicate, it has to determine upon the evidence presented by the parties whether the registered owner had been lawfully divested of his title thereto

§ That of course requires and involves of the determination of the question of title to the registered property

§ Section 107 doesn’t constitute a reopening of the decree entered as a result of proceedings in rem for the confirmation of imperfect title under said act, it cannot be deemed to contravene the purpose or aim of the Torrens system.

Ø WHEN TO FILE PETITION FOR AMENDMENT OR ALTERATION

OF CERTIFICATE

§ Whether vested, contingent, expectant or inchoate appearing on the certificate, have terminated and ceased; or

§ That new interest not appearing upon the certificate have arisen or been created; or

§ That an omission or error was made in entering a certificate or any memorandum thereon, or, on any duplicate certificate; or

§ That the same or any person on the certificate has been changed; or

§ That the registered owner has married, or, § If registered as married, that the marriage has been

terminated and no right or interests of heirs or creditors will thereby be affected; or

§ That a corporation, which owned registered land and has been dissolved has not convened the same within three years after its dissolution; or upon any other reasonable ground;

JUDICIAL RECONSTITUTION UNDER REPUBLIC ACT 26

§ Republic Act 26: An Act Providing a Special Procedure For The Reconstitution of Torrens Certificate of Titles Lost or Destroyed

§ Reconstitution of title is an action in rem § A judicially reconstituted title has the same validity and legal

effect as the original thereof, and isn’t subject to the reservation that it shall be without prejudice to any party whose right or interest in the property was duly noted in the original at the time of loss or destruction but which entry or notation hasn’t been made on the reconstituted title

§ The limitation that reconstitution of title should be limited to the certificate as it stood at the time of its loss or destruction has reference only to changes which alter or affect title of the registered owner and not to mere liens and other encumbrances

RECONSTITUTION DENOTES RESTORATION OF THE LOST TITLE IN ITS ORIGINAL FORM AND CONDITION § Purpose is to have it reproduced, after observing the

procedure prescribed by law in the same form they where when the loss or destruction occurred

§ The fact that the title to the land was lost doesn’t mean that the lot ceased to be a registered land before the reconstitution of its title

§ As the subject land didn’t cease to be titled, it cannot be acquired by acquisitive prescription

§ Reconstitution is proper only when it is satisfactorily shown that the title sought to be reconstituted is lost or no longer available

§ Where the petition for reconstitution wasn’t to restore a lost registered certificate of title but to re-‐register and issue a new certificate in the names of petitioner and her deceased husband, in lieu of one originally registered in the names of other persons, the petition should be denied without prejudice to the right of the parties to take the necessary action under Section 51 and 53 of PD1529

§ Republic Act 26 provides for special procedure for the reconstitution of torrens certificate of title that are missing and not fictitious titles which are existing. Where a certificate of title over a parcel of land was reconstituted judicially and later it was found that there existed a previous certificate of title covering the same land in the name of another person, the court ruled that the existence of the prior title ipso facto nullified the reconstitution proceedings

SOURCES OF RECONSTITUTION ORIGINAL CERTIFICATES OF TITLE § The owner’s duplicate certificate of title § The co-‐owner’s, mortgagee’s, or lessee’s duplicate certificate

of title § A certified copy of the certificate of title, previously issued by

the RD or by a legal custodian thereof § An authenticated copy of the decree of registration or patent,

as the case may be, pursuant to which the original certificate of title was issued

§ A document, on file with the RD, by which the property, the description of which is given in said document, is mortgaged, leased, or encumbered, or an authenticated copy of said document showing that its original has been registered

§ Any other document which, in the judgment of the court is sufficient and proper basis for reconstituting the lost or destroyed certificate of title

FOR TRANSFER CERTIFICATE OF TITLE § The owner’s duplicate certificate of title § The co-‐owner’s, mortgagee’s, or lessee’s duplicate certificate

of title § A certified copy of the certificate of title, previously issued by

the RD or by a legal custodian thereof § The deed of transfer or other document, on file in the RD,

containing a description of the property, or an authenticated copy thereof, showing that its original had been registered, and pursuant to which the lost or destroyed transfer certificate of title was issued

§ A document, on file with the RD, by which the property, the description of which is given in said document, is mortgaged,


32

32

leased, or encumbered, or an authenticated copy of said document showing that its original has been registered

§ Any other document which, in the judgment of the court is sufficient and proper basis for reconstituting the lost or destroyed certificate of title

FOR LIENS AND ENCUMBRANCES

§ Annotations or memoranda appearing on the owner’s co-‐owner’s mortgagee’s or lessee’s duplicate

§ Registered documents on file in the RD, or authenticated copies thereof showing that the originals thereof had been registered

§ Any other document which, in the judgment of the court is sufficient and proper basis for reconstituting the liens or encumbrances affecting the property covered by the lost or destroyed certificate of title MEANING OF “ANY OTHER DOCUMENT” § As per LRC circular #35, the signed duplicate copy of the

petition to be forwarded to this Commission shall be accompanied by the following:

o A duly prepared plan of said parcel of land in tracing cloth, with 2 print copies thereof, prepared by the government agency which issued the certified technical description, or by a duly licensed Geodetic Engineer who shall certify thereon that he prepared the same on the basis of a duly certified technical description. Where the plan as submitted is certified by the government agency, which issued the same, it is sufficient that the technical description be prepared by a duly licensed Geodetic Engineer on the basis of said certified plan.

o The original, 2 duplicate copies, and a Xerox copy of the original of the technical description of the parcel of land covered by the certificate of title, duly certified by the authorized officer of the Bureau of Lands or the LRC who issued the technical description

o A signed copy of the certification of the RD concerned that the original of the certificate on title on file with the RD was either lost or destroyed, indicating the name of the registered owner, if known from the other records in file in said office.

WHERE TO FILE PETITION; CONTENTS

§ Shall be filed by the registered owner, his assigns, or any person having interest in the property with the proper RTC where the same is based on sources enumerated earlier

§ Contents shall be as followed— o That the owner’s duplicate had been lost or

destroyed o That no co-‐owner’s, mortgagee’s, lessee’s,

duplicate had been issued or, if any had been issued, the same had been lost or destroyed

o The location, area and boundaries of the property o The nature and description of the buildings or

improvements, if any, which don’t belong to the owner of the land, and the names and addresses of the owners of such buildings or improvements

o The names and addresses of the occupants or persons in possession of the property, of the owners of the adjoining properties and all persons who may have any interest in the property

o A detailed description of the encumbrances if any, affecting the property

o A statement that no deeds or other instruments affecting the property have been presented for registration, or if there be any, the registration thereof hasn’t been accomplished, as yet

REQUIREMENTS OF NOTICE BY PUBLICATION, POSTING AND MAILING

§ To be published twice, at the expense of the petitioner, in successive issues of the Official Gazette

§ To be posted on the main entrance of the provincial building and of the municipal building of the municipality or city in which the land is situated

§ Copy of the notice to be sent by registered mail or otherwise, at the expense of the petitioner, to every person named therein whose address is known, within 30 days prior the date of hearing

§ The jurisdiction of the court is hedged in the forewalls of the petition and the published notice of hearing, which define the subject matter of the petition.

ACTION OF THE COURT; RECONSTITUTION; WHEN MANDATORY

If the court, after hearing, finds that the documents presented, as supported by parole evidence or otherwise, are sufficient, and proper to warrant the reconstitution of the lost or destroyed certificate of title, xxx an order for reconstitution shall be issued

The clerk of court shall forward the order to the RD and all documents which, pursuant to said order, are to be used as basis of the reconstitution

If the court finds that there is no sufficient evidence or basis to justify the reconstitution, the petition will be dismissed without prejudice to the right of the parties entitled thereto to file an application for confirmation of title

THE REGISTER OF DEEDS IS NOT A PROPER PARTY TO FILE THE PETITION WRIT OF POSSESSION NOT PROPER IN A RECONSTITUTION PROCEEDING COURTS ARE CAUTIONED IN GRANTING PETITIONS FOR RECONSTITUTION ADMINISTRATIVE RECONSTITUTION

§ Can only be availed of in case of substantial loss or destruction

of land titles due to flood, fire or other force majeure as determined by the Administrator

§ Provided that the titles lost or damages should at least be 10% of the total number in the possession of the office of the RD

§ That in no case that the number of certificates of titles lost or damaged be less than 500

§ Notice of all hearings of the petition for judicial reconstitution shall be furnished the Register of Deeds of the place where the land is situated and to the Administrator of the Land Registration Authority

§ No judgment ordering the reconstitution shall be final until the lapse of 15 days from receipt by the RD and by the Administrator of the LRA of the notice of order or judgment without any appeal having been filed by any such officials


33

33

NATURAL RESOURCES AND ENVIRONMENTAL LAW ATTY. ROWELL ILAGAN 2014-‐2015 I. ENVIRONMENTAL DEGRADATION It results from the open access status of common goods like air, water, forests, and other natural resources. The mentality of “I will get my share without having to pay for it; thus, in this free-‐for-‐all, environmental degradation and natural resources depletion is inevitable. NATURAL RESOURCE is any naturally occurring substance or feature of the environment (physical or biological) that, while not created by human effort, can be exploited by humans to satisfy their needs or wants. Many of such resources are our life line such as water, air and solar radiation, which are essential elements for the existence of all the flora and fauna II. LEGAL FRAMEWORK

1) Article 1 – National Territory The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. CASE: MAGALLONA VS EXECUTIVE SECRETARY ERMITA In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the Philippines was enacted – the law is also known as the Baselines Law. This law was meant to comply with the terms of the third United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the Philippines in February 1984. Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that the law decreased the national territory of the Philippines hence the law is unconstitutional. RULING: No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means to acquire, or lose, territory. The treaty and the baseline law have nothing to do with the acquisition, enlargement, or diminution of the Philippine territory. What controls when it comes to acquisition or loss of territory is the international law principle on occupation, accretion, cession and prescription and NOT the execution of multilateral treaties on the regulations of sea-‐use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing the Philippines.

2) Article 2 – Declaration of State Principles and Policies a. Section 15 -‐ The State shall protect and promote the

right to health of the people and instill health consciousness among them.

CASE: HENARES VS. LTFRB AND DOTC The petitioners challenged the Supreme Court to issue a writ of mandamus to LTFRB and DOTC to require the public utility vehicles (PUVs) to use the compressed natural gas (CNG) as an alternative fuel instead of gasoline and diesel. The petitioners proposed the use of CNG to counter the effects. CNG is known to be the cleanest fossil fuel and 90 percent less CO emissions and cuts hydrocarbon emission by half. The petitioners assert their right to clean air as stipulated in Sec. 4 of R. A. 8749 known as Philippine Clean Air Act of 1999 and Sec. 16 Article II of the 1987 Philippine Constitution. The Solicitor General, in his comments for LTFRB and DOTC, said that nothing in the Philippine Clean Air Act prohibits the use of gasoline and diesel by motor vehicle owners, and more sadly, the said act does not include CNG as an alternative fuel. Further, the Department of Environment and Natural Resources (DENR) is the agency tasked to set the emission standards for fuel use and tasked to develop an action plan. RULING: The case is an inter-‐generational responsibility and for inter-‐generational justice. The petition focuses on the legal right of the petitioners for their right to clean air. The issue concerned is not only important to the petitioners but also of public concern. On the other issue, mandamus cannot be issued to LTFRB and DOTC because it not within the mandate of the agencies to impose the use of CNG. Their mandate is to oversee that motor vehicles prepare an action plan and implement the emission standards for motor vehicles. The DENR is the agency tasked to set the emission standards, and that the legislature should first provide the specific statutory remedy to the complex problems bared by the petitioners before any judicial recourse by mandamus is taken.

b. Section 16 -‐ The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

CASE: MINORS OPOSA VS. DENR SECRETARY FACTORAN The case is bears upon the right of Filipinos to a BALANCED AND HEALTHFUL ECOLOGY, which the petitioners dramatically associate with the twin concepts of “INTER-‐GENERATIONAL RESPONSIBILITY” and “INTER-‐GENERATIONAL JUSTICE”.

Plaintiffs alleged that they are entitled to the full benefit; use and enjoyment of the natural resource treasure that is the country's virgin tropical forests. They further asseverate that they represent their generation as well as generations yet unborn and asserted that continued deforestation have caused a distortion and disturbance of the ecological balance and have resulted in a host of environmental tragedies. Plaintiffs prayed that judgment be rendered ordering the respondent, his agents, representatives and other persons acting in his behalf to cancel all existing Timber License Agreement (TLA) in the country and to cease and desist from receiving, accepting, processing, renewing or approving new TLAs. RULING: The complaint focuses on one fundamental legal right -‐-‐ the right to a balanced and healthful ecology, which is incorporated in Section 16 Article II of the Constitution. The said right carries with it the duty to refrain from impairing the environment and implies, among many other things, the judicious management and conservation of the country's forests. Section 4 of E.O. 192 expressly mandates the DENR to be the primary government agency responsible for the governing and supervising the exploration, utilization, development and conservation of the country's natural resources. A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect or respect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLA, which they claim was done with grave abuse of discretion, violated their right to a balance and healthful ecology. Hence, the full protection thereof requires that no further TLAs should be renewed or granted. After careful examination of the petitioners' complaint, the Court finds it to be adequate enough to show, prima facie, the claimed violation of their rights.

c. Section 22 -‐ The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

CASE: CARINO VS. INSULAR GOVERNMENT The applicant and plaintiff in error is an Igorot of the Province of Benguet, where the land lies. For more than fifty years before the treaty of Paris, as back as the findings go, the plaintiff and his ancestors had held the land as owners. The Igorots had recognized them all as the owners, and he had inherited or received the land from his father in accordance with Igorot custom. The Spanish crown, however, issued no document, to them. The question now is whether the plaintiff owns the land. RULING: it is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those in the same zone of civilization with themselves. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way before the Spanish conquest, and never to have been public land.

d. Section 25 -‐ The State shall ensure the autonomy of local governments.

CASE: SJS VS. ATIENZA On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027 and Atienza passed it the following day. Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under Section 1 to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. These were the Pandacan oil depots of Shell and Caltex. But the city of Manila and the DOE entered into an MOU, which only scaled down the property covered by the depots and did not stop their operations. In the same resolution, the Sanggunian declared that the MOU was effective only for a period of six months starting July 25, 2002. It was extended to 2003. Petitioners filed for mandamus in SC urging the city to implement Ordinance 8027. Respondent’s defense is that Ordinance No. 8027 has been superseded by the MOU and the resolutions and that the MOU was more of a guideline to 8027. RULING: Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists. Unless the right to the relief sought is unclouded, mandamus will not issue. When a mandamus proceeding concerns a public right and its object is to compel a public duty, the


34

34

people who are interested in the execution of the laws are regarded as the real parties in interest and they need not show any specific interest. Petitioners are citizens of manila and thus have a direct interest in the ordinances. On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all laws and ordinances relative to the governance of the city. "One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts. He has no other choice. It is his ministerial duty to do so. These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it. 3) Article 3 – Bill of Rights CASE: CHAVEZ VS. PEA 1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws. 2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain until classified as alienable or disposable lands open to disposition and declared no longer needed for public service. The government can make such classification and declaration only after PEA has reclaimed these submerged areas. Only then can these lands qualify as agricultural lands of the public domain, which are the only natural resources the government can alienate. In their present state, the 592.15 hectares of submerged areas are inalienable and outside the commerce of man. 3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34 hectares110 of the Freedom Islands, such transfer is void for being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain. 4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares111 of still submerged areas of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural resources other than agricultural lands of the public domain. PEA may reclaim these submerged areas. Thereafter, the government can classify the reclaimed lands as alienable or disposable, and further declare them no longer needed for public service. Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be void in view of Section 3, Article XII of the 1987 Constitution, which prohibits private corporations from acquiring any kind of alienable land of the public domain.

4) Article X – Local Government

a. Section 4 -‐ The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

CASE: TANO VS. SOCRATES The Sangguniang Panlungsod of Puerto Princessa enacted ordinance no. 15-‐92 banning the shipment of live fish and lobster outside Puerto Princessa City for a period of 5 years. In the same light, the Sangguniang Panlalawigan of Palawan also enacted a resolution that prohibits the catching, gathering, buying, selling and possessing and shipment of live marine coral dwelling aquatic organisms for a period of 5 years within the Palawan waters. The petitioners Airline Shippers Association of Palawan together with marine merchants were charged for violating the above ordinance and resolution by the city and provincial governments. The petitioners now allege that they have the preferential rights as marginal fishermen granted with privileges provided in Section 149 of the Local Government Code, invoking the invalidity of the above-‐stated enactments as violative of their preferential rights.

RULING: No, the enacted resolution and ordinance of the LGU were not violative of their preferential rights. The enactment of these laws was a valid exercise of the police power of the LGU to protect public interests and the public right to a balanced and healthier ecology. The rights and privileges invoked by the petitioners are not absolute. The general welfare clause of the local government code mandates for the liberal interpretation in giving the LGUs more power to accelerate economic development and to upgrade the life of the

people in the community. The LGUs are endowed with the power to enact fishery laws in its municipal waters, which necessarily includes the enactment of ordinances in order to effectively carry out the enforcement of fishery laws in their local community.

b. Section 15 -‐ There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

CASE: CHIONGBIAN VS. ORBOS • Congress passed the ORGANIC ACT FOR ARMM, calling for a

plebiscite in Mindanao. • Only 4 provinces voted for the creation of ARMM (LanaoSur,

Maguindanao, Sulu, Tawi2) • The other provinces who did not vote for ARMM shall remain in

the existing administrative regions, provided that the PRESIDENT may by ADMINISTRATIVE DETERMINATION, MERGE THE EXISTING REGIONS.

• So, President Cory issued EO 429, which reorganized those regions who did not vote for ARMM.

• Petitioners are Congressmen who opposed the issuance of EO 429. They claim that President Cory had no authority to restructure new administrative regions. They insist that the provinces should remain as they are.

RULING: While the power to merge regions is not expressly provided for in the Constitution, it is a power traditionally lodged with the President, in view of the POWER OF GENERAL SUPERVISION OVER LOCAL GOVERNMENTS. Thus there is no abdication by Congress of its legislative powers in conferring on the President the POWER TO MERGE ADMINISTRATIVE REGIONS. As to the question of STANDARD, a legislative standard NEED NOT BE EXPRESSED. IT MAY SIMPLY BE GATHERED OR IMPLIED. Nor need it be found in the law challenged because it may be EMBODIED IN OTHER STATUTES ON THE SAME SUBJECT as that of the challenged legislation. With respect to the power to merge existing administrative regions, the STANDARD IS TO BE FOUND IN THE SAME POLICY underlying the grant o the PRESIDENT in RA5434, THE POWER TO REORGANIZE THE EXECUTIVE DEPARTMENT. Under said law, the standard is “to promote simplicity, economy and efficiency in the government, to enable it to pursue programs consistent with national goals for acceleration socio-‐economic development and to improve the service in the transaction of public business.” Since the original 11 administrative regions were established with this same law/ policy, it is but logical to suppose that in authorizing the President to merge by administrative determination, the existing regions (following the rejection of the ARMM by some regions), the purpose of Congress in enacting the Organic Act of ARMM was to reconstitute the original basis for the organization of administrative regions.

5) Article XII – National Economy

a. Section 1 -‐ The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full of efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all region s of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

CASE: MANILA PRINCE HOTEL VS. GSIS Pursuant to the privatization program of the government, GSIS decided to sell 30-‐51% of the ManilaHotel Corporation. Two bidders participated, MPH and Malaysian Firm Renong Berhad. MPH’s bid was at P41.58/per share while RB’s bid was at P44.00/share. RB was the highest bidder hence it was logically considered as the winning bidder but is yet to be declared so. Pending declaration, MPH matches RB’s bid and invoked the Filipino First policy enshrined under par. 2, Sec. 10,


35

35

Art. 12 of the 1987 Constitution**, but GSIS refused to accept. In turn MPH filed a TRO to avoid the perfection/consummation of the sale to RB. RB then assailed the TRO issued in favor of MPH arguing among others that:

1. Par. 2, Sec. 10, Art. 12 of the 1987 Constitution needs an implementing law because it is merely a statement of principle and policy (not self-‐executing);

2. Even if said passage is self-‐executing, Manila Hotel does not fall under national patrimony.

RULING: Manila Hotel falls under national patrimony. Patrimony in its plain and ordinary meaning pertains to heritage. When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people. Note that, for more than 8 decades (9 now) Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Herein resolved as well is the term Qualified Filipinos which not only pertains to individuals but to corporations as well and other juridical entities/personalities. The term “qualified Filipinos” simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counter productive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a “qualified foreigner” and a “qualified Filipino,” the latter shall be chosen over the former.”

b. Section 2 CASE: ARANDA VS. REPUBLIC RULING: Under the Regalian doctrine which is embodied in Section 2, Article XII of the 1987 Constitution, all lands of the public domain belong to the State, which is the source of any asserted right to ownership of land. All lands not appearing to be clearly within private ownership are presumed to belong to the State. Unless public land is shown to have been reclassified or alienated to a private person by the State, it remains part of the inalienable public domain. To overcome this presumption, incontrovertible evidence must be established that the land subject of the application is alienable or disposable. To prove that the land subject of an application for registration is alienable, an applicant must establish the existence of a positive act of the government such as a presidential proclamation or an executive order; an administrative action; investigation reports of Bureau of Lands investigators; and a legislative act or a statute. The applicant may also secure a certification from the Government that the lands applied for are alienable and disposable.

c. Section 3 – Cruz vs. NCIP d. Section 4 – Province of Rizal vs. Executive Secretary e. Section 5 – Alcantara vs. Com. On Settlement of Land f. Section 7 – Cheesman vs. IAC

6) Article XIII – Social Justice and Human Rights

a. Section 6 – Gavino Corpuz vs. Sps. Gorospe

II. INSTITUTIONAL FRAMEWORK FOR ENVIRONMENT AND NATURAL RESOURCES

Ø EXECUTIVE BRANCH The national government operates through more than twenty executive departments and specialized agencies to deliver basic services and implement national policies, programs, and projects, including agencies responsible for environment and natural resources, public works, transportation and communication, trade and industry, economic and development planning, etc. The lead executive agency is the DENR. It is primarily responsible for the conservation, management, development, and proper use of the country’s environment and natural resources, specifically forest and grazing lands, mineral resources, and lands of the public domain, as well as licensing and regulation of natural resources.

Ø CONGRESS AND LOCAL LEGISLATURE CASE: MMDA VS. CONCERNED CITIZENS OF MANILA BAY The complaint by the residents alleged that the water quality of the Manila Bay had fallen way below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code and that ALL defendants (public officials) must be jointly and/or solidarily liable and collectively ordered to clean up Manila Bay and to restore its water quality to class B, waters fit for swimming, diving, and other forms of contact recreation.

RULING: The Cleaning or Rehabilitation of Manila Bay can be compelled by Mandamus. While the implementation of the MMDA's mandated tasks may entail a decision-‐making process, the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus. Under what other judicial discipline describes as “continuing mandamus,” the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. IV. ENVIRONMENTAL IMPACT ASSESSMENT AND DEVELOPMENT PLANNING

Ø PD NO. 1151 – PHILIPPINE ENVIRONMENTAL POLICY

POLICY -‐ It is hereby declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-‐being. ENVIRONMENTAL IMPACT STATEMENTS Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the national government, including government-‐owned or controlled corporations, as well as private corporations firms and entities SHALL PREPARE, FILE AND INCLUDE IN EVERY ACTION, PROJECT OR UNDERTAKING WHICH SIGNIFICANTLY AFFECTS THE QUALITY OF THE ENVIRONMENT A DETAIL STATEMENT ON:

§ The environmental impact of the proposed action, project or undertaking

§ Any adverse environmental effect which cannot be avoided should the proposal be implemented;

§ Alternative to the proposed action; § A determination that the short-‐term uses of the resources

of the environment are consistent with the maintenance and enhancement of the long-‐term productivity of the same; and

§ Whenever a proposal involve the use of depletable or non-‐renewable resources, a finding must be made that such use and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special expertise on, the subject matter involved shall comment on the draft environmental impact statement made by the lead agency within thirty (30) days from receipt of the same.

Ø DENR Administrative Order No. 2003-‐30 ENVIRONMENTAL IMPACT ASSESSMENT – It is the process that involves predicting and evaluating the likely impacts of a project (including cumulative impacts) on the environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community’s welfare”.

EIA PROCESS WITHIN THE PROJECT CYCLE

PRESIDENTIAL PROCLAMATION OF ENVIRONMENTALLY CRITICAL AREAS AND PROJECTS The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or area in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an ENVIRONMENTAL COMPLIANCE CERTIFICATE issued by the President or his duly authorized representative.


36

36

SUMMARY FLOWCHART OF EIA PROCESS

OVERVIEW OF THE NATIONAL EIS SYSTEM

The LGU has a critical role in ensuring that all development projects in their jurisdiction that are classified as ECPs or located in ECAs are subjected to the EIA review process. While not all projects may require a detailed EIA, all proposed development activities should be screened to decide which projects need a detailed evaluation of environmental impacts.

ENVIRONMENTALLY CRITICAL PROJECTS. • Heavy Industries: including non-‐ferrous metal

industries, iron and steel mills, smelting plants, and petroleum and petrochemical industries, including oil and gas;

• Resource Extractive Industries: including major mining and quarrying projects, forestry projects (logging, major wood processing, introduction of exotic animals in public or private forests, forest occupancy, extraction of mangrove products, grazing), and fishery projects (dikes for/and fishpond development projects);

• Infrastructure Projects: including major dams, major roads and bridges, major power plants (fossil-‐fuelled, nuclear, coal-‐fired, hydroelectric, geothermal), and major reclamation projects; and

• Golf Course Projects: golf courses and golf resorts are now subject to EIS requirements

• Other: Many other types of coastal projects not explicitly listed above may, at the discretion of DENR, require an EIS if they are considered ECPs. Some likely examples include major resorts or hotels, airports, ports, shoreline fortifications, fish processing plants, and major military development.

ENVIRONMENTALLY CRITICAL AREAS.

• National parks, watershed reserves, wildlife preserves, and sanctuaries declared by law;

• Areas set aside as potential tourist spots; • Habitats of endangered or threatened species

indigenous to the Philippines; • Areas of unique historic, archaeological, or scientific

interest; • Areas traditionally occupied by indigenous people and

cultural communities; • Areas frequently hit by natural calamities (geologic

hazards, floods, typhoons, volcanic activity, etc.);

• Areas with critical (steep) slopes; • Areas classified as prime agricultural lands; • Aquifer recharge areas; • Water bodies used for domestic supply or support of

fish and wildlife; • Mangrove areas supporting critical ecological functions

or on which people depend for livelihood; and • Coral reefs with critical ecological functions.

Review Process for projects in environmentally critical areas Environmental review procedures are somewhat different for proposed projects that may be located in ECAs. The review of the proposed development is conducted through DENR’s Regional Offices and consists of the following steps.

CASE: REPUBLIC VS. CITY OF DAVAO On August 11, 2000, The City of Davao filed an application for a Certificate of Non-‐ Coverage (CNC) for its proposed project, the Davao City Artica Sports Dome, with the Environmental Management Bureau (EMB), Region XI. The EMB denied the application after finding that the proposed project was within an environmentally critical area and ruled that the City of Davao MUST UNDERGO THE ENVIRONMENTAL IMPACT ASSESSMENT PROCESS TO SECURE AN ENVIRONMENTAL COMPLIANCE CERTIFICATE, before it can proceed with the construction of its project. RULING: The Artica Sports Dome in Langub does not come close to any of the projects or areas enumerated above. Neither is it analogous to any of them. It is clear, therefore, that the said project is not classified as environmentally critical, or within an environmentally critical area. Consequently, the DENR has no choice but to issue the Certificate of Non-‐ Coverage. It becomes its ministerial duty, the performance of which can be compelled by writ of mandamus, such as that issued by the trial court in the case at bar. CASE: BORACAY FOUNDATION INC. VS PROVINCE OF AKLAN Claiming that tourist arrivals to Boracay would reach 1 million in the future, respondent Province of Aklan planned to expand the port facilities at Barangay Caticlan, Municipality of Malay. Thus, on May 7, 2009, the Sangguniang Panlalawigan of Aklan Province issued a resolution, authorizing Governor Carlito Marquez to file an application with respondent Philippine Reclamation Authority (PRA) to reclaim the 2.64 hectares of foreshore area in Caticlan. In the same year, the Province deliberated on the possible expansion from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the utilization of its resources. After PRA’s approval, on April 27, 2010, respondent Department of Environment and Natural Resources-‐Environmental Management Bureau-‐Region VI (DENR-‐EMB RVI) issued to the Province Environmental Compliance Certificate-‐R6-‐1003-‐096-‐7100 (the questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty port. On May 17, 2010, the Province finally entered into a MOA with PRA which stated that the land use development of the reclamation project shall be for commercial, recreational and institutional and other applicable uses. It was at this point that the Province deemed it necessary to conduct a series of public consultation meetings. On the other hand, the Sangguniang Barangay of Caticlan, the Sangguniang Bayan of the Municipality of Malay and petitioner Boracay Foundation, Inc. (BFI), an organization composed of some 160 businessmen and residents in Boracay, expressed their strong opposition to the reclamation project on environmental, socio-‐economic and legal grounds.


37

37

Despite the opposition, the Province merely noted their objections and issued a notice to the contractor on December 1, 2010 to commence with the construction of the project. Thus, on June 1, 2011, BFI filed with the Supreme Court the instant Petition for Environmental Protection Order/Issuance of the Writ of Continuing Mandamus. Thereafter, the Court issued a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file their respective comments to the petition. The Petition was premised on the following grounds, among others:

a) The Province failed to obtain the favorable endorsement of the LGU concerned;

b) The Province failed to conduct the required consultation procedures as required by the Local Government Code (LGC).

RULING: The Court found that there was no proper, timely, and sufficient public consultation for the project. The Local Government Code (LGC) establishes the duties of national government agencies in the maintenance of ecological balance and requires them to secure prior public consultations and approval of local government units. In Province of Rizal v. Executive Secretary, the Court emphasized that, under the Local Government Code, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: (1) prior consultation with the affected local communities, and (2) prior approval of the project by the appropriate sanggunian. The absence of either of such mandatory requirements will render the project’s implementation as illegal. Here, the Court classified the reclamation project as a national project since it affects the environmental and ecological balance of local communities. In one ruling, the Court noted that such national projects mentioned in Section 27 of the LGC include those that may cause pollution and bring about climate change, among others, such as the reclamation project in this case. Also, DENR DAO 2003-‐30 provides that project proponents should “initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan”. Thus, the law requires the Province, being the delegate of the PRA’s power to reclaim land in this case, to conduct prior consultations and prior approval. However, the information dissemination conducted months after the ECC had already been issued was insufficient to comply with the requirements under the LGC. Furthermore, the lack of prior public consultation and approval is not corrected by the subsequent endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan in 2012, which were both undoubtedly achieved at the urging and insistence of the Province. WHAT IS A WRIT OF KALIKASAN? It is a remedy available to a natural or juridical person, entity authorized by law, people’s organizations, non-‐governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity without involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. WHAT IS THE BASIS OF THE WRIT OF KALIKASAN? It rests in Article II, Section 16 on the Declaration of Principles and State Policies of the 1987 Constitution, which states that, “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature”. WHAT IS THE IMPORTANT FEATURE OF THIS WRIT? The magnitude requirement with regards to the destruction or imminent destruction, which is sought to be prevented, must be present. WHAT IS A WRIT OF CONTINUING MANDAMUS? It is writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment, which shall remain effective until judgment is fully satisfied. One who is personally aggrieved files it.

V. REVISED FORESTRY CODE (PD NO. 705) POLICIES. The State hereby adopts the following policies:

§ The multiple uses of forest lands shall be oriented to the development and progress requirements of the country, the advancement of science and technology, and the public welfare;

§ Land classification and survey shall be systematized and hastened;

§ The establishment of wood-‐processing plants shall be encouraged and rationalized; and

§ The protection, development and rehabilitation of forest lands shall be emphasized so as to ensure their continuity in productive condition.

CRIMINAL OFFENSES AND PENALTIES SECTION 77. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License. – Any person who shall cut, gather, collect, removed timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. The court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. SECTION 78. Unlawful Occupation or Destruction of Forest Lands and Grazing Lands. – Any person who enters and occupies or possesses, or makes kaingin for his own private use or for others, any forest land or grazing land without authority under a license agreement, lease, license or permit, or in any manner destroys such forest land or grazing land or part thereof, or causes any damage to the timber stand and other products and forest growth found therein, or who assists, aids or abets any other person to do so, or sets a fire, or negligently permits a fire to be set in any forest land or grazing land, or refuses to vacate the area when ordered to do so, pursuant to the provisions of Section 53 hereof shall, upon conviction, be fined in an amount of not less than five hundred pesos (P500.00), nor more than twenty thousand pesos (P20,000.00) and imprisoned for not less than six (6) months nor more than two (2) years for each such offense, and be liable to the payment to ten (10) times the rental fees and other charges which would have accrued has the occupational and use of the land been authorized under a license agreement, lease, license or permit: Provided, That in the case of an offender found guilty of making kaingin, the penalty shall be imprisonment for not less than two (2) nor more than four (4) years and a fine equal to eight (8) times the regular forest charges due on the forest products destroyed, without prejudice to the payment of the full cost of production of the occupied area as determined by the Bureau: Provided, further, That the maximum of the penalty prescribed herein shall be imposed upon the offender who repeats the same offense and who commits the same offense and double the maximum of the penalty upon the offender who commits the same offense for the third time. SECTION 79. Pasturing Livestock. – Imprisonment for not less than six (6) months nor more than two (2) years and a fine equal to ten (10) times the regular rentals due, in addition to the confiscation of such livestock and all improvement introduced in the area in favor of the government, shall be imposed upon any person, who shall, without authority under a lease or permit, graze or cause to graze livestock in forest lands, grazing lands and alienable and disposable lands which


38

38

have not as yet been disposed of in accordance with the Public Land Act; Provided, That in case the offender is a corporation, partnership or association, the officers and directors thereof shall be liable. SECTION 80. Illegal Occupation of National Parks System and Recreation Areas and Vandalism – Therein. Any person who, shall, without permit, occupy for any length of time any portion of the national parks system or shall, in any manner cut, destroy, damage or remove timber or any species of vegetation or forest cover and other natural resources found therein, or shall mutilate, deface or destroy objects of natural beauty or of scenic value within areas in the national parks system, shall be fined not less than five hundred (P500.00) pesos or more than twenty thousand (P20,000.00) pesos exclusive of the value of the thing damaged. Provided, That if the area requires rehabilitation or restoration as determined by the Director, the offender shall also be required to restore or compensate or the restoration of the damage: CASE: PEOPLE OF THE PHILIPPINES VS. DATOR AND GENOL RULING: The Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. Appellant Telen contends that he secured verbal permission from Boy Leonor, Officer-‐in-‐Charge of the DENR-‐CENRO in Maasin, Southern Leyte before cutting the lumber, and that the latter purportedly assured him that written permit was not anymore necessary before cutting soft lumber, such as the Antipolo and Dita trees in this case, from a private track of land, to be used in renovating appellant’s house, provided that he would plant trees as replacements thereof, which he already did. It must be underscored that the appellant stands charged with the crime of violation of Section 68 of Presidential Decree No. 705, a special statutory law, and which crime is considered mala prohibita. In the prosecution for crimes that are considered mala prohibita, the only inquiry is whether or not the law has been violated. The motive or intention underlying the act of the appellant is immaterial for the reason that his mere possession of the confiscated pieces of lumber without the legal documents as required under existing forest laws and regulations gave rise to his criminal liability. In any case, the mere allegation of the appellant regarding the verbal permission given by Boy Leonor, Officer in Charge of DENR-‐CENRO, Maasin, Southern Leyte, is not sufficient to overturn the established fact that he had no legal documents to support valid possession of the confiscated pieces of lumber. It does not appear from the record of this case that appellant exerted any effort during the trial to avail of the testimony of Boy Leonor to corroborate his allegation. Absent such corroborative evidence, the trial court did not commit an error in disregarding the bare testimony of the appellant on this point, which is, at best, self-‐serving.

VI. PHILIPPINE MINING ACT OF 1995 (RA NO. 7942) The Implementing Rules and Regulations (DENR Administrative Order No.96-‐40) of the Philippine Mining Act of 1995 provides strict adherence to the principle of SUSTAINABLE DEVELOPMENT. This strategy mandates that the needs of the present should be met without compromising the ability of the future generations to meet their own needs, with the view of improving the quality of life, both now and in the future. Sustainable development provides that the use of mineral wealth shall be pro-‐people and pro-‐environment in sustaining wealth creation and improve quality of life. AREAS CLOSED TO MINING APPLICATIONS: • Areas covered by valid and existing mining rights and applications; • Old growth or virgin forests, mossy forests, national parks, provincial/municipal forests, tree parks, greenbelts, game refuge, bird sanctuaries and areas proclaimed as marine reserve/marine parks and sanctuaries and areas proclaimed as marine reserve/marine parks and tourist zones as defined by law and identified initial components of the NIPAS, and such areas as expressly prohibited thereunder, as well as under DENR Administrative Order No. 25, s. 1992, and other laws; • Areas which the Secretary may exclude based, inter alia, or proper assessment of their environmental impacts and implications on sustainable land uses, such as built-‐up areas and critical watershed with appropriate barangay/municipal/provincial Sanggunian ordinances specifying therein the location and specific boundaries of the concerned area; and • Areas expressly prohibited by law. THE FOLLOWING AREAS MAY BE OPENED FOR MINING OPERATIONS, THE APPROVAL OF WHICH ARE SUBJECT TO THE FOLLOWING CONDITIONS: • Military and other government reservations, upon prior written consent by the government agency having jurisdiction over such areas; • Areas near or under public or private buildings, cemeteries, and archaeological and historic sites, bridges, highways, waterways, railroads, reservoirs, dams and other infrastructure projects, public or private works, including plantations

or valuable crops, upon written consent of the concerned government agency or private entity, subject to technical evaluation and validation by the MGB; • Areas covered by FTAA applications, which shall be opened, for quarry resources upon written consent of the FTAA applicants/contractors. However, mining applications for sand and gravel shall require no such consent; • DENR Project areas upon prior consent from the concerned agency. SAND AND GRAVEL PERMITS -‐ are issued for the extraction, removal and disposition of sand and gravel and other loose or unconsolidated materials. Permits with areas not exceeding 5 hectares are issued by the Provincial Governor/City Mayor while those exceeding 5 hectares but not more than 20 hectares are issued by the MGB Regional Director. A Sand and Gravel Permit has a term of 5 years and renewable for like terms. QUARRY RESOURCES PERMITS -‐ In accordance with the Local Government Code of 1991, mining permits with areas not more than 5 hectares have been devolved to the Provincial Governor or the City Mayor for approval upon recommendation of the Provincial/City Mining Regulatory Board. These include the Quarry Permit, Guano Permit, Gratuitous Permit and Gemstone Gathering Permit. SMALL-‐SCALE MINING PERMITS -‐ In consonance with the Local Government Code and RA No. 7076, small-‐scale mining permits are approved and issued by the City Mayor/Provincial Governor, upon recommendation of the Provincial/City Mining Regulatory Board. MINERAL PROCESSING PERMIT – a permit granting the right to process minerals. It is issued by the DENR Secretary with a term of 5 years and renewable for like terms. ORE TRANSPORT PERMIT – no minerals, mineral products and by-‐products shall be transported unless accompanied by an Ore Transport Permit. The OTP is issued by the MGB Regional Director concerned. CASE: LA BUGAL-‐B’LAAN TRIBAL ASSOCIATION VS. RAMOS RA 7942 (The Philippine Mining Act) took effect on April 9, 1995. Before the effectivity of RA 7942, or on March 30, 1995, the President signed a Financial and Technical Assistance Agreement (FTAA) with WMCP, a corporation organized under Philippine laws, covering close to 100,000 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato. On August 15, 1995, the Environment Secretary Victor Ramos issued DENR Administrative Order 95-‐23, which was later repealed by DENR Administrative Order 96-‐40, adopted on December 20, 1996. Petitioners prayed that RA 7942, its implementing rules, and the FTAA between the government and WMCP be declared unconstitutional on ground that they allow fully foreign owned corporations like WMCP to exploit, explore and develop Philippine mineral resources in contravention of Article XII Section 2 paragraphs 2 and 4 of the Charter. In January 2001, WMC -‐ a publicly listed Australian mining and exploration company -‐ sold its whole stake in WMCP to Sagittarius Mines, 60% of which is owned by Filipinos while 40% of which is owned by Indophil Resources, an Australian company. DENR approved the transfer and registration of the FTAA in Sagittarius‘ name but Lepanto Consolidated assailed the same. The latter case is still pending before the Court of Appeals. EO 279, issued by former President Aquino on July 25, 1987, authorizes the DENR to accept, consider and evaluate proposals from foreign owned corporations or foreign investors for contracts or agreements involving wither technical or financial assistance for large scale exploration, development and utilization of minerals which upon appropriate recommendation of the (DENR) Secretary, the President may execute with the foreign proponent. WMCP likewise contended that the annulment of the FTAA would violate a treaty between the Philippines and Australia which provides for the protection of Australian investments. ISSUES:

1. Whether or not the Philippine Mining Act is unconstitutional for allowing fully foreign-‐owned corporations to exploit the Philippine mineral resources.

2. Whether or not the FTAA between the government and WMCP is a ―service contract‖ that permits fully foreign owned companies to exploit the Philippine mineral resources.

RULING: RA 7942 or the Philippine Mining Act of 1995 is unconstitutional for permitting fully foreign owned corporations to exploit the Philippine natural resources. Article XII Section 2 of the 1987 Constitution retained the Regalian Doctrine which states that ―All lands of the public domain, waters, minerals, coal, petroleum, and other minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.‖ The same section also states that, ―the


39

39

exploration and development and utilization of natural resources shall be under the full control and supervision of the State. Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitution authorizing the State to grant licenses, concessions, or leases for the exploration, exploitation, development, or utilization of natural resources. By such omission, the utilization of inalienable lands of the public domain through license, concession or lease is no longer allowed under the 1987 Constitution. Under the concession system, the concessionaire makes a direct equity investment for the purpose of exploiting a particular natural resource within a given area. The concession amounts to complete control by the concessionaire over the country‘s natural resource, for it is given exclusive and plenary rights to exploit a particular resource at the point of extraction. The 1987 Constitution, moreover, has deleted the phrase ―management or other forms of assistance‖ in the 1973 Charter. The present Constitution now allows only ―technical and financial assistance. The management and the operation of the mining activities by foreign contractors, the primary feature of the service contracts was precisely the evil the drafters of the 1987 Constitution sought to avoid. The constitutional provision allowing the President to enter into FTAAs is an exception to the rule that participation in the nation‘s natural resources is reserved exclusively to Filipinos. Accordingly, such provision must be construed strictly against their enjoyment by non-‐Filipinos. Therefore, RA 7942 is invalid insofar as the said act authorizes service contracts. Although the statute employs the phrase ―financial and technical agreements‖ in accordance with the 1987 Constitution, its pertinent provisions actually treat these agreements as service contracts that grant beneficial ownership to foreign contractors contrary to the fundamental law. The underlying assumption in the provisions of the law is that the foreign contractor manages the mineral resources just like the foreign contractor in a service contract. By allowing foreign contractors to manage or operate all the aspects of the mining operation, RA 7942 has, in effect, conveyed beneficial ownership over the nation‘s mineral resources to these contractors, leaving the State with nothing but bare title thereto. The same provisions, whether by design or inadvertence, permit a circumvention of the constitutionally ordained 60-‐40% capitalization requirement for corporations or associations engaged in the exploitation, development and utilization of Philippine natural resources. When parts of a statute are so mutually dependent and connected as conditions, considerations, inducements or compensations for each other as to warrant a belief that the legislature intended them as a whole, then if some parts are unconstitutional, all provisions that are thus dependent, conditional or connected, must fail with them. Under Article XII Section 2 of the 1987 Charter, foreign owned corporations are limited only to merely technical or financial assistance to the State for large-‐scale exploration, development and utilization of minerals, petroleum and other mineral oils. VI. PHILIPPINE FISHERIES CODE OF 1998 (RA NO. 8550) The State shall ensure the attainment of the following objectives of the fishery sector:

§ Conservation, protection and sustained management of the country's fishery and aquatic resources;

§ Poverty alleviation and the provision of supplementary livelihood among municipal fisherfolk;

§ Improvement of productivity of aquaculture within ecological limits;

§ Optimal utilization of off-‐shore and deep-‐sea resources; and § Upgrading of post-‐harvest technology.

SECTION 5. USE OF PHILIPPINE WATERS The use and exploitation of the fishery and aquatic resources in Philippine waters shall be reserved exclusively to Filipinos: Provided, however, That research and survey activities may be allowed under strict regulations, for purely research, scientific, technological and educational purposes that would also benefit Filipino citizens. SECTION 18. USERS OF MUNICIPAL WATERS All fishery related activities in municipal waters, as defined in this Code, shall be utilized by municipal fisherfolk and their cooperatives/organizations who are listed as such in the registry of municipal fisherfolk. The municipal or city government, however, may, through its local chief executive and acting pursuant to an appropriate ordinance, authorize or permit small and medium commercial fishing vessels to operate within the ten point one (10.1) to fifteen (15) kilometer area from the shoreline in municipal waters as defined herein, provided, that all the following are met:

§ No commercial fishing in municipal waters with depth less than seven (7) fathoms as certified by the appropriate agency;

§ Fishing activities utilizing methods and gears that are determined to be consistent with national policies set by the Department;

§ Prior consultation, through public hearing, with the M/CFARMC has been conducted; and

§ The applicant vessel as well as the ship owner, employer, captain and crew have been certified by

§ The appropriate agency as not having violated this Code, environmental laws and related laws.

In no case shall the authorization or permit mentioned above be granted for fishing in bays as determined by the Department to be in an environmentally critical condition and during closed season as provided for in Section 9 of this Code. SECTION 26. COMMERCIAL FISHING VESSEL LICENSE AND OTHER LICENSES. The municipal/city government shall have jurisdiction over municipal waters as defined in this Code. The municipal/city government, in consultation with the FARMC shall be responsible for the management, conservation, development, protection, utilization and disposition of all fish and fishery/aquatic resources within their respective municipal waters. The municipal/city government may, in consultation with the FARMC, enact appropriate ordinances for this purpose and in accordance with the National Fisheries Policy. The ordinances enacted by the municipality and component city shall be reviewed pursuant to Republic Act No. 7160 by the Sanggunian of the province, which has jurisdiction over the same. The LGUs shall also enforce all fishery laws, rules and regulations as well as valid fishery ordinances enacted by the municipal/city council. The management of contiguous fishery resources such as bays which straddle several municipalities, cities or provinces, shall be done in an integrated manner, and shall not be based on political subdivisions of municipal waters in order to facilitate their management as single resource systems. The LGUs, which share or border such resources may group themselves and coordinate with each other to achieve the objectives of integrated fishery resource management. The Integrated Fisheries and Aquatic Resources Management Councils (IFARMCs) established under Section 76 of this Code shall serve as the venues for close collaboration among LGUs in the management of contiguous resources.

SECTION 45. DISPOSITION OF THE PUBLIC LANDS FOR FISHERY PURPOSES. Public lands such as tidal swamps, mangroves, marshes, foreshore lands and ponds suitable for fishery operations shall not be disposed or alienated. Upon effectivity of this Code, FLA may be issued for public lands that may be declared available for fishpond development primarily to qualified fisherfolk cooperatives/associations: Provided, however, That upon the expiration of existing FLAs the current lessees shall be given priority and be entitled to an extension of twenty-‐five (25) years in the utilization of their respective leased areas. Thereafter, such FLAs shall be granted to any Filipino citizen with preference, primarily to qualified fisherfolk cooperatives/associations as well as small and medium enterprises as defined under Republic Act No. 8289: Provided, further, That the Department shall declare as reservation, portions of available public lands certified as suitable for fishpond purposes for fish sanctuary, conservation, and ecological purposes: Provided, finally, That two (2) years after the approval of this Act, no fish pens or fish cages or fish traps shall be allowed in lakes. SECTION 46. LEASE OF FISHPONDS. Fishpond leased to qualified persons and fisherfolk organizations/cooperatives shall be subject to the following conditions:

§ Areas leased for fishpond purposes shall be no more than 50 hectares for individuals and 250 hectares for corporations or fisherfolk organizations;

§ The lease shall be for a period of twenty-‐five (25) years and renewable for another twenty-‐five (25) years: Provided, That in case of the death of the lessee, his spouse and/or children, as his heirs, shall have preemptive rights to the unexpired term of his Fishpond Lease Agreement subject to the same terms and conditions provided herein provided that the said heirs are qualified;

§ Lease rates for fishpond areas shall be determined by the Department: Provided, That all fees collected shall be remitted to the National Fisheries Research and Development Institute and other qualified research institutions to be used for aquaculture research development;

§ The area leased shall be developed and producing on a commercial scale within three (3) years from the approval of the lease contract: Provided, however, That all areas not fully producing within five (5) years from the date of


40

40

approval of the lease contract shall automatically revert to the public domain for reforestation;

§ The fishpond shall not be subleased, in whole or in part, and failure to comply with this provision shall mean cancellation of FLA;

§ The transfer or assignment of rights to FLA shall be allowed only upon prior written approval of the Department;

§ The lessee shall undertake reforestation for river banks, bays, streams and seashore fronting the dike of his fishpond subject to the rules and regulations to be promulgated thereon; and

§ The lessee shall provide facilities that will minimize environmental pollution, i.e., settling ponds, reservoirs, etc: Provided, That failure to comply with this provision shall mean cancellation of FLA.

SECTION 87. POACHING IN PHILIPPINE WATERS. It shall be unlawful for any foreign person, corporation or entity to fish or operate any fishing vessel in Philippine waters. The entry of any foreign fishing vessel in Philippine waters shall constitute a prima facie evidence that the vessel is engaged in fishing in Philippine waters. Violation of the above shall be punished by a fine of One hundred thousand U.S. Dollars (US$100,000.00), in addition to the confiscation of its catch, fishing equipment and fishing vessel: Provided, That the Department is empowered to impose an administrative fine of not less than Fifty thousand U.S. Dollars (US$50,000.00) but not more than Two hundred thousand U.S. Dollars (US$200,000.00) or its equivalent in the Philippine currency. CASE: TANO VS. SOCRATES The Sangguniang Panlungsod of Puerto Princessa enacted ordinance no. 15-‐92 banning the shipment of live fish and lobster outside Puerto Princessa City for a period of 5 years. In the same light, the Sangguniang Panlalawigan of Palawan also enacted a resolution that prohibits the catching, gathering, buying, selling and possessing and shipment of live marine coral dwelling aquatic organisms for a period of 5 years within the Palawan waters. The petitiones Airline Shippers Association of Palawan together with marine merchants were charged for violating the above ordinance and resolution by the city and provincial governments. The petitioners now allege that they have the preferential rights as marginal fishermen granted with privileges provided in Section 149 of the Local Government Code, invoking the invalidity of the above-‐stated enactments as violative of their preferential rights. ISSUE: Whether or not the enacted résolutions and ordinances by the local government units violative of the preferential rights of the marginal fishermen ? RULING: No, the enacted resolution and ordinance of the LGU were not violative of their preferential rights. The enactment of these laws was a valid exercise of the police power of the LGU to protect public interests and the public right to a balanced and healthier ecology. The rights and privileges invoked by the petitioners are not absolute. The general welfare clause of the local government code mandates for the liberal interpretation in giving the LGUs more power to accelerate economic development and to upgrade the life of the people in the community. The LGUs are endowed with the power to enact fishery laws in its municipal waters, which necessarily includes the enactment of ordinances in order to effectively carry out the enforcement of fishery laws in their local community. VIII. INDUSTRIAL, AIR, AND WATER POLLUTION Sec 3, Paragraph C, RA No. 9724: Transport and traffic management which includes the formulation, coordination and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares, and promotions of safe and convenient movement of persons and goods: provision for the mass transport system and the institution of a system to regulate road users; administration and implementation of all irerhe enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila. Water Quality Management Area. -‐ The Department, in coordination with National Water Resources Board (NWRB), shall designate certain areas as water quality management areas using appropriate physiographic units such as watershed, river basins or water resources regions. Said management areas shall have similar hydrological, hydrogeological, meteorological or geographic conditions which affect the physicochemical, biological and bacteriological reactions and diffusions of pollutants in the water bodies, or otherwise share common interest or face similar development programs, prospects or problems. Said management area shall be governed by a governing board composed of representatives of mayors and governors of member local government units (LGUs), and representatives of relevant national government agencies, duly registered non-‐governmental organization, water utility sector, and business sector. The Department representative shall chair the governing board. In the case of the LGUs

with memberships on more than one (1) management board, the LGU shall designate only one (1) single representative for all the management areas wherein is a member. The governing board shall formulate strategies to coordinate policies necessary for the effective implementation of this Act in accordance with those established in the framework and monitor the compliance with the action plan. Each management area shall create a multi-‐sectoral group to establish and affect water quality surveillance and monitoring network including sampling schedules and other similar activities. The group shall submit its report and recommendation to the chairman of the governing board. A technical secretariat for each management area is hereby created which shall be part of the department and shall provide technical support to the governing board. They shall be composed of at least four (4) members who shall have the following minimum qualifications:

• One (1) member shall be a member of the Philippines Bar; • One (1) member shall be a Chemical Engineer, Chemist,

Sanitary Engineer, Environmental Engineer or Ecologist or significant training and experience in chemistry;

• One (1) member shall be a Civil Engineer or Hydrologist or Significant training and experience in closely related fields and experience on ground water, respectively; and

• One (1) member shall be a Geologist, Biologist, or significant training and experience in closely related fields.

The areas within the jurisdiction of the Laguna Lake Development Authority (LLDA) shall be designated as one management area under the administration of LLDA in accordance with R.A. No. 4850, as amended: Provided, However, That the standards promulgated pursuant to this Act and wastewater charge system established pursuant hereof shall be enforced in said area. CASE: MMDA VS. JANCOM ENVIRONMENTAL CORPORATION Before us is a motion for reconsideration of our decision dated January 30, 2002 affirming the judgment of the Court of Appeals, which in turn affirmed that of the regional trial court, declaring that there is a valid and perfected waste management contract between the Republic of the Philippines and JANCOM Environmental Corporation, and dismissing the petition filed by petitioner Metropolitan Manila Development Authority for lack of merit. Petitioner has likewise filed a motion that the case at bar be heard and resolved by the Court en banc. RULING: Lastly, petitioner argues that the incineration technology provided in the contract is prohibited by law, citing the Clean Air Act in support thereof.This matter was hardly treated by the two courts below, rendering it almost a non-‐issue.The Court of Appeals, in its 20-‐page decision, devoted two short paragraphs comprising all of three sentences to this matter (Rollo, p. 54).The regional trial court, for its part, said that the issues "which should be addressed are the following: (1) Is there a perfected contract between the parties? and (2) Does certiorari and/or prohibition lie in the case at bar?" (Rollo, p. 157).We need but repeat now that, as pointed out by the appellate court, Section 20, which provides: SECTION 20.Ban on Incineration.-‐ Incinertion, hereby defined aas the burning of municipal, bio-‐chemical and hazardous wastes, which process emits poisonous and toxic fumes, is hereby prohibited: xxx." does not absolutely prohibit incineration as a mode of waste disposal; rather, only those burning processes which emit poisonous and toxic fumes are banned. The rule that a statute should be given effect as a whole requires that the statute be so construed as to make no part or provision thereof a surplusage. Each and every part of the statute should be given its due effect and meaning in relation to the rest. It is well settled that, whenever possible, a legal provision must not beso construed as to be a useless surplusage and, accordingly, meaningless in the sense of adding nothing to the law or having no effect whatsoever therein. To consider Section 20 of the Clean Air Act as prohibiting all forms of incineration would render the phrase "which process emits poisonous and toxic fumes" a useless surplusage, which could not have been the intention of legislature, seeing that our learned legislators even took pains to define, in Section 5, Article II of the Clean Air Act what poisonous and toxic fumes are, Section 5. Definitions.-‐ As used in this Act: t) "Poisonous and toxic fumes" means any emissions and fumes which are beyond internationally-‐accepted standards, including but not limited to World Health Organization (WHO) guideline values; It may not, thus, be argued that the Clean Air Act prohibits all forms of incineration as to make the contract in question violative of the Clean Air Act. This is not to say, of course, that the contract involved does not in fact run afoul with the Clean Air Act. That issue may still be raised by the proper party in a proper action.

land titles and deeds reviewer

Documents

use of lands

private ownership

regalian doctrine

right of ownership

public domain

states ownership

public land

iccips ancestral domain