addressing policy gaps in land administration

7/27/2019 Addressing Policy Gaps in Land Administration

1/7

1

NO. 2011-4MAY 2011

CPBRD POLICYBRIEFCONGRESSIONAL POLICY AND BUDGET RESEARCH DEPARTMENT

ADDRESSING POLICY GAPS IN

THE LAND ADMINISTRATION SYSTEM*

In most developing countries, land is not only a notable means of generating a livelihood butoften the key instrument for investing, accumulating, and transferring wealth betweengenerations. Thus, the institutional and legal framework in which access to land is regulated,property rights are defined, and ownership conflicts are resolved, have broad implications inthe countrys pursuit for growth and poverty reduction.1

Typically, an efficient land market allows the optimal use of land, and well-defined propertyrights will help overcome credit market imperfections. However, the Philippine land markethas not been efficiently functioning (e.g. problems on fake titles and boundary disputesamong others).

At present, the Philippine land administration system is handled by multiple agencies andgoverned by multiple laws resulting to different standards for land valuation, overlappingland titling processes and so many opportunities for graft and corruption. Inefficiencies in

the system is due to outdated land legislation and administrative processes which further leadto high cost of doing business involving real estate properties.

Defining Land administration system

The United Nations-Economic Commission for Europe defines land administration as:the process of determining, recording and disseminating information about theownership, value, and use of land when implementing land management policies. It isconsidered to include land registration, cadastral surveying and mapping, fiscal, legal andmulti-purpose cadastres and land information systems.2

Moreover, Dale and MacLaughlin3 further define land administration as the process ofregulating land and property development and the use and conservation of land, thegathering of revenues from the land through sales, leasing, and taxation, and the resolving ofconflicts concerning the ownership and use of land.

* Prepared by Ma. Leni Lebrilla of the Special Projects Service in consultation with Director Novel Bangsal and CPBRD OIC

Director-General Romulo Emmanuel Miral, Jr. The views, opinions and interpretations in this report do not necessarily ref lect theviews of the House of Representatives as an institution or its individual Members.

Generated by Foxit PDF Creator Foxit Softwarehttp://www.foxitsoftware.com For evaluation only.


2/7

2

Simply put, land administration system is the way in which the rules of land tenure areapplied and made operational. Land administration, whether formal or informal, comprisesan extensive range of systems and processes to administer, namely:4

Land Rights:the allocation of rights in land, the delimitation of boundaries of parcelsfor which the rights are allocated, the transfer from one party to another through

sale, lease, loan, gift or inheritance, and the adjudication of doubts and disputesregarding rights and parcel boundaries;

Land-use Regulation: land-use planning and enforcement and the adjudication of allland use conflicts; and

Land Valuation and Taxation: the gathering of revenues through forms of landvaluation and taxation, and the adjudication of land valuation and taxation disputes.

Gaps in the land administration system

The existing land administration system in the Philippines can be summarized in two words:

multiple and complex. The whole system is governed by multiple laws, regulations, processesand standards, and is managed by multiple institutions with limited collaboration.

Legal and regulatory frameworkAn inventory of the laws relevant to public land disposition and land registration revealedthe existence of more than 60 laws.5 Of this number, the following are the more importantmeasures that define the process of land registration and titling:6

Commonwealth Act 141 (Public Land Act of 1936) serves as the foundation ofsubsequent laws on public land.

Act 496 (Land Registration Act 1902) as supplemented by PD 1529 (propertyRegistration Decree). Both provide for the registration of lands claimed asprivate property, requiring all patents, certificates, deed and conveyance issued bythe Bureau of Land to be registered at the Registry of Deeds.

Act 2259 (Cadastral Act) provides for the cadastral survey and institution ofcompulsory and mass judicial proceedings for the settlement and adjudication ofclaims to all kinds of land.

Section 194 of Act 3344(Administrative Code) provides for a system of recordinginstruments or deeds relating to real estate not registered under Act 496 or underthe Spanish Mortgage Law.

Given the complex legal structure, the Philippine case is considered unique because the landtitling process is done judicially and administratively (Table 1). In stark contrast, landregistration in Thailand, Malaysia, Indonesia, Cambodia and Laos are done throughadministrative processes only. The Land Registration Act and the Cadastral Act both fallunder the Torrens system of titling process and the proceedings in both Acts are judicial incharacter.7



3/7

3

The Torrens System was formulated to assure landowners covered by original Certificate ofTitle or Transfer Certificate of Title (TCT) issued by the Registry of Deeds that the land titlewill be absolute, indefeasible and imprescriptible. The Torrens system in the Philippineswhich is based on American model is particularly contentious because it requiresintervention of the courts in the title registration process.

Interestingly, most countries in the Asian region have managed to implement an overarching

land law, often referred to as Land Code while the Philippines still implements multipledecrees that often overlap. The percentage share of documented lands in the Philippines is66% compared to Thailand (80+%) and Vietnam (90%).

Table 1. Regional Institutional and Legislative Comparisons

Country Institution/s Legal Framework(date of latest amendments)

Registration

Process

% of Land

Parcels

Registered

Thailand Department of Lands Land Code (2001) Administrative 80+

MalaysiaMinistry of Lands and

Cooperative DevelopmentNational Land Code (2002)

Administrative--

Indonesia National Land Agency Basic Agrarian Law (1998) Administrative 42

CambodiaMinistry of Land

Management, Urban

Planning and ConstructionLand Law (2001)

Administrative37

LaosNational Land Management

Authority, incorporating

Department of Lands

Land Law (2003)Administrative

35

VietnamMinistry of Natural

Resources and EnvironmentLand Law (2003)

Administrative90

Philippines

Department of Justice

Department of Environment

and Natural ResourcesDepartment of Agrarian

Reform

Overlapping and inconsistent

Acts and DecreesJudicial and

Administrative66

Source: Burns, Anthony and Dalrymple, Kate, Land Administration Core Comparisons, Australia, May 2007; Keith Clifford Bell,

January 2007.

Obtaining a formal title in the country through voluntary judicial proceedings has notencouraged a culture of registration. 7 This can be attributed to tedious number of stepsinvolved and the delays due to an overloaded court system and the inability of the courts toallocate sufficient time to land titling matters. Survey of Regional Courts indicates that 15%of all cases handled by the courts is related to land registration issues.8

Moreover, the requirement for judicial determination is not confined to original registration.It includes matters such as reconstitution of lost original titles, replacement of lost duplicatetitles, and removal of notifications on administratively reconstituted titles and correction of



4/7

4

errors (including minor clerical errors) on titles.9 In these requirements, the Philippines madea major departure from the original aim of the Torrens system which was to provide asimple, inexpensive administrative process.

Voluntary judicial proceedings and administrative proceedings can operate in parallel. Thismeans that a claimant may choose which process to use to formalize a title. But each processinvolves different agencies and sadly, the coordination between and among the said agencies

has been problematic. In most cases, competing claims from different proceedings can leadto more friction in the land market.10

Institutional arrangementsA number of government agencies have varied interests in land use planning, landadministration, land development and/or land management (Table 2). Registration alone isundertaken in 162 registries of deeds with a registry in each municipality, city and province.11

The multiple laws12 that mostly define institutional arrangements are complex, overlapping,

and in some cases, inconsistent. Multiplicity of laws governing various aspects of landdevelopment and their enforcement is vested in a number of National GovernmentAgencies and offices as provided in their respective charters.13 Each agency therefore, isguided by its own requirements and standards of operation in carrying out its respectivemandate, for instance, on how to classify agricultural lands within its legal jurisdiction.

Examples of agencies with overlapping functions abound. The Administrative Code of 1987states that DENR shall serve as the sole agency responsible for the surveying of lands.However, the same Code specifies that the Bureau of Land Development under DAR shalldevelop and prescribe procedures and techniques for land surveys in accordance withapproved standards. Moreover, Section 46 of the Indigenous Peoples Rights Act (IPRA)1987 provides that the Ancestral Domains Office within the National Commission forIndigenous Peoples (NCIP) shall be responsible for the identification, delineation, andrecognition of ancestral lands/domains.14

Implications of an inefficient system

There are no provisions for harmonization among these related laws and coordinationamong agencies that implement these laws. As such, the performance of governmentagencies undertaking land administration functions such as surveys, mapping, classification,titling and disposition and registration are hampered by the structure and operation of theland administration system, which further result to other problems such as:15

Multiple standards for mapping and land surveys.There are too many mapswith overlapping territorial boundaries conducted by NAMRIA, DENR and IPRA.While the DENR was the sole agency responsible for classifying land as perCommonwealth Act 141, the IPRA of 1987 gave NCIP a similar function withrespect to ancestral lands, which significantly encompasses unclassified forest lands. 16

Both the DENR regional land management offices and Land Registration Authorityconduct verification and approval of subdivision or consolidation surveys for titlingpurposes, which results in two different sets of parcel maps in different referencesystems, and these are not interlinked.



5/7

5

Table 2. Key Duplication/Overlap Between Agencies

Duplication/Overlap Agencies Involved Source of Duplication/Overlap

Primary classification of public

land as Arable and Disposableland

DENR/NAMRIA

NCIP

Conflict between responsibilities for land

classification as determined by EO 292 ofJuly 1987 (instituting the Administrative

Code), and Indigenous Peoples Rights Act

(IPRA) 1987.

Undertaking of land surveys for

titling purposesDENR (LMB);

DAR

Potentially NCIP

Administrative Code provides authority to

both DENR and DAR to undertake landsurveys. IPRA 1987 gives NCIP

responsibility for the identification,

delineation, and recognition of ancestral

lands/domains.

Approval of subdivision surveys

for titling purposes (for landalready titled)

LMB;

LRA

Property Registration Decree (PD 1529 of

June 1978, As amended) permits eitherLMB or LRA to approve such plans.

Awarding of original private

rights in Arable and Disposable

land

DENR (Patents);

DAR (CLOAs);

Courts (court decrees);

NCIP (CADTs)

Two titling processes (administrative,

judicial), both mandated by law.

Legislation authorizing different forms ofownership rights in land, by administrative

process.

Maintenance of independent,uncorrelated versions of

cadastral maps/records

DENR (LMB);

LRA

A consequence of two agencies involved intwo titling processes.

The practice is neither explicitly mandated

nor necessitated by law.

Compilation of land maps and

informationMultiple agencies A reflection of differing agency needs for

land information but some unnecessary

overlap occurs.

Land valuation and related

mapping for tax purposesBIR; LGUs Different valuation methods mandated by

different property taxation laws.

Source: LAMP-DENR, Institutional Arrangement Policy Study, July 2002.Please note the following abbreviation: BIR (Bureau of Internal Revenue), CADT (Certificate of Ancestral DomainTitle), CLOA (Certificate of Land Ownership Awards); DAR (Department of Agrarian Reform), DENR (Department ofEnvironment and Natural Resources); LMB (Land Management Bureau); LRA (Land Registration Authority); NCIP(National Commission of Indigenous People); and NAMRIA (National Mapping and Resources Information Authority).



6/7

6

Multiple forms for title certificates.There is confusion over the status and relativemerits of various rights in land, e.g, CLOAs, patents, original Certificates of Title,Certificate of Ancestral Land Title, and other decrees. For example, a patent is widelyregarded as a lesser title than a Certificate of Title issued on a judicial decree. Courtshave not respected the indefeasibility of registered patents to the same degree asother titles, while some banks will not lend as much money on them.17

Multiple standards for land valuation.There are multiple systems/methodologiesand laws/regulations used by government agencies for land valuation. The systemsare used for different purposes including real property taxation, compensation forland acquired for public investment, and for land valuation under the CARP.Valuations are often doubtful, incorrect, and influenced by local politics.18

Multiple taxes on land ownership and transfers. Responsibility for taxes on realproperty is shared between the national and local governments with localgovernments collecting taxes on the value of land and both levels taxing landtransfers. The Bureau of Internal Revenue (BIR) collects four (4) major taxes that arerelated to land transfers: capital gains tax, estate tax, donors tax, and documentary

stamp tax. It also collects income tax on real property, professionals and othersparticipating in land markets as a business, value-added tax on certain real propertysales, and minor amount in certificate fees.

The high tax rates in relation to registration of lands transfers discourage formaltransactions (including registration of land transfers) due to high cost; provideincentives and opportunities for inappropriate practices, encourage sellers and buyersto seek non-formal ways of transacting; and put pressure on the land valuationsystem to reduce property assessment and accompanying taxes.

Current reform efforts

There have been long-standing efforts to streamline the countrys land administrativeapproach. Since the 8th Congress, the Land Administration Reform Act (LARA) and relatedmeasures have been filed and refiled without much legislative success. Under the 15 thCongress, House Bill Nos. 44 (Rufus B. Rodriguez and Maximo B. Rodriguez, Jr.), 408 (JuanEdgardo M. Angara), 826 (Diosdado M. Arroyo and Gloria M. Arroyo), 2970 (Salvador H.Escudero III), and 2620 (Ignacio T. Arroyo) are geared to institutionalize reforms in landadministration in order to optimize and rationalize their contribution to the national goals.

Specifically, the LARA proposes to create the Land Administration Authority (LAA) andplace it under the Office of the President. The LAA will serve as the primary governmentagency responsible for land administration and public land management. It will be the soleagency that will prepare, issue, and register all land titles. Further, LARA creates the LandAdjudication Board (LAB) which will serve as a quasi-judicial body of LAA. The LAB willexercise exclusive original jurisdiction over all matters involving the implementation of laws,rules and regulations on land administration and public land management.

Finally, LARA proposes to integrate with LAA the following offices: DENRs LandManagement Bureau, Land Management Services, and Comprehensive Agrarian ReformProgram National Secretariat and its field offices, the Land Registration Authority andRegister of Deeds.



7/7

7

Endnotes

1Novel Bangsal and Ma. Leni Lebrilla , Land Administration System: Functional and Efficiency Implications, PolicyAdvisory No. 2008-5, Congressional Planning and Budget Department, House of Representatives, 2008.2 Daniel Steudler, Abbas Rajabifard, and Ian P. Williamson, Evaluation of Land Administration Systems, available atwww.geom.unimelb.edu.au/research/SDI_research/publications/files/SteudlerEtal2004.pdf, accessed: 3 March 2011.3 P. Dale and JD MacLaughlin,, Land Administration Systems, Oxford University, 1999.4 http://www.fao.org/DOCREP/005/Y4307E/y4307e05.htm download on March 2, 2011.5 Novel Bangsal and Ma. Leni Lebrilla, Land Administration System: Functional and Efficiency Implications, Policy

Advisory No. 2008-5, Congressional Planning and Budget Department, House of Representatives, 2008.6 Ibid.7LAMP-DENR, Land Laws and Regulations Policy Study, Department of Environment and Natural Resources,20028 Ibid.9 Novel Bangsal, and Ma. Leni Lebrilla , Ibid.10 Ibid.11 Ibid.12Anne-Marie Brits, Chris Grant, and Tony Burns, Comparative Study of Land Administration Systems, RegionalWorkshops on Land Policy Issues, Asia Program, 4-6 June 2002.13 The legal framework for the institutional arrangements for land administration comprises three main elements: (1)the Administrative Code; (2) various laws and Executive decrees which include provisions determining the powers ofspecific agencies and/or the functions or activities they administer, and (3) other legislation applicable to land-related

agencies that regulate way in which they are funded and managed, e.g, R.A. No.6656 (LAMP-DENR, InstitutionalArrangement Policy Study, Department of Environment and Natural Resources, July 2002).14 LAMP-DENR, The Land Development Process Study, Department of Environment and Natural Resources,November 2004.15 LAMP-DENR, Institutional Arrangement Policy Study, Department of Environment and Natural Resources, July2002.16 Novel Bangsal and Ma. Leni Lebrilla, Land Administration System: Functional and Efficiency Implications, Policy

Advisory No. 2008-5, Congressional Planning and Budget Department, House of Representatives, 2008.17Ibid.18 Ibid.19 Ibid.


addressing policy gaps in land administration

Documents