PUBLICATION, MAILING, & POSTING/NOTICE
Land Titles & Deed (LTD)
By: MOLINA, ELVIRA A.
A) PUBLICATION
Constructive seizure of the land that is effected through publication of the notice of
initial hearing in the Official Gazette and in a newspaper of general circulation, which
is required in order to accord with the due process requirement (Roxas vs. Court of
Appeal, 270 SCRA 309) and also the posting and mailing thereof to affected parties.
Upon receipt of the order of the court setting the time for initial hearing, the Land
Registration Administrator shall cause a 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.
The procedure prescribed by Act No. 496, now PD No. 1529, and which is followed for
the substantiation in the land court of an application for registration is that
denominated in law 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 it constitutes a
valid and effective title, not only against the owners of the adjacent properties who
appeared at the trial, but also against all whom may have an interest in the land.
The publicity which permeates the whole system established for the registration of real
property requires that the application for registration be accompanied by a plan of the
land, together with its description, and that all the owners of the adjacent properties
and all other persons who may have an interest in the realty shall be notified, which
notifications with a description of the property concerned in the application, shall be
published in the Official Gazette and in a newspaper of general circulation.
Purpose of Publication
• To confer jurisdiction upon the court over the res,
• 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.
MODES OF PUBLICATION
1.) Publication in the Official Gazette does not dispense with the requirement of
notice by mailing and posting.
REPUBLIC vs. MARASIGAN
(GR No. 85515 June 6, 1991)
It was held that the proviso in Section 23 that “the publication in the Official Gazette
shall be sufficient to confer jurisdiction upon the court” was never meant to dispense
with the requirement of notice by mailing and by posting. What it simply means is that
in so far as publication is concerned, there is sufficient compliance if the notice is
published in the Official Gazette, although the law mandates that it be published “once
in the Official Gazette and once in a newspaper of general circulation in the
Philippines.”
However, publication in the latter alone would not suffice. This is to accord primacy to
the official publication. Such proviso was never meant to dispense with the other
modes of giving notice, which remain mandatory and jurisdictional, is obvious from
Section 23 itself which stresses in detail the requirements of mailing of notices to all
persons named in the petition.
2. Publication of notice of initial hearing
Section 23(1) provides that upon receipt of the order of the court setting the case for
initial hearing, the Land Registration Administrator shall cause the notice to be
published once in the Official Gazette and once in a newspaper of general circulation;
however, the publication in the Official Gazette shall be sufficient to confer jurisdiction
upon the court. The notice shall be addressed to all persons appearing to have an
interest in the land, including the adjoining owners if known, and “To All Whom It May
Concern.” The notice shall require all persons concerned to appear in court on the
date and time indicated and to show cause why the application shall not be granted.
3. Publication in a newspaper is necessary to accord with due process requirement
ROXAS vs. COURT OF APPEALS
(GR No. 118436, March 21, 1997, 63 SCRA 302.)
It was held that while publication of the notice in the Official Gazette is sufficient to
confer jurisdiction upon the court, publication in a newspaper of general circulation
remains an indispensable procedural requirement. Couched in mandatory terms, it is a
component of procedural due process and aimed at giving “as wide publicity as
possible” so that all persons having an adverse interest in the land subject of the
registration proceedings may be notified thereof. Although jurisdiction of the court is
not affected, the fact that publication was not made in a newspaper of general
circulation is material and relevant in assessing the applicant’s right or title to the land.
Similarly, in Director of Lands v. Court of Appeals and Abistado, the Court ruled that
Section 23 of PD No. 1529 indeed clearly provides that publication in the Official
Gazette suffices to confer jurisdiction upon the land registration court. However,
absent any publication of the notice of initial hearing in a newspaper of general
circulation, the land registration court cannot validly confirm and register the title of
the applicants.
This is impelled by the demands of statutory construction and the due process
rationale behind the publication requirement. A land registration proceeding is a
proceeding in rem and is validated essentially through publication. The rationale
behind the newspaper publication is due process and the reality that the Official
Gazette is not as widely read and circulated as newspapers and is oftentimes delayed
in its circulation. The registration court has no authority to dispense with such
mandatory requirement. 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 shall have been duly complied with.
Effect of Non- or Defective Publication
In all cases where the authority of the courts to proceed is conferred by a statute and
when the manner of obtaining jurisdiction is mandatory and must strictly be complied
with, or the proceedings will be utterly void.16 Thus, where there is no publication of
the notice of initial hearing, the decision of the land registration court is void. The
requirement of publication is one of the essential bases of the jurisdiction of the
registration court; it is a jurisdictional requisite. Land registration is a proceeding in
rem and jurisdiction in rem cannot be acquired unless there be constructive seizure of
the land publication deprives the court of jurisdiction.18 And when the court
a quo lacks jurisdiction to take cognizance of a case, the same lacks
authority over the whole case and all its aspects.19
B) MAILING
In addition to publication, it is also required that the notice of hearing be mailed to the
persons and officials mentioned in the law. This requirement is mandatory.
RECIPIENTS OF MAILING
1. Mailing to persons named in the application.
Within seven days after publication in the Official Gazette of the notice of initial
hearing, the LRA Administrator shall cause a copy of the notice to be mailed to every
person named in the notice whose address is known. This requirement is
mandatory.20 Where records as that reflected in the official records of the City
Assessor indicate that there are no improvements whatsoever on the property in
question, thus signifying that the property is unoccupied, notice to petitioners would
have been impossible.
2. Mailing to the Secretary of Public (Works) and Highways, Governor and
Mayor
If the applicant requests to have the line of a public way or road determined, the
notice shall also be mailed to the Secretary of Public Works and Highways, Provincial
Governor and Mayor of the municipality or city in which the land is situated.
If the land borders on a river, navigable stream or shore, an arm of the sea, or lake,
or if it otherwise appears that a tenant-farmer or the national government may have a
claim adverse to that of the applicant, the notice shall also be mailed to the Secretary
of Agrarian Reform, the Solicitor General, Director of Lands, Director of Public Works
and Communications, Director of Forest Development, Director of Mines and GeoSciences and Director of Fisheries, Solicitor General, Director of Lands, Director of
Public Works and Communications, Director of Forest Development, Director of Mines
and Geo-Sciences and Director of Fisheries and Aquatic Resources as may be
appropriate.
3. Mailing to the Secretary of Agrarian Reform, Solicitor General, Director of
Lands, Etc.
In practice, the Solicitor General is always furnished with a copy of the notice of initial
hearing. The reason for this is that under the Administrative Code of 1987, the
Solicitor General is bound to “represent the Government in all land registration and
related proceedings.” No other officer, including the Administrator of the Land
Registration Authority, can exercise such function.
It is also the practice in the Office of the Solicitor General (OSG) to deputize lawyers in
government offices involved in land matters or provincial or city prosecutors to
represent the government in the handling of such proceedings. These deputized
officers are always under the direction and control of the Solicitor General himself.
Only notices of court proceedings and related processes actually served upon the
Solicitor General are binding on his office.
(PD No. 478, the Magna Carta of the OSG, which took effect on
June 4, 1974,) Sec. 23(2)(b), PD No. 1529. Sec. 23(2)(c), ibid.
Ramos v. Rodriguez, GR No. 94033, May 29, 1995, 244 SCRA 418.
Functions and Organization (Sec 1)
1. The Office of the Solicitor General 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.
When authorized by the President or head of the office concerned, it shall also
represent government-owned or controlled corporations. The Office of the Solicitor
General shall constitute the law office of the Government and, as such, shall discharge
duties requiring the services of a lawyer. It shall have the following specific powers
and functions:
(a) Represent the Government in all land registration and related proceedings.
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.
(b) Deputize, whenever in the opinion of the Solicitor General the public
interest requires, any provincial or city fiscal to assist him in the performance of any
function or discharge of any duty incumbent upon him, within the jurisdiction of the
aforesaid provincial or city fiscal. When so deputized, the fiscal shall be under the
control and supervision of the Solicitor General with regard to the conduct of the
proceedings assigned to the fiscal, and he may be required to render reports or furnish
information regarding the assignment.” The Solicitor General, therefore, has “control
and supervision” over the special attorney or prosecutor who has been deputized to
appear for him.
The special attorney or prosecutor is no more than the “surrogate” of the Solicitor
General in any particular proceeding. As the principal counsel, the Solicitor General is
entitled to be furnished copies of all court orders, notices, and decisions. His
appearance therein is premised on his authority to protect the interest of the
government and not that of any particular government official or agency.25
If the land borders on a river, navigable stream or shore, or an arm of the sea, or if it
otherwise appears that a tenant-farmer, or the national government, may have a claim
adverse to the applicant, notice shall be given in the same manner to the Secretary of
Agrarian Reform, Solicitor General, Director of Lands, Director of Mines and GeoSciences, Director of Fisheries and Aquatic Resources, as may be appropriate.
C. POSTING
The Land Registration Administrator 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.
The notice of initial hearing shall, in form, be substantially as follows:
Sample Contents of Applicant Notice
(Caption and Title)
To (here insert the names of all persons appearing to have an interest and the
adjoining owners so far as known, and to all whom it may concern. An application (or
petition) having been filed in the above entitled case by (full name and address)
praying for the registration and confirmation (or for the settlement and adjudication,
in case of petition in cadastral proceedings) of title to the following described lands:
(Insert description)
You are hereby served this notice to appear before this Court
at its session to be held at ____________________________ on the
__________ day of _______________, 19 ______, at _____________
o’clock in the _________ then and there to present such claims as you may have to
said lands or any portion thereof, and to submit evidence in support of such claim;
and unless you appear at said Court at the time and place aforesaid, your default will
be recorded and the title to the lands will be adjudicated and determined in
accordance with law and the evidence before the Court, and thereafter you will forever
be barred from contesting said application (or petition) or any decree entered thereon.
Witness, the Hon. __________________________ Judge of the
Regional Trial Court of ____________ this _______ day
of ________________, in the year 20______.
Attest:
Administrator, Land Registration Authority
NOTICE OF INITIAL HEARING
Under Section 23 of PD 1529 Notice of initial hearing directs that the court, within five
days from the filing of the application, shall 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
by means of: (a) publication, (b) mailing, and (c) posting. The requirement of giving
notice by all three modes is mandatory.
The duty and the power to set the hearing date lies with the land registration court.
After an applicant has filed his application. (Director of Lands v. Court of Appeals and
Abistado, GR No. 102858, July 28, 1997, 27 SCRA 276).
the law requires the issuance of a court order setting the initial hearing date. The
notice of initial hearing is a court document. The notice of initial hearing is signed by
the judge and copy of the notice is mailed by the clerk of court to the LRA. This
involves a process to which the party applicant absolutely has no participation. This
principle is illustrated in the case of
REPUBLIC vs. MANNA PROPERTIES INC.
(G.R. No. 146527 : January 31, 2005)
FACTS:
“Petitioner contends that PD No. 1529 sets a 90-day maximum period between the
court order setting the initial hearing date and the hearing itself. Petitioner points out
that in this case, the trial court issued the order setting the date of the initial hearing
on 15 March 1995, but the trial court set the hearing date itself on 18 July 1995.
Considering that there are 125 days in between the two dates, petitioner argues that
the trial court exceeded the 90-day period set by PD 1529. Thus, petitioner concludes
‘the applicant [Manna Properties] failed to comply with the jurisdictional requirements
for original registration.’
The facts reveal that Manna Properties was not at fault why the hearing date was set
beyond the 90-day maximum period. The records show that the Docket Division of the
LRA repeatedly requested the trial court to reset the initial hearing date because of
printing problems with the National Printing Office, which could affect the timely
publication of the notice of hearing in the Official Gazette. Indeed, nothing in the
records indicates that Manna Properties failed to perform the acts required of it by
law.
ISSUE: W/N applicant failed to comply with the requirements under the law.
RULING:
held that ‘a party to an action has no control over the Administrator or the Clerk of
Court acting as a land court; he has no right to meddle unduly with the business of
such official in the performance of his duties.’ A party cannot intervene in matters
within the exclusive power of the trial court. No fault is attributable to such party if
the trial court errs on matters within its sole power. It is unfair to punish an applicant
for an act or omission over which the applicant has neither responsibility nor control,
especially if the applicant has complied with all the requirements of the law.” (GR No.
146527, Jan. 31, 2005, 450 SCRA 247)
Lack of Personal Notice does not vitiate the proceedings
The case of Roxas v. Enriquez has discussed at some length the nature of a
registration proceeding as in rem and not in personam and the implications of this
principle on the need of personal notice to claimants. The Supreme Court declared
that a proceeding in rem, dealing with a tangible res, may be instituted and carried to
judgment, without personal service upon the claimants, for jurisdiction is secured by
the power of the court over the res.
Such a proceeding would be impossible were this not so, for it would hardly do to
make a distinction between the constitutional rights of the claimants who were known
and those who were not known, when the proceeding is to bar all. The requirement
that personal notice shall be a prerequisite to the validity of registration would
absolutely prohibit the foreclosure of unknown claims, for the reason that personal
notice could never be given to “unknown claimants.”
The great difficulty in land titles arises from the existence of possible unknown
claimants. Known claimants can be dealt with. They furnish no valid impediment, in
fact, to the transfer of title. Courts have held that in actions in rem; personal notice to
owners of a res is not necessary to give the courts jurisdiction to deal with and to
dispose of the res.
The State, as sovereign over the land situated within it, may provide for the
adjudication of title in a proceeding in rem or in the nature of a proceeding in rem,
which shall be binding upon all persons, known or unknown. It seems clear then that
lack of personal notice will not vitiate the proceedings. In this connection, it may be
needful to point out that pursuant to Section 23, on the matter of notice, “(t)he court
may also cause notice to be served to such persons and in such manner as it may
deem proper.” Evidently, personal notice is not necessary unless required by the court.
PURPOSE OF NOTICE BY ALL THREE MODES
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. Judicial notice may be taken of the fact that only very few have access to or
could read the Official Gazette, which comes out in few copies only per issue.
If publication in the Official Gazette of the notice of hearing would be sufficient to
confer jurisdiction upon the court, owners of both unregistered and registered lands
may someday painfully find out that others have already certificates of title to their
lands because scheming parties had successfully caused their registration, or secured
reconstituted certificates of title thereto and sold the same to third parties
WHEN NEW PUBLICATION IS NECESSARY
New publication necessary to include additional area. As elsewhere stated, publication
is one of the essential bases of the jurisdiction of the court in land registration and
cadastral cases. Before a survey can be amended so as to include land in which no
publication has been made, new publication is necessary — a step essential to the
protection of persons interested in the property which is intended to be included.
Where no publication has ever been made except the initial publication, and this did
not include the additional area, the registration court had no jurisdiction over said area
and its adjudication to the applicant is a nullity. (Philippine Manufacturing Co. v.
Imperial, GR No. 24908, March 31, 1926, 49 Phil. 122)
Under Section 19 of PD No. 1529, the registration court may allow an amendment
of the application, including joinder, substitution, or discontinuance as to parties at
any stage of the proceedings upon just and reasonable terms. And under Section 18,
the court may at any time order an application to be amended by striking out one
or more parcels or by severance of the application.
As stated in Benin v. Tuason,14 the amendment may be made in the application or in
the survey plan, or in both, since the application and the survey plan go together. If
the amendment consists in the inclusion in the application for registration of an area
or parcel of land not previously included in the original application, as published, a
new publication of the amended application must be made.
The purpose of the new publication is to give notice to all persons concerned
regarding the amended application. Without a new publication the registration court
can not acquire jurisdiction over the area or parcel of land that is added to the area
covered by the original application, and the decision of the registration court would
be a nullity insofar as the decision concerns the newly included land.
The reason is because without a new publication, the law is infringed with respect to
the publicity that is required in registration proceedings, and third parties who have
not had the opportunity to present their claim might be prejudiced in their rights
because of failure of notice.
But if the amendment consists in the exclusion of a portion of the area covered by the
original application and the original plan as previously published, a new publication is
not necessary. In the latter case, the jurisdiction of the court over the remaining area
is not affected by the failure of a new publication. The right of the land registration
court to correct an error of closure is authorized by law, provided such correction does
not include land not included in the original petition.
THE END