Ra 10752 Irr
Ra 10752 Irr
Ra 10752 Irr
Section 1. COVERAGE
This IRR shall cover the acquisition of real properties needed as right-of-
way, site or location for national government projects undertaken by any
department, bureau, office, commission, authority or agency of the national
government, including any government-owned or controlled corporation or
state college or university, authorized by law or its respective charter to
undertake national government projects.
As provided in Section 4 of the Act, the following are the regular modes of
ROW acquisition:
a. Donation
b. Negotiated Sale
c. Expropriation
b. Exchange or Barter
c. Easement of Right-of-Way
Section 5. DONATION
The IA may explore the mode of donation of the needed portion or whole of
the affected property, i.e., lots with or without improvements, by the
property owner concerned, which may be a private individual/corporation
or a government agency/corporation.
The donation must be accepted by the IA, which shall be indicated in the
deed.
The lA shall pay the documentary stamp tax, transfer tax and registration
fees, while the donor shall pay any unpaid real property tax.
The IPA shall be procured by the IA under the provisions of RA No. 9184,
otherwise known as the "Government Procurement Reform Act," and its
IRR pertaining to consulting services.
For this purpose, the BSP and the professional association of appraisers
shall provide their lists of IPAs upon request of the IA. The BSP and the
professional association of appraisers shall not be accountable for any acts
of the IPAs stated in the list.
The IA may use the appraisal reports of the GFI or IPA as one of the bases
of the IA's price offer for negotiated sale, consistent with the standards for
assessment under Section 12 of this IRR. For this purpose, the IA is
encouraged to develop its in-house personnel capable of validating
appraisal reports.
As basis for the engagement of the services of a GFI or IPA, the IA shall
prepare the Terms of Reference (TOR) for the services. The TOR shall
contain, among other things, the following basic content:
a. Background of the project for which the ROW is required, and the
objectives of the property appraisal services to be provided by the GFI
or IPA;
In preparing the TOR, the IA may consult the GFI in case of services to be
provided by the latter.
c. The IA shall pay the GFI an appropriate fee for its appraisal services
in accordance with the terms of the MOA.
An IPA must meet the following criteria to qualify for the consulting
services:
b. The IPA must comply with the experience and other eligibility
requirements provided in RA No. 9184 and its IRR, including the
registration and license required for a Real Estate Appraiser.
With regard to Section 6.1b of this IRR, the Replacement Cost of a structure
or improvement affected by the ROW shall be based on the current market
prices of materials, equipment, labor, contractors profit and overhead, and
all other attendant costs associated with the acquisition and installation of
a similar asset in place of the affected asset.
If the affected structure has been damaged, then the Replacement Cost
should be based on the predamaged condition of that structure. The
Replacement Cost of the structure may vary from the market value of the
existing structure since the structure that would actually replace it may
have a different cost at current market prices. The replacement structure
has to perform the same functions and meet the performance
specifications as the original structure.
b.
c. Based on the basic plan and specifications prepared in Section 6.6a of
this IRR, the IA shall prepare the Replacement Cost of the structure.
The Replacement Cost is the price that the IA will pay the owner to
replace the existing structure or asset with a similar asset at current
market prices.
d. The Replacement Cost shall be composed of the Estimated Direct
Cost and the Estimated Indirect Cost of the replacement structure.
These components shall be calculated in accordance with the
succeeding items.
Fringe benefits, such as vacation and sick leaves, benefits under the
(b) Workmen's Compensation Act, Social Security System (SSS)
contributions, allowances, 13th month pay, bonuses, etc.
f. The Estimated Indirect Cost shall consist of the following items based
on accepted construction industry practices:
Overhead Expenses not exceeding eight percent (8%) of the EDC, which
(1)
include the following, as applicable:
Contractor's Profit Margin not exceeding eight percent (8%) of the EDC
(3) for projects with an EDC of more than PhP 5 million and ten percent
(10%) for projects with an EDC ofPhP 5 million and below.
As provided in Section 5 of the Act, the property owner is given thirty (30)
days from receipt of the written offer by the IA to decide whether or not to
accept the offer as payment for his property. Upon refusal or failure of the
property owner to accept such offer or if he fails and/or refuses to submit
the documents necessary for payments, the IA shall immediately initiate
the expropriation proceedings as provided in Section 7 of this IRR.
The provisions of Section 6.6 of this IRR pertaining to the replacement cost
of structures and improvements shall also apply to all owners of structures
and improvements who do not have legally recognized rights to the land,
and who meet all of the following criteria:
b. Must not own any real property or any other housing facility, whether
in an urban or rural area;
As provided in Section 5(c) of the Act, the IA shall pay for account of the
seller/owner, the Capital Gains Tax (CGT), as well as the Documentary
Stamp Tax (DST), transfer tax and registration fees, while the owner shall
pay any unpaid real property tax.
The IA shall pay the CGT to the Bureau of Internal Revenue (BIR) based on
the actual consideration stated in the Deed of Sale, as expressed below:
AC=NAC+CGT
where:
CGT = Capital Gains Tax to be paid by the IA to the BIR, for the account
of the owner.
The above provision pertaining to CGT does not apply to the sale of
property classified as ordinary assets. The latter is subject to the existing
BIR rules and regulations.
ln addition, the DST, transfer tax and registration fees for the negotiated
sale shall be paid by the IA in accordance with pertinent laws and
regulations.
Upon the request of the property owner, the IA shall remit to the LGU
concerned the amount corresponding to any unpaid real property tax,
subject to the deduction of this amount from the total negotiated price,
provided that the said amount is not more than the negotiated price.
As provided in Section 5(e) of the Act, the property owner and the IA shall
execute a Deed of Absolute Sale after the property owner has submitted to
the IA the Transfer Certificate of Title, Tax Declaration, Real Property Tax
Certificate or Clearance (as issued by the Treasurer of the concerned LGU)
and other documents necessary to transfer the title to the Republic of the
Philippines. The IA shall cause the annotation of the Deed of Absolute Sale
on the Transfer Certificate of Title.
In case of sale of land with structures and other improvements, the Deed of
Sale shall provide a stipulation allowing the IA or its authorized
representatives to demolish and remove them. The Deed of Sale shall also
include a stipulation on the right of the IA to immediately enter the
property and implement the project.
Upon the execution of a Deed of Sale, the IA shall pay the property owner:
Where the property owner owns only the land, as provided in Section 5(g)
of the Act, the IA shall, at the periods stated below, pay the property owner
the remaining fifty percent (50%) of the negotiated price of the affected
land, exclusive of unpaid taxes remitted to the LGU concerned under
Section 6.9 of this IRR:
a. At the time of the transfer of title in the name of the Republic of the
Philippines, in cases where the land is wholly affected; and
a. At the time of the transfer of title in the name of the Republic of the
Philippines, in cases where the land is wholly affected; and
The IA shall ensure the faithful and prompt compliance with the above
payment procedures and may revise or issue the necessary orders and
directives to this effect.
The IA shall pay the CGT to the BIR within thirty (30) days after (a) the
release of the initial payments specified above or (b) the notarization of the
Deed of Sale, whichever is earlier. The IA shall also pay the DST within five
(5) days after the close of the month when the Deed of Sale is notarized.
6.11 Outstanding Claims for ROW Payments
In accordance with Section 5 of the Act, the provisions of Section 6.1 of this
IRR shall also apply to outstanding claims for right-of-way payments,
except that the amount to be offered shall be the price at the time of taking
of the property, including legal interest until fully paid, subject to the
transitory provision in Section 19 of this IRR.
Section 7. EXPROPRIATION
a. Upon the filing of the complaint or at any time thereafter, and after
due notice to the defendant, the IA shall immediately deposit to the
court in favor of the owner, the amount equivalent to the sum of:
One hundred percent (100%) of the value of the land based on the
current relevant zonal valuation of the BIR, issued not more than three
(1)
(3) years prior to the filing of the expropriation complaint, subject to
Section 7(c) of this IRR;
The current market value of crops and trees located within the property
as determined by the government financial institution or an
(3)
independent property appraiser to be selected as indicated in Section 6
of this IRR.
b.
Upon compliance with the above guidelines, the court shall
immediately issue an order to take possession of the property to the
IA which shall start the implementation of the project.
If within seven (7) working days after the deposit to the court of the
amount equivalent to the sum under items (a)(l) to (a)(3) of Section 7
of this IRR, and the court has not issued to the IA a writ of possession
for the affected property, the counsel of the IA shall immediately seek
from the court the issuance of the writ of possession. The court shall
immediately issue the writ of possession ex parte; no hearing shall be
required.
The court shall release the said amount to the owner upon
presentation of sufficient proofs of ownership.
If within seven (7) working days after the deposit with the court of the
amount equivalent to the sum under items (a)(l) to (a)(3) of Section 7
of this IRR, the court has not issued to the IA a writ of possession for
the affected property, the counsel of the IA shall immediately seek
from the court the issuance of the writ of possession.
The court shall release the said amount to the person adjudged in the
same expropriation proceeding as entitled thereto.
f. In any of the cases in items (a) to (d) of Section 7 of this IRR, upon its
receipt of the writ of possession issued by the court, the IA may take
possession of the property and start the implementation of the
project.
g. In the event that the owner of the property contests the IA's proffered
value, the court shall determine the just compensation to be paid the
owner within sixty (60) days from the date of filing of the
expropriation case. When the decision of the court becomes final and
executory, the IA shall pay the owner the difference between the
amount already paid and the just compensation as determined by the
court.
h. With regard to the taxes and fees relative to the transfer of title of the
property to the Republic of the Philippines through expropriation
proceedings, the IA shall pay the DST, transfer taxes under RA No.
7160 and registration fees, while the owner shall pay the CGT, any
unpaid real property tax, and all other applicable taxes under the law.
The owner shall pay the CGT to the BIR within thirty (30) days after
the judgment in the expropriation case had become final and
executory. The IA shall also pay the DST within five (5) days after the
close of the month when the judgment in the expropriation case had
become final and executory.
If the government decides to exercise its right to use the ROW strip
reserved for public use within the land acquired under CA No. 141, the
owner is required to execute a quit claim. The IA shall then take possession
of the property affected by the ROW without any compensation to the
owner for the land, but shall pay the owner the cost of the damages for the
improvements within that land equivalent to their replacement cost as
determined in accordance with Section 6.6 of this IRR. If the owner refuses
or is unable to issue a quit claim, the concerned government officials
responsible for the implementation of projects are authorized to
immediately take possession of the portion of property subject of the lien,
as the need arises and upon due notice to the owner. This is without
prejudice to the IA resorting to appropriate proceedings to acquire
immediate possession of the property.
PD No. 1381 also allows the government to utilize the reserved ROW strip
for temporary buildings for Resident and or Project Engineers needed in
the prosecution of an infrastructure project. Once the infrastructure project
is completed and the temporary buildings used by Resident/Project
Engineers are no longer needed, the possession of the portion of property
used for the building shall revert to the title holders.
Instead of being paid the money value of his property, the owner of a
property needed for a ROW of a national government project may request
the government to exchange or barter an old abandoned government road
or other government property near the project with his said property. The
IA may favorably consider this mode, subject to the provisions of relevant
laws and the following conditions:
d. The private property owner and the IA which are parties to the
exchange or barter agreement shall be subject to applicable CGT and
DST in accordance with BIR rules and regulations.
If the portion of a lot needed for a ROW is minimal, such that the expenses
for surveying or segregating that portion from the main lot would be very
much more than the value of the part of the lot needed, the IA may, if the
property owner agrees, resort to the mode of Easement of ROW provided
under the Civil Code.
The IA shall pay the owner the value of that portion of the lot based on the
existing zonal valuation declared by the BIR. In addition, the IA shall
compensate the property owner the replacement cost of any improvements
and structures on the land affected by the ROW in accordance with Section
6.6 of this IRR. Entry by the IA to the acquired property may be effected
upon full payment of the value of the property. The IA may engage the
services of an IPA to determine the amount of the easement to be paid.
The IA shall cause the registration of all ROW easement agreements with
the Register of Deeds concerned within ten (I0) days from the date of their
execution. The Register of Deeds shall annotate on the respective titles the
agreements within seven (7) days from receipt thereof.
The IA shall duly consult with and notify the affected property owners of
any acquisition of subsurface right of way needed for the infrastructure
projects.
To assist the IA in determining (a) the appropriate price offer for the
perpetual easement of the ROW under Section 11a of this IRR or (b) the
appropriate price offer for the entire affected land including structures,
improvement, crops and trees under Section 11b of this IRR, the IA may
engage the services of a GFI or an IPA, in accordance with the procedure
provided in Section 6 of this IRR. The easement price under Section 11a of
this IRR shall be twenty percent (20%) of the market price of the land.
The IA shall follow the other rules for negotiated sale provided in Section 6
of this IRR.
a. The classification and use for which the property is suited based on,
among other things, the latest approved land use plan and or zoning
ordinance, if any, of the city or municipality concerned;
b. The development cost for improving the land based on, among other
things, the records and estimates of the City or Municipal
Assessor concerned, GFI or IPA for similar or comparable lands;
c. The value declared by the owners based on the value shown in the
owners' latest Tax Declaration Certificates or Sworn Statements;
d. The current selling price of similar lands in the vicinity based on,
among other things, the latest records on Deeds of Sale for similar
lands in the office of the Register of Deeds concerned;
f. The size, shape or location, tax declaration and zonal valuation of the
land based on, among other things, the latest records on Deeds of
Sale in the Register of Deeds, tax declaration by the City or Municipal
Assessor, zonal valuation of the BIR for comparable properties;
The price of the land as manifested in the ocular findings, oral as well
as documentary evidence presented; and
In all cases, the increase in the value of the affected property brought about
by the government project itself shall not be considered in the
determination of the purchase price.
As provided in Section 6.3 of this IRR, the Terms of Reference, which shall
be used by the GFIs and IPAs in the determination of the market value of
the land, should include the applicable standards stated in this Section.
For projects undertaken through PPP schemes under RA No. 6957 (as
amended), its IRR, and other pertinent laws, the provisions of the same
shall govern the requirements for obtaining an ECC/CNC.
For PPP projects, the IA may, as part of the contract terms and conditions,
require the project proponent to:
a. advance the funds covering the cost of the ROW which shall be
reimbursed later by the IA, except for unsolicited proposals; or
b. finance the ROW cost for the government which shall be recovered
partly or fully by the proponent from the tolls, fees, or tariffs to be
charged to the users of the completed project.
For budgeting purposes, the ROW costs of projects without any benchmark
prices may be based on the BIR zonal values times a factor not exceeding
two (2).
For projects that have undergone pre-feasibility or feasibility study only,
the proposed budget or appropriations for the replacement cost of affected
structures or improvements may be based on benchmark unit costs which
are derived from industry standards and accepted by the DPWH. An
example of a benchmark unit cost is cost per square meter of floor area of a
house or building.
For projects that have undergone detailed engineering design, the proposed
budget or appropriations for the replacement cost of affected structures or
improvements shall be based on detailed estimates, including bill of
materials/quantities, in accordance with the standards and procedures set
by the DPWH.
As provided in Section 11 of the Act, upon the approval by the Head of the
IA concerned of an infrastructure project with funding authorized in the
General Appropriations Act and with defined ROW, no National
Government Agency or LGU shall, within two years from date of notice of
taking, allow within the said ROW any development or construction, or
issue any building, construction, development or business permit, which is
contrary to the approved plans and purposes of the project, unless explicitly
authorized by the Head of the IA for justifiable reasons.
For this purpose, the date of notice of taking is the date of the letter issued
by the IA to the concerned landowners, after the approval of the LAPRAP as
part of the detailed engineering design, informing them of the intent of the
IA to acquire their lands for the ROW.
Said Manual must be consistent with the provisions of the Act and this IRR
and shall be customized to the particular requirements and systems for
ROW acquisition of the IA. The IA Manual shall serve as the standard or
uniform reference for the specific rules, processes, standard documents,
and template forms to be used by the IA and its concerned central and field
offices in the acquisition of ROW. The IA Manual shall also be used by
property owners as their reference on the requirements and procedures to
be followed to facilitate ROW acquisition, while ensuring that they obtain
due process and fair compensation. Finally, the IA Manual shall serve as a
guide for the GFIs and IPAs to be engaged by the IA in determining the
appropriate price offers to property owners affected by ROW acquisition.
The IA Manual shall include the following basic content, as adapted with
modifications from the DPWH Manual:
1. INTRODUCTION
1.1 Purpose of the Manual
1.2 Coverage and Applications of the Manual
APPENDICES
RA No. 10752
IRR of RA No. 10752
CA No. 141
Relevant Department/Agency Orders
ROW Action Plan Preliminary Cost Estimates: for Land,
Structures/Improvements and Crops/Trees
ROW Action Plan Data Checklist
ROW Action Plan Report Outline
Templates for Environmental Scoping, EIA, Environmental
Management Plan (EMP), Screening, Initial Environmental
Examination (IEE) Checklist
ROW Action Plan Final Cost Estimates: for Land,
Structures/Improvements and Crops/ Trees
Parcellary Survey ROW Land Data
ROW Compensation Matrix
Deed of Donation Template
Deed of Sale Template
Deed of Exchange or Barter Template
Template Agreement to Demolish and Remove Improvements
(ADRI)
Quit Claim Deed Template
Easement of ROW Agreement Template
Permit to Enter Template
WORKFLOW CHARTS
Overall Process Flow
Project Identification, Feasibility Study, Design and ROW Action
Plan Preparation
EIA
Conduct of Parcellary Survey
Preparation of LAPRAP
ROW Acquisition through Donation
ROW Acquisition through Negotiated Sale
Preparation of Deed of Absolute Sale
Transfer of Title/Tax Declaration
ROW Acquisition through Expropriation
ROW Acquisition for Lands under CA No. 141
ROW Acquisition through Exchange or Barter
ROW Acquisition through Easement of ROW
Acquisition of Subsurface ROW
Clearing of ROW
Processing of Title Documents
Management of ROW
The IA shall ensure that its Manual includes, among other things, faithful
and prompt compliance with the prescribed payment procedures under
Section 6.10 of this IRR.
Section 19. TRANSITORY CLAUSE
As provided in Section 14 of the Act, the provisions of this IRR shall apply
to all ROW transactions, except ongoing transactions which, as of the
effectivity of this Act, have already reached a written agreement as to the
price between the IA and the property owner.
As provided in Section 16 of the Act, RA No. 8974 is hereby repealed and all
other laws, decrees, orders, rules and regulations or parts thereof
inconsistent with this Act are hereby repealed or amended accordingly.
This IRR shall take effect fifteen (15) days following its publication in at
least two (2) newspapers of general circulation.
FLORENCIO B. ABAD
(Sgd.) EMMANUAL L. CAPARAS
Secretary, Department of Budget
Secretary, Department of Justice
and Management
Member
Member
(Sgd.) EMMANUEL F.
ESGUERRA
Secretary of Socio-Economic (Sgd.) CHITO M. CRUZ
Planning and Chairperson, Housing and Urban
Director General, National Economic Development Coordinating Council
and Member
Development Authority
Member
ANNEXA
TEMPLATE TERMS OF REFERENCE
FOR PROPERTY APPRAISAL SEVICES PURSUANT TO RA NO.
10752
1. Background:
o Insert a brief description and map of the project for which the
Right-of-Way (ROW)is required.
o Insert the Parcellary Survey Report for the project indicting
the properties affected by the ROW.
This shall be based on, among other things, the latest approved
land use plan and/or zoning ordinance, if any, of the city or
municipality concerned.
This shall be based on, among other things, the records and
estimates of the City or Municipal Assessor concerned, GFI or
IPA for similar or comparable lands.
This shall be based on the value shown in the owners' latest Tax
Declaration Certificates or Sworn Statements.
This shall be based on, among other things, the latest records
on Deeds of Sale for similar lands in the office of the Register of
Deeds concerned.
These shall be based on, among other things, the latest records
on Deeds of Sale in the Register of Deeds, tax declaration by the
City or Municipal assessor, zonal valuation of the BIR for
comparable properties.
6.
7. (If IA is engaging an IPA) Qualification of IPA – An IPA must
meet the following criteria to qualify for the consulting services:
o The IPA must be in the list of the BSP or a professional
association of appraisers recognized by the BSP, provided, that
an IPA not yet included in the list shall not be barred from
joining the procurement for such services; and provided further
that, prior to award of the contract, such IPA shall be required
to submit a proof that they are already included in the list.
o The IPA must comply with the experience and other eligibility
requirements provided in R.A 9184 and its IRR, including the
registration and license required for a Real Estate Appraiser.
ANNEX B
ILLUSTRATIVE EXAMPLE OF COMPUTATION FOR CAPITAL
GAINS TAX
Given:
Questions:
What is the Net Amount that the IA should pay to the property
(a)
owner?
How much is the Capital Gains Tax (CGT) to be paid by the IA to the
(c)
BIR for the account of the owner?
Answers:
(c) CGT to be paid by the IA to BIR for the account of the owner: