Can the Government Seize Private Land for Infrastructure?

Introduction

Yes. The Philippine Government may acquire or take private land for national highways, railways, and other public infrastructure projects through the constitutional power of eminent domain. This power is not absolute: the taking must serve a genuine public use, comply with due process, and be accompanied by just compensation.

The governing law is the Right-of-Way Act, as amended by Republic Act No. 12289. The law provides acquisition methods and procedures intended to secure land for infrastructure projects while protecting the rights of affected owners, occupants, and other claimants.

What Is the Government’s Legal Authority?

Article III, Section 9 of the 1987 Constitution provides that private property shall not be taken for public use without just compensation. The power of eminent domain is principally legislative, but Congress may delegate it to the President, government agencies, local government units, and private entities performing public services.

The Supreme Court has identified five requirements for a valid taking: the property must be private; the taking must be genuinely necessary; it must be for public use; just compensation must be paid; and the process must comply with due process. These requirements were restated in Republic of the Philippines v. Espina & Madarang, Co., et al., G.R. No. 226138, 2024.

Under the amended Right-of-Way Act, the Government may acquire property through donation, negotiated sale, expropriation, or another legally authorized method. Local government units may also adopt the law for local infrastructure projects, subject to the Local Government Code.

What Infrastructure Projects Are Covered?

The statute primarily governs the acquisition of right-of-way, sites, or locations for national government infrastructure projects. These may include national highways, expressways, bridges, railway systems, tunnels, floodways, waterways, subways, and utility facilities connected with public infrastructure.

The amended law also recognizes infrastructure projects undertaken by private entities providing public services. Subject to statutory conditions and regulation, such entities may be authorized to exercise eminent domain. The expansion does not remove the constitutional requirements of public use, due process, and just compensation.

How May the Government Acquire the Land?

The principal modes of acquisition are:

• Donation, when the owner voluntarily transfers the property without payment;
• Negotiated sale, when the Government and the owner agree on the terms and price;
• Expropriation, when the Government files a court action to acquire the property upon payment of just compensation; and
• Other modes authorized by law, including arrangements specifically applicable to patent lands or infrastructure easements.

Negotiation is generally preferable because it may avoid litigation. If negotiations fail, however, the Government may proceed with expropriation when the statutory and constitutional requirements are satisfied.

Can the Government Take Possession Before Full Payment?

In an expropriation case, the Government may obtain possession before the final amount of compensation is determined, provided it complies with the applicable right-of-way procedure. The procedure is intended to prevent infrastructure projects from being indefinitely delayed while the final valuation is litigated.

Under Section 6 of Republic Act No. 8974, as the predecessor statute, the Government was required to provide the statutory provisional payment for national infrastructure projects. The current governing statute is Republic Act No. 12289, which amended Republic Act No. 10752. The current deposit and possession requirements should therefore be determined from the amended law and its applicable implementing rules.

The Supreme Court has recognized that effective taking may occur before full payment. In Republic of the Philippines, et al. v. Philippine International Air Terminals Co., Inc., et al., G.R. No. 181892, 2015, the Court explained that the Government may enter and use property upon the issuance of a writ of possession, while interest may be due when payment follows the taking.

What Amount Must Be Deposited?

For national government infrastructure projects, Section 6 of Republic Act No. 10752, as amended by Republic Act No. 12289, provides the statutory basis for the provisional deposit. The cited provision requires a deposit equivalent to 100% of the land value based on the current relevant Bureau of Internal Revenue zonal valuation issued within the prescribed period, subject to the statute’s other requirements.

BIR Ruling No. 341-2020 states that Section 6 of Republic Act No. 10752 controls the determination of the proper zonal valuation for the required deposit in an expropriation case. Where no zonal valuation exists for the property’s classification, the ruling recognizes the use of the zonal value and classification of similar property in adjacent areas, subject to the applicable factual and administrative requirements.

The provisional deposit is not necessarily the final amount of just compensation. The court must still determine the compensation ultimately payable based on the evidence and the governing valuation rules.

When Is Just Compensation Determined?

As a general rule, just compensation is based on the property’s fair market value at the time of taking, rather than automatically on the date the complaint was filed. In Comagul, et al. v. National Grid Corporation of the Philippines, G.R. No. 254020, 2023, the Court held that when possession was taken before the filing of the expropriation case, the date of actual taking is the relevant reckoning point.

The concept of taking is broader than the transfer of title. It may occur when the owner is dispossessed, when the property’s value is materially impaired, when its ordinary use is substantially restricted, or when the owner is deprived of effective control and beneficial enjoyment.

The final amount may include compensation for land, improvements, structures, and other legally compensable losses. The valuation must be based on competent evidence and must be fair both to the owner and to the public.

Can a Right-of-Way Easement Amount to a Taking?

Yes. Eminent domain is not limited to the transfer of ownership or physical possession. A right-of-way easement may constitute a compensable taking when it materially diminishes the property’s value or substantially interferes with its ordinary use for an indefinite period.

In Baterna, et al. v. National Transmission Corporation, G.R. No. 276920, 2026, the Supreme Court recognized that an easement for transmission lines may fall within expropriation when the interference with property rights is direct and substantial. The same principle may apply to railway alignments, highway restrictions, underground structures, and other permanent infrastructure burdens.

Can the Government Use Subsurface Land?

Under Section 4 of Republic Act No. 12289, infrastructure such as subways, tunnels, underpasses, waterways, floodways, and utility facilities may be built in the subsurface or subterranean portions of private and government land.

For ordinary projects, the law refers to subsurface use more than 40 meters from the surface. For government priority infrastructure projects, the specified depth is 18 meters from the surface. The implementing agency or authorized private entity must, during design, avoid existing subsurface structures when technically reasonable. If existing structures cannot reasonably be avoided, their owners must be compensated under the law.

Subsurface use is not automatically free from compensation. The relevant inquiry is whether the authorized use causes a legally cognizable interference with ownership, possession, value, or beneficial enjoyment.

What Happens to Patent Lands?

Special rules may apply to land granted under Commonwealth Act No. 141, or the Public Land Act, as amended. Comagul, et al. v. National Grid Corporation of the Philippines, G.R. No. 254020, 2023, recognized that the Right-of-Way Act and the Public Land Act may operate together.

Where the land remains subject to statutory restrictions or liens connected with a patent, the implementing agency must apply the rules governing patent lands. The treatment may differ depending on whether the claimant is the original patent holder, whether the title was acquired gratuitously, and whether the statutory restrictions remain enforceable.

Ownership acquired only after the infrastructure was already constructed may also affect entitlement. In Comagul, the Court held that a claimant who acquired property after the relevant public infrastructure had long existed was not necessarily entitled to compensation for a taking that had already occurred before the claimant’s ownership.

What If Payment Is Delayed?

Prompt payment is part of the constitutional guarantee of just compensation. Compensation is not “just” merely because the amount has eventually been calculated; payment must also be made within a reasonable time.

In Republic of the Philippines v. Espina & Madarang, Co., et al., G.R. No. 226138, 2024, the Supreme Court reiterated that delay in payment may require the Government to pay legal interest from the time of taking until full payment, depending on the applicable findings and circumstances.

In Baterna, et al. v. National Transmission Corporation, G.R. No. 276920, 2026, the Court further stated that when payment is significantly delayed, a present-value formula may be applied to the date-of-taking value to account for the time value of money and the owner’s opportunity loss.

What Remedies Are Available to Property Owners?

An affected owner should first verify the project authority, the identity of the implementing agency, the property description, and the asserted acquisition method. The owner should preserve the title, tax declarations, survey plans, photographs, construction records, valuation documents, lease agreements, and evidence of income or use.

If negotiations fail and an expropriation case is filed, the owner may participate in the proceedings, challenge the Government’s compliance with statutory requirements, contest the asserted public necessity when legally supportable, and present evidence on the property’s value and compensable improvements.

If the Government occupied or substantially burdened the property without promptly filing the proper case or paying the legally required compensation, the owner may need to consider an action involving inverse condemnation or a claim for compensation. The proper remedy depends on the specific facts, including the date and nature of the Government’s entry or use.

Illustrative Situations

Highway widening. If a national highway project requires a strip of titled private land, the implementing agency may negotiate a sale or institute expropriation. The owner remains entitled to judicial determination of just compensation if no agreement is reached.

Railway construction. If a railway alignment permanently occupies the surface of private land, the taking may involve title, possession, improvements, and consequential effects on the remaining property. The compensation analysis should address the actual impact of the project, not merely the area physically occupied.

Subway or tunnel. If a government priority project uses the subsurface at the statutory depth, surface ownership alone does not necessarily prevent the project. Existing underground structures must be considered, and compensable damage must be addressed when avoidance is not technically reasonable.

Transmission or utility easement. Even without transfer of title, a permanent easement that substantially restricts construction, use, or enjoyment may qualify as a taking requiring compensation.

Practical Checks for Property Owners

• Confirm whether the project is a national government infrastructure project and identify its implementing agency.
• Request the written offer, valuation basis, plans, surveys, and documentation showing the required right-of-way.
• Check the applicable BIR zonal valuation, property classification, title, tax declaration, and existing liens or encumbrances.
• Document the property’s condition, improvements, income-producing use, and the effect of the proposed taking on the remaining land.
• Obtain legal and valuation advice before signing a deed of sale, quitclaim, or release of claims.

Conclusion

The Government may seize or burden private land for highways, railways, and related infrastructure, but only through lawful eminent-domain procedures and for a genuine public purpose. The owner’s central protection is the constitutional right to due process and just compensation, including compensation for qualifying easements, improvements, and delay in payment.

Property owners should act promptly upon receiving a notice, offer, survey, or expropriation complaint. Early review of the project authority, valuation evidence, date of taking, title history, and property impact can materially affect the compensation that may be recovered.

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