Conflicts in relation to agrarian law occur a lot in Indonesia. Why does this happen? Is it because the legal instruments available are not sufficient for the people’s needs? Agrarian law in Indonesia is regulated under Law Number 5 Year 1960 concerning Agrarian...
Currently, construction of Condominiums is growing rapidly, considering the demand for housing is increasing. In this regard, in order to accomodate the people’s need for housing, the Law No. 20 Year of 2011 on Condominium (“Condominium Law”) stipulates that...
Under Article 1 number 6 of Government Regulation Number 24 of 1997 on Land Registration (“GR No. 24/1997″), physical data is the information of location, boundary and area of land and registered condominium unit, including information of building or part of building over it.
Whereas, under Article 1 number 7 of GR No. 24/1997, juridical data is the information of legal status of land and registered condominium unit, its right holder and other rights and other burdens which are burdening the land.
The requirement and procedure to obtain the information of physical data and juridical data is regulated in the Agrarian State Minister Regulation/Head of National Land Agency Number 3 of 1997 on the Implementation Provision of Government Regulation Number 24 of 1997 on Land Registration (“Agrarian State Minister Regulation No. 3/1997”).
Under Article 187 of Agrarian State Minister Regulation No. 3/1997, the information of physical data and juridical data in land registration map, land register, measure letter and land book are open to the public. The requirement to obtain information of physical data and juridical data of land is a written application by mentioning of its need, except the Information Letter of Land Registration (SKPT) which is granted for a certificate’s examination by Land Conveyancing Officer (Pejabat Pembuat Akta Tanah/ PPAT) does not need a written application. The information may also be granted to the interested parties by visually or in writing. If the information is granted in writing, then it shall be granted in the form of Information Letter of Land Registration (SKPT).
Under Article 191 of Agrarian State Minister Regulation No. 3/1997, the physical data and juridical data which are listed in the name’s list may only be granted to the Government agency which requires for implementing their duty. The procedure of its application is by submitting the application which states the related need. The application is fulfilled after it is approved by the Head of Land Agency.
Alsha Alexandra Kartika
Background
The regulation on breaking, separation, and merging of land is contained in the Government Regulation Number 24 of 1997 on Land Registration (“GR No. 24/1997”) and the Agrarian State Minister Regulation/Head of National Land Agency Number 3 of 1997 on the Implementation of Government Regulation Number 24 of 1997 on Land Registration (“Agrarian State Minister Regulation No. 3/1997”).
I. The Breaking of Land Field
The breaking of land field is regulated in Article 48 of GR No. 24/1997 and Article 133 of Agrarian State Minister Regulation No. 3/1997.
GR No. 24/1997 and Agrarian State Minister Regulation No. 3/1997 do not mention the exact meaning of breaking of land. However, under the provision in the Article 48 paragraph (1) of GR No. 24/1997, it can be concluded that the breaking of land is the breaking of one land which has been registered into some area of land as requested by the right holder.
The Requirements for Breaking of Land, as follows:
Shall be in accordance with the applicable spatial plan and shall not cause non implementation of the law and regulation.
For its registration, each land is granted a new right number and created a measurement letter, a book of land and a new certificate, as a substitute of the previous right number, measurement letter, land book, and certificate. The previous measurement letter, book of land, and certificate of land right is not longer valid.
If the land right concerned is encumbered by mortgage, and/or other registered encumbrance, the breaking of land is implemented after obtaining the written approval from mortgage holder or other parties who is authorized to approve the removal of the encumbrance.
In implementating the breaking of land, as long as it is related to agricultural land, it shall note the provision of minimum limit in accordance with prevailing laws and regulation.
The application of the breaking of land that has been registered, is filed by the right holder or their proxy with the statement of breaking interest and attaching the following:
Certificate of right of land concerned;
The applicant identity;
Written approval of mortgage holder, if the land right concerned is encumbered through mortgage.
The Legal Consequence of the Breaking of Land Field [Note: ini maksudnya judul atau apa ya?]
The legal consequence of breaking of land is each part of land is a new unit of area of land with the equal legal status to the previous area of land.
II. The Separation of Land
The separation of land is regulated in the Article 49 of GR No.24/1997 and Article 134 of Agrarian State Minister Regulation No. 3/1997.
GR No. 24/1997 and Agrarian State Minister Regulation No. 3/1997 do not mention the exact meaning of separation of land. However, under the provision in the Article 49 paragraph (1) of GR No. 24/1997, it can be concluded that separation of land is the separation of one land that has been registered into a part or some parts as requested by the right holder.
The Requirements for Separation of Land Field, as follows:
1. For the registration, it is granted a right number and created its measurement letter, book of land and a separate certificate.
2. On the registration map, land register, measurement letter, book of land and certificate of land is recorded a note on separation of land.
3. The record of mortgage and other encumbrance that exists on the master book of land and master certificate of land, is recorded on a separate book of land and certificate of land.
4. The attachments that should be made in the separation of land are:
a. The master certificate of land right,
b. The applicant identity,
c. The written approval from mortgage holder, if the right of land is encumbered by mortgage.
d. A written power of attorney if the application is not filed by the right holder.
The Legal Consequence of Separation of Land
1. The equality of legal status between area of land or areas of land that are separated from its master area of land.
2. In the matter of separation of vast area of land, which is taken a part of their land to become a new unit of new area of land, the master area of land is still existed and its identity does not change, except for its width and limit.
III. The Merging of Land
The merging of land is regulated in the Article 50 of GR No. 24/1997 and Article 135 of Agrarian State Minister Regulation No. 3/1997.
GR No. 24/1997 and Agrarian State Minister Regulation No. 3/1997 do not mention the exact meaning of merging of land. However, under the provision in the Article 50 paragraph (1) of GR No. 24/1997, it can be concluded that the merging of land is the merging of two or more land that has been registered and its located is adjacent, and all of them is for and on behalf of the same owner, so that it becomes a new unit as requested by the right holder.
The Requirements for Merger of Land, as follows:
1. All of land unit are owned by the same owner and has the same term.
2. For the registration, it is granted the right number and created the new measurement letter, book of land, and certificate.
3. The registration is performed with statement that the measurement letter, book of land, and certificate of land that has been merged is no longer valid.
4. Creating the new measurement letter, book of land and new certificate for merged land.
5. The attachments that must be made in the merging of land are:
a. The certificates of land that will be merged,
b. The applicant identity.
6. May be performed if there is no record of mortgage or other encumbrance over the right of land that will be merged.
Legal Consequence of Merging of Land
The legal consequence of merging of land is the equatlity of legal status of the land as a result of merger with the status of merged land.
Alsha Alexandra Kartika
Under Article 35 paragraph (1) of Law Number 5 of 1960 on the Principle Provisions of Agrarian (“Agrarian Law”), it is stated as follows:
“Right to Build is right to establish and to have buildings over land that is not his own, with a maximum period of 30 years.”
Right to build (“HGB”) may be extended with a maximum period of 20 years as a request from right’s holder and bearing in mind the need and state of buildings. Subject who can be the holder of HGB is an Indonesian citizen or legal entity that is established under Indonesian law and domiciled in Indonesia. Legal entity is an institution that is given a status as legal entity, such as the Limited Liability Company, Cooperative, the Association of Unit Owners and Occupants of the Condominium, and the Foundation.
According to the Government Regulation of Republic of Indonesia Number 40 of 1996 on Right to Cultivate, Right to Build, and Right of Use Over Land (“GR No. 40/1996”), the granting of HGB over a right of ownership is performed by the holder of right of ownership through a deed made by Land Conveyancing Officer (“Pejabat Pembuat Akta Tanah/ PPAT”). The granting of HGB over a Right of Ownership is made by an agreement between the holder of Right of Ownership and the prospective holder of HGB which is stated in the deed that is made by PPAT. The granting of HGB over a right of ownership shall be registered at the Land Office (Kantor Pertanahan). The period of HGB that is issued over the right of ownership is maximum 30 (thirty) years and may be renewed with the new provision of HGB based on the agreement that is implemented on the deed which is made by PPAT and the respective right to build shall be registered in the local land office (kantor pertanahan setempat).
Under Article 41 of Agrarian Law, it is stated as follows:
“Right of Use is the right to use and/or collect the results of the land that is directly controlled by the State or land owned by others, who gives the authority and duties which is specified in the decision by the competent official or in an agreement with the owner of the land, which is not a lease agreement or the agreement to cultivate a land, all things that are not contrary to the spirit and provisions of this law.”
The granting of Right of Use over Right of Ownership is performed by the holder of Right of Ownership through a deed made by Land Conveyancing Officer (“Pejabat Pembuat Akta Tanah/ PPAT”). The granting of right of use over the right of ownership shall be registered on the land book in the Land Office. The right of use over the right of ownership also binds the third party since it is registered. The period of the right of use over the right of ownership is maximum 25 (twenty five) years and it can not be extended. Right of use over the right of ownership may be renewed with the new provision of right of use based on an agreement between the holder of right of use and the holder of right of ownership, as implemented on the deed which is made by PPAT and shall be registered on the local land office.
Alsha Alexandra Kartika
Article 24 Paragraph (1) of the Government Regulation Number 24 of 1997 on Land Registration (“GR No. 24/1997”) regulates that, for purposes of land registration which comes from the conversion of old rights, are proven by the evidence of existence of such rights in the form of written evidence, witness testimony and or the relevant statement that the level of its truth by Adjudication Committee on systematic land registration or by the Chief of the Land Office on sporadic land registration, are considered proper for right registration requirement, right holder and others people’s rights that is attached to them.
The application must be attached with the evidence of ownership/original document proving the existence of the related rights. Those evidences can be in the form of:
1. grosse certificate of eigendom right which is issued under Overschrijvings Ordonatie (S.1834-27), which had been given notes, that the related rights of eigendom was converted into ownership right.
2. grosse certificate of eigendom rights which was issued under Overschrijvings Ordonatie (S.1834-27) since the enactment of Law Number 5 of 1960 on Principle Provisions of Agrarian (“Agrarian Law”) until the date of land registration is conducted based on the Government Regulation Number 10 of 1961 within the respective area; or
3. letter of evidence of ownership right which was issued under the relevant Swapraja (autonomous region) Regulation; or
4. certificate of ownership which was issued by the Regulation of Minister of Agrarian Number 9 of 1959; or
5. certificate of ownership right from the authorized officer, either before or since the enactment of Agrarian Law, which is not followed by the obligation to register the given rights, but it has fulfilled all the obligation which mentioned in it; or
6. the private deed of transfer of rights that was given mark of testimony by Adat Chief/Head of the Village/Kelurahan which was made before this enactment of this Government Regulation (GR No. 24/1997); or
7. deed of transfer of land right which was made by PPAT, of which land has never been recorded; or
8. deed of waqaf oath/letter of waqaf oath which was made before or since the implementation of the Government Regulation Number 28 of 1977; or
9. the minutes of the auction which was made by an authorized Auction Officer, of which land has not been recorded; or
10. the appointment letter or the purchase of land plot for replacement of land that was taken by Government or Local Government; or
11. petuk Tax on land/Landrente, girik, pipil, kekitir and Verponding Indonesia prior to the enactment of Government Regulation Number 10 of 1961; or
12. an information letter of land history which has been made by the Land and Building Tax Service Office; or
13. the other form of any written evidence with any other name as also referred in Article II, VI and VII convertible provisions of Agrarian Law.
If, the written evidence of the land ownership is not complete or no is longer available, the verification of ownership shall be performed with the witness’s testimony or statement considered as reliable in the opinion of Adjudication Committee or the Head of Land Office. What is meant by the witness is a person who is competent to give testimony and knows about that ownership of land.
In the condition of the unavailability of evidence instruments as mentioned above, then Article 24 of paragraph (2) of GR. No. 24/1997, provide a solution by replacing the unavailability of the evidence of land ownership with the evidence of physical control for a period of 20 (twenty) years or more in a row by the applicant and its predecessors, with the following conditions:
a. that the possession and the usage of the related land was conducted explicitly and in a good faith for 20 years or more in a row.
b. that the fact of the possession and the usage of land is so long as there is no claim and, therefore it is considered to be recognized and justified by the relevant adat community or village/kelurahan;
c. that those things are strengthened by the testimony of people who is trustworthy;
d. that it has been given the opportunity for other party to file an objection though the announcement;
e. that has been conducted a research on the truth of the issues as mentioned above;
f. that finally the conclusions on the status of land and its right holder is formulated in a decision of recognition of related right by Adjudication Committee on systematic land registration and by Chief of the Land Office on sporadic land Registration.
The provision of Article 76 paragraph (3) of the Regulations of State Minister of Agrarian/ Head of National Land Board Number 3 of 1997 on the Implementation of Government Regulation Number 24 of 1997 on Land Registration (“Regulation of State Minister of Agrarian No. 3/1997”) regulates further about the evidences of the land ownership which is not available, as stated in Article 24 paragraph (2) of GR No. 24/1997.
The application must be submitted with the following attachments:
1.) statement letter from the applicant stating the following matters:
a. that the applicant has clearly possessed the relevant land for 20 years or more in a row, or has obtained its possession from party or others parties which have possessed it, so that the period of applicant and the predecessor possession is totally 20 years or more.
b. that the possession of the land has been conducted in a good faith;
c. that the possession has never been claimed and therefore it considered to be recognized and justified by the related adat community or village/kelurahan;
d. that the current land does not contain matters that do not correspond with reality, the signed statement letter which stated the willingnes to be sued in front of the court by criminal or civil claim if providing false information;
2.) Information letter from the Head of Village/Urban Village (Lurah) which usually known as Letter of Land Information and at least 2 (two) witnesses whose its testimony can be trusted, because of its function as a local traditional elders and/or residents who have lived in a long time in the rural/village where the relevant land located and, has no family relationship with the applicant until the second degree in both vertical and horizontal, which confirms the statement of the applicant in the Letter of Land Information above.
Verification of the old rights is usually conducted by groups of people who have not experienced modern administration and agrarian law. After the evidence of physical possession is attached to the application for land rights, and then conducted an investigation of the land as part of the land registration process, then it will be clear that the rights holders and the land has been registered and the holder of such rights have legal relationship with the land. As proof that the right holder is entitled to his or her land, the National Land Agent will issue a Certificate of Land. With the land registration and the issuance of the Certificate of Land, then legal certainty is achieved.
Sofie Widyana P.
Definition of adjudication based on Article 1 point 8 of Government Regulation Number 24 of 1997 on Land Registration (“GR No.24/1997″) is “activity which is performed in the process of land registration for the first time, including collection and determination of the fact of the physical data and juridical data concerning one or more objects of land registration for the purposes of its registration”. Adjudication of land registration activities are special procedures performed for granting legal status of parts of land to the actual owner.
On the implementation of systematic land registration, which is generally in large-scale and massive, then to implement it, the Head of the Land Office is assisted by the Adjudication Committee that was formed specifically for that by the Minister or appointed officer, and thus the routine duties of the land office are not disrupted. In performing its duties, the Adjudication Committee is assisted by units of juridical and administrative tasks, units of collection of juridical data and units of administrative task where their duties, the composition, and the activity are regulated by the Minister.
Essentially, adjudication duties are investigation task to examine and seek for true formal evidence, that is juridical initial data which is owned by holder of land rights, and justification task, that makes determination and ratification of evidence which is already examined.
Even though, the actual duty of adjudication is actually a task of judicial institution that is to give a decision or judgment., but in the land registration, the adjudication duty is given to the government as an executive.
The adjudication of land registration activities, if managed seriously will support the acceleration of land registration and to ensure the legal certainty.
Sofie Widyana P.
Background
Definition of land registration in Government Regulation Number 24 of 1997 on Land Registration (“GR 24/1997”) constitutes perfection of scope of the land registration based on Article 19 paragraph (2) of Law Number 5 of 1960 on the Principles Provision of Agrarian (“Agrarian Law”) which includes; measurement, mapping, land records, registration and transfer of right of land and granting of evidence instrument of right as strong evidence.
Further provisions of land registration activities are regulated in GR 24/1997, which include:
1. Land Registration for the First Time ( Opzet or Initial Registration)
Land registration for the first time is the activity of land registration for the object of land that has not been registered based on Government Regulation Number 10 of1961 (“GR 10/1961”) or GR 24/1997. Land registration for the first time is performed through land registration systematically and sporadically. Land registration systematically is defined as activity of land registration for the first time simultaneously including all object of land registration that has not been registered in area or part of area of a rural/village (Article 1 paragraph 10 GR 24/1997). While, land registration sporadically is land registration activity for the first time concerning one or some object of land registration in area or part of area of a rural/village (Article 1 point 11 GR 24/1997).
Land registration activities for the first time, include:
a. Collecting and processing of physical data
1. Preparation of base map registration;
2. Registration of land boundary areas;
3. Measurement and mapping of land areas and making registration map;
4. Preparation of land registers;
5. Preparation of letter of measurement;
b. Evidence of rights and its records, including:
1. evidence of new rights
2. evidence of old right
c. The maintenance of land registration data activities.
d. Presentation of the general register and document
e. Activity of land registration data maintenance.
2. Maintenance of Land Registration Data Activities (Bijhouding atau Maintenance)
This is the land registration activity to adjust the physical data and juridical data in maps of registration, land register, name register, letter of measurement register, land records, and certificate with the changes that happen later on (Article 1 point 12 of GR 24/1997).
Based on Article 36 of GR 24/1997, the maintenance of land registration data is performed if there is a change of physical data or juridical data of land registration object that has been registered. Physically data changes occured if there is segregation, separation, or merging of areas of land that have been registered. Juridical data changes occured for instance if there is an encumbrance or or transfer of right over of land areas that have been registered.
The relevant right holder shall register the change of physical data or juridical data to the Land Office and the district/local city to be recorded in the book of land.
Activity of maintenance of land registration data, includes:
a. Registration of transfer and imposition of rights.
1. Transfers of right through auction;
2. Transfer of right due to inheritance;
3. Transfer of right due to merger or
consolidation or merger of limited
liability companies or cooperative;
4. Imposition of right;
5. Rejection of registration transfer and
imposition of right.
b. Registration of change of other land registration data, including:
1. Extension of the period of right of land;
2. Segregation, separation, and merging
of area of land;
3. Distribution of joint right;
4. Abolishment of right of land and ownership rights of condominium units.
5. Transfer and abolishment of mortgage;
6. Changes of land registration data based
on judgment or court decision.
7. Changes of name
Sofie Widyana P.
According to Article 41 of Law Number 5 of 1960 on the Principles Provisions of Agrarian (“Agrarian Law”) [Note: sy sudah ingatkan berkali2 untuk gunakan terms yang sama dengan yang sudah kita buat dan ada di web kita[, Right of Use means right to use and collect the production over State Land or land which is owned by private parties. As stipulated in Article 42 of Agrarian Law, Right of Use can be granted to:
Indonesian citizens;
foreigners domiciled in Indonesia;
Indonesian companies established based on Indonesian law and domiciled in Indonesia; and
foreign companies having its representative office in Indonesia.
Assignment of Right of Use
According to Article 54 paragraph (3) of Government Regulation Number 40 of 1996 on Right to Cultivate, Right to Build, and Right of Use Over Land (“Government Regulation 40”), it is stated that the Right of Use can be assigned by the following reasons:
sale and purchase;
exchange;
capital participation;
grant;
inheritance.
Further, the assignment shall be registered to the Land Office (kantor pertanahan). For the assignment of Right of Use as a result of inheritance, Article 54 paragraph (7) stipulates that the assignment shall be evidenced with the testament or heir information document (surat keterangan waris) which is issued by the competent authority.
The Article 42 of Government Regulation Number 24 of 1997 on Land Registration (“Government Regulation 24”) has set out the required documents that must be provided by the heirs for land registration:
land certificate;
death information document (surat keterangan kematian) of the holder of Right of Use;
heir information document (surat keterangan waris).
Moreover, the elucidation of Article 42 of Government Regulation 24 stated that the transfer of right is occurred when the holder of Right of Use dies, which means the heir will become the new right holder. With regards to the party who has the right to become the heir, it will depend on the civil law that applies to the existing right holder.