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Under Article 1 of Law Number 20 of 1961 on Revocation of Rights of Land and/or Objects Over the Land (“Law No.20/1961”), President in an urgent circumstance after hearing the Minister of Agrarian Affairs, Minister of Justice and the related Minister may revoke the rights of land and/or objects over the land. Revocation of rights of land and objects over the land can be performed if the land and/or objects over the land are needed for public interest, including the nation’s interests and the common interests of the people, as well as for development purposes.
Submission of the Request of Revocation of Rights of Land
Under Article 2 of Law No.20/1961, the request of revocation of rights of land and/or objects over the land is proposed by an interested party to the President with the intercession of the Minister of Agrarian Affairs (now the Head of the National Land Agency of the Republic of Indonesia), through the Head of Inspection Agrarian (now the Local Office of Provincial National Land Agency). The request is accompanied with:
land-use plan and the reasons;
information about the owner of the rights, and location of the land, size of the land, and the type of right of land that will be revoked;
shelter plan for the party whose rights will be revoked.
The Process of Revocation of Rights of Land
After receiving the submission of request for revocation of rights of land, the Local Office of Provincial National Land Agency asks for the consideration of Local Government’s Head to give its consideration about the request of revocation of rights of land. However, the Local Office of Provincial National Land Agency also asks for the consideration of the appraiser committee to estimate the compensation costs.
Within a period not later than 3 (three) months, the Local Government’s Head should have submitted its consideration and the appraiser committee has to tell the estimation of the compensation costs to the Local Office of Provincial National Land Agency. After obtaining the consideration and estimation of the compensation costs, the Local Office of Provincial National Land Agency submits the request for revocation of rights of land to the Head of the National Land Agency of the Republic of Indonesia.
If within 3 (three) months the Local Government’s Head and appraiser committee has not submitted its consideration, the Local Office of Provincial National Land Agency may submit the request for revocation of rights of land to the head of the National Land Agency of the Republic of Indonesia, without waiting for the consideration from the Local Government’s Head and appraiser committee.
Head of National Land Agency of the Republic of Indonesia submits the request for revocation of rights of land to the President accompanied with the consideration of Minister of Justice and the related Minister. Submission of revocation of rights of land must be implemented to obtain the President’s decision regarding the revocation of rights of land.
Revocation of Rights of Land in an Urgent Circumstances
Under Article 6 of the Law No.20/1961, it regulates that in urgent circumstances, the Local Office of Provincial National Land Agency, after receiving a request for revocation of rights of land, can directly propose the request of revocation of rights of land to the Head of the National Land Agency of the Republic of Indonesia without the consideration of Local Government’s Head and the estimation of the compensation from appraiser committee.
Based on the request, the Head of National Land Agency of the Republic of Indonesia issued a decision letter that provides permission for the interested party to control the land and the object over the land. The decision letter will be followed by presidential decision on the request of revocation of rights of land to be granted or rejected. If the request is rejected, the interested party has to return the land and/or related object to its original condition, and/or give equivalent compensation to the owner of the rights of land.
Decree of the Head of National Land Agency of the Republic of Indonesia on the revocation of rights of land is published in the State Gazette of the Republic of Indonesia and its derivatives will be given to the owner of rights of land and/or objects whose rights were revoked. The content of the decision letter also be announced through the newspapers. The cost of the announcement is carried out by the interested party.
Compensation
Under Article 8 of Law No.20/1961, if the owner of the rights of land whose land will be revoked does not accept compensation because the amount of the compensation is considered less, then he can propose for appeal to the High Court that jurisdiction covers the location of the land and/or related object. The court will determine the amount of compensation.
After the decision letter of the revocation of rights of land is implemented and the compensation is paid, then the land which right of land is revoked is directly controlled by the state.
Maria Amanda
Revocation of Lands Rights
Background
In order to implement the provision of the granting of rights of land in accordance with Law Number 5 of 1960 on Agrarian Principle Regulation (“Law No.5/1960”) and Government Regulation Number 40 of 1996 on Right to Cultivate, Right to Build and Right of Use of Land, the procedure of the revocation of such land rights must also be regulated, which is already set forth in Regulation of Agrarian State Minister/Head of National Land Agency Number 9 of 1999 on Procedure of Granting And Revocation of Rights of State Land and Right of Management (“Regulation”).
Revocation of Rights of Land
Point 1 letter 14 of Regulation states that revocation of land rights means the revocation of the decree of the granting of land rights or land rights certificate (“Granting Decree”) due to the administrative legal error in the issuance of such Granting Decree or in order to implement the court decision which has obtained the permanent legal power.
The revocation includes the revocation of: (a) decree of the granting of land rights; (b) certificate of land rights; and (c) decree of the granting of rights in order to regulate the land acquisition. The revocation of land rights is conducted through the decree of Minister who is responsible in agrarian/land field (“Minister”). Minister may delegate such revocation to the Head of Regional Office of National Land Agency, which is the National Land Agency Office for the provincial level (“Regional Office”) or to the appointed officer.
Revocation
1. Revocation of land rights due to administrative legal error
According to Article 107 of Regulation, the administrative legal error means (i) procedural errors, (ii) error implementation of laws and regulations, (iii) error of the subject of rights, (iv) error of the object of rights, (v) error of the type of rights, (vi) error of area calculation, (vii) there is overlap of land rights, (viii) juridical or physical data is incorrect, or (ix) other administrative legal errors.
The decree of revocation of land rights due to administrative legal error in its issuance may be conducted due to (i) the application from the party in interest or (ii) the authorized officer without application. The revocation of land rights due to administrative legal error through the application from the party in interest is submitted directly to the Minister or the appointed officer through the Head or Land Office, which is the National Land Agency for the district/city level (“Land Office”). Meanwhile, the revocation of land rights without application by the authorized officer is conducted if it is found that there is legal error in the issuance process of the Granting Decree without an application.
2. Revocation of land rights due to the court’s decision
The decree of the revocation of land rights due to the implementation of court’s decision which has obtained permanent legal power shall be issued through the application of the party in interest, provided that such application is submitted directly to the Minister or Head of Regional Office or through the Land Office.
Procedure of Revocation of Land Rights
There are some processes in the procedure of revocation of land rights, as follows:
1. Land Office
The revocation application is submitted in writing to the Minister through the Head of Land Office having the work area within the location of the land concerned, and enclosed with documents, such as: (i) copy of identity card and nationality (if the applicant is individual) or copy of deed of establishment (if the applicant is a legal entity); (ii) copy of the Granting Decree and/or certificate of land concerned; (iii) other documents related to the revocation application.
After the application is received, the Head of Land Office shall: (i) inspect and examine the completeness of the juridical and physical data; (ii) record in a form; (iii) provide a receipt of the application; (iv) notify the applicant to complete the juridical and physical data if necessary.
2. Regional Office
In the event that the revocation application is delegated to the Head of Regional Office, the Head of Regional Office shall record it in a certain form and inspect and examine the completeness of the juridical and physical data, and if it is not completed yet, shall request the Head of Land Office concerned to complete the documents.
In the event that the revocation application is delegated to the Head of Regional Office, the Head of Regional Office issue the decree of revocation of land rights or decree of rejection along with the reason.
3. Minister
After receiving the revocation application, the Minister orders the competent officer to inspect and examine the completeness of the juridical and physical data, and if it is not completed yet, shall request the applicant to complete the documents and record it in a certain form.
Minister will decide such application by issuing the decree of revocation of land rights or decree of rejection along with the reason.
Background
As we all know, earth, water, and natural resources contained therein controlled by the State and used as much as possible for the prosperity of the people (society). Land and buildings that build on it, in addition to fulfill the basic need, is also constitutes as profitable investment equipment. In other words, land and building have economic value. Therefore, it is reasonable that for those who obtained the right of land and the buildings to give some of the economic value that obtained, to the State through tax payments, especially Acquisition Levy of Right of Land and Building (“BPHTB”). BPHTB is now regulated in Law Number 21 of 1997 on Acquisition Levy of Right of Land and Building (“Law No.21/1997”), as amended by Law Number 20 of 2000 on Amendment of Law No.21/1997 (“Law No.20/2000”).
BPHTB
According to Law No.20/2000, it is stated that BPHTB taxes are imposed on the acquisition of rights of land and/or building. The subject of BPHTB is the individual or entity who obtained rights of land and/or building. The object of BPHTB is associated with the obtainment of right of land and/or building. The obtainment of right of land and/or building consists of:
a. transfer of right due to: sale and purchase, exchange, grant, grant bequest, inheritance, income in the company or other legal entity, resulted in the separation of rights of passage, the appointment of buyers in the auction, the implementation of judgments that have permanent legal force, mergers, consolidation business, business expansion and gifts.
b. conferral of new right due to the continuation of releasing of right, and other than releasing of right.
The rights of land that are subject to BPHTB are Right of Ownership, Right to Cultivate, Right to Build, Right of Use, Right of Ownership on Strata Title, and Right to Manage.
The taxable objects which are exempted from BPHTB shall be the taxable objects that are obtained by:
a. diplomatic representative, consulate based on reciprocal principle;
b. state for performing governmental duties and or development activity for public interests;
c. international organization or representatives of international organization as stipulated by the Minister Decree provided that they neither run business nor do other activities other than their functions and duties;
d. individual or entity due to right conversion or due to other legal acts without any change of name;
e. individual or entity due to endowments;
f. individual or entity for religious service usage.
Acquisition Value
According to Article 5 of Law No.21/1997, the tax rate of BPHTB is in the amount of 5% (five percent) of Acquisition Value of Taxable Object (“NPOPKP”). NPOPKP is the acquisition value of tax object (“NPOP”) reduced with the Acquisition Value of Non-Taxable Object (“NPOPTKP”).
The base of BPHTB imposement is the NPOP. BPHTB is applied for the transaction that exceeds the NPOPTKP, in which is determined regionally, with the maximum amount of Rp 60.000.000,- (sixty million Rupiah), with the exception of the acquisition of rights due to inheritance, gift, bequest which received by person/individual in the direct lineage one degree up or down with the grantor, including husband or wife, in which that the NPOPTKP is regionally determined with the maximum amount of Rp 300.000.000,- (three hundred million Rupiah).
The amount payable of BPHTB is calculated by multiplying the tax rate of BPHTB with NPOPKP.
The illegal occupancy of land is not a new event in Indonesia. The terms illegal occupancy can be interpreted as the act or condition of holding, possessing of rights or assets illegally, such as occupying a land or house, which is not belong to him, illegally (which is forbidden by law). The illegal occupancy of land is an unlawfully act that can be classified as a criminal offense. As we know, the prices of land are very stable and continue to rise along with the times. The illegal occupancy of land can be harming everyone, especially if the land is used for the business purpose. There are many cases that happened on the illegal occupancy of land, such as (i) physical occupancy of land, (ii) cultivation of land, (iii) sale of land, and so on.
Background Based on Government Regulation Number 24 of 1997 on Registration of Land, the transfer of right of land can be conducted by some means which are (i) sale and purchase (jual-beli), (ii) inheritance (warisan), (iii) testament (wasiat), (iv) grant (hibah), and...