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Land Rights in the Underground Space (RBT) according to the Job Creation Law and Government Regulation No. 18 of 2021

By November 24, 2022 No Comments

The Underground Space (RBT) is a space below the surface of the land which is used for certain activities whose control, selection, use and utilization are separate from the control, ownership, use and utilization of land.

The provisions regarding the Granting of Land Rights/Management Rights on Underground Spaces are regulated in Paragraph 4 of Law Number 11 of 2020 on Job Creation (Job Creation Law). According to Article 146 paragraph (1) of the Job Creation Law, the RBT used for certain activities may be granted several rights, such as:

  1. Right to Build
  2. Right of Use
  3. Right of Management

Then what about the limit of RBT? To what extent can the RBT be owned? The limit of land ownership in the basement by the holder of land rights is given in accordance with the limit of the depth of utilization which is regulated in accordance with the provisions of the legislation.  (See Article 146 paragraph (3) of the Job Creation Law).

Further provisions regarding RAT and RBT are regulated in Government Regulation No. 18 of 2021 (GR 18/2021) which is divided into 4 parts, including:

  1. Part 1 (Articles 74 and 75 concerning RBT), which regulates:
    • The RBT that consists of (Article 74 paragraph (3)):
      1. Shallow RBT;
        Shallow RBT is Land owned by the holder of Land Rights with a depth limit as referred to in paragraph (1) letter b (see Article 74 paragraph (4)).
      2. Deep RBT Basement.
        Deep RBT Basement is Land which is structurally and/or functionally separated from the holder of Land Rights as referred to in paragraph (2). (see Article 74 paragraph (5)).
    • In the event that there is a shortage of oil and gas resources as well as mineral and coal, the RBT cannot be granted. (see Article 75)
  2. Part 2 (Occurrence of HPL, HGB, HP in RBT).
    • RBT may be granted as Right of Management, Right to Build or Right of Use after RBT has been utilized based on the Minister’s decision on granting rights.
    • if the use of RBT interferes with the public interest and/or the holder of land rights on the surface of the land, then the approval of the holders of land rights in the form of an authentic deed is required.
  3. Part 3 (Subject, Term, Encumbrance, Transfer, Release, Cancellation of HPL, HGB and HP in RBT).
    • Article 81 GR 18/2021 explains that provisions regarding the subject, period, assignment, transfer and release, and cancellation of right of management, right to build, and the right of use land applies mutatis mutandis to the provisions regarding the subject, time period, assignment, transfer and release, and cancellation of right of management, right to build, and right of use over RAT or RBT.
  4. Part 4 (Removal of HPL, HGB and HP in RBT).
    • The Right of Management on RBT are terminated if:
      1. Canceled by the Minister due to administrative defects or court decisions that have permanent legal force;
      2. the building/space unit and/or the land is destroyed and cannot be used or utilized anymore;
      3. Released voluntarily by the right holder;
      4. Released in the public interest;
      5. Revoked by law.
    • HGB and HP on RBT are terminated if:
      1. The expiry of the period as stipulated in the decision to grant, extend, or renew their rights;
      2. The rights are canceled by the Minister before the term expires because:
        • Not fulfilling obligations and/or violating prohibitions;
        • The non-fulfillment of the conditions or obligations contained in the agreement of HP utilization on RBT;
        • Administrative defects;
        • Court decisions that have obtained permanent legal force;
      3. Changed to other land rights;
      4. Released voluntarily by the right holder before the term expires;
      5. Released for the public interest;
      6. Revoked by law;
      7. The building/space unit and/or the land is destroyed and cannot be used or utilized again;
      8. The end of the agreement to grant rights or land utilization for HGB or HP;
      9. The right holder no longer meets the requirements as the subject of the right.

Based on the description above, it can be concluded that the RBT which is used for certain activities can be given separate rights from the land rights on the surface of the land. The RBT rights can be granted in the form of Right to Build, Right of Use or Right of Management. However, these rights can be removed and canceled in certain circumstances according to the laws and regulations.

Agita Asmara Pratama Putri