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Definition and Legal Basis
Based on Article 28 paragraph (1) Law No. 5 of 1960 on Basic Provisions on Agrarian (“UUPA”), Right to Cultivate is the right to cultivate the land which is controlled by the state, in certain period of time, for farming, fisheries, or animal husbandry (“HGU”). Besides UUPA, other regulations which stipulate about HGU is Government Regulation Number 40 of 1996 on Right to Cultivate, Right to Build, and Right to Use over Land (“GR No. 40/1996”). Further stipulation about HGU is regulated in GR No. 40/1996.
Subject of HGU
Only (i) Indonesian citizen and (ii) legal entity which is established under Indonesian Law and domicile in Indonesia can own HGU. If the holder of HGU is not qualified as Indonesian citizen and as Indonesian legal entity which is domiciled in Indonesia, then in 1 (one) year period the holder of HGU shall release or transfer the HGU to the other party who is qualified. If the HGU is not released or transferred, the HGU shall expire and the status of land will become the state land.
Object of HGU
The land which can be granted with HGU is state land. HGU can only be granted over the land with minimum area of 5 (five) hectare. If the area of land which is proposed for HGU reaches 25 (twenty five) hectare or more, the utilization of HGU shall use the proper capital investment and good corporate governance in accordance with the development of times.
If the land granted by HGU is state land that constitutes the forest area, the granting of HGU can only be done after such land is released from its status as forest area.
The granting of HGU over the land which already has certain right can only be made after the completion of the release of such right in accordance with the the prevailing regulations.
If over the land which is granted by HGU, there is a plant or building which owned by other party that exist under a valid title, the new holder of HGU shall give compensation to the owner of the building and plant as mentioned.
The Granting of HGU
HGU is granted by Government Act, which is by the decree on granting of right by the Minister (which responsible in the land/agrarian matters) or appointed officials. HGU is existed since it is registered by Land Office in the book of land in accordance with the prevailing regulation.
Time Period of HGU
HGU can only be granted for maximum period of 25 (twenty five) years. For the company who needs more time, HGU can be granted for maximum period of 35 (thirty five) years. Based on the request of HGU holder and by considering the condition of its company, the time period can be extended with a maximum period of 25 (twenty five) year.
The extension and the renewal of HGU can be made by the request of the right holder with the condition as follows: (i) the land is cultivated in a good way in accordance with the condition, nature, and purpose of the granting of right, (ii) the conditions of granting of right is fulfilled by the holder of right, (iii) the holder of right is still qualified as the holder of right.
The Transfer of HGU
HGU can be transferred to other party by (i) sale and purchase, (ii) exchanges, (iii) capital participation, (iv) grants, and (v) inheritance.
The transferof HGU by sale and purchase shall be made through a deed made by the land conveyancing officer (“PPAT”). The sale and purchase that was conducted through the auction is proven by the Minutes of Auction. The transfer of HGU through inheritance shall be proven by testament or the statement of heir which was made by authorized instance.
Elimination of HGU
The causes of the elimination of HGU is regulated in Article 34 of UUPA and Article 17 paragraph (1) GR No. 40/1996. HGU becomes obliterated by the following causes:
a) The expiry of time period as stipulated in the decree of granting or decree of extension;
b) The right is cancelled by the authorized official before the expiry of its time period because:
1) The obligations of the right holder are not complied and/or the violation of the conditions as stipulated in Article 12, 13, and/or 14 of GR No. 40/1996;
2) The decision of court which has obtained absolute legal force;
c) Released voluntarily by the right holder before the expiry of its time period
d) Revoked by the Law Number 20 of 1961;
e) Abandoned;
f) The land becomes obliterated;
g) The holder of HGU is no longer qualified to own HGU as stipulated in Article 30 paragraph (2) of UUPA.
The Encumbrance of HGU
HGU can be used as loan guarantee through the encumbrance by mortgages right (hak tanggungan). The mortgage right shall be eliminated automatically by the obliteration of HGU.
The Registration of HGU
Every granting, transfer, and elimination of HGU shall be registered to ensure the legal certainty. The registration includes: (i) the mapping measurement and the bookkeeping of land, (ii) registration of rights of land and transfer of such rights, (iii) the granting of letters which proves the right.
Right and Obligation of HGU Holder
Right of HGU holder is to cultivate its land in accordance with the area of land and time period that has been given.
Attachment II of Head of National Land Office of Republic Indonesia Regulation Number 1 of 2010 stipulate about the requirements which must be fulfilled by the holder of HGU if he/she wants to register the HGU, this also has been stipulated in Article 12 paragraph (1) of GR No. 40/1996, which is:
a) Pay the revenue to the state;
b) Perform the farming, plantation, fisheries, and/or animal husbandry in accordance with the purpose and conditions as stipulated in its decree of grating of right;
c) Cultivate the HGU land in a good way in accordance with the business eligibility based on criteria which is stipulated by the technical instance;
d) Build and maintain the environment facility and land facility which is existed within the environment of HGU area;
e) Maintain the fertility of the land, and prevent the damages of natural resources and to keep the sustainability of the capacity of living environment in accordance with the prevailing law and regulations;
f) Submit the annual written report regarding the use of HGU;
g) To give back the land which has been granted by HGU to the state after the HGU is obliterated;
h) To deliver the certificate of obliterated HGU to the Head of Land Office.
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