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...
The right of a land can be upgraded or downgraded. This can be done in accordance with the interest of the right’s holder of that particular land. A right of land is downgraded to fulfill the needs of the right of land’s holder which might not qualify to hold a...
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
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.
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.
Background
To maintain the sustainability of the national economic development, it needs large amount of funds. The more increase of development activities, the more of the needs of availability of funds, whereas such funds are mostly obtained through credit financing activities.
Considering the importance of the position of credit financing in the property development, it is reasonable enough for the creditor and the debtor and other related parties to obtain protection through an institution of security rights and who can provide legal certainty for all parties concerned, which can
encourage public participation in national development to realize
a prosperousand fair society. In order to realize that purpose, the government already arranged provisions in relation to such security rights, particularly for security rights of land as set forth in Law Number 4 of 1996 on Mortgage (Hak Tanggungan) along with Properties Related to the Land (“Law 4/96”).
Mortgage (Hak Tanggungan) of Land
In Article 1 of Law 4/96, a mortgage is a security right over right(s) of land, along with or without other properties that constitute a unity with such land, for the settlement of certain debts, which gives the preferred position to certain creditors against other creditors (“Mortgage”). Mortgage cannot be split, unless otherwise agreed in the Deed of Granting of Mortgage.
Rights of land that can be encumbered with Mortgage are right of ownership, right to cultivate, right to build, and right of use over state’s land (“Object”). An Object can be encumbered with more than one Mortgage in order to guarantee the settlement of more than one debt. If an Object is encumbered with more than one Mortgage, the rank (level) of each Mortgage is determined by the date of their registration at the Land Office.
Background
Mortgage (hak tanggungan) of land is a security right over right(s) of land, along with or without other properties that constitute a unity with such land, for the settlement of certain debts, which gives the preferred position to certain creditors against other creditors (“Mortgage”). In this regard, there are procedures for granting, registration and transfer of Mortgage as stipulated in Law Number 4 of 1996 on Mortgage of Land along with Properties Related to the Land (“Law 4/96”).
Granting of Mortgage
Granting of Mortgage is preceded by a promise or covenant to grant the Mortgage as the security of payment of certain debt, which is set out in and as an integral part of the related loan agreement or other agreements that cause such debt.
The granting of Mortgage is conducted by making the Deed of Granting of Mortgage by the Land Conveyancing Officer (“Pejabat Pembuat Akta Tanah/PPAT”) in accordance with the related prevailing laws and regulations. In the event that the object of the Mortgage is the right(s) of land which is derived from the conversion of the previous rights that have been eligible to be registered but the registration has not been done, the granting of Mortgage shall be conducted simultaneously with the application for the registration of such right(s) of land.
According to Article 11 of Law 4/96, a Deed of Granting of Mortgage must include:
name and identity of the holder and grantor of Mortgage;
domicile of the parties. If there are any party that is domiciled outside the territory of Indonesia, to such party, shall also be included a choice of domicile in the territory of Indonesia. In the case that the choice of domicile in the territory of Indonesia is not included, the territory of the Land Convenyancing Office where the Deed of Granting of Mortgage is made, is regarded as the chosen domicile;
the clear determination of the debt(s) which is secured by the Mortgage;
the value of the security;
clear description of the object of the Mortgage.
Registration of Granting of Mortgage
The granting of Mortgage shall be registered at the Land Office. PPAT shall deliver the Deed of Granting of Mortgage and the other warkah to the Land Office within a period not later than 7 (seven) business days after the signing date of such Deed of Granting of Mortgage. Registration of Mortgage is conducted by the local Land Office by making the land book of Mortgage and record it in the land book of such right of land (as the object of the Mortgage) and also copy such record into the certificate of right of land concerned.
As the evidence of the existence of the Mortgage, the Land Office will issue certificate of Mortgage in accordance with the prevailing laws and regulations (“Certificate”). This Certificate has the equal executorial power with the court decision which has permanent legal enforcement. The Certificate shall be delivered to the holder of the Mortgage.
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.