Ways to Revoke Land Rights in Indonesia
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Question:
Good afternoon DNT Lawyers. I have a plot of land on which stands 50 rooms in the Surabaya City with the Right to Build (HGB) certificate. I intend to sell land with someone from Jakarta. The buyer can pay by paying a 30% at the beginning. The balance will be paid after the new certificate is issued, because the plan is the new certificate will promise on behalf of the customer to the bank. It turned out that after the AJB and the new certificate were issued, they still did not want to pay off the rest. I have billed many times but there is no good intention to pay. My question is, how do I cancel the certificate?
Johan, Surabaya
Answer:
Certificates being issued on other people’s land often occur with various modes, including your cases. Based on the Indonesia land law, DNT Lawyers has 3 (three) ways to revoke land rights/certificates, namely:
1.CANCELLATION REQUEST TO MINISTER / HEAD OF BPN / MINISTRY OF AGRARIAN AFFAIRS AND SPATIAL PLANNING
Certificate cancellation can be done outside the judicial mechanism by submitting application to the Minister / Head of the BPN / Ministry of Agrarian Affairs and Spatial Planning. This mechanism is regulated in Article 110 in conjunction with Article 108 paragraph (1) 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. The basis for the application can be made if it is suspected that there are administrative legal error in its issuance, as stipulated in Article 106 paragraph (1) in conjunction with Article 107 as follows:
Administrative legal error referred to in article 106 (1) are:
- Procedure error
- Error implementation of laws and regulations
- Error of the subject of rights
- Error of the object of rights
- Error of the type of rights
- Error of area calculation
- There are overlapping land rights
- Juridical data or physical data is incorrect; or
- Other administrative legal errors
2. LAWSUIT TO THE ADMINISTRATIVE COURT (GUGATAN PTUN)
Land certificate is one of the State Administrative Decisions (“KTUN”)as stipulated in Article 1 number 7 of Act Number 30 of 2014 concerning Government Administration (“Law 30/2014”). To cancel a KTUN, it can be sued to the State Administrative Court. However, it should be noted that there is a period of time to sue the TUN Decree, which is 90 (ninety) days from the receipt or announcement of a TUN Agency or Official Decision, as stipulated in Article 55 of Law 5/1986, as follows:
“Claims can only be submitted within a period of ninety days from the date of receipt or announcement of a State Decision or Administrative Officer.”
3. CIVIL LITIGATION IN THE DISTRICT COURT (GUGATAN PERDATA)
The absence of good concern to pay obligations to you, is a form of action that is contrary to the rights of others and the buyer’s legal obligations, so it can be qualified as an unlawful acts/tort (Perbuatan Melawan Hukum/PMH)as stipulated in article 1365 KUHPer (Indonesia Civil Code),
“Every act that violates the law and brings harm to another person, requires the person who caused the loss because of his mistake to replace the loss”.
In filing a civil suit, it should be noted that there is an expiration that a claim can be submitted, namely 5 (five) years since the issuance of the certificate, as stipulated in Article 32 paragraph (2) Government Regulation Number 24 of 1997 concerning Land Registration (PP 24/97) which reads:
“In the event that a land certificate has been legally issued in the name of a person or legal entity that obtains the land in good faith and has real control over it, the other party who feels that the right to the land can no longer demand the exercise of rights 5 (five) years since the issuance of the certificate does not file a objection in writing to the certificate holder and the Head of the relevant Land Office or does not file a claim to the Court regarding land ownership or issuance of the certificate. “
However, the expiration of the recruitment as referred to in Article 32 PP 24/97 above is not absolute as long as it can be proven that the acquisition of the land is not in good faith.
If the payment mechanism as you intended above has been agreed upon in an agreement, then it can also be submitted to breach of contract litigation (Wanprestasi)as another option if you want the buyer to fulfil the agreed performance / promise.
If there is still someone you want to ask / consult, or you need assistance / legal assistance, immediately contact us at (021) 6329 683 or email info@dntlawyers.com or come to our office at Dalimunthe & Tampubolon Lawyers.
