Introduction
The questions often fearfully asked by many landowners, especially foreign investors, are the following:
- Is there any legal certainty in land ownership in Indonesia?
- How are landowners legally protected after they have bought the land?
- How can the landowner’s land, that is already certificated, be claimed by a third party?
These are valid questions which need to be addressed. There might be one principal argument to answer them, but when entering into the complexity of land ownership disputes that may involve different documents related to the same land, various parties (including the land office), falsification of documents (known or unknown) or maladministration, that principal argument might not be satisfactory. However, there is one provision that is often referred to by landowners of certificated land, namely article 32(2) of the Government Regulation on Land Registration of 1997 (the provision).
This article investigates how the Supreme Court interprets and judges this provision in relation to the land dispute ownership involving already-certificated land.
Legal context
Article 32(2) stipulates that:
If over a plot of land a certificate has been legally issued and registered under the name of a person or legal entity having obtained that land in good faith and actually possesses it, then the other party, who feels having entitlement on that land right, may not be able to demand the implementation of that right if within 5 years since that certificate is published, no objection in writing submitted to the certificate holder and to the respective head of land office or does not file any claim to the court on such land possession or certificate issuance.
The elucidation of this provision is long. It explains that the publication system in Indonesia is not purely negative where the state does not guarantee the truthfulness of data as outlined. The regulation further explains that this provision is intended to stand firm against the negative publication system, which also means giving the true owner the right to file a legal claim. On the other hand, the regulation also provides balance to the other party who possesses a plot of land in good faith and is registered as the right holder with a certificate. For a landowner with a land certificate, when claimed by a third party, this provision is normally used as their defence so that the panel of judges can simply decline third party claims.
Case law
In decision No. 604 K/Pdt/2009, the Supreme Court held as follows:
therefore the judex facti (High Court) is not wrong in applying the law, since based on Article 32 paragraph (2) PP No. 24 of 1997 [government regulation on land registration], the Claimant cannot claim over a certificated land, after the lapse of 5 years since that certificate is issued under the name of certificate holder.
Further, in decision No. 900 K/Pdt/2011, the Supreme Court held that:
since the Claimant is unable to prove his arguments, and in addition the disputed object has been certificated under the right of ownership since 1989 and the claim had been lodged in 2009 then under the Government Regulation No. 24 of 1997 the certificate and ownership by one who acts in good faith can no longer be disturbed.
Further, under decision No. 291 K/Pdt/2017, the Supreme Court considered that:
according to Article 32 paragraph (2) of Government Regulation No. 24 of 1997 on Land Registration, a claim lodged by a party against a party possessing a plot of land in good faith, which possession is based on a valid ownership proof issued more than 5 years then that claim must be declined.
Based on these three considerations, it is evident that the panel of judges follow the provision of government regulation on land registration. This provides legal certainty for landowners who already hold land certificates.
This does not necessarily mean that the Court will rule in the same way for every land certificate issued more than five years ago since Indonesia land law adopts a negative publication system, even though it is not a pure one.
In decision No. 2934 K/Pdt/2017, the Supreme Court annulled the land certificate, despite its five-year issuance, due to a fraudulent defect in the land transfer history. The Supreme Court considered that:
the Defendant I has been proven conducting a criminal fraud against the Claimant based on the Judge’s decision that has a permanent legal force causing the disputed object land owned by the Claimant [under] Letter C No. 608 under the name of Muniroh/Claimant has been transferred to become a Certificate of Right of Ownership No. 119 under the name of Defendant I.
Further, the Court considered:
the act of Defendant I is an unlawful act and Certificate of Right of Ownership No. 119/Kelurahan Karang Rejo does not have any legal power since its issuance caused by a criminal action of Defendant I.
In this case, the land office, as the cassation petitioner, (previously one of defendants) referred to article 32(2) of the Government Regulation on Land Registration in its memory of cassation. But, as seen in the consideration, the Supreme Court judges did not consider it at all and still proceeded with the annulment of the land certificate. In another case, through decision No. 2031 K/Pdt/2017, the Supreme Court considered:
the obtainment of disputed object by the Defendant I from her husband . . . originated from the GG land which has been opened by Amaq Ahnan in 1990 which then has been delivered to the Village Government, then the disputed object is an asset of Village Government Wanasaba Lauk . . . so that the issuance of Certificate of Right of Ownership under the name of Defendant I is legally defective.
In this case, the defendant who filed the cassation petition referred to the article 32(2) by emphasising that the land certificate had been issued for more than five years and within that time limit the claimant had not lodged any objection verbally or in writing. In this case the defendant, as holder of the land certificate, lost on all court’s stages to the Supreme Court.
Comment
Both these decisions and the Supreme Court judges’ considerations show that the provision of article 32(2) is not considered absolute. If there is a defect in the land transfer history or if it originated from crime, the true owner will still have the chance to claim their right even if the five-year-issuance date has passed.
In sum, four important elements contained in article 32(2) must be proven in court, namely that:
- the land certificate has been issued;
- the land certificate complied with the valid certification procedure;
- the land was acquired in good faith; and
- the landowner actually possesses the land.
When these four elements are proven during the evidentiary hearing, the judges should regard the land certificate as legitimate. But if any one of these four elements cannot be proven, the provision can no longer be used as the landowner’s line of defence in court.
