Introduction

Eigendom is a term for ownership rights used during the Dutch colonial period. The legal basis for eigendom is contained in Article 570 of the Civil Code, which defines eigendom as the right to have free enjoyment of property and to dispose thereof absolutely, provided that an individual does not violate the laws of the public ordinances. During the same period, eigendom could only be owned by Europeans and Far Eastern people based on the classification of the residents and their subjection to the applicable law as regulated by the colonial government through Article 131 jo. 163 Indische Staatsregeling (IS). Furthermore, based on Staatsblad 1917 No. 12, Native Indonesians could subject themselves to European Civil Law, either entirely, partially, specifically for certain legal acts, or tacitly.1  During this period, eigendom could serve as evidence of ownership of a parcel of land, usually in the deed form (Acte van Eigendom).

The enactment of Law No. 5 of 1960 on Basic Agrarian Principles (UUPA) revoked the eigendom provision in Article 570 of the Civil Code. The revocation means that ownership based on eigendom rights is no longer valid. To provide legal certainty and clarity to holders of eigendom rights, Article I paragraph (1) of the UUPA Conversion Provisions (KK UUPA) stipulates that eigendom rights can be converted into ownership rights. According to AP Parlindungan in his book titled “Konversi Hak-Hak Atas Tanah”, what is meant by the conversion of land rights is how the regulation of land rights that existed before the enactment of the UUPA be integrated into the UUPA system. This article will discuss the provisions concerning the conversion of eigendom rights after the enactment of the UUPA.

Discussion

  1. Provisions under the UUPA

    Article I paragraph (1) of the Conversion Provisions of the UUPA (“KK UUPA”) stipulates that as of the enactment date of the UUPA, 24 September 1960, eigendom rights had been converted into a right of ownership (hak milik) with the condition that the owner must be an Indonesian Citizen (“WNI”). This Provision is in line with Article 21 of the UUPA, which stipulates that only WNI can have a right of ownership.

    Furthermore, Article I paragraph (3) of the KK UUPA stipulates that if the owner of an eigendom right is a foreigner; a citizen who has a nationality other than Indonesian; and a legal entity that is not appointed by the government, their eigendom right becomes a right to build (Hak Guna Bangunan/”HGB”) with a period of 20 (twenty) years, until no later than 24 September 1980. Article VIII of the KK UUPA sets out that Article 36 of the UUPA is applicable to the HGB contemplated under Article I paragraph (3) of the KK UUPA. Article 36 paragraph (1) of the UUPA requires that those who have HGB are WNI and legal entities established under the Indonesian laws and having its domicile in Indonesia.

  1. Provisions of the Regulation of the Minister of Agrarian Affairs No. 2 of 1960 on the Implementation of the Provisions of the UUPA (“PMA 2/1960”) (Revoked)

    Articles 2 to 4 of PMA 2/1960 emphasize that only WNI with single citizenship can convert their eigendom right into a right of ownership. The PMA 2/1960 provides a deadline of 6 (six) months from the enactment date of the UUPA, 24 September 1960 to register the conversion at the land office. If the deadline has passed, the eigendom rights of WNI who have not converted their eigendom right, or those of owners who have failed to prove that they are WNI with single citizenship, will be converted by the land office as HGB with a period of 20 years until 24 September 1980.

    In line with the provisions of Article I paragraph (3) of the KK UUPA, Article 9 of PMA 2/1960 stipulates that the eigendom right belonging to foreigners; Indonesian citizens of foreign descent; and legal entities that are not included in the government-appointed bodies shall become HGB, unless the right are transferred to a WNI with single citizenship, the rights shall become a right of ownership (hak milik).

  1. Provisions of the Presidential Decree No. 32 of 1979 on Principal Discretion in Granting New Land Rights from the Conversion of Western Rights (“Keppres 32/1979”)

    Under Article 1 of the Keppres 32/1979, an eigendom right that had been converted into HGB, it would expire no later than 24 September 1980, as referred to under the UUPA. At the time of the HGB expiration, the HGB reverts to state land. Articles 2 and 3 of the Keppres 32/1979 further set out that former right holders who meet the requirements and cultivate or work on the land/building will be provided with a new right over their land, except if the land is required for development projects for the public interest. Those who do not receive a new right since their land  needed for development projects will be compensated by the government.

  1. Provisions of the Regulation of the Minister of Home Affairs 9 No. 3 of 1979 concerning Provisions on the Application and Grant of New Rights to Land from the Conversion of Western Rights (“PMDN 3/1979”)

    In line with the Keppres 32/1979, Article 12 of PMDN 3/1979 sets forth that the former land with HGB can be granted with a new right to the former right holder if:

    1. they satisfy the requirements stipulated under Articles 2 and 3 of the PMDN 3/1979 (concerning persons or legal entities having HGB can apply for a new right, but the Ministry of Home Affairs will redetermine the designation and use of the land);
    2. the land concerned is possessed and used by the former right holder;
    3. it is not entirely required for development projects for public interest;
    4. on the land, there is a building belonging to the former right holder which is inhabited/used by themselves; and
    5. on the land, there is a building belonging to the former right holder, which is inhabited/used by another party with the consent of the building owner/former right holder.

Furthermore, Article 13 paragraph (1) of the PMDN 3/1979 stipulates that the former land with HGB can be granted a new right to the party who clearly and validly possesses and uses the land at the time of the enactment of this regulation.

  1. Provisions of the Government Regulation No. 24 of 1997 on Land Registration (“GR 24/1997”)

    In this regulation, eigendom rights and other land rights derived from regulations prior to the UUPA are referred to as old rights. Article 24 paragraph (1) of GR 24/1997 provides that for the purpose of rights registration, land rights originated from old rights are proven by written evidence on their existence in the form of documents or statement whose degree of truth by Adjudication Committee in systemic land registration or by Head of Land Office in sporadic land registration is deemed sufficient to register the rights, the rights holder and other people’s rights that burden them.

    Elucidation of Article 24 paragraph (1) further elaborate that the ownership evidence principally consists of the ownership evidence in the name of the right holder at the time UUPA is enacted. The written evidence might be in the form of, among others, a grosse deed of an eigendom right issued based on the Overschrijvings Ordonnatie (Staatsblad 1834-27) with a note that the eigendom right has been converted into a right of ownership, or grosse deed of an eigendom right issued based on the Overschrijvings Ordonnatie (Staatsblad 1834-27) since the enactment of the UUPA until the date of land registration performed according to Government Regulation No. 10 of 1961 in the relevant area.

  1. Provisions of the Government Regulation No. 18 of 2021 on Management Rights, Land Rights, Flats, and Land Registration (“GR 18/2021”)

    In this regulation there is a renewed provision regarding the registration of land with ex-western rights Article 95 of the GR 18/2021 regulates that written evidence2 of land with ex-western rights is declared invalid and the land status shall be considered as state land. The registration of land with ex-western rights shall be based on the statement of physical possession acknowledged by two (2) witnesses who are responsible to the extent of private and criminal, outlines that:

    1. the land is truly owned by the person concerned and not belonging to another person and its status is a land directly possessed by the state (a state land), not a land with ex-customary rights;
    2. the land is physically possessed;
    3. the physical possession is carried out in good faith and openly by the person concerned; and
    4. such physical possession is uncontested by other parties.

Closing

Provisions related to the conversion of an eigendom right have been fundamentally regulated by the UUPA. Article I paragraph (1) of the KK of UUPA stipulates that since the enactment of the UUPA on 24 September 1960, an eigendom right shall be converted into a right of ownership (hak milik), given that, the owner shall be a WNI with single citizenship as referred to under Article 21 of the UUPA. If the eigendom right is held by a foreigner; a WNI with dual nationality; or a legal entity not appointed by the government, the eigendom right shall become HGB with a validity period until 24 September 1980, and upon the expiration of the validity period, as a consequence, the HGB shall automatically become a state land pursuant to the provisions of Article 4 of the PMA 2/1960, the Keppres 32/1979, and the PMDN 3/1979.

Nowadays, land registration using eigendom deeds as the underlying basis can no longer carried out because the written evidence is declared valid and the respective land becomes state land. Furthermore, if someone wants to register his land which is a former western right, it must be accompanied by a statement of physical possession that the land has been possessed for 20 years or more continuously, as stipulated in PP 18/2021.

Several jurisprudences generally remained consistent in referring to the above laws and regulations on an eigendom right conversion, where an eigendom right that had not been converted according to UUPA, is invalid or considered as state land. Among others: (i) The Supreme Court Decision No. 576K/Pdt/2017 consists of a legal principle stating that whereas the disputed object up to 24 September 1980 had not been converted and as a consequence, it became a state land; (ii) The Supreme Court Decision No. 1715K/Pdt/2018 under its legal consideration, the panel of judges provides that since the plaintiff failed to convert the land rights of the disputed object up to the deadline governed by the laws, namely, 24 September 1980, the plaintiff’s rights over the disputed object is no longer valid; and (iii) The Supreme Court Decision No. 95K/Pdt/2020 also contains a legal principle stating that it is proven that the land with eigendom rights of the plaintiffs (disputed object) had not been converted pursuant to UUPA, and as a result, the plaintiffs are declared not the owner of the disputed object.

Irwansyah Dhiaulhaq Mahendra

References:

  • Indonesian Civil Code
  • Law No. 5/1960 on Basic Agrarian Principles
  • Regulation of the Minister of Agrarian Affairs No. 2 of 1960 on the Implementation of the Provisions of the UUPA
  • Presidential Decree No. 32 of 1979 on Principal Discretion in Granting New Land Rights from the Conversion of Western Rights
  • Regulation of the Minister of Home Affairs 9 No. 3 of 1979 concerning Provisions on the Application and Grant of New Rights to Land from the Conversion of Western Rights
  • Government Regulation No. 24 of 1997 on Land Registration
  • Government Regulation No. 18 of 2021 on Management Rights, Land Rights, Flats, and Land Registration
  • Supreme Court Decision No. 576K/Pdt/2017
  • Supreme Court Decision No. 1715K/Pdt/2018
  • Supreme Court Decision No. 95K/Pdt/2020
  • Indische Staatsregeling
  • Staatsblad 1917 No. 12

Sources

  1. As it is known that any laws have not revoked Staatsblad 1917 No. 12, but since UUPA has revoked all Dutch-type land rights, this Staatsblad 1917 No. 12 is no longer relevant.
  2. See previous discussion of the provisions of PP 24/1997
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