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Based on Article 41 of Law Number 5 of 1960 on Basic Regulations on Agrarian Principles (“UUPA”), the definition of Right to Use is the right to use and/or to collect the product, from (i) land which directly controled by the State or (ii) land owned by other persons,...
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
Under Article 35 paragraph (1) of Law Number 5 of 1960 on the Principle Provisions of Agrarian (“Agrarian Law”), it is stated as follows:
“Right to Build is right to establish and to have buildings over land that is not his own, with a maximum period of 30 years.”
Right to build (“HGB”) may be extended with a maximum period of 20 years as a request from right’s holder and bearing in mind the need and state of buildings. Subject who can be the holder of HGB is an Indonesian citizen or legal entity that is established under Indonesian law and domiciled in Indonesia. Legal entity is an institution that is given a status as legal entity, such as the Limited Liability Company, Cooperative, the Association of Unit Owners and Occupants of the Condominium, and the Foundation.
According to the Government Regulation of Republic of Indonesia Number 40 of 1996 on Right to Cultivate, Right to Build, and Right of Use Over Land (“GR No. 40/1996”), the granting of HGB over a right of ownership is performed by the holder of right of ownership through a deed made by Land Conveyancing Officer (“Pejabat Pembuat Akta Tanah/ PPAT”). The granting of HGB over a Right of Ownership is made by an agreement between the holder of Right of Ownership and the prospective holder of HGB which is stated in the deed that is made by PPAT. The granting of HGB over a right of ownership shall be registered at the Land Office (Kantor Pertanahan). The period of HGB that is issued over the right of ownership is maximum 30 (thirty) years and may be renewed with the new provision of HGB based on the agreement that is implemented on the deed which is made by PPAT and the respective right to build shall be registered in the local land office (kantor pertanahan setempat).
Under Article 41 of Agrarian Law, it is stated as follows:
“Right of Use is the right to use and/or collect the results of the land that is directly controlled by the State or land owned by others, who gives the authority and duties which is specified in the decision by the competent official or in an agreement with the owner of the land, which is not a lease agreement or the agreement to cultivate a land, all things that are not contrary to the spirit and provisions of this law.”
The granting of Right of Use over Right of Ownership is performed by the holder of Right of Ownership through a deed made by Land Conveyancing Officer (“Pejabat Pembuat Akta Tanah/ PPAT”). The granting of right of use over the right of ownership shall be registered on the land book in the Land Office. The right of use over the right of ownership also binds the third party since it is registered. The period of the right of use over the right of ownership is maximum 25 (twenty five) years and it can not be extended. Right of use over the right of ownership may be renewed with the new provision of right of use based on an agreement between the holder of right of use and the holder of right of ownership, as implemented on the deed which is made by PPAT and shall be registered on the local land office.
Alsha Alexandra Kartika
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.