Unpacking Eigendom Rights: Are the Foundations still Solid?

Eigendom over Land

Eigendom is an ownership right and stipulated under Article 570 Book II of the Indonesian Civil Code (“ICC”), stating that:

“Ownership is 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 stipulated by those who have been granted authority to do so, in the course of using such assets, and provided that an individual does not interfere with other individuals rights; the aforementioned shall be without prejudice to expropriation in the public interest subject to the individual’s right to appropriate compensation, pursuant to the legal regulations.”

As a property right under the ICC, eigendom applies to movable and immovable objects. However, since the enactment of Law Number 5 of 1960 on Basic Regulations of Agrarian Principles (“Agrarian Law”), the concept of eigendom for immovable objects, becomes invalid to the extent that it conflicts with the Agrarian Law. The Agrarian Law also revoked several of the Dutch colonial regulations. Moreover, under number 4 of the revocation dictum, Book II of the ICC is revoked insofar as its concerns the earth, water, and natural resources contained therein.

Read Also: A Brief Overview of Eigendom Rights and Its Conversion Provisions

Provisions concerning land rights from the western law has been stipulated in the Conversion Provisions of the Agrarian Law, which also extends to eigendom. Consequently, Eigendom rights may be converted to ownership rights (hak milik) and rights to build (hak guna bangunan) along with the right to use (hak pakai).

This Agrarian Law provision was further stipulated through the Minister of Agrarian Regulation Number 2 of 1960 on the Implementation of the Provisions of Basic Agrarian Law (“Minister of Agrarian Reg. on Implementation of Agrarian Law”).

Despite the existence of a specifically regulated provisions governing this matter, in the present days, there are still some possessions or non possession over a land claimed solely with a basis of eigendom rights. This condition is what will be potentially raised as an issue when an overlapping ownership dispute occurs.

Conversion of Eigendom Land

Concerning the conversion of an eigendom land, it should be first noted that, in accordance with the revocation dictum, under the Elucidation of the Agrarian Law, one of the reasons for revocations is due to:

• The previous agrarian law was based on the objectives of the colonial government that conflicted with the state interest;
• The existence of dualism, western law and customary law.

As for the implication of the revocation of this eigendom land, thus if the eigendom right owned by a single Indonesian citizen, it will be converted to ownership right. If it was owned by a foreign government, will be converted to the right to use. Whilst if it was owned by a foreign citizen, persons with multiple citizenship, and legal entity, will be converted to the right to build for the period of 20 (twenty) years, in other words ends at September 24 1980.

In carrying out the conversion, it must be conducted through land registration. The Minister of Agrarian Reg. on Implementation of Agrarian Law further stipulates that an Indonesian citizen that has possession over a land with eigendom right must be registered within six months since the enactment of the Agrarian Law. Otherwise, it will then be converted to the right to build, with a period of 20 (twenty) years.

Whilst after such period, all lands with the right to use, right to build, and right to use from the conversion of western right, unless renewed, the rights concerned would become land directly controlled by the state, as stated in the prevailing provisions at the time, namely through the Presidential Decree Number 32 of 1979 on Principal Discretion in Granting New Land Rights from the Conversion of Western Rights.

Read Also: Granting of Land Rights in General

In practice, however, there are still numerous plots of land possessed merely on the basis of eigendom right that are not converted as required. This situation subsequently often leads to a legal issue. When there is a possession or non possession of land whose ownership is based solely on eigendom rights, the question arises as to how this will affect when disputes in court occurs. Will the legal claim based on eigendom rights still be recognized and protected before the law?

Therefore, how will the court examine eigendom as the basis ownership over land? Will a claim on the grounds of eigendom as an underlying basis for rights be successful? The following two jurisprudences will be presented, to further discuss the court’s perspectives in assessing such disputes.

Ir. R. P. Jarot Ibnu Prabowo v. H. Sudarmadi, etc., Jurisprudence Number 928 K/Pdt/2012 jo. 469/PDT/2009/PT.DKI. jo. 235/PDT/PLW/2008/PN.Jkt.Ut.

In this case, the Claimant in Opposition filed an opposition claim over an ongoing case between the Defendants in Opposition over a plot of land, in which in the Claimant in Opposition argued on its ownership based on an eigendom rights (proven with Acte van Eigendom) acquired through inheritance. It was found that through the Defendants in Opposition’s case, a Determination of Execution Seizure and Enforcement of an Eviction of the a quo land has been issued. Accordingly, the opposition was essentially demanding for cancellation or suspension of the Determination of Execution Seizure and Enforcement of an Eviction against the a quo land.

Judex Facti of the first level rejected the opposition and in essence declared that land ownership based on eigendom rights is no longer applicable. As stated in its considerations:

“In consideration, that Law Number 5 of 1960 on Basic Agrarian Principles stipulated that the right over land granted by the Dutch East Indies government was given a time period of 20 (twenty) years from the enactment of the Agrarian Law until September 24, 1980. If not converted, such rights shall cease to be valid as they are revoked pursuant to the Agrarian Law.”

The decision was further upheld at the appellate and cassation level, as stated by the Judex Juris:

“That it appears that the object of dispute in the a quo case has been registered from the outset under the name of… is still in the form of Acta Van Eigendom Number 7991, which as of September 24 1980, the deadline for the Conversion provision has not been registered, and under the law, the Acta Van Eigendom is no longer valid.”

In this case, both Judex Facti and Judex Juris confirmed the importance of complying with conversion provisions under the prevailing laws and regulations. Violating the same causes non acknowledgement of the eigendom right.

Dudy Triwibowo, etc., v. PT. Akar Restu Indonesia, Jurisprudence Number 819 K/Pdt/2015 jo. 258/Pdt/2014/PT.DKI jo. 238/Pdt.G/2013/PN.Jkt.Sel.

Moreover, in this case, the Claimants argues to be the owner over the lands acquired through inheritance, based on eigendom rights. The Claimants filed a claim on the grounds of a Right to Build Certificate registered under the name of the Defendant, which was issued over the a quo land. As the Claimants essentially argues that the Defendant and Co-Defendant have committed an unlawful act and caused harm to the Claimants by submitting a request for the Right to Build Certificate over the a quo land without involving the Claimants.

Read Also: Priority Rights in Land Law in Indonesia

Based on the facts presented before the court, Judex Facti of the first level stated that, the basis of eigendom right claimed by the Claimants had become a land that is directly controlled by state. Thus, when the Defendant claimed an ownership over the land based on the Right to Build Certificate, Judex Facti stated that the Defendant’s legal basis was an authentic evidence and demonstrated a legitimate ownership of the a quo land.

Therefore, in this case, the Claimants’ claim was rejected at the first level of court, which was then upheld at the appeal and cassation levels. As stated by the Judex Juris:

“That it appears that the Eigendom Verponding, 1693 under the name of… with the enactment of Law Number 1 of 1958 jo. Law on Agrarian Principles must be converted to ownership right for those who are eligible or become the right to build, will expire on 24 September 1980. That the Eigendom Verponding, 6393 under the name of… since 24 September 1980 has become land directly controlled by the State…”

Compliance on Conversion Provisions of Eigendom

The jurisprudences above show that a land that was previously possessed under eigendom right, but not converted as stipulated in the Agrarian Law and other relevant laws and regulations, will be seen as invalid nor did it have any protection by law. Both of the Judex Juris in their legal consideration tend to consider the conversion that has taken place over a period of 20 (twenty) years into the right to build, and whether factually, an application for registration of land rights has been submitted after the passing of that period.

When such land with a basis of eigendom rights has never been converted during that period, hence the land will automatically become a state-controlled land. Consequently, in the case where there are parties that subsequently claiming its possession over a plot of land through an authentic proof of ownership, namely a land certificate, therefore such ownership is what will be recognized before the law.

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Sources:

• Indonesian Civil Code.
• Law Number 5 of 1960 on Basic Regulations of Agrarian Principles.
• Presidential Decree Number 32 of 1979 on Principal Discretion in Granting New Land Rights from the Conversion of Western Rights.
• Minister of Agrarian Regulation Number 2 of 1960 on the Implementation of the Provisions of Basic Agrarian Law.
• Supreme Court Decision Number 928 K/Pdt/2012
• Supreme Court Decision Number 819 K/Pdt/2015.
• Jakarta High Court Decision Number 469/PDT/2009/PT.DKI.
• Jakarta High Court Decision Number 258/Pdt/2014/PT.DKI
• North Jakarta District Court Decision Number 235/PDT/PLW/2008/PN.Jkt.Ut.
• South Jakarta District Court Decision Number 238/Pdt.G/2013/PN.Jkt.Sel.