Element of Land Ownership Disputes in State Administrative Disputes

• Land Certificate
• Jurisprudence on Element of Land Dispute in a State Administrative Decision Claim
  • Jurisprudence Number 333 K/TUN/2021
  • Jurisprudence Number 425 K/TUN/2019

Land Certificate

What does it mean to have a land certificate? Under Article 1 number 20 of the Government Regulation Number 27 of 1997 on Land Registration (GR 24/1997) along with the Article 19 paragraph (1) of Law Number 5 of 1960 on Basic Regulations on Agrarian Principles (Agrarian Law), certificates are stipulated as a right-evidencing document, which will be valid as a strong evidence, and it is issued for a land right, right of management (hak pengelolaan), waqf land (tanah wakaf), right of ownership over apartment units, or a security title which has been recorded in the relevant land book (buku tanah).

Read Also: Certificate as Proof of Land Ownership

Jurisprudence on Element of Land Dispute in a State Administrative Decision Claim

Land certificates are essentially a form of written decision in the form of a State Administrative Decision (Keputusan Tata Usaha Negara/KTUN), and therefore constitutes a legitimate object of dispute within the jurisdiction of the State Administrative Court. This is due to the nature of a land certificate, which inherently fulfils the elements of a KTUN itself.

In this regard, it is also in line with the judge’s consideration in the first level of court in Decision Number 333 K/TUN/2021, which will be further discussed in this writing. Through Decision Number 13/G/2020/PTUN.BKL, Judex Facti stated that the object of dispute, namely a land certificate, meets the criteria as a KTUN as referred to in Article 1 number 9 of Law Number 51 of 2009 on the Second Amendment of Law Number 5 of 1986 on State Administrative Court (“State Administrative Court Law”), since it fulfills the elements of:

• A written determination that also includes factual actions;
• Decisions of State Administrative Bodies and/or Officials in the executive, legislative, judicial, and other state administrators;
• based on statutory provisions and the General Principles of Good Governance;
• Decisions that have the potential to have legal consequences; and/or
• Decisions that apply to citizens.

However, in practice, it often becomes an issue and is sometimes difficult to assess whether a State Administrative Dispute involving land ownership must indeed be resolved in the administrative court, or whether it should first be addressed through civil litigation?

Read Also: Legal Implications of Overlapping Land Certificates in Indonesia

To discuss this matter, the judge’s considerations in the following jurisprudences can be taken into account.

Jurisprudence Number 333 K/TUN/2021

In this decision, the Plaintiff sued the land office to cancel a land ownership certificate based on a deed of sale and purchase. The holder of the land ownership certificate entered as Defendant II Intervention. The lawsuit was rejected at the first level and upheld at the appeal level. However, Judex Juris overturned the lower court’s decision to be inadmissible.

Legal considerations of Judex Juris in Decision Number 333 K/TUN/2021:

“Although the certificate of the object of the dispute meets the criteria as an object of a State Administrative dispute, to test its validity in the State Administrative Court, the truth of ownership of the a quo land must first be tested in the General Court, because in principle the Applicant/Plaintiff stated that he owned the a quo land based on the Deed of Sale and Purchase … dated June 12, 1990, however the Respondent for Cassation II/Defendant II Intervention stated that he obtained the a quo land based on the Deed of Sale and Purchase … dated 11-6-1998.”

Jurisprudence Number 425 K/TUN/2019

In this case, the Plaintiffs filed a lawsuit against the land office through the Administrative Court, in which essentially requested the cancellation and revocation of the issuance of land ownership certificate. As the holder of the issuance of the land certificates, subsequently entered as Defendant II Intervention. The lawsuit was declared inadmissible, which was then upheld at the appeal and cassation levels.

The legal considerations of Judex Juris in Decision Number 425 K/TUN/2019:

“That the substance of the a quo dispute concerns civil matters (location, land area, and the validity of inheritance documents), therefore, the subject matter of the dispute in this case cannot be examined in the General Court. Thus, the Administrative Court does not have the authority to examine, decide, and resolve the a quo dispute.”

As expressed in the legal considerations in the jurisprudences above, whilst the land certificate that is the object of the dispute is indeed a KTUN, and therefore meets the criteria to be the object of dispute at the State Administrative Court, the decision demonstrates that not all disputes concerning land ownership certificates are to be resolved directly in the State Administrative Court. There are instances where land ownership disputes must first be resolved through the civil court mechanism. The choice of dispute resolution forum must also take into account the context and substance of the contested matter.

Read Also: The Consequences of the Existence of Civil Dispute Aspect in an Administrative Claim

Referring to this matter, Supreme Court Circular Letter Number 4 of 2014 states that if there are already indications of a civil dispute, a full examination of the authority, procedure, and substance of a KTUN is not necessary.

Furthermore, Supreme Court Circular Letter Number 7 of 2012 has set out criteria for determining whether a dispute falls within the realm of state administrative dispute or civil dispute (ownership), namely:

• If the object of the dispute (objectum litis) concerns the validity of KTUN, then it constitutes an administrative dispute;
• If the posita of the claim challenges the authority or the procedural validity of the issuance of the KTUN, it is also categorized as an administrative dispute; or
• If the sole determinant of whether the Judge can examine the validity of the KTUN as the object of the dispute is the substance of rights, then it falls within the jurisdiction of civil courts; or
• If the norms (rules/kaidah) of administrative law (public law) are sufficient to resolve the dispute, it may be classified as an administrative dispute.

When a dispute regarding the ownership of a land title certificate is submitted in a civil lawsuit, although the State Administrative Court Law stipulated that the time limit for filing a claim to the State Administrative Court is 90 (ninety) days, however it is still possible to file a claim through the State Administrative Court even though it has exceeded that time limit after obtaining a civil court decision. The Supreme Court Circular Letter Number 5 of 2021, states that:

“The lime limit for filing a claim against a land ownership certificate that has been determined in terms of its ownership by a final and binding civil court decision, if filed in a state administrative lawsuit, is no longer restricted by the time limit for filing a claim.”

Reading the circular letters and jurisprudences above, a claim to a land certificate as a form of KTUN may face challenges. Some might be declared as inadmissible when there are indications of land ownership dispute, rather than on the authority, procedural, and substance requirements of the KTUN. This may not be easy to assess. But a claimant must be careful to separate the issue on the land ownership and on the state administrative violation. When the issue on the state administrative violation can only be resolved after the certainty of land ownership is obtained (after civil dispute on the land ownership, determining who is the rightful owner), it is wiser to get this declared first. Then, after obtaining the legally binding decision, the claim to cancel the land certificate through a state administrative court can be made.

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Sources:

• Law Number 5 of 1960 on Basic Regulations on Agrarian Principles.
• Government Regulation Number 24 of 1997 on Land Registration.
• Supreme Court Circular Letter Number 7 of 2012.
• Supreme Court Circular Letter Number 4 of 2014.
• Supreme Court Circular Letter Number 5 of 2021.
• Supreme Court Decision Number 425 K/TUN/2019.
• Supreme Court Decision Number 333 K/TUN/2021.
• Bengkulu District Court Decision Number 13/G/2020/PTUN.BKL.