FROm ANImuS DEBTORS
C. DISCuSSION
LAw RECONSTRuCTION OF LAND AFFAIRS IN TERmS OF
3. Law of mining, regulating the tenure of minerals referred to in the Law of Primary Mining;
4. Law of fishing, regulating the tenure of natural wealth contained in water;
5. Law of workforce and space element, regulating the tenure of workforce and space element referred to in Article 48 of UUPA.1
2. Object of Land Registration
In the Article 9 of Government Policy No. 24 year 1997 about Land Registration, it is mentioned:
Article 9 Paragraph (1) and (2):
(1) Object of land registration including:
a. Land owned in property rights, cultivation rights, building rights, and using rights;
b. Land owned in managing rights;
c. Donated land;
d. Property rights of apartment unit;
e. Mortgaging rights;
f. State land.
(2) In term of state land as the object of land registration referred to in paragraph (1) letter f, the registration proses is by registering state land in the land list.
National agrarian law regulates the tenure of land i.e. the right containing a set of authorities, duties, and/or prohibition for the rights holder to do something in term of the ones land. Something that is permitted, required or prohibited to do, the content of tenure become the criteria or benchmark of differentiator for land tenure which regulated in the law of land.2
The land tenure can be divided into:
1. Land tenure in a legal institution, when it is not referred to land and people or legal entity as its right holder.
2. Land tenure in concrete legal relationship, when it is referred to land and people or legal entity as its right holder.
In UUPA, the hierarchy of land tenure is regulated and specified in UUPA, national agrarian laws or national land laws, namely:
1. Land tenure of Indonesian People;
2. Land Tenure of State;
3. Land Tenure of Indigenous People;
4. Individual tenure, such as:
a. Land tenure;
b. Donated land;
c. Mortgage right.3
National agrarian law or national land law has public and private aspects. Land tenure of Indonesian people are public and private aspects. Land tenure of state is public aspect. Land tenure of indigenous people are public and private aspects. Meanwhile individual land tenure is private aspect.
In term of the relationship of right holder and its tenure, there are two principles in the law of land, namely:
1 Boedi Harsono, Hukum agraria Indonesia Sejarah Pembentukan Undang-Undang Pokok agraria, Isi dan Pelaksanaannya Jilid 1 Hukum tanah Nasional, (Jakarta: Djambatan, 2007), hal 8
2 Urip Santoso, Hukum agraria dan Hak-hak atas tanah,(Jakarta: Kencana, 2008), hal 11 3 Boedi Harsono, op.cit, hal 24
1. Accession Principle
In this principle, buildings and plants over the land become an entity; buildings and plants are parts of the land. The land tenure by itself, since the law includes the right of buildings and plants over the land. For exception when there is other agreement with other parties which build or plant over the land.
2. HorizontaleScheidingPrinciples
In this principle, buildings and plants over the land are not the part of the land. The land tenure does not by itself include the right of buildings and plants over the land.
Article 16 paragraph 1:
(1) Land tenures as referred to in article 4 paragraph 1, namely:
a. Property right;
b. Cultivating right;
c. Building right;
d. Individual right;
e. using right;
f. Rental right;
g. Land opening right;
h. Usufruct of forest;
i. Other rights which are not stated above will be determined by the laws as well as the temporal rights as referred to in article 53.
3. Objective of Land Registration
The law of primary agrarian (UUPA) is a primary policy which regulates the tenure, ownership, allotment, usage and usage control of land aiming to achieve well management and usage of land for people wealth.
One of aspects needed to achieve that goal is related to land tenure certainty which becomes the foundation of land tenure certainty. As referred to in Article 19 UUPA, the land registration is conducted in order to achieve the legal certainty (“rechtskadaster”/“legal cadastre”). In detail, the objective of land registration is elaborated in Article 3 Government Policy No. 24 year 1997:
1. Achieving the legal certainty and legal protection for the right holders towards their land, apartment, and other registered rights as well as easily proving oneself as the right holder of the land. In this case, the right holder is given a certificate as the evidentiary
3. Achieving well-organized land administration. Well-organized land registration is the principle and embodiment of good administration in Land Affair Office. To do so, each land and apartment, including the transition, imposition, and deletion should be registered.4 4. The principles of Land Registration
The principles of land registration as referred to in Article 2 Government Policy No. 24 year 1997 are simple, safe, affordable, up-to-date, and open. In detail, the meaning of those principles are:
1. Simple, it means that both the primary policies and its procedures can be easily understood by the parties concerned, especially the land tenure holder.
2. Safe, the land registration should be conducted carefully and accurately so that it will give the guarantee of legal certainty as the objective of the land registration itself.
3. Affordable, it can be afforded by the parties who need this service, especially by considering the needs and prosperity of people with low income.
4. Up-to-date, the sufficient completeness in implementation and sustainability in data maintenance. The available data should show the up-to-date condition. It needs maintenance of land registration data continuously and chronically, therefore the data available in the Land Affair Office reflects the real data.
5. Open, it means that people can access the right data every time.
5. Implementation of Land Registration
In general, the land registration is a set of activities conducted by the government regularly and continuously in compiling data of lands in certain area for specific objectives, processing, and presenting data to the society by giving the evidentiary tool for the land owners.
6. mortgage
The ease of mortgage execution given to the creditor is the special position in the form of
“droit de preference and droit de suite”which is the characteristic of mortgage as an institution of special and strong guaranty right of land. All imposition procedure of mortgage should contain the provisions managed in detail and really paid attention in order to this exclusiveness given can be beneficial for the creditors concerned. The execution of the Law No 4 Year 1996 about Mortgage of Land and Things related to Land (UUHT) as referred to in Article 20 and Article 21 UUHT.
The Article 20 of Law No. 4 year 1996 about Mortgage of Land and Things related to Land (UUHT) saying:
(1) If the debtors break the promise, therefore:
a. The first holder of mortgage can sell object of mortgage as referred to in Article 6, or b. Executorial title stated in the certificate of Mortgage as referred to in Article 14
paragraph (2), object of Mortgage is sold through public auction based on the regulation decided in the legislation for the credit acquaintance of the Mortgage holder with the right ahead of other creditors.
(2) With the agreement between the giver and holder of Mortgage, the selling of Mortgage object can be conducted under the hands it will gain the highest price and profits for all parties.
4 Budi Harsono,op.cit, hal 471
(3) Selling as referred to in paragraph (2) can be merely conducted after 1 (one) month passing time since the written notice given by giver and/or holder of Mortgage to the parties concerned and published at least in 2 (two) newspapers sold in the area concerned and/or local mass media, and there is no party stating an objection.
(4) Each promise to execute the Mortgage in the ways conflicting with the provisions in paragraph (1), paragraph (2), and paragraph (3) will be null and void.
(5) Until the time of the announcement for action published, the selling as referred to in paragraph (1) can be avoided with debt acquittal which is guaranteed with Mortgage along with the execution expenses.
The Article 20 of Law No. 4 year 1996 about Mortgage of Land and Things related to Land (UUHT) gives authority to the first holder of Mortgage to sell the object of Mortgage on his own power. Therefore, the first holder of Mortgage does not need to ask for the agreement from the giver of Mortgage and does not need to ask for provisions from the local court in order to execute the Mortgage. It is because the certificate of Mortgage has stated “For justice based on the divinity of the mighty one” so that the certificate legally has permanent legal force or is similar with decision of law that has permanent legal force.