Study of Business Law Related to the Sale and Purchase of Inherited Land

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Study of Business Law Related to the Sale and Purchase of Inherited Land

Humala Sitinjak^a,1*, Jenriswandi Damanik^a,2, Imman yusuf Sitinjak^b,3

aFaculty of Law, Universitas Simalungun, Indonesia

bFKIP PPKn, University of Simalungun, Indonesia

1[email protected],²[email protected],³[email protected]

*corresponding author

ARTICLE INFO ABSTRACT

Article history:

Received 31 Apr 2022 Revised 6 May 2022 Accepted 13 June 2022

Property rights can be transferred to other parties because there is a legal event. The occurrence of a legal event is that with the death of the right holder, the property right passes from the right holder to his heirs, so that the heirs are obliged to register the transfer of rights due to land inheritance.

Property rights can also be transferred due to legal actions, such as buying and selling, exchanging, grants to other parties. This research analyzes data qualitatively with a normative approach method which will examine the object based on legislation. Source of data used is secondary data. Data collection tools used with documentation studies. The location of the research implementation in Toba Regency. Regarding problems that have been bought and sold but not transferred by the next owner until the land has inherited status, when registering the land or changing the name of the land certificate, you need to ask for evidence of the history of the land, which can be letters of compensation, sale and purchase or other documents. others that are related as evidence and will later become an important part when the land will be passed on to descendants in the event of death..

Keywords:

Business Law, Sale and Purchase, Inherited Land

I. Introduction

In today's economic world, business is not a new thing in the industrial world 4.0 where the economy is one of the most important factors for human survival. Many things around the community are part of business objects, one of which is property objects and also land. Land is a very important thing where its use is not only as a residential land, land can also be cultivated as agricultural / plantation land, livestock land, and can also be pledged to the Bank to be used to obtain credit loans that can be used by the owner.

Land ownership is not only limited to buying or getting a verbal grant, but it is important for all people to realize that ownership in the form of a certificate of ownership is the most important thing after owning the land, whether through buying and selling or grants.

Article 570 of the Civil Code states: "The right of ownership is the right to enjoy the use of a property freely, and to act freely on the property with full sovereignty, provided that it is not contrary to the Law or general regulations stipulated by a power entitled to stipulate it, and does not interfere with the rights of others, all of which without prejudice to the possibility of revocation of the right in the public interest based on the provisions of the Law and with the payment of compensation" [1].

Based on the above regulations, it can be interpreted that property rights are absolute rights, namely the strongest rights owned and can do anything with the land, as long as it does not violate the rules and regulations and the rights of others. According to Article 20 paragraph 1 of UUPA No.5 of 1960, the definition of property rights is as follows: "The right of ownership is a hereditary, strongest and fulfilled right that people can have to land"[2].

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Article 20 paragraph (2) of the UUPA states that the existence of property rights can be transferred and transferred to other parties because there is a legal event. The occurrence of a legal event, namely the death of the right holder, means that the title passes from the right holder to his heirs, so that the heirs are obliged to register the transfer of rights due to land inheritance. Apart from inheritance, property rights can also be transferred due to legal acts such as exchange, sale, and grant. One such transfer of rights is the sale and purchase of land. Property rights have the uniqueness of being without time limit, therefore property rights can be inherited to the family left behind[3].

The problem is when land is bought and sold or grants and resold, but the land after the purchase or grant is not certified or named on the certificate of ownership until the previous owner dies which makes the land like an inheritance status. This happens resulting in the owner who has bought it being difficult to change the land into his name, where when going to take care of changing the status of land rights will make the current owner must ask for the signatures of the heirs even though he already has proof of the sale and purchase or grant above the stamp stating about the transfer of ownership rights to the land. Based on this, the researcher wants to conduct research on "Business Law Studies Related to the Sale and Purchase of Inherited Land" with the formulation of the problem under study is an effort to resolve land problems that have been bought and sold but no transfer of rights by the next owner until the land has inherited status.

II. Methods

This research analyzes data qualitatively. The method of approach to this research is normative which will examine the object systematically based on legislation to provide an opinion or legal argument in the form of legal rules that apply to certain legal events.[6]. The data source used is secondary data. Data collection tools used with documentation studies. The location of the research implementation in Toba Regency.

III. Results and Discussion

In owning land, one of the most important property rights in human life, which along with the increasing human population that requires land as space, ownership of land continues to develop, both in terms of the concept of ownership and the laws that govern it. The characteristics of a society will affect the land law that applies in that society.

Sale and purchase agreements are regulated in Article 1457 of the Civil Code which states "Sale and purchase is an agreement and the parties bind themselves to each other in accordance with the agreed price". Article 1458 of the Civil Code states that an agreement occurs if the parties have agreed on the object and the price, even though the object has not been delivered or the price has not been paid.

Regarding the implementation of land sale and purchase in agrarian law, Article 37 paragraph (1) of Government Regulation No. 24 of 1997 stipulates that: the transfer of land rights and ownership rights over apartment units through sale and purchase, exchange, grants, inclusion in companies and other legal acts of transfer of rights, except for the transfer of rights through auctions, can only be registered if proven by a deed made by an authorized PPAT according to the provisions of the applicable laws and regulations.

Therefore, according to the provisions of Article 39 of Government Regulation Number 24 Year 1997, it is stated that PPAT refuses to make a deed if:

a. In the case of a registered land parcel, the original certificate of the right in question was not delivered to him or the certificate was not in accordance with the register maintained by the Land Office;

b. Regarding land parcels that have not been registered, he was not informed;

c. Letter of evidence of rights as referred to in Article 24 paragraph (1) or Certificate of the Head of the Village/Kelurahan stating that the person concerned controls the land parcel as referred to in Article 24 and a Certificate stating that the land parcel concerned has not been titled from the Land Office or for land located far from the position of the Land Office of the right holder concerned with corroborated by the head of the village/Kelurahan;

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d. One or more of the parties to the legal act in question or one of the witnesses referred to in Article 38 is not entitled or qualified to act as such; or

e. One of the parties or the parties acts on the basis of an absolute power of attorney which essentially contains the legal act of transferring rights;

f. For legal actions carried out, the permission of the authorized official or agency has not been obtained, if such permission is required according to applicable laws and regulations; or g. The object of the legal action concerned is in dispute regarding its physical and or juridical

data; or

h. Non-fulfillment of other conditions or violation of prohibitions stipulated in the relevant laws and regulations.

i. The refusal to make the deed shall be notified in writing to the parties concerned along with the reasons;

In land transfers, it is important to know the pedigree of the land where all the data is known and to have a certificate from the village head or village head that the seller really controls the land.

To obtain strong evidence and broad evidentiary power, the legal act of transfer of rights must be registered with the Land Office to be recorded in the relevant land book and certificate. This is because everything about the land, be it the history of ownership, the implementation of the sale and purchase, and even the transfer of rights due to inheritance, will be recorded at the BPN when certifying or transferring the certificate of ownership. This is because everything about the land, be it the history of ownership, the sale and transfer of rights, or even the transfer of rights due to inheritance, will be recorded at the BPN when certifying or transferring the certificate of land ownership.

Customary inheritance and civil inheritance have long been in force in Indonesia. However, the implementation of customary inheritance applies by using a system that applies customarily rather than nationally depending on what customs apply to the heirs and heirs. The legal basis is local customary law (Lokalistik) which depends on the kinship structure adopted by the community whether Patrilineal (inheritance in sons), Matrilineal (inheritance in daughters) or Bilateral (inheritance in sons and daughters). The share of sons and daughters is not the same.

It is also not uncommon for the implementation of customary inheritance to impose a will. A will is a gift from a person to another person, either in the form of objects, receivables or benefits to be owned by the testator as a gift that takes effect after the death of the testator. A will according to Article 875 of the Civil Code "is a deed containing a statement of a person about what he wishes to happen after he dies, and which can be revoked by him again".

In customary societies, wills are emphasized orally rather than in writing as in the Civil Code.

Whatever the will of the deceased did before he died or was still healthy about his desire to distribute his property to his children according to his own wishes.

It would be fine if that was done by the owner of the property before he died as his will before he died. However, it will become difficult when his will is not put in writing and he has died. The difficulty here is when the heir based on the will of the deceased wants to control his rights according to the will of the testator. For example, the inheritance of land that the testator wishes to one of the heirs. When the heir wants to transfer the share to become his right, he needs recognition from the other heirs. The problem is what if the other heirs do not agree that it is their share and do not recognize the will of the testator before dying. So that the heir will have difficulty in certifying or buying and selling the land.

Many perpetrators of customary inheritance do not care about the existence of a will when making their will after death, causing difficulties for the heirs when they die. So that it needs a clear understanding as in the Civil Code about the will is the will of the dead as outlined in the form of a deed.

As a result of the object of land to be traded is inherited land is the land can be traded when getting approval from the heirs to be able to carry out the sale and purchase of the land.

Buying land from an inherited estate usually involves more risk than buying land in general.

The risk is mainly because the inherited land certificate is still in the name of the heir or deceased person, while the heirs may want to sell the inherited land as soon as possible so that it can be divided among their heir's family.

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In the sale and purchase of inherited land, the letter of sale and purchase of inherited land, in this case the Certificate of Heirs, is actually included in the general type of power of attorney. This kind of power of attorney is regulated in Article 1795 of the Civil Code which states "The granting of power of attorney can be done specifically, namely only regarding one or more specific interests, or in general, namely covering all the interests of the authorizer."

If there is only one heir, the process is much easier and hassle-free. If there is more than one heir, then the sale and purchase process and the signing of the Sale and Purchase Deed (AJB) must involve all heirs. Article 1471 of the Civil Code states that: "The sale of another person's goods is void, and may provide a basis for reimbursement of costs and interest, if the buyer has not known that the goods belong to another person".

The article states that the sale process is invalid or void and the seller must return the inherited land to the heirs. However, if the land has already been sold and is difficult to return, then the heirs can request compensation for the asset in another form with an equivalent value. However, if the seller does not make a good faith effort to settle the case, it means that he has committed the crime of embezzlement.

The presence of heirs or represented by a power of attorney is the main key so that the problem of buying and selling inherited land can be completed and can be carried out. Therefore, experts who ask for recognition and power of attorney so that later their rights to inheritance are owned and can be traded.

At the time of signing the Sale and Purchase Deed (AJB) all heirs also give their consent to sell the inherited land. The consent can be given in a separate letter or directly by jointly signing the sale and purchase deed (AJB). However, to be safer, it is better if in addition to a special approval letter, the heirs also sign the AJB together.

The resolution of the problem of buying and selling inherited land is that the seller must obtain authorization and agreement from the heirs to be able to sell and buy the inherited land. Not infrequently in the area of the implementation of the sale and purchase of land only with the right base SK camat or lurah certificate and strengthening the power of attorney from those related to the owner such as the owner himself and also the heirs. When selling, the seller will authorize one of the parties to act in carrying out the administration of the sale and purchase of land. Many parties do not understand that after completing the sale and purchase, it is mandatory for the buyer to register or reverse the ownership of the land into certified land so that it has legal force after the sale and purchase.

When the land is not certified or the name of the land certificate is changed, then the next problem will be if the land will be bought and sold again or one day the land will be passed on to the generation of children or family in the event of death.

Against the above problems, the buyer, Notary and PPAT as the maker of the land sale and purchase deed, as well as the ATR-BPN who will register the land or reverse the land certificate will ask for the history of the land to be owned at this time. If the implementation of the previous sale and purchase was only with a compensation letter or only with a sale and purchase under the hand affixed with stamp duty only, it is difficult for the seller to be said to be the rightful owner.

Concrete evidence of the history of land ownership becomes an important part and becomes a problem especially if the land will be passed on to descendants in the event of death.

For this reason, it is important for the perpetrators of land sale and purchase to immediately certify the land when the land has been sold and purchased. Because if it is only to avoid tax costs that an underhand sale is made between the parties to the sale and purchase, but the results make it difficult in the future, then it is better to carry out the sale and purchase of land according to existing regulations. Because then the assets owned will not experience problems in the future, either if it will be mortgaged or bought and sold again and if later the land will be inherited it will not make it difficult for the heirs to control it.

IV. Conclusions

For problems that have been bought and sold but no transfer of rights by the next owner until the land is inherited, the buyer, Notary and PPAT as the maker of the land sale and purchase deed,

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as well as the ATR-BPN who will register the land or reverse the land certificate will ask for the history of the land to be owned at this time. If the previous sale and purchase was only with a compensation letter or only with a sale and purchase under the hand affixed with stamp duty only, it is difficult for the seller to be said to be the rightful owner. Concrete evidence of the history of land ownership is an important part and becomes a problem, especially if the land will be passed on to descendants when death occurs. For this reason, it is important for the perpetrators of land sale and purchase to immediately certify the land when the land has been sold and purchased. Because if it is only to avoid tax costs that the sale and purchase is carried out under the hands of the selling and buying parties, but the results complicate it in the future, then it is better to carry out the sale and purchase of land according to existing regulations. Because then the assets owned will not experience problems in the future, either if it will be mortgaged or bought and sold again and if later the land will be inherited it will not make it difficult for the heirs to control it.

We recommend that in buying and selling land, the buyer must know the history of the land and proof of ownership of the land object of sale and purchase. In buying and selling land, it should be done at the Notary and PPAT office so that it has legal force for the implementation of the sale and purchase. After buying and selling land, it is necessary to certify it if it has not been certified or to change the name of the previous land certificate if any

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