Legal Aspects of Land Purchase/Sale Disputes in Indonesia

J. Andy Hartanto, JAH (2018) Legal Aspects of Land Purchase/Sale Disputes in Indonesia. ENVIRONMENTAL POLICY AND LAW THE JOURNAL FOR DECISION-MAKERS, 48 (1). pp. 79-82. ISSN 0378-777x

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Abstract

Indonesia is an agrarian country, where agriculture is a major source of livelihoods, and therefore matters relating to land have received special protection from the State. As set out in Article 33(3) of the country’s 1945 Constitution, “Earth and water and natural resources contained therein are controlled by the State and used for the greatest prosperity of the people”. This clause recognises the role of land as an essential factor in meeting its people’s primary needs. The government directly regulates a number of the ways in which land is acquired, including particularly the purchase and sale of land by formal agreement under which the landowner (seller) pledges to surrender his/her rights to certain land to another party (the buyer), who in turn is bound to pay the agreed price. Indonesia is a constitutional State, as set forth in Article 1(3) of the 1945 Constitution of the State of the Republic of Indonesia, the third amendment of which is commonly known as the Rule of Law. The concept of the rule of law was originally developed in continental Europe, among others by Immanuel Kant, Paul Laband, Julius Stahl, Johann Fichte, and others using the German term “Rechtsstaat”. Indonesia recognises the rule of law as law enforcement, general justice and sovereign government. Since the Basic Agrarian Law came into force, there has been a fundamental shift in land law, toward Indonesian agrarian law, placing these issues directly under governmental control. There have, therefore, been fundamental changes to both the structure of the legal instruments, the underlying concepts, and the manner in which disputes are addressed. Specifically, that basic agrarian law must operate in the best interests of the Indonesian people and must also meet their needs according to the demand of the times. The sale and purchase of land is a mutual obligation – both parties must be bound. As to each commitment in such a purchase, one side obtains and asserts a right, and the other fulfils an obligation. Between these rights and obligations there is an economic value, and a legal status. Therefore, the operation of an agreement cannot always do anything that is desired by the parties, but is bound by the law. The process of buying and selling land may cause a dispute in cases involving differences in the values, interests and opinions of the individuals or legal entities involved, and divergent perceptions concerning the status of the land tenure, and/or the ownership and utilisation of relevant lands. Each party’s attempt to implement the agreement on the basis of imprecisely agreed rights and obligations will eventually lead to a dispute. The land purchase/sale agreement is considered to be a binding, executory agreement, because immediately after concluding the agreement, the two parties have transferred neither the land itself nor the price – the main elements of the agreement.5 At that point, the parties must meet several conditions, the exact parameters of which have been determined by the applicable legislation, in order for the transfer of land rights to be legally recognised. If a land purchase/sale process does not meet these requirements, it may not be legally registered. Considering the importance of land in human life, conflicts and disputes about land ownership are relatively common. Clearly, a number of legal issues are of daily importance – how one might own/purchase land; what legal requirements apply; and what validates or invalidates a sale transaction. In practice, however, the most difficult legal questions arise out of the cases in which the status of a particular parcel of land is in dispute, but the purchase/sale transaction goes forward anyway. The parties to the dispute, even those that are not directly parties to the purchase/sale, have a great influence on the rights and obligations of the purchase/ sale transaction. As a result, those rights and obligations must be resolved, whether through the relationship between the parties or by judicial process. In this study the authors will focus on two principal issues: the basic procedures relating to land ownership in Indonesia; and the legal requirements for addressing land purchase/sale disputes.

Item Type:	Article
Subjects:	K Law > K Law (General)
Divisions:	Fakultas Hukum > Magister Hukum
Depositing User:	Repository Administrator
Date Deposited:	09 Oct 2019 01:39
Last Modified:	12 Nov 2019 06:51
URI:	http://repository.narotama.ac.id/id/eprint/564

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