Determination of Ownership Right

Learning Points:

The sale and purchase of buildings that are constructed on the land cannot be considered as the sale and purchase of the land, unless written clearly under the notarial deeds. The land occupation towards state land cannot be considered as holding the land with good faith, and the holder of land is not able to obtain the land right with the mechanism of verjaring (expiration as a tool to obtain rights over goods).

This case is occurred before the issuance of Law No. 5 of 1960 on Principles Provision of Agrarian Law (“Agrarian Law”). From the issuance of Agrarian Law, the mechanism of verjaring is not used anymore, since Agrarian Law acknowledges customary law, and the customary law only recognizes rechtsverwerking.

Summary of Case:

In 1952, Sech Jafar bin Umbarak bin Said Alkatiri and Sech Said bin Badar bin Said Alkatiri (“Applicants”) filed an application in the District Court of Jakarta, where they requested to be determined as the owner of a land, located in Pasarbaru, Jakarta. Part of the land is registered under the name of Government of Netherland-Indie, and the rest is registered under the name of Tan Yap Liong. The land has been built with three houses. The Applicants claims they have sold the land in 1920 to Oey Boen Soey, with the buyback rights. The land has been bought again from Oey Boen Soey by the Applicants in 1952. The Land Registration Office of Jakarta did not accept the transfer of right application by the Applicant, unless the judges issue a decision that the Applicants are the valid owner of the land.

Legal Considerations on First, Appeal and Cassation Stages:

First Stage

After reviewing all written evidences submitted by the Applicants, the District Court of Jakarta stated that the evidences are only related to the ownership of buildings (three houses), and not related to the land that is claimed by the Applicants. Based on the evidences, the judges found that the land is a state land. The application by the Applicants therefore is rejected by the District Court of Jakarta.

Appeal Stage

In the appeal stage, the High Court of Jakarta stated that based on the notary documents that have been reviewed by the judge in the appeal stage, the objects of buyback are building. Since part of the land is a state land (domeingrond) under Article 1 Agrarisch Besluit jo. Director Letter of Binnenlands Bestuur No No. 1663 dated 7 April 1898, therefore the Applicants violate Staatblad 1912 No. 177. The judges also considered that the Applicants are the owner with bad faith, therefore they cannot use the mechanism of verjaring.

Cassation Stage

The Supreme Court through Decision No. 155 K/Sip/1965, dated 6 August 1957, confirmed the legal consideration made by the High Court of Jakarta. The judges of cassation stated that the Applicant supposedly know that the building is constructed on the state land, and the land is not sold before. Therefore the Applicant’s claim with regards to the determination of ownership right (eigendomsuitwijzing) is not supported by the notarial deeds as submitted by the Applicants.


Ivor Pasaribu / Muhammad Putera Fajar Utama

 

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Determination of Ownership Right
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