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Jurisprudence: Rechtsverwerking (Release of Right) in Customary Land Law

By February 27, 2020 No Comments

Learning Point

Even though in the customary law does not recognize the concept of expiration, however if the best time to claim is passed, then it gives legal presumption that rights (which may be owned) have been relinquished (rechtsverwerking).

Case Summary

The Claimant (Muhammad Husin bin Kadir) is an heir of the late Kadir bin Kadim. The Claimant claims that his father left him a plot of land with area of ± 14,310 m2, located in Jl. Veteran, Sub-District Bintaro, District Pesanggrahan, South Jakarta (formerly Bintaro Village, District Ciputat-Serpong, Tangerang Regency), based on Girik C 1044 Persil 122 D.II (“Disputed Object”).

On 25 February 1972, without any knowledge and permission from the late Kadir bin Kadim, the Disputed Object has been leased by the Defendant I (Sub-District Bintaro) to the Defendant II (Department of Defense and Security of the Republic of Indonesia) for 20-years, until 24 February 1992. The Claimant has requested several times to both Defendant II and Defendant III to return the Disputed Object, but the request was refused. The Claimant then requested an explanation from Defendant III (Local Government of Jakarta Capital Special), but in fact the object of the dispute was recorded as an asset of Defendant III based on Decree of Governor of KDKI Jakarta No. Ad.1/1/31/1969 on Basic Provisions for the Controlling and Granting of Village Land Rights in the DKI Jakarta Area (“KDKI Governor’s Decree 1969”).

Legal Consideration

At the first stage, the District Court of South Jakarta through Decision No. 421/Pdt.G/2007/PN.Jak.Sel decided that the Disputed Object is owned by the Claimant and stating the defendants have committed the unlawful act. In the consideration, the Disputed Object is correctly recorded in the village land book (Letter C ex West Java), under the name of the late Kadir bin Kadim. In addition, it is also proved that the existence of a lease agreement against the Disputed Object for 20-years, between Defendant I and Defendant II on 25 February 1972.

Meanwhile, Defendant III’s reply stating that the Disputed Object is controlled and owned by Defendant III based on the KDKI Governor’s Decree in 1969 is groundless, since the Disputed Object included in the DKI Jakarta area has only occurred after the issuance of Government Regulation No. 45 of 1974 on the expansion of the area of DKI Jakarta, one of which included a part of the region of Tangerang, namely District Ciputat, which covers the Bintaro Village into the jurisdiction of DKI Jakarta.

At the time that the lease agreement is expired, the Defendant I and Defendant II do not renew the lease agreement, and do not return the Disputed Object. In fact, the Defendant III claims the control the Dispute Object and declare it as an asset of Defendant III, but this was not followed by land procurement and giving compensation to the right party. Hence, the defendants are proven to conduct an unlawful act.

This decision and consideration is strengthen by the High Court of Jakarta through Decision No. 127/Pdt/2009/PT.DKI.

At the cassation stage, the cassation judges through Decision No. 2605 K/Pdt/2010 cancels the decision of the High Court of Jakarta and the District Court of South Jakarta. In the consideration, cassation judges consider that the lease agreement against the Disputed Object exists but the late Kadir bin Kadim never disputed the lease and never claimed the ownership of Disputed Object, and therefore those facts are considered to justify the lease agreement. Therefore, it is highly doubtful that such rights exist, especially since the Claimant only files a claim in 2007.

Even though in the customary law does not recognize the concept of expiration, however if the best time to claim is passed, then it gives legal presumption that rights (which may be owned) have been relinquished (rechtsverwerking).

The decision and consideration of the cassation judges is strenghten under the Judicial Review Decision No. 120 PK/Pdt/2013.


Adrian Fernando Simangunsong