Real Estate Law – Resolution of Land Case

Resolution Land CaseBackground

Minister of Agrarian and Spatial/Head of National Land Agency issued the regulation concerning the settlement of land case i.e. Minister of Agrarian and Spatial/Head of National Land Agency Regulation No. 11 of 2016 on the Settlement of Land Case (“Permen Agraria No.11/2016”), which became effective since 14 April 2016.

Land Case

Land Case is a conflict of land between individual person, legal entity, or institutions that do not have a wide impact (“Dispute”), a conflict of land between individual person, group, class, organization, legal entity, or institution that has a tendency or has a wide impact (“Conflict”), or a conflict of land which is managed and resolved through court (“Land Suit”) which is to obtain the management of resolution in accordance with the prevailing laws and/or the land policy.

Resolution of Dispute, Conflict, and Land Suit

Permen No.11/2016 divides the scope of the resolution into two parts, as follows:

  1. The resolution of Dispute and Conflict; and
  2. The resolution and the management of Land Suit

Resolution of Dispute and Conflict

The resolution of Dispute and Conflict is conducted by:

  1. Initiative by the Ministry

The Ministry, through the Head of the Land Office ("Kakantah"), the Head of the Regional Office of the National Land Agency ("Kakanwil BPN"), or the Directorate General ("Ditjen"), conducts the monitoring to find out the Dispute and Conflict which occurs in particular region towards the complaint or the report on newspaper. Furthermore, Kakantah reports the monitoring result to Kakanwil BPN quarterly and copied to the Minister. If the monitoring result needs to be followed up, the Minister or Kakanwil BPN provides an order to Kakantah to conduct the resolution of Dispute and Conflict.

  1. Complaint From Community

The complaint is submitted in writing to Kakantah through the counter complaint, mailbox, or the Ministry’s website. If the complaint is submitted to Kakanwil BPN and/or the Ministry, then the complaint document is forwarded to Kakantah.

Once the officer receives a complaint, the officer will conduct data collection.

The next stage, the officer conducts the analysis. The analysis is conducted to know whether the complaint is the authority of the Ministry or not. If the officer finds that the Dispute or Conflict is the authority of the Ministry, the officer provides the report of data collection and analysis to Kakantah. The Dispute and Conflict of land which is under the authority of the Ministry comprises:

(i)  the false procedural in the process of measurement, mapping, and / or extensive calculation;

(ii) the false procedural in the process of the registration of confirmation and/or the recognition of right over the land which had belonged to indigenous;

(iii) the false procedural in the assessment and/or registration process of land right;

(iv) the false procedural in the assessment process of abandoned land;

(v) the overlapping of rights or land certificate which one of the right is clearly false;

(vi) the false procedural in the maintenance process of the land registration data;

(vii)  the false procedural in the issuance process of replacement certificates;

(viii)  the false in providing the information of land data;

(ix)  the false procedural in the licensing process;

(x)  the misuse of space utilization; or

(xi)  another false in the implementation of laws and regulations.

Resolution of Dispute and Conflict Not The Authority of Ministry

In the event of the Dispute and the Conflict are not the authority of the Ministry, the officer, who has the responsibility to deal with Dispute, Conflict, and Land Suit, submits the explanation in writing to the complainant which contains a statement that the settlement of Dispute and Conflicts is handed over to the complainant. However, the Ministry can take the initiative to facilitate the settlement of Dispute or Conflict through mediation. If one party refuses to conduct the mediation, the settlement is conducted by the prevailing laws.

Resolution of Dispute and Conflict as Authority of Ministry

Kakantah conveys the results of data collection and analysis to:

  1. Kakanwil BPN; or
  2. Minister

Furthermore, Kakanwil BPN or the Minister orders the officer, who has the responsibility to deal with Dispute, Conflict, and Land Suit, to follow up the process of resolution. In the event of any Dispute or Conflict that needs to be managed by the team, Kakanwil BPN or minister can make the Dispute and Conflict Resolution team.

After receiving the report of Dispute and Conflict Settlement, Kakanwil BPN or Minister will issue:

  1. Decision of the Cancellation of Land Right;
  2. Decision of the Cancellation of Certificate;
  3. Decision of the Amendment of Data in certificate, Measurement Letter, the Land Book and/or other General Register; or
  4. Notification Letter that there is no administrative false that will be sent to the parties within a period no later than 7 (seven) business days.

The implementation of the decision of the Dispute and Conflict Resolution is conducted by Kakantah with the following provisions:

  1. informing the parties to deliver the certificate of land and/or other related parties within a maximum period of 5 (five) business days. If the period is over and the parties do not deliver the certificate, Kakantah conducts an announcement regarding the cancellation of land right, the cancellation of the certificate, or the amendment of data, in the Land Office and the village office/sub-district office within 30 (thirty) days.
  2. If the land which becomes the object of Dispute and Conflict is the State/Regional Owned Asset and/or the State/Regional Owned Company, then the implementation of the cancellation of land right is conducted after the deletion of assets/fixed asset from the related institution.
  3. The decision can be postponed with a valid reason and recorded in the book of land and another general register. The delaying reasons are due to:

(i) The certificate which will be canceled is in the status of blocked or be confiscated by police, prosecutor, courts, and/or other law enforcement institution.

The delaying is conducted until the period of 30 (thirty) days since the registration of the block or until the unblocking from the police, prosecutor, court, and/or other law enforcement institution during that time period, if the status of the block is not followed by the determination of confiscation from the court, or the delaying is conducted until there is the annulment of confiscation decision from the police, prosecutor, court and/or other law enforcement institution if the status of the block is followed by the determination of the confiscation from the court.

(i)  the land as the object of cancellation becomes the object of mortgage

Kakantah will inform the holder of mortgage or other parties related to the land regarding the implementation of decision plan within the period of 30 (thirty) days. After the period is over, Kakantah will continue the process of Dispute and Conflict resolution, unless there is a confiscation by police, prosecutor, court and/or other law enforcement institution that the process of Dispute resolution can be conducted after there is the court decision which is binding.

(ii) the land has been transferred to another party.

Resolution/Management of Land Suit

The management of Land Suit is conducted on the civil court process or the administration court process, where the Ministry of Agrarian and Spatial as the party and be conducted in accordance with the prevailing procedural law. If the parties agree to resolve the Land Suit which has been registered in the court in a peaceful way, then the resolution is conducted in accordance with the prevailing laws and regulations.

If the Ministry as the party, then the amicable settlement can be conducted if:

  1. it does not concern the State/Regional Owned Asset;
  2. it does not harm the Ministry’s interest;
  3. approved by the disputing parties; and / or
  4. there is no issue or other matters related to the same subject and the same object.

If the Land Suit does not involve the Ministry as the party but the case is related to the Ministry’s interest, then the Ministry can conduct intervention.

Towards to the court decision which has had binding force, relating to the issuance, transferring, cancellation of land right and/or the cancellation of the assessment of abandoned land is held upon the request of the interested parties (claimant, defendant, or any other party involved in the Land Suit) through the Land Office. In the event of the cancellation of the assessment of the abandoned land application, it is directly submitted to the Ministry.

After receiving the analysis result of the court decision, Kakanwil BPN or the Minister orders the officer who has responsibility to dealing with Dispute, Conflict, and Land Suit to conduct:

  1. examination and field inspection;
  2. exposure (if necessary); and
  3. preparing and submitting the Report of Land Suit resolution.

In the event of the implementation of court decision, the implementation is conducted in accordance with the authority of the cancellation. The authority of the cancellation is conducted by:

  1. Kakantah, in the event of the decision of conversion/confirmation/admission, granting of right, cancellation of right are issued by Kakantah;
  2. Kakanwil BPN, in the event of the decision conversion/confirmation/admission, granting of right, cancellation of right are issued by Kakanwil BPN;
  3. Minister, in the event of the granting of right decision, the right of cancellation decision, the assessment of abandoned land decision are issued by the Minister.

If the land as the objects of court decision is the State/Regional Owned Asset and/or the State/Regional Owned Company, the implementation of the cancellation of land rights is conducted without waiting the abolition of assets/assets of the agency concerned. Granting of land rights can be made after the deletion of asset/fixed asset from the related institution.

The implementation of court decision that already has binding force shall be conducted unless there is a valid reason not to perform, inter alia:

  1. there is another decision contradicted with the object of the decision

The implementation of the cancellation can only be conducted after there is a binding decision.

  1. for the object of the decision which is in the status of blocked or confiscated by police, prosecutor, court and/or other law enforcement institution

The implementation of the cancellation can only be conducted after the revocation of confiscation by the police, prosecutor, court, and/or other law enforcement institution.

  1. other reasons which are stipulated in the prevailing laws and regulations.

Mirza Aulia

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Real Estate Law – Resolution of Land Case
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