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Servitude (Servituut) Right in Land Law in Indonesia

By July 23, 2021 No Comments

Prior to the enactment of Law No. 5 of 1960 on Principal on Agrarian (“Law No.5/1960), land law in Indonesia was subject to the provision of Book II of Indonesia Civil Code (“ICC”). One of the rules under the Book II of the ICC is about the Servitude (servituut) Right or Dedication of Yard. Under Article 674 of ICC, Servitude Right is defined as a burden given to the yard belonging to one person, to be used for and for the benefit of the yard belonging to another person.

Types of Servitude Right

According to Prof. Subekti, servitude right is divided into several kinds, namely:[1]

  1. The Eternal
    The right of the eternal yard means that the right is continuously exercised, without the need for a human act, such as the flow of water, scenery and so on. The provision of the eternal servitude right can be seen in Article 677 of ICC.
  2. The Non-Eternal
    The right of the yard that is non-eternal means that in using it the right must require a human act, such as the right to pass through the yard, the right to take water, the right to herd livestock and so on. The provision of the non-eternal servitude right can be seen in Article 677 of ICC.
  3. The Visible; and
    The right of the yard that is visible means a right of the yard to an object that has visible signs, such as prohibitions to erect something on the yard and so on. The provision of the visible servitude right can be seen in Article 678 of ICC.
  4. The Invisible
    The right of the yard that is invisible means that in fact it has no visible signs, such as the prohibitions to erect something on the yard and so on. The provision of the invisible servitude right can be seen in Article 678 of ICC.

Requirements of Servitude Right

According to C.S.T. Kansil, servitude right is valid if it has fulfilled the following conditions:[2]

  • There must be two-yard located near each other, built or not built and owned by various parties;
  • The benefits of the right of the yard should be enjoyable or can be used for various parties who have the yard;
  • The right of the yard should aim to leave the benefits of the ruler’s yard;
  • The burden that is burdened must always have the character of bearing something;
  • The obligations arising in the right of the yard can only be in the event of allowing something, or not allowing something.

Servitude Right in Land Regulations in Indonesia

Indirect provisions regarding servitude right can be found in Article 6 of Law No. 5/1960 which stipulates that all land rights have a social function.

Then, in the General Elucidation Chapter II Paragraph 4 of Law No.5/1960, the social function of land means that the right to any land that exists in a person, cannot be justified, that the land will be used (or not used) solely for his personal benefit, especially if it causes harm to the community. The use of land must be adapted to its circumstances and the nature of its rights, to benefit both the welfare and happiness that it has and benefits also for the society and the country.

Servitude right is also regulated under the Government Regulation No. 40 of 1996 on Right to Cultivate, Right to Build and Right of Use (“GR. No.40/1996“), which states that if the land of Right to Cultivate or Land of Right to build or Land of Right to Use due to geographical or environmental circumstances or other reasons it is located in such a way that it locks or closes the yard or other areas of land from public traffic or waterways, then the holder of Right to Cultivate or Right to build or Right to Use must provide a way out or waterway or other facilities for the yard or land that is locked up.

However, since the enactment of Government Regulation No. 18 of 2021 on Right of Management, Land Right, Condominium Unit and Land Registration (“GR No. 18/2021“), GR. No. 40/1996 was revoked. Under  GR No. 18/2021, there is also a provision like the servitude right, namely a prohibition for holders of right to build and the right to use to lock or close the yard or other areas of land from public traffic, public access, and/or waterways. Similar with that, holder of Right to Cultivate is required to provide a way out or waterway or other facilities for the yard or land that is locked up.

Jurisprudences Regarding the Servitude Right

In addition to being found in the legislation, Servitude Right can also be found in some considerations of the Panel of Judges as in the Supreme Court Decision No.1729 K/Sip/1976. In the ruling, the panel of judges considers that the dedication of the yardland (erfdienstbaarheid or servituut right) does not end with the change of landowner concerned.

Then, in the Supreme Court Decision No. 1966 K/Pdt/2018, the Panel of Judges considers in essence that if a person prohibits the party that has the right to benefit the land, then the act is considered as an unlawful act.

Moreover, in the Supreme Court Decision Number 182 PK /Pdt/ 2017, the Panel of Judges considers in essence if the Defendant closes the road where a servitude right is in place, then the Defendant must make a replacement path.

Thus, although Book II of the ICC has been superseded by Agrarian Law, the validity of servitude right is still found in the Agrarian Law in Indonesia to date.

[1] Prof. Subekti, Pokok-pokok Hukum Perdata (Jakarta : PT.Intermasa, 2001) page 75

[2] P.N.H. Simanjuntak, Pokok-Pokok Hukum Perdata Indonesia (Jakarta: Djambatan, 2009) page 222.

Alya Batrisiya