Corresponding Author: Irma maulida
E-mail: [email protected]
INTRODUCTION
Land ownership is closely related to legal certainty regarding
land rights, especially for the benefit of the community. In this case, the
UUPA, the primary land law, regulates the main problems of Indonesian agrarian
affairs in outline. Furthermore, further implementation is regulated through
laws, government regulations and other laws and regulations. The legal
certainty of land rights is aimed at land ownership, so the legal certainty of
land rights will provide clarity and strong evidence of land ownership (Andari et al., 2014). In turn, the legal certainty of land rights provides clarity on two
things, namely, subject certainty, namely certainty regarding the holder of the
property right and object certainty, namely certainty regarding the land such
as location, shape, area, boundaries and so on" (Murni & Sulaiman,
2022).
In line with human life
development, land rights ownership is so important that the government protects
land ownership through legislation, namely the Basic Agrarian Law and
Government Regulation Number 10 of 1961 which was later replaced by Government
Regulation Number 24 of 1997 concerning Land Registration. The public is
required to register their land as stipulated in Article 32 paragraph (1) of
Government Regulation No. 24 of 1997 concerning Land Registration, namely that
"a certificate is a proof of right that serves as strong evidence of the
physical and juridical data contained therein as long as the physical and
juridical data is by the data contained in the measurement certificate and land
book of the right concerned."
The right of ownership
is the most vital right to land, which authorizes the owner to re-grant another
right on the land plot of the property right he owns (Wahid et al., 2017). According to Indonesian agrarian law, ownership of land
can be interpreted in two concepts: physical control and juridical control (Doly, 2017). Physical ownership means that the legal subject
controls and manages the land directly. In contrast, juridical control means
that the legal subject has control based on legal grounds based on the Law (Rahadiyan Veda Mahardika
et al., 2022). People generally own certificates or title deeds and
manage their land according to their wishes. However, the facts are that people
only have physical possession of land. This is because, according to their
understanding, physical control of land is more important than juridical
control (land certificates). This community perspective on land tenure and land
ownership has become a hereditary history that is understood by the community
in land ownership as evidenced by certificates (Utomo, 2023).
The existence of the ownership of
land rights makes it possible for the transfer of rights to be carried out by
legal subjects. According to Article 37 paragraph (1) of Government Regulation
No.24 of 1997, the transfer of land rights and ownership rights over apartment
units can be obtained through sale and purchase, exchange, grants, inclusion in
companies and other legal acts of transfer of rights. Due to low awareness of
the law, the community, in this case, only sells and buys land rights with
receipts and even oral sales and purchases without proof of payment. Holding a
land certificate means something other than that the legal subject already
controls the land physically or juridically. However, there is a process to
transfer the certificate's name from the old owner to the new owner first.
Because the land in the Civil Code Book II on the Law of Objects is included in
the class of tangible and immovable objects, then the transfer or transfer of
property rights must be done with balik nama.
Given the above
description, this research uses the legal basis of Law Number 5 of 1960
concerning Basic Regulations on Agrarian Principles, Government Regulation
Number 24 of 1997, reference books and journals. To ensure legal certainty in the
sale and purchase, the land sale and purchase process can be carried out on
land owned based on land rights. This means that the land object is authorized
with proof of ownership of land rights (Hartanto, 2014). With the
registration of land, it will not only realize the security guarantee of its
ownership in the direction of legal certainty, but even one owner will get the
perfection of his rights (Sinaga, 2014). The purpose of this research is to protect and provide legal certainty to the
owners of land rights that, by Government Regulation Number 24 of 1997 Article
4 paragraph (1) states "to provide legal certainty and protection as
referred to in Article 3 letter (a) to the relevant right holders, land rights
are given."
METHOD
The type of research used in this paper is normative juridical,
namely research conducted by examining library materials and legislation
related to what is being discussed, namely the transfer of land rights. This
research method is an absolute element that must be contained in a study that
has a function to advance science and aims to explain all the questions of the
problem being studied (Zefanya & Lukman,
2022).
The method used in
collecting data for this research is a literature study with secondary data.
These materials explain primary legal materials such as books, journals,
papers, literature, and research results. Secondary data used is published and
general data, including laws and regulations, books, journals, or other
materials related to the research The method
of data collection uses
interviews and studying
and reviewing
applicable laws and regulations as a basis for
solving problems.
RESULTS AND DISCUSSION
In the case
of buying and selling land, the object is the land certificate. If the land is
already certified, there is no problem
(Murni, 2018). Article 4
paragraph (1) of the Basic Agrarian Law states that "based on the State's
right to control as referred to in Article 2, there are various kinds of rights
over the surface of the earth, called land, which can be given to and owned by
persons, either alone or together with other persons and legal entities".
This
guarantees that every person who has a land right to obtain a certificate to
obtain legal certainty and become proof of ownership of a valid land right, per
Article 4 paragraph (1) of Government Regulation No. 24 of 1997 concerning Land
Registration. Transfer of land rights is a legal act to transfer land rights to
other parties (Zulhadji,
2016). The transfer of rights is not merely the
transfer of certificates and control of the land but must be reversed. The
transfer of land rights or the transfer of the name of a certificated land
certificate can be done by making a Sale and Purchase Deed to a PPAT, regulated
in Government Regulation 24 of 1997 concerning Land Registration (Manueke,
2018). In making a sale and purchase deed, it must
be attended by the parties to the sale and purchase and witnessed by at least
two witnesses. PPAT, by seven working days from the signing of the Sale and
Purchase Deed, must submit the deed and related documents to be registered with
the land office.
In the Court
Decision case raised in this paper, the previous owner or seller's whereabouts
are unknown. This may be due
to death, change of domicile, or other reasons. So the question arises: How is
the process of transferring rights that the previous owner does not know, and
what are the legal consequences after the court decision is issued?
Process of Transfer of Land Rights
Unknown to the Previous Owner
Transfer of
land rights (balik nama) that the previous owner does not know is suggested by
the land agency using a court decision. Article 55, paragraph (2) of Government
Regulation No. 24 of 1997, states that "Recording as referred to in
paragraph (1) may also be carried out at the request of an interested party,
based on an official copy of a Court decision that has obtained permanent legal
force or a copy of the determination of the Chairman of the Court concerned
which is submitted by him to the Head of the Land Office".
So with the court's decision, the transfer of ownership rights to
land from one party to another and the buyer or owner afterwards has the right
to transfer rights (balik nama), which was initially in the seller's name, to
the buyer's name. Strengthened by Article 4 paragraph (1) of Government
Regulation No. 24 of 1997 concerning Land Registration, namely" To provide legal certainty and protection as referred to
in Article 3 letter a, the relevant right holder is given a land right."
Transfer of
land rights through the courts can be carried out through the civil procedural
law process. An interactive court decision can serve as a basis for the
plaintiff/land purchaser to register the transfer of land rights or to transfer
the name of the certificate to the District Land Office in the absence of a
sale and purchase deed drawn up by a land deed official (PPAT). Civil procedural law is a legal regulation
that regulates how to resolve civil cases through the judicial body. According
to Wirjono Prodjodikoro, Civil Procedure Law is a series of regulations that
contain how people must act towards and before the court and how the court must
act on one another to run civil law regulations �(Rasyid & Herinawati, 2015). The purpose of civil procedural law is to protect
the rights of individuals in civil disputes, such as the right to transfer
land, the right to provide relevant evidence and arguments, the right to obtain
a decision based on the law and facts, and the right to enforce court decisions
(Faradhiba,
2023).
Legal
remedies that can be taken can be outside the court and inside the court.
Outside the court is mediation, which is one of the alternative dispute
resolution. In Decision Number 59/Pdt.G/2023/PN Cbn, the case was about the
transfer of ownership rights to land that the previous owner or seller did not
know. According to the author's analysis, the plaintiff purchased a piece of
land from the Defendant legally under the hand with proof of payment in the
form of a receipt. However, the plaintiff transferred rights (balik nama) 25
years after purchasing the land. The plaintiff wanted to make a sale and
purchase deed before a PPAT. However, the seller's whereabouts were unknown, so
he could not make a sale and purchase deed before a PPAT because Government
Regulation No. 24 of 1997 explained that in making a sale and purchase deed,
the seller and buyer must be present to sign the sale and purchase deed. The
buyer finally made a lawsuit letter and carried out the process of transferring
rights with civil procedural law through the court.
Decision
Number 59/Pdt.G/2023/PN Cbn states that the Defendant was not present in 3
(three) proper summonses, so the judge decided the case without the Defendant's
presence. Article 125 HIR/149 R.Bg states that if on the appointed hearing day,
the Defendant neither appears nor sends someone else to be present as his
representative, even though he has been properly summoned, the lawsuit is
accepted with a decision outside the presence of the Defendant (verstek) unless
it turns out that the District Court thinks that the plaintiff's claim is
against the right or has no legal basis. Regarding the understanding of
verstek, it is closely related to the function of litigation in court, and this
is inseparable from the imposition of a decision on a disputed case, which
authorizes the judge to decide without the presence of the plaintiff or
Defendant (Maswandi, 2017).
The buyer has
carried out legal actions legally and has not committed illegal acts. However,
the receipts owned do not have legal force to prove their authenticity.
Therefore, the evidentiary power to carry out the legal act of transferring
rights needs to be stronger. It needs to be supported by other evidence or
certificates, so the old proof of rights can only stand with others if you want
to carry out a legal action (Winata Nadia, 2021).
Legal consequences after court
decision
The above
case can be included in a land dispute, namely a case concerning the overlapping
of an old certificate into a new certificate. Overlapping certificates of land
rights issued by the land office can certainly be studied with errors in the
juridical and physical data collection process so that overlapping with the
term double certificate will certainly impact the ownership of each party, who
will certainly ask for legal certainty over the dispute that occurred (Pranoto & Sunarno,
2020).
The legal consequences of the Cirebon City Court Decision
Number 59/Pdt.G/2023/PN
Cbn, namely by stating that it is true
that the Plaintiff has purchased the plot of land and it is declared valid that
the owner of the land has been transferred to the Plaintiff where the issuance
of certificates by the plaintiff in the name of the plaintiff is not an illegal
act so that the plaintiff can control the land physically and juridically. This is in
accordance with the theory of legal certainty according to Gustav Radbruch,
which is to realize justice in legal certainty in the real form of
implementation and law enforcement.
CONCLUSION
From the
results of the above research, it can be concluded that a court decision can be
used as the basis The
process of transferring land ownership through the civil procedure legal
process, and the judge has
the authority to order the Head of the Defense Office to issue a duplicate
certificate in the name of the plaintiff through a decision letter and declare
that the previous certificate (certificate in the name of the Defendant) is no
longer valid, this is based on the provisions of Government Regulation No. 24
of 1997 concerning Land Registration and Article 125 HIR/149
R.Bg. And with this decision, the
plaintiff can get legal certainty and justice in the form of juridical physical
control of the land rights.
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