Authors: Jono Yeo, Randy Hendrika
Due to the unresolved complexity of land management and registration in Indonesia, land rights often become a subject of conflicting interests. It is, therefore, common for a landholder to find the rights they hold being challenged or have them unjustifiably claimed by third parties. To prevent further complication of overlapping rights over such land during the process of dispute resolution, Government Regulation No. 20 Year 1997 concerning Land Registration provides blockage and seizure mechanisms for land titles as a legal remedy.
Nevertheless, since its inception, the blockage and seizure of land titles have never been regulated specifically and were spread rather thinly across multiple regulations. This resulted in uneven and uncertain implementations of an otherwise effective legal remedy. To resolve this issue, the Minister of Agriculture and Spatial Planning rolled out Regulation No. 13 Year 2017 concerning Procedure for Blockage and Seizure (“Regulation 13/2017”). Regulation 13/2017 is designed to bring more certainty and clarity to the process of dispute resolution involving conflicting rights over land. Key stipulations in the blockage and seizure of land titles follow respectively.
Blockage of Land Rights
Blockage of land titles is conducted through registering such blockage in the Book of Land, Measurement Letter or other land documentations (collectively referred to as “Land Documentations”). Such registration of blockage is in turn understood as an qntlistrative act of the Chief of National Land Authority (Badan Pertanahan Nasional or “BPN”) to temporarily state the status quo upon rights over land, against the legal action and legal events occurring over such land. As a consequence of such registration, new alterations to the data in such documents cannot be made until the registration of blockage has expired or has been deleted.
Upon this registration procedure, Regulation 13/2017 introduced a few notable guidelines. To start, while blockage can be requested by individuals and legal entities alike, Regulation 13/2017 now requires certain legal relationships between the land in question and the applicant for blockage. Such legal relationships include:
- Owner of land (individual or legal entity);
- Parties in a notarial deed, in a private agreement or a joint asset (other than in marriage);
- Heir or joint ownership of asset in marriage;
- Maker of a relevant agreement (notarial or private); and,
- Bank, if such agreement of the parties is made in a notarial deed.
Irrespective of the legal relationships required above, other relevant officials are also entitled to request blockage of rights over land, such as law enforcers (e.g. police or prosecutor), who may apply for blockage for investigative purposes. The Minister of Agriculture and Spatial Planning or the Chief of National Land Authority Regional Office may also apply for blockage for resolution of land issues which are strategic or may have national impact.
Notably, the process for blockage is now guided through two steps. The application along with the required documents will be assessed by a relevant local Land Office. Following the assessment, the annotation will be made by the Chief of Local Land Office or other appointed officials in the relevant Book of Land and Measurement Letter, having a specific timestamp (with accuracy down to the second) during the time of registration. If the application has met the requirements and has been approved by the Local Land Office, blockage requested by an applicant will be granted for a period of thirty (30) days, which may be extended by a court decision. On the other hand, the term of blockage requested by a law enforcer will lapse when the process of criminal investigation and claim have ceased or such investigator have requested for the release of such blockage.
Seizure of Land Documentations
Seizure, on the other hand, is conducted through seizing Land Documentations for evidentiary purposes in court proceedings. It is a more forceful legal remedy, of which terms are contingent to the duration of the litigation process. There are three types of seizures, as determined by the nature of the litigation process. Naturally, prerequisites for each type of seizure will vary accordingly, as explained below.
Firstly, Incidental Seizure (Sita Perkara) is reserved for civil litigation. Only the bailiff, claimant or defendant may request the grant of Incidental Seizure. The application for Incidental Seizure needs to be accompanied with the decree for seizure from the chairman of a relevant district court, and/or the court decision which states the validity and value of the seizure over the disputed land titles as objects of the dispute.
Secondly, Criminal Seizure is reserved for criminal litigation. Criminal Seizure may only be requested by an investigator or law enforcer, of which such request must be accompanied with the following: (a) approval letter from the chairman of a relevant district court, (b) instruction letter from the investigator requesting seizure, (c) court decision and/or other requirements, as stipulated by applicable laws and regulations. Finally, Seizure based on a Distress Warrant is reserved for tax-related cases. Seizure based on a Distress Warrant is requested by a tax bailiff, together with the instruction letter for the seizure from an authorized institution.
It is notable, however, that all three types of seizures cannot be placed over the following types of land titles: (a) State/Regional Government Owner Property, (b) encumbered with mortgage and (c) seizure over a dispute or serving as a disputed object that is mortgaged.
Regulation 13/2017 brings much clarity and certainty for the process of securing disputed objects. This hopefully will expedite the litigation process and enhance the effectiveness of litigation as a viable dispute resolution mechanism.
With this in mind, we do wonder, however, whether Regulation 13/2017 can be more effective with the introduction of time limits for the assessment and registration process of blockage. As it stands right now, there is no clarity over when the process will be accomplished following the proper submission of prerequisites. Separately, we also noted that Article 14 of Regulation 13/2017, which establishes that the term of blockage requested by a law enforcer will continue until the criminal litigation ceases or until the revocation of the blockage by such law enforcer has room for misuse and legal uncertainty. In theory, it holds the risk that such land could indefinitely be held with a blocked status. On the other hand, we also wonder whether 30 calendar days of blockage is sufficient for a district court to render a decree or decision. Nevertheless, considering that this regulation is still in its infancy, we hope implementation could prove the importance of such concerns, allowing such issues to be taken into consideration.